## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Johns on , 2013 IL App (1st) 111317

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. NORMAN JOHNSON, Defe ndant-Appe llant.

District & N o. First District, Six th Division Docke t No. 1-11-1317

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Rehea ringdenied J une 28, 2013

J uly 19, 2013
J uly 26, 2013 August 12, 2013

Held (Note : This syl l abus

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) De fe n dant’s conviction for first-degree murder was upheld over hi s contentions that err ors occur red in the State’s re- cross-e x amination of a defe nse wi tness, the denial of defe nse counsel’s reque st for re- redire ct examination of a defe nse witness, the admissi o n o f ev idence that was hear say , the State’s use of a document purporting to be notes taken during

an interview of a witness, and the trial court’s attempt to d efine “re asonable doubt” during voir dire and to question potential jurors about whether they had any “qualms” about the principles set forth in Supreme Court Rule 431(b).

Dec ision Under Review Appea l f rom the Circuit Court of Cook County
, No. 09-CR-10177 (01); the Hon. Vince nt M. Gaug han, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Kathlee n Hi l l
, al l of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J on Walters, and Nanc y Colletti
, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE HAL Ldelivere d the judg ment of the c ourt, with opinion.
J ustices Gordon a

nd Rey es conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant Norman J ohnson was convicted of first-degree murder in the shooting death of J err ell J ackson. The trial court denied defe ndant’s motion for a new trial and he was sentenced to 40 y ear s’ i mprisonment. The trial court subse qu en t l y d enied defe ndant’s motio n t o rec onsider his sentenc e. He now appea ls his conviction. For the

rea sons that follow, we a ffirm. ¶ 2 T h e events in this case stemmed from an underly ing ong oing dispute betwee n a m an named Doug las J ohnson, also known as “F resh” or “Doug ,” and a man named J ason Coley

. Evidence was prese nted that approximately a wee k prior to the shooting, J ohnson and Coley

wer e involved in an ong oing dispute ove r a stolen f irea rm belong ing to Coley

. ¶ 3 The evidence established that in the l ate eveni n g o f September 21, 2008, J ohnson was riding a bike in the 700 block of South St. L ouis Avenue in Chicag o, I llinois

. J err ell J ackson and sever al other men wer e playing dice on the s i dewa lk. J ackson’ s g irlfriend, Marg are t Fa ulkner, who was 16 y ear s old at the t ime, was watching the di ce ga me from a first-floor window of a three -story apar tment building located almost direc tly acr oss the street from the dice g ame. Fa

ulkner an d J ohnson g ave trial testimony conce rning events immediately
prec edingthe shooting. 1 ¶ 4 Fa

ulkner testified that afte r the dice g ame ended, ever y one who participated in the g ame left the are a except for J ackson. Fa ulkner noticed J ohnson ride past on a bike. Fa ulkner then observe d two men wea

ring hooded swea

tshirts (hoodies) em erg e from the alley near her window. The men looked toward J ohnson and beg an sh o o t i n g. Faulkner testified that J ohnson was shot and fell, but he g ot up and ran from the scene

. Fa ulkner momentarily left the window and ran to wake he r cousin. When they returne d to the window, Fa ulkner saw

At t h e t i me o f tr ia l, Faul kner was in cus tod y on a con te m pt cha rge for fa il ing to comply 1 wit h a Sta te sub poe na to te st if y in thi s cas e and J ohns on was in cus tod y on a pen din g cha rge o f unl awf ul use of a we apo n by a f

el on.

-2-J ackson lying on the g round. The shoote rs wer e g one.

