NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

20 20 IL App (3d) 170124

- U

Order filed April 23, 2020

____________________________________ ________________________________________ IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
20 20
THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff

- Appellee, ) ) v. ) ) JACKIE LEE WILLIAMS, ) ) Defendant

- Appellant. ) Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3

- 17

- 0124 Circuit No. 07

- CF

- 111 Honorable John P. Vespa, Judge, Presiding.

____________________________________________________________________________ JUSTICE WRIGHT delivered the judgment of the court. Presiding Justice Lytton and Justice McDad e concurred in the judgment.

_____________________________________________________ _______________________ ORDER ¶ 1 Held : The trial court’s evidentiary rulings did not serve to violate defendant’s constitutional rights and t he State’s evidence was sufficient to sustain defendant’s convictions

. Further, t he record is not sufficiently developed for a review of defendant’s constitutional sentencing claims. ¶ 2 Defendant, Jackie Lee Williams, appeals his convictions of first degr ee murder and attempt armed robbery following his second jury trial . On appeal, defendant challenges the sufficiency of2 the State’s evidence, several evidentiary ruling s made by the trial court, and the sentence imposed by the trial court. ¶ 3 I. BACKGROUND ¶ 4 On February 20, 2007, the State charged defendant by way of indictment with three counts of first degree murder and one count of attempt armed robbery. 1 On April 30, 2008, a jury found defendant guilty of first degree murder and attempt armed robbery. In 2010, t his court affirmed defendant’s conviction on direct appeal in People v. Williams , No. 3

- 08

- 0537 (2010) (unpublished order under Illinois Supreme Court Rule 23) . On June 29, 2011, defendant filed a postconviction petition , which the trial court summarily dismissed. This court reversed the trial court’s dismissal
in People v. Williams , 2013 IL App (3d) 110808

- U and remanded defendant’s case for further proceedings. On June 12, 2015, the trial court granted defendant’s petiti on for postconviction relief and vacated defendant’s convictions. Defendant was remanded to the Peoria County Sheriff to await trial. ¶ 5 Defendant’s second jury trial began on December 5, 2016. The State began their case in chief by calling Frankie Ratliff. Ratliff testified that David McCreary (the victim), nicknamed

1 Count I alleged that defendant, Gabriel Shelton, and Demarco Spencer committed the offense of first degree murder in that “they, while attempting to commit a forcible felony bein [ sic ] armed robbery in violation of Chapter 720 Act 5 Section 18

- 2 (A) 2 of the Illino is compiled statutes shot [ the victim ] with a handgun, thereby causing the death of [ the victim ] .” 720 ILCS 5/9

- 1(a)(3) (West 2006). The record indicates that the State dismissed count II in open court on April 28, 2007. Count III alleged that defendant,

“ while attempting to commit a forcible felony being armed robbery in violation of Chapter 720 Act 5 Section 18

- 2 (A)2 of the Illinois compiled statutes personally discharged a handgun at [the victim] thereby causing the death of [the victim].” 720 ILCS 5/9

- 1 (a)(3) (West 2006) Count IV alleged that defendant, Shelton, and Spencer, “with the intent to commit the offense of armed robbery in violation of Illinois compiled statutes , Chapter 720 Act 5 Section 18

- 2(A) 2 performed an act which constitutes a substantia l step toward the commission of that offense in that they knowingly and without lawful authority entered into the residence of [the victim] while armed with ahandgun [ sic ] and demanded property from [the victim] with the intent to take property from the pe rson or presence of [the victim] by threatening the imminent use of [force] in violation of 720 ILCS 5/18

- 2(a)(2)[.]” 720 ILCS 5/18

- 2(a)(2) (West 2006).3 F rosty , was Ratliff’s best friend. On January 25, 2007, Ratliff , the victim, Carolyn Crosswhite, and
two young children were at the victim’s home at 2509 West Marquette St reet

. ¶ 6 Around 8 p.m. that evening, Ratliff was in the front room and the victim was in the kitchen

. Ratliff heard a knock on the front door and heard a female’s voice. The victim answered the door and exclaimed , “It’s a hit , man
. ” Ratliff saw two armed African Am erican men come through the front door with their faces covered such that Ratliff could only see their eyes. Ratliff saw a couple of guns and heard two or three gun shots within three or four seconds after the front door opened. Ratliff indicated that a thi rd individual was standing to the side of the front door, but Ratliff could not see if the individual was male or female

. After carrying the children to a back room where Crosswhite was located and handing Crosswhite his phone so that she could dial 911 , R atliff returned to the front room and noticed the victim locking the front door. The victim had a hole in his face and a lot of blood on his chest. On cross

- examination, Ratliff admitted that he had smok ed marijuana around 7 or 7:30 p.m. that evening. Ratliff testified that he did not previously testify that the victim stated , “It’s a hit , man , ” because no one asked him that question. Ratliff was unsure whether he had previously indicated that he saw more t han one gun. Ratliff did not recall observing an individual curled up on the ground during the incident. ¶ 7 Carolyn Crosswhite testified that on the evening of January 25, 2007, between 7:30 and
8 p.m., she was at the victim’s home with her then boyfriend, R atliff , the victim, and two children

. Crosswhite braid ed one of the children’s hair in the dining room next to the kitchen while the victim cooked dinner. The victim took a telephone call and Crosswhite heard what sounded like a

“ girl’s voice. ” A pproximate ly 30 minutes later , there was a knock on the front door. Crosswhite called for the visitor to come in several times before telling the victim someone was at the front door. As soon as the victim reached the front door, a man with a black or blue bandana o ver his4 face and a gun in his hand pushed through the door and began fighting the victim . Crosswhite , who was sitting in a roll