¶ 5 Fa

ulkner and her cousin ra n o u t s i d e to chec k on J ackson. He died at the scene from
gunshot wounds to his abdomen and upper body

. J ohn s o n s u s t ai ned a nonfata l gunshot wound to his left arm requiring surg ery

. A third man, sitti ng in a first-floor apar tment, sustained a nonf

atal gunshot wound from a stra y bullet. ¶ 6 J o h n s o n ’s version of events differ ed somewhat from Fa ulkner’ s v er s i o n

. Un l i k e Fa ulkner, J ohnson testified that the dice g ame was still in prog ress when the shooting beg an. He a lso testified that there w ere three shooters, rather than two shooter s. ¶ 7 J ohnson, a convicted felon, testified that just prior to the shooting, he was riding a bike along the sidewalk on the 700 block of South St. L ouis Avenue
, when he encounte red a dice
g ame being play ed on the sidewalk. J ohnson testified that he did not want to disrupt the dice
g ame by riding throug h it, so he stopped on his bike to allow J err ell J ackson to roll the dice. As J ackson was shaking the dice prepa ring to r oll, Johnson looked around to ma ke sure no police wer e in the are a. He then observe d three men standing acr oss the street at the mouth of the a lley . The men w ere standingin a triang le formation. ¶ 8 One man wore a white T-shirt and a baseba ll cap pulled down on his head. The other two

men wore b l ac k h oodies with the hoods pulled over their heads. J ohnson called J ackson’ s attention to the men, asking if he rec og nized any of them. As J ackson turned to look, the man

wea ring the white T-shirt said “yeah, nigg er,” and started shooting. J ohnson rec og nized the voice a s belong ing to Coley

. ¶ 9 J ohnson jumped off his bike and starte d running . J ackson a nd another

y oungman who had been playing dice also ran. J ac k s o n fe ll to the g round. J ohnson was shot and momentarily

fell to the g round bef

ore g etting up a

nd running from the scene . J ohnson was taken to the hospital, whe re he rec eived tre atment for a gunshot wound to his arm. ¶ 10 J ohn s o n d en i ed speaking with detec tives at t he hospi tal, even though it was stipulated that if Detec tive Mare sso wer e called to testify
, she would testify that she and her p artner interviewe d J ohnson in the emer g ency room at Mount Sinai Hospital on September 22, 2008, and that during the interview, J ohnson stated that he rec og nized Coley as one of the shooters. J ohnson told detec tives that he and Coley g rew up in the same neighborhood and had known

eac h other for

a number of year s. ¶ 11 On September 23, 2008, two day s afte r the shooting, detec tives interviewe d Fa ulkner at her mother’s house. Fa

ulkner signe d a photo sprea d advisory form which stated that photos of the individuals involved in the shooting wer e not nece ssarily included in the photo arr ay

. Fa u l k n er t hen viewed three neg ative photo arr ay s. A neg ative photo arr ay is an arr ay o f photos that does not include a photo of the suspect. Fa ulkner did not make any identifications from this g roup of photos. ¶ 12 Detec tive Roberto Garcia testified that on September 2 3
, 2 0 0 8
, he and his partne r met with J ohnson in an alley near t h e scene of the shooting. They interviewe d J ohnson and showed him two photo a

rra y s. J ohnson did not make any identifications from this g roup of photos. J ohnson denied speaking with the detec tives on September 23
, 2 0 0 8, but acknow ledg ed his signature on a photo spread a dvisory

form for that date. ¶ 13 Police continued their investigation, speaking with potential wit n es s es and gathe ring

-3-more information. The detec tives eventua lly cre ated two additional photo arr ay s. One arr ay

included a photograph of

defe ndant and the othe r a photograph of Coley

. Detec tive Gar cia interviewe d J ohnson on October 5, 2008, at police headqua rters. J ohnson viewed the photo
array s and identified Coley as one of the shooters and identified defe ndant as b ei n g wi t h Coley when the shooting beg an. At trial, J ohnson testified that when he identified defe ndant and Coley

he wa s merely

identifying who they

wer e and not that they

had done a

ny thing. ¶ 14 I n De ce mber 2008, police arr ested Coley in connect i o n wi t h t h e s h o o t i n g. He subsequently g ave a statement confe s s i n g to the shooting and identified defe ndant as a shooter. On Dec ember 16, 2008, J ohnson and Fa ulkner viewed separ ate phy sical lineups and identified Coley as one of the shooters. Fa ulkner testified that approximately two wee ks afte r she identified Coley
, detec tives informed her that he had confe ssed to the shooting. Fa ulkner also g ave a statement to the assistant State’s Attorney
, stating that during the shooting, Coley

was we aringred a

nd black, a

nd that the sec ond shooter wa s wea ringall black. ¶ 15 On J anuar

y 13, 2009, J ohnson appea red befor e a g rand jury and identified Coley as one of the shooters. In May 20 0 9
, d et ec tives rec eived an anony mous telephone tip informing them of defe ndant’s location. Def endant was arr ested o n M ay 16, 2009. That same day
, Fa ulkner viewed a phy sical lineup and identif i ed d efendant as the second shooter. She testified the police did not sug g est whom she should identify