- away chair with one of the children, rolled back into a bedroom. Ratliff brought the other child and a phone to Crosswhite. Cros swhite heard tussling through the wall and three or four gunshots. Crosswhite testified that she only saw one person come into the home. Crosswhite could not see anything but the intruder’s eyes. ¶ 8 Katissue Warfield testified that on October 31, 2007, she plead guilty to the felony offense of attempt armed robbery in connection with the instant case. Warfield explained that she agreed to testify against defendant in the case in exchange for the dismissal of the first degree murder charge against her and a twelve

- year day

- for

- day sentence for attempt armed robbery. Warfield had completed the 12

- year sentence at the time of the instant trial . Warfield testified that in early 2007 she lived in Peoria with her three children, her sister Kimbula , Kimbula’s tw o children, and defendant ( nicknamed B lack Jack ) . Defendant was Warfield’s boyfriend at the time. ¶ 9 For three years prior, Warfield had been buying marijuana from the victim, whom she knew

as F rost, for personal use. In January 2007, Warfield called the vic tim to discuss her and defendant purchasing two pounds of marijuana from the victim. Warfield indicated this was not a typical quantity of marijuana she would purchase from the victim. The victim agreed to sell Warfield and defendant the marijuana. Warfiel d speculated that the marijuana would cost $2000 and stated that defendant was going to pay for the marijuana. Defendant did not have the money to pay for the marijuana at the time of the call. ¶ 10 Two or three days later, a round 1 p.m. on January 25, 2007, Warfield used her cell phone to call the victim and arranged to pick up the marijuana that evening. Defendant was with Warfield when she placed the call to the victim . Warfield testified that she did not have the money to buy the marijuana and had no t seen defendant with the money to buy the marijuana. Over the course5 of the next 15

- 30 minutes, d efendant left the home and then called Warfield to come outside

. Warfield entered a tan vehicle driven by Gabriel Shelton . D efendant rode in the passenger sea t

. The group drove and picked up Demarco Spencer at the Harrison Homes . Spencer brought a black and brown gun into the vehicle and gave the gun to defendant. Warfield did not see defendant give the gun to anyone else. Defendant wore all black and Spencer w ore a black shirt and blue jeans. ¶ 11 Next, Warfield called the victim and told him she was on the way to pick up the marijuana. After parking, Warfield, defendant, and Spencer exited the vehicle. Shelton remained in the vehicle as the driver. Warfield descri bed the front of the victim’s house as having a built

- in front porch.
As Warfield walked up to the victim’s front door , she noted that d efendant wore gloves and had a black and white bandana tied around his face while Spencer had his shirt pulled over his face. Each man’s face was covered from the nose down. Once all three individuals were on the porch, Warfield knocked on the door. Warfield heard the victim say c ome in. Warfield could hear the victim approaching so she opened the door. Suddenly, Spencer pu shed Warfield to the floor

. Warfield felt people fight ing as she laid on the ground. Warfield heard two gunshots and ran away toward her home

. ¶ 12 Before she reached her home, Shelton and defendant picked Warfield up in the car. Warfield informed defendant th at she lost her phone. The State presented Warfield with State’s exhibit No. 11, which Warfield identified as her pink cell phone. Upon arrival at the home, Warfield asked defendant what happened, and defendant stated, “He should have gave it up.” Warfield and defendant discarded their clothing in a garbage can. The next day Warfield learned the victim had been killed. If questioned by police, defendant told Warfield to say that when she went to “get some weed two boys made [her] go to [the victim’s ] house and pushed [her] in the house and that’s how I lost my phone. ”6 ¶ 13 Two days later, Warfield went to the Peoria Police Department . Initially, Warfield recounted the false story to the detective s in accordance with defendant’s instructions. However,
War field had a change of heart and told the detectives the truth about what happened. Warfield smoked marijuana before going to the victim’s house that night. ¶ 14 Shawn Curry, a detective with the Peoria Police Department , testified that on the night in question he was dispatched to the victim’s residence to investigate a report of a shooting. When Curry arrived, he travelled through the screened

- in porch and witnessed the victim trying to pull himself up using a couch as leverage just inside the front door. The victim had sustained a gunshot wound to the face

. As Curry attempted to administer medical aid, he kept asking the victim what happened, who shot him? Curry thought the victim stated, “Kadia,” but struggled to understand the victim who had blood and foam r unning from his mouth. Curry also noticed a woman at the scene and two young children crying. ¶ 15 Eric Ellis, an officer with the Peoria Police Department, testified that he was dispatched to the victim’s home with Officer Scott Bowers. Ellis revealed that th e standard procedure of the Peoria Police Department was to conduct a thorough search of the crime scene, looking for items of evidentiary value. Ellis photographed the scene and observed a pink cell phone on the floor. Ellis photographed several projectile holes in the walls of the residence and observed a bullet lodged in the wall, which Bowers removed and collected. Ellis did not find any latent evidence of finger or palm prints in the home. N othing found in the house indicated the presence of t wo pounds of marijuana, though drug paraphernalia was located in the kitchen. At the time of the search, Ellis did not know the shooting was drug related, so the officers’ search of the residence did not include searching all the places in the home that ma rijuana could have been located.7 ¶ 16 Scott Bowers testified that he worked in the crime scene unit of the Peoria Police Department and was dispatched to the victim’s home on January 25, 2007, after receiving a report of a shooting. Bowers located a fired bull et inside the west living room wall of the home, which Ellis identified as State’s exhibit No. 10

. Bowers also identified State’s exhibit No. 14 as a bullet removed from the victim’s body. ¶ 17 Two days later, Bowers was dispatched to the 2400 block of Antione tte, a few blocks from the victim’s home, where a handgun had been located in an alley. Bowers located a purse inside of a blue garbage can. Inside the purse was a .357 revolver. Bowers identified State’s exhibit No. 21 as the gun he located. There were no fingerprints on the gun. Bowers opened the cylinder of the gun and found that three cartridges had been fired and three had not been fired. Bowers return ed to the victim’s home on February 21, 2007, and discovered another bullet lodged in the west wall ,

w hich he identified as State’s exhibit No. 22

. ¶ 18 On cross

- examination, Bowers testified that the search of the victim’s residence concentrated mainly in the front living room area, the porch, and just outside the residence

. O fficers did not go through the en tire residence

. Bowers did not recall seeing any large bags of suspected marijuana. Bowers lastly testified that the examination of a tan

- colored Dodge Intrepid, which detectives suspected was utilized in connection with the crime, revealed nothing of evid entiary value. ¶ 19 Linda Yborra , a retired firearm and tool mark examiner for the Illinois State Police , testified as an expert witness . Yborra identified State’s exhibit No. 21 as a Smith and Wesson .357 Magnum caliber revolver and a set of test shots. Yborr a further identified State’s exhibit No s
. 10 and 14 , each containing a fired bullet . After examination and test

- firing, Yborra determined that8 the projectile recovered from the wall and the projectile recovered from the body of the victim were fired from State’s exhibit No. 21, the .357 Magnum caliber revolver. ¶ 20 Next, the State called Demarco Spencer. Spencer testified that he was convicted of the first degree murder of the victim and was currently serving a 44

- year prison sentence. However, Spencer a ttempted to “Plead the Fifth” to several questions

. The trial court instructed the jury to leave the courtroom a nd ordered Spencer to testify by answering the prosecutor’s questions

. Spencer, fearing for his own life, refused to cooperate. The trial court held Spencer in direct criminal contempt and advised Spencer that he could receive an additional 10 years in prison for refusing to testify. The State informed the court that it intended to continue its questioning of Spencer in order to lay a foundation f or impeach ment. Defense counsel objected and argued that Spencer’s refusal to answer questions would serve to deprive defendant of his right to confrontation. 2 The trial court overruled defense counsel’s objection. ¶ 21 Once the jury returned to the courtroom , the State ask ed Spencer several questions related to his prior sworn test imony from his own jury trial in February 2008

. Again, S pencer asserted his perceived fifth amendment privileges by respond ing with silence to prosecutor ’s questions about whether Spencer remembered testifying at his own trial on February 13, 2008, that: (1) Gabe Shelton told Spencer that Shelton and a friend of his had been “shorted” one - half pound of marijuana in a drug deal with the victim; (2) Shelton to ld Spencer he needed a gun ; (3) Spencer obtained a gun ; (4) Spencer gave the gun to “Jackie;” 3 (5) Spencer was present at the victim’s

2 Defense counsel mounted a standing objection to the entirety of Spencer’s testimony. 3 At this point, Spencer was removed from the courtroom and placed in a holding cell in order to move the trial along. Following this recess, Spencer refused to return to the courtroom from the holding cell. Consequently, the court directed court staff to ho use Spencer in the county jail for the night. The record also shows that while housed in the jail, Spencer spoke with counsel the court appointed for Spencer. We note that t he State called several witnesses in the interim. However, in the interest of clari ty, we include all of Spencer’s testimony as though it was given continuously.9 home with Jackie and a female on the night in question; ( 6) Jackie was wearing a bandana on his face; (7 ) Jackie “rushed in the crib;” (8) when Spencer got through the doorway he covered his face; (9 ) Jackie and the victim were “ tussling ” over the gun; (10) Spencer heard a shot; (11) Spencer assisted the police in retrieving the gun; and (12) Spencer told the police he got the gun from a woman named Br eel a
. ¶ 22 During cross - examination by defense counsel , Spencer responded to defense counsel’s inquiries about Spencer’s 2008 jury trial by explaining that his testimony during his own jury trial was designed to protect himself and that the statements he mad e in his defense were not true. When asked whether Spencer had “an actual memory of the events of what we’re talking about here [,] ” Spencer responded to defense counsel by stating, “No, actually I don’t.” Spen cer told defense counsel that “[they] [t]ried to show me all, all

— um, um, the things, whatever the, um , statement whatever yesterday, but I didn’t

— I ain’t want to look at it because I didn’t come up here to answer no questions in the first place.” Spen cer explained to defense counsel that Spencer had an argument with the victim “over some weed or whatever, about some finance” in the two or three weeks leading up to the night in question. When asked whether he remembered telling the victim , “That this is not the end of it,” Spencer became agitated, denied he made the statement, and corrected his testimony from moments earlier by claiming the argument did not happen and that he did not have a problem with the victim. ¶ 23 Next , the parties and the court approv ed a procedure for publication of the certified transcript from Spencer’s 2008 jury trial. Defense counsel stipulated to the authenticity of the transcripts and cited no need to call court reporters to establish their authenticity. Portions of Spencer’s pr ior trial testimony were read into the record by having a prosecutor and a mock witness read questions and answers from the transcript verbatim to the jurors.10 ¶ 24 Shannon Walden, a former detective with the Peoria Police Department in 2007, testified that she investigated the crime scene at the victim’s home and recovered a pink cell phone , State’s

ex hibit No. 6

. Wald en also recovered State’s ex hibit No. 11, the victim’s cell phone , whose phone number was 712

- 4161. Walden initially traced the pink cell phone to Kimbula , Katissue Warfield’s sister

. Katis s ue Warfie l d arrived at the Peoria Police Department while Walden was interviewing Kimbula and Walden had a conversation wi th Katis s ue. ¶ 25 On the evening of January 27, 2007, Walden had a video

- recorded conv ersation with Spencer at the Peoria Police Department. At some point during the conversation, Walden allowed Spencer to make a cell phone call where Walden could hear a female voice on the other line. Then, at Spencer’s direction, Walden, his partner, and Spencer traveled to an alley o n the 2400 block of Antoinette. Spencer directed law enforcement to a garbage can where officers located a purse with a handgun inside. On re

- direct examination, Bowers testified that the female voice she heard on the telephon e was no t Katissue or Kimbula’s voice. ¶ 26 James Feehan, a digital forensics examiner , testified as an expert. Feehan conducted a forensic analysis on the pink cell phone found at the scene and compiled call logs from the phone. The calls logged on January 25 , 2007, included a n incoming call to the Warfield’s cell phone from a contact bearing defendant ’s name at 7:37 p.m. , an outgoing call from the Warfield’s cell phone
to the victim at 7:52 p.m. , and five missed incoming phone calls from a contact bearing defendant’s

name to Warfield’s cell phone from 8:04 p.m. to 9:36 p.m

. ¶ 27 Next, the parties stipulated to the admission of the autopsy findings and testimony of Dr. Violette Hnilica. The recorded video deposition of Dr. Hnilica was p ublished to the jury.11 ¶ 28 The State called Gabe Shelton to testify. 4 Shelton stated that he was being forced to testify and informed the court of threats he had received. 5 Shelton t estified that he was convicted of attempt armed robbery in relation to the instant case. Shelton stated that he grew up with defendant and had known him for 25 years. Shelton also knew Spencer. ¶ 29 Shelton stated that he remembered giving a videotaped stateme nt to law enforcement on January 28, 2007 , but did not remember the content of the statement and declined to review the videotaped statement. Shelton did not recall telling law enforcement during the interview that (1) he , Spencer , and defendant met at Atlanta Wings and A Prayer , where the group discussed a robbery; ( 2 ) defendant told Spencer “he got a lick for you, [the victim] ; ” ( 3 ) defendant asked Spencer to provide Shelton with a gun to commit the robbery ; ( 4 ) Shelton drove defendant , Spencer, an d Warfield to the victim’s residence in Shelton’s grandmother’s gold Intrepid that night; ( 5 ) and defendant t old Warfield to call the victim and tell the victim they were on the way. ¶ 30 On cross

- examination by defense counsel , Shelton reiterated that he was forced to testify. Shelton stated that he did not remember making any statements to law enforcement about the victim’s death , that the statements were untrue, and that he was doing a lot of heroin at the time. ¶ 31 The State recalled Shannon Walden to testify concerning Shelton’s audio and video

recorded interview on January 28, 2007. Walden testified that he reviewed the recording of the interview, and the video was admitted into evidence and published to the jury. Due to technical difficulties, Walden testif ied to the contents of the video to confirm Shelton’s prior statements to law enforcement. At this time, the State rested.

4 Defense counsel also raised a standing objection to Shelton’s testimony. 5 During the trial, both Shelton and Spencer consulted with attorneys concerning the implications of t heir decision not to testify.12 ¶ 32 Defendant presented evidence in the form of a stipulation that if called to the stand, Detective Keith McDaniel would testify that d uring his two January 2007 interviews of Ratliff , Ratliff did not indicate that he heard anyone announce , “[i]t’s a hit.” Ratliff also told McDaniel that he only saw one gun that night

. ¶ 33 Defendant called Lillie Mae Griffin, the victim’s mother, to testify. Griffin testified that two to three weeks before the shooting she witnessed a heated verbal argument between Spencer and the victim outside of a store. When asked what Spencer said durin g the argument, the State objected on hearsay grounds , whereupon the parties discuss ed the State’s objection outside the presence of the jury. Defense counsel informed the court that Griffin would likely testify, based on her previous statements in the cor oner’s inquest, 6 that during the argument Spencer told the victim , “This is not the end of it , ” among other comments

. Defense counsel purported to offer Griffin ’s testimony to show that Spencer was correctly convicted of murder as a result of Spencer’s ju ry trial and Spencer’s conviction meant the jurors could conclude defendant was not involved in the victim’s death

. Defense counsel told the court that counsel was not offering the statement to prove the truth of the matter asserted , but rather to establis h that Spencer had a motive to harm the victim . In addition, defense counsel argued this out

- of

- court statement would impeach Spencer ’s
current denial , during defendant’s jury trial , that he had any verbal disagreement with the victim

. The court stated that it would not allow Griffin to testify that she heard Spencer tell the victim , “This is not the end of it , ” because defense counsel was offering the statement to ultimately prove that Spencer shot the victim. ¶ 34 Following closing argume nt, the jury found defendant guilty of attempt armed robbery and first degree murder. However, the jury did not find that defendant was armed with or personally

6 Defense counsel indicated that this statement was not a sworn statement.13 discharged a firearm that proximately caused the death of another person during the commission of the offense. ¶ 35 On February 10, 2017, defendant filed a n amended motion f or judgment notwithstanding the verdict or , alternatively , for a new trial, which the trial court denied. The trial court sentenced defendant to serve a term of 50 years in the Illin ois Department of Corrections

. Defendant’s motion to reconsider his sentence was denied. Defendant appeals. ¶ 36 II. ANALYSIS ¶ 37 For purposes of this appeal, defendant raises multiple issues for our review. Defendant
asserts the State did not meet its burden to prove the underlying felony offense of attempt armed robbery beyond a reasonable doubt. Since the State did not prove the underlying felony offense, defendant argues the State did not prove the most serious charged offense of felony murd er beyond a reasonable doubt. On this basis, defendant requests our court to reverse his conviction. D efendant also contends several of the trial court’s evidentiary rulings were erroneous and warrant a new trial

. Finally , if this court affirms defendant’s conviction for felony murder and denies defendant’s request for a new trial , defendant contests the co nstitutionality of the sentence imposed by the trial
court. 7 W e begin by addressing the trial court’s evidentiary rulings before addressing the sufficie ncy of the evidence and the sentencing issue s
. ¶ 38 A . The Admission of Spencer’s Prior Sworn Testimony ¶ 39 The record reveals that Spencer testified in his own defense during his 2008 jury trial pertaining to these events. At the conclusion of Spencer’s 2008 trial, the jury found Spencer guilty of attempt armed robbery and first degree murder. In 2016, the State called Spencer to testify in

7 On July 18, 2018, this court entered an order striking defendant’s initial brief which contained a statement of facts in excess of 15 pages. On Septemb er 13, 2018, with leave of the court, defendant filed a new brief raising several additional issues. The State’s brief, filed May 24, 2019, addressed all issues raised in both briefs defendant submitted to this court.14 defendant’s jury trial for the same charged offenses. At the time Spencer testified as a State’s witness against defendan t, Spencer was serving a 44

- year sentence in the Illinois Department of Corrections for his conviction s. ¶ 40 Spencer was an uncooperative witness for the State during this defendant’s 2016 jury trial. For example, Spencer initially invoked his fifth amendment right to remain silent in response to many of the State’s questions on direct exam ination . Spencer also refused to answer the State’s questions pertaining to Spencer’s own prior sworn testimony made during Spencer’s jury trial in
2008

. ¶ 41 After Spencer fail ed to respond to the first series of questions by the prosecutor, the court excused the jury . At this time, the court ordered Spencer to remain in a holding cell while the court and counsel debated how to proper ly approach Spencer’s refusal to testify base d on the f ifth

a mendment

. After the discussion with the court and counsel, Spencer refused to return to the courtroom from the holding cell. Consequently, the court directed the court staff to house Spencer in the county jail for the night. The record also shows that while housed in the county jail , Spencer spoke with court

- appointed counsel . Spencer returned to the courtroom to testify the next day

. ¶ 42 During the second day of Spencer’s 2016 testimony as a State’s witness against this defendant , Spencer answered some of the prosecutor’s questions but invoked his fifth amendment rights on others. Similarly, without invoking his fifth amendment rights, Spencer responded to some but not all of defense cou nsel ’s questions during cross

- examination. In fact, d uring cross

examination, Spencer explained to defense counsel that Spencer’s prior testimony in 2008 was
untrue

. Spencer also told defense counsel that Spencer had no current recollection of his prior
te stimony from his own 2008 jury trial that resulted in his conviction

. Later in the trial, the parties agreed the transcript of Spencer’s prior sworn testimony from his 2008 jury trial was accurate . The15 parties also agreed on the best procedure to publish t he transcript from 2008 for the jury’s consideration in defendant’s jury trial. ¶ 43 With this background in mind, we turn to defendant ’s argu ment that the trial court committed reversible error due to the evidentiary ruling allowing the State to introduce portions of Spencer’s prior 2008 sworn testimony as part of the State’s case against this defendant in 2016. In short, defendant contends the transcript of Spencer’s prior 2008 testimony in his own defense should not have be en introduced either as substantive evidence or to impeach Spencer during this defendant ’s 2016 jury trial. Based on this alleged error pertaining to Spencer’s testimony , d efendant argues he is entitled to a new trial on four separate grounds , which we add ress successively below. ¶ 44 Generally, a trial court’s evidentiary ruling s are reviewed for an abuse of discretion. See People v. Sutherland , 223 Ill. 2d 187, 272 (2006). A trial court abuses its discretion only where the court’s ruling is arbitrary, fanciful, unreasonable, or where a reasonable person would not take the view adopted by the trial court. Id . at 272

- 73. ¶ 45 1. Foundation ¶ 46 Defendant submits that the State failed to establish a proper foundation for the admission of Spencer’s prior sworn testimony. T he State argues defendant failed to preserve this all eged error regarding a foundational deficienc y . Defendant does not address the State’s forfeiture argument in his briefs and does not request plain error review. It is well established that to preserve an issue for appellate review, a party must object to the claimed error at trial. People v. Cohn , 2014 IL App (3d) 120910, ¶ 25. Here, defendant failed to preserve this alleged foundational error for review by failing to object on this basis during trial , thus limiting our review of this error to review accor ding to the plain error doctrine

. Similarly, d efendant has fail ed to address whether either of the two16 prongs of plain error are satisfied and thereby forfeits plain error review for purposes of this appeal

. People v. Hillier , 237 Ill. 2d 539, 546

- 47 (2010). ¶ 47 However, even if we were to reach the merits of this alleged foundational error, there was a stipulation and/ or an express agreement between counsel for both parties that the foundational requirements could easily be fulfilled by the S tate. In oth er words, defense counsel conceded the authenticity of the transcripts from Spencer’s 2008 jury trial. We conclude defendant’s position on appeal , regarding an insufficient foundation for the introduction of the transcript , is unsupported by the record. ¶ 48 2 . Identification ¶ 49 Next, we briefly address the argument that Spencer’s prior sworn testimony in 2008 did not include Spencer’s in

- court identification of the person Spencer referred to as “ Jackie

. ” Again, d efense counsel did not raise an objection to the admission of the 2008 transcript based on the failure of Spencer to identify “ Jackie ” during Spencer’s own jury trial. Consequently, defendant’s arguments for a new trial on this basis are not persuasive. ¶ 50 3 . Spencer’s Fifth Amendment R ights ¶ 51 Defendant further asserts that the trial court committed reversible error by compelling Spencer to testify in violat ion of Spencer’s fifth amendment rights. The S tate conten ds d efendant lacks standing to raise this issue. We agree. The case law prov ides that this defendant lacks standing to complain about the violation of another person ’s constitutional rights. See People v. McCarty , 223 Ill. 2d 109, 155 (2006); See Rakas v. Illinois , 439 U.S. 128 (1978) ; See People v. Adams , 283 Ill. App 3d 520 , 524 (1996). ¶ 52 E ven if we ignore defendant ’s lack of standing to assert a violation of Spencer’s fifth amendment rights on appeal , defendant’s argument lacks merit. Here, Spencer’s fifth amendment17 rights were carefully considered and protected by the trial c ourt

. F ollowing Spencer’s invocation of his fifth amendment rights during defendant’s jury trial in 2016 , t he trial court suspended Spencer’s testimony until the next day. The court appoint ed counsel to assist Spencer . Further, after returning to the witne ss stand the next day , Spencer did not assert his fifth amendment rights before answering some, but not all, of the questions during defense counsel’s cross

- examination. For these reasons, we conclude this record does not contain a violation of Spencer’s fifth amendment rights and defendant is not entitled to a new trial on this basis

. ¶ 53 4 . Defendant’s Sixth Amendment Rights ¶ 54 Finally, defendant claims a new trial is in order because Spencer’s refusal to testify violated defendant’s sixth amendment right to confrontation

. We will review this issue de novo . People v. Lovejoy , 235 Ill. 2d 97, 142 (2009). ¶ 55 Generally, the sixth amendment’s confrontation clause is satisfied where the defendant is given a full and fair opportunity to cross

- examine the witness. Uni ted States v. Owens , 484 U.S. 554, 557

- 58 (1988). In some situations, a witness’s refusal to answer questions may create reversible error where the refusal effectively adds critical weight to the State’s case

. People v. Crawford Distributing Co ., Inc. , 78 Ill. 2d 70, 75 (1979). In such cases, the inability to cross

examin e a State’s witness , who chooses to remain silent during direct and cross

- examination , could potentially inject reversible error into the record. Id

. This is not the case here . On the se cond day of his testimony as a State’s witness, Spencer chose to answer some critical questions posed by defense counsel during cross

- examination without refusing to answer based on f ifth a mendment considerations

. ¶ 56 Thus, Spencer did not remain silent and p rovided answers to selective questions posed by defense counsel . In fact , Spencer’s responses were very helpful to the defense in this case

. The18 United States Supreme Court has held that a full and fair opportunity for cross

- examination does not mean an examination in whatever manner , and to whatever extent, that a defendant may wish.
Owens , 484 U.S. at 559. Instead, a n effective cross

- examinat ion is had where matters such as witness’ s bias or lack of memory are elicited. Id

. ; People v. Flores , 128 Ill. 2d 66, 89

- 9 0 (1989)

. ¶ 57 An opportunity for effective cross

- examination is well documented in this record

. For example, Spencer testified on cross

- examination that he had an argument with the victim concerning marijuana in the weeks leading up to the victim’s murder. As such, Spencer’s testimony demonstrated Spencer’s bias and a possible vendetta against the victim before the jury

. Spencer also told defense counsel that Spencer’s prior testimony in his own defense was self

serving and false . In addition, Spencer provided inconsistent statements during cross - examination about his argument with defendant as well as claiming to have no memory of hi s testimony in
200 8

. Spencer’s responses during cross

- examination contain the hallmarks of a n effective cross

examination including, but not limited to , Spencer’s admission of prior false testimony about defendant’s involvement, Spencer’s prior dissatisfac tion over a drug transaction with the victim, and Spencer’s deficient memory of the details of the night in question. Id .; Owens , 484 U.S. at 559

. ¶ 58 T he law does not require that a witness’s testimony must fulfill all of d efendant’s goals for the cross

- examination of a witness. Id

. at 558

. Here, defendant was able to effectively cross

examine Spencer because the responses Spencer did provide to questioning by defense counsel supported the defense’s theory that Spencer ’s prior testimony incriminating defe ndant was less than truthful and was not credible. Defendant had the o pportunity to cross

- examine Spencer here

. T hus, defendant’s sixth amendment right to confront the witnesses against him was not violated.19 ¶ 59 B. Sufficiency of the E vidence ¶ 60 Defendant argue s that the State’s evidence failed to establish his guilt for felony murder beyond a reasonable doubt because the evidence did not prove the underlying felony offense of attempt armed robbery as required for the felony murder convictio n . By way of review, the State charged defendant with felony murder in violation of 720 ILCS 5/9

- 1(a)(3) (West 2006) based on the underlying felony offense of attempt armed robbery

. 720 ILCS 5/18

- 2( a )(2) (West 2006). Because defendant’s challenge to the suf ficiency of the evidence on the underlying offense is the sole basis for defendant’s insufficiency claim , w e confine our analysis to this very narrow challenge

. ¶ 61 When faced with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. People v. Jimerson , 127 Ill. 2d 12, 43 (1989). Rather, viewing the evidence in the light most favorable to the prosecution, a reviewing court is tasked with determining whether any rational trier of fact could have f ound the defendant guilty beyond a reasonable doubt. People v. Young , 128 Ill. 2d 1, 49 (1989) ( quoting Jackson v. Virginia , 443
U.S. 307 , 318

- 19 (1979) ) . It is the responsibility of the trier of fact to determine the credibility of the witnesses, to weigh the witness testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from the evidence. People v. Williams , 193 Ill. 2d 306, 338 (2000). Reviewing courts must give due consideration to the reality that the trier of fact saw and h eard the witnesses and the evidence firsthand. People v. Smith , 185 Ill. 2d 532, 541 (1999). Ultimately,

“ T he testimony of a single witness, if it is positive and the witness credible, is sufficient to convict.” Id . A defendant’s conviction will only be overturned based on insufficient evidence where the proof is so improbable or unsatisfactory that a reasonabl e doubt as to the defendant’s guilt remains. Williams , 193 Ill. 2d at 338.20 ¶ 62 The State’s evidence regarding defendant’s specific intent to commit the underlying offense of attempt armed robbery was entirely circumstantial. Yet, it is well established that

c ircumstantial evidence alone may be sufficient to establish specific criminal intent. The case law recognizes that intent is rarely proven by direct evidence and must be inferred from circumstantial evidence, such as the offender’s conduct and the surround ing circumstance s
. People v. Peterson , 2017 IL 120331, ¶ 43. A person commits armed robbery when he or she takes property from the person or presence of another by the use of force or by threatening the imminent use of force and that person carries on or a bout his or her person or is otherwise armed with a firearm

. 720 ILCS 5/18

- 1(a) (West 2006); 720 ILCS 5/18

- 2(a)(2) (West 2006)

. ¶ 63 The crux of defendant’s sufficiency of the evidence argument, regarding defendant’s criminal intent to commit attempt armed rob bery, focuses on the credibility of Warfield’s testimony. D efendant contends the State’s evidence was insufficient to establish guilt beyond a reasonable doubt because defendant did not announce “it’s a robbery” upon entering the victim’s residence

. ¶ 64 Howev er, W arfield testified that she asked defendant what happened a fter the shooting . In
response, defendant stated, “He should have gave it up.” On appeal, defendant claims Warfield’s testimony was less than credible and unworthy of belief because Warfield wa s an accomplice , and her testimony should have been completely rejected by the jury. ¶ 65 It is well established that the testimony of an accomplice is generally viewed with suspicion, especially where an accomplice witness received leniency or struck a deal for immunity from prosecution. People v. Zambrano , 2016 IL App (3d) 140178, ¶ 2 7

. Nonetheless, even uncorroborated accomplice testimony may be sufficient to sustain a conviction. Id

. , ¶ 26. If the jury found Warfield’s testimony to be credible, then her testimony about defendant’s incriminating21 statement that the victim “should have ga ve it up” constitutes compelling evidence of defendant’s specific intent to attempt to forcefully remove property from the victim. It was the jury’s task to determine Warfield’s credibility. ¶ 66 “A person commits an attempt when, with intent to commit a speci fic offense, he does any act which constitutes a substantial step toward the commission of that offense.” 720 ILCS 5/8

- 4(a) (West 2006). “Whether a defendant’s conduct constitutes a substantial step toward the commission of a specific crime is a question o f fact that must be determined on a case

- by

- case basis from all of the unique facts and circumstances surrounding the events in question.” People v. Norris , 399 Ill. App. 3d 525, 530 (2010). ¶ 67 For purposes of this appeal, defendant alleges the State’s evide nce did not establish defendant took a substantial step toward the commission of armed robbery. In particular, defendant claims the evidence does not show defendant made any attempt to remove property from the victim before leaving the residence

. However , our supreme court recognizes that “it is not necessary that a defendant complete the last proximate act in order to be convicted of attempt.” People v. Terrell , 99 Ill. 2d 427, 433 (1984). In other words, the State was not required to prove that defendant performed the last deed which would render the crime complete. People v. Brown , 75 Ill. App. 3d 503, 505 (1979)

. ¶ 68 According to Warfield , she followed defendant’s instructions, telephoned the victim, and made arrangements to purchase and pick up a large qua ntity of marijuana from the victim , knowing neither she nor defendant had access to $2000 . Warfield’s cell phone was recovered by law enforcement at the scene . T he telephone call logs compiled by law enforcement corroborated
W arfield’s testimony about the telephone calls she made to the victim and received from defendant that night

.22 ¶ 69 On the night of the murder, Warfield witnessed defendant t ake possession of a gun from Spencer before defendant, Spencer, and Warfield exited the vehicle near the victim’s residence. According to Warfield, at the time the trio approached the victim’s porch, defendant wore a black and white bandana tied around his face such that his face was covered from the nose down. Warfield also testified that defendant wore glo ves. Once on the porch of the residence with defendant and Spencer, Warfield opened the door, was knocked to the floor, and heard people fighting. This testimony, if found credible by the jury, provided strong evidence that defendant intentionally took a s ubstantial step toward the commission of armed robbery

. ¶ 70 Further, Ratliff and Crosswhite , guest s in the victim’s home at the time of the murder , corroborated portions of Warfield’s testimony

. Ratliff testified that he saw two men , each armed with separate guns, rush through the victim’s front door on the night of the murder . Ratliff did not

see a woman enter the residence. However, i n addition to the two men, Ratcliff saw a third individual just outside the door on the porch. Similarly, another guest in the victim’s home, Crosswhite , observed two male assailants and described a black bandana covering one assailant’s facial features such that she could only see the assailant’s eyes. ¶ 71 In addition to the eyewitness accounts from t he occupants of the victim’s ap artment, the
S tate offered Spencer and Shelton ’s live testimony , trial transcripts from Spencer’s 2008 trial, an d

an officer’s testimony concerning the contents of the videotaped statement Shelton made to law enforcement in 2007

. For purposes of this analysis of the sufficiency of the evidence, we are unable to determine whether the jury found their testimony credible. Therefore, out of an abundance of caution, s ince Spencer and Shelton had previously been convicted of first degree murder and attempt a rmed robbery respectively, we elect not to consider the testimony of either Spencer or Shelton when measuring the sufficiency of the State’s evidence

.23 ¶ 72 Ultimately, we conclude the State’s evidence was sufficient to prove the underlying felony offense beyon d a reasonable doubt. ¶ 73 C. The Testimony of Lillie Griffin ¶ 74 In the alternative , d efendant urges this court to vacate his conviction and remand the matter for a new trial based on t he trial court ’s finding that Griffin’s proposed testimony that she overheard Spencer t ell the victim , “ T his is not the end of it , ” was hearsay. The trial court’s ruling on the admissibility of evidence will not be overturned absent an abuse of discretion. People v. Caffey , 205 Ill. 2d 52, 89 (2001). ¶ 75 Again, we focus our analysis on the narrow scope of defendant’s formulation of this issue. Defendant argues Griffin’s testimony was offered for purposes ot her than to prove the truth of the matter asserted, namely, as impeachment of Spencer, and to illustrate Spencer’s animus toward the victim

. Defendant argues , “The error is not harmless, as Spencer’s prior testimony was one which directly placed the murder weapon in defendant’s hands and was highly prejudicial.” ¶ 76 Assuming only for purpose s of swiftly resolving this issue that the trial court’s evidentiary ruling was incorrect, it must be emphasized that Spencer admitted to this jury that he had given prior false testimony about the victim’s death. Further, this jury was well aware that Spencer was serving a 44

- year sentence for murdering this victim

. It is hard to imagine stronger evidence of impeachment , based on a felony conviction, than a State’s witness who admits he is a recently convicted murderer

. ¶ 77 Furthermore, Griffin was allowed to testify that an argument between Spencer and the victim occurred in the weeks leading up to the murder. This jury was well aware that Spencer may have had an animus toward the victim. Based on this unique record, we conc lude the excluded24 evidence of impeachment offered during Griffin’s testimony would have been cumulative and the error, if any, was harmless. ¶ 78 D . Sentencing ¶ 79 1. The Trial Court’s Inquiry ¶ 80 Defendant argues that the trial court erred by inquiring about defend ant’s previously suppressed statements during defendant’s sentencing hearing in the instant case

. The record reveals that during defendant’s sentencing hearing , the State attempted to admit portions of defendant’s videotaped interview from January 2007. De fense counsel objected on the grounds that this court previously found defendant’s statements from the interview were inadmissible in Williams , 2013 IL App (3d) 110808

- U. Based on the defense’s objection, the State withdrew the request for the trial court to consider this e vidence for purposes of sentencing

. However , the prosecutor took time
to explain to the court that during defendant’s interview , defendant told detective s that he shot the victim and additionally detailed the circumstances surroundi ng the murder

. Defendant posits that though the evidence was not actually viewed by the trial judge, the trial court was made aware of the statements, rendering the court potentially unable to properly shield its mind from the prejudicial effect of the evi dence. Thus , defendant requests a new sentencing hearing. ¶ 81 D efendant forfeited review of th is claimed error by failing to preserve it in a postsentencing motion

. Cohn , 2014 IL App (3d) 120910, ¶ 25. Defendant does not address forfeiture as pointed out by the State and does not request plain error review of the issue

. Accordingly, we agree with the State t hat d efendant has forfeited review of the issue

. ¶ 82 2. Fundamental Fairness in Sentencing ¶ 83 Defendant argues the 50

- year sentence he received was fundamental ly unfair in that his sentence was grossly disparate to that of his codefendants, Spencer and Shelton. Certainly,25 fundamental fairness and respect for the law mandates that similarly situated codefendants should not receive grossly disparate sentences. Peo ple v. Fern , 189 Ill. 2d 48, 58

- 59 (1999); People v.
Tate , 122 Ill. App. 3d 660, 668 (1984) . For purposes of comparing the sentences of codefendants, the term “similarly situated” has been defined as a particular defendant’s rehabilitation potential or the nature and extent of the defendant’s participation in the crime. People v. Jackson , 145 Ill. App. 3d 626, 646 (1986) ; See People v. Scott , 2012 IL App (4th) 100304, ¶ 24

. Thus, a disparate sentence may be warranted by differences in the codefendant s’ criminal records, levels of participation in the crime, or lack of character and potential for rehabilitation. People v. McCann , 348 Ill. App. 3d 328, 339 (2004); see People v. Cook , 112 Ill. App. 3d 621, 623 (1983) . A “mere disparity of sent ences does not, by itself, establish a violation of fundamental fairness.” People v. Caballero , 179 Ill. 2d 205, 216 (1997). Defendant’s sentence will not be disturbed absent an abuse of discretion. People v. Illgen , 145 Ill. 2d 353, 379 (1991). ¶ 84 Spencer t estified at trial that he received a 44

- year sentence for his involvement

. Unlike defendant, Spencer did not initially target the victim or take an active role in the planning process for the armed robber y . Further, the record does not reveal details about the codefendants’ prior criminal histories , 8 presentence investigation reports, or other meaningful information from which to distinguish defendant from Spence r or Shelton . Based on defendant’s active role in the i nitiation of the plans to commit this offense, we conclude this record does not support the contention that defendant’s sentence was disparate from the punishment received by other codefendants. Accordingly, defendant’s argument is not persuasive

.

8 The State asserts that neither codefendants’ criminal background is contained in the record. We note that defendant’s motion to reconsider sentence lists Spencer’s purported criminal history, though certified copies of Spencer’s convictions are not attached to the motion. Moreover, defe ndant neither advances an argument concerning Spencer’s prior criminal record in this appeal nor cites to any portion of the record containing such information.26 ¶ 85 3. As

- A pplied Constitutional Challenge ¶ 86 Lastly , defendant argues the 50

- year sentence handed down by the trial court was excessive under the eighth and fourteenth amendments and was in violation of the proportionate penalties and rehabilitation clause s under arti cle I, section 11 of the Illinois Constitution as applied to defendant. U.S. Const., amend s . VIII and XIV; Ill. Const. 1970, art. I, § 11

. Defendant argues that a growing body of scientific evidence concerning the development of the young adult brain shoul d have require d the court to take into consideration these new scientific developments before imposing defendant’s sentence. Def endant requests this court to vacate his sentence and remand for a new sentencing hearing based on these theories discussed in Miller v. Alabama , 567 U.S. 460 (2012)

. ¶ 87 O ur supreme court has instructed that t he record must be developed sufficiently to address

a defendant’s as - applied constitutional challenge. People v. Harris , 2018 IL 121932, ¶¶ 39

- 48; See People v. Bingham , 2018 IL 122008, ¶ 22. W here the trial court has not conducted an evidentiary hearing or made findings of fact, a reviewing court is not capa ble of making an as

- applied determination of unconstitutionality

. Harris , 2018 IL 121932, ¶¶ 39

- 48. Simply stated, where the record does not contain sufficient information about defendant’s history such that this court can consider the evolving science of juvenile maturity and defendant’s own brain development, reviewing courts must decline review. Id

. The record in the instant matter is underdeveloped on this specific topic . T hus, we decline to review defendant’s as

- applied challenge. ¶ 88 However, even if defendant were to pose a facial challenge, Harris holds that claims for extending Miller to offenders 18 years of age or older have repeatedly been rejected in this state and held that “the age of 18 marks the present line between juveniles and ad ults.” Id

. , ¶ 61 In other27 words , our supreme court explained that when an offender is over 18 years old at the time of his offense, Miller does not directly apply. Id

. ¶ 89 We affirm defendant’s convictions and sentence. ¶ 90 III. CONCLUSION ¶ 91 The judgment of the circuit court of Peoria County is affirmed. ¶ 92 Affirmed.