. ¶ 16 On May 26, 2009, Fa ulkner testified befor e a g rand jury and identified a photogr aph of Coley as the first shooter and identified a photogr aph of defe ndant as the second shooter. At trial, Fa ulkner testified that defe ndant was the second shooter and that if there was a third shooter, she would not have been able to observe him from her vantag e point at the window. ¶ 17 J ohnson acknow ledg ed he appea red befor e a g rand jury on May 28, 2009, and identified defe ndant and Coley

as per sons he saw r aise their respe ctive guns and fire . Contrary to his
g rand jury testimony
, J ohnson testified at trial that he did n o t ac t u all y observe defe ndant shoot his firear

m beca use af ter Coley started shooting, he closed his e y es and ran. J ohnson added that he did not see any of t he shooters’ fac es and only identified C oley based on his voice. Johnson acknowledg ed tellingthe assistant State’s Attorney that he would re fuse to testify at trial and w ould claim he wa s beingforc ed to testify

. ¶ 18 At the time of trial, Coley was serving a 24-year prison sentenc e afte r pleading guilty to the murder of J err ell J ackson. C o l ey testified that J ohnson was the intended targ et of the shooting, not J ackson. Coley testified that approximately a wee k prior to the shooting, he and J ohnson wer e eng ag ed in an ong oing dispute over a s t o l en firea rm and that J ohnson had made ve rbal thre ats ag ainst him. ¶ 19 Coley testified that just prior to the shooting, he met with defe ndant and a man he did not know. Coley
, defe ndant, and the unnamed man then went looking for J ohn s o n on the 700 block of South St. L ouis Avenue
, an are a J ohnson was known to fre quent. C o ley was

wea ring a white T-shirt and brown hat. When the trio emer g ed from an alley onto St. L ouis Avenue , Coley

looked ac ross the stree t and observe d J ohnson and a c rowd of me n playing dice. Coley testified that as he and J ohnson looked at eac h other, he thought he saw J ohnson

rea chinginto his waistband for a gun. Coley beg an shootingat J ohnson. ¶ 20 Coley testified that defe ndant and the unnamed man wer e behi n d him when he beg an

-4-shooting. He testified that J err ell J ackson was h i t wh en J ohnson, who was the intended

targ et, stepped back. Coley claimed he could not reme mber if defe ndant or the other man had
guns in their hands when the shooting started. Howeve r, in a prior statement to detec tives and the assistant State’s Att orney , Coley stated t hat he and defenda nt wer e both armed with 9- milli meter handguns. Coley further stated that he shot f ive or six times and was not pa ying attention to how many

times defenda

nt shot his firearm. ¶ 21 Evidence technicia ns and lab analy sts testified t h at s h el l ca s i n g s rec overe d from the crime scene wer e fired from two differ ent guns. No fing erpr int evidenc e was rec overe d from
any of the shell ca sings. ¶ 22 Def

endant prese nted an alibi defe nse, seeking to establish that he was at his g irlfriend’ s house at the time of the shooting. Eng lish Wil son, who was defe ndant’s g irlfriend at the time, testified she was discharg ed from the hospital on the afte rnoon of September 21, 2008, afte r underg oing surg ery for an ectopic pregnancy

. Wil son claimed she then trave led to her
apar tment, which was l o ca t ed m iles from the scene of the shooting. Wil son testified defe ndant stayed with her all afte rnoon, evening
, and overnight while she rec uperated from the surg ery

. ¶ 23 On cr oss-examination, W ilson acknowledg ed that even a fter she discovere d defe ndant had been a

rre sted for murde r, she still never c ontacted the police to pr ovide them with a ny alibi i n formation. Wil son and her cousin, Deontae Saunders, g ave conflicting testimony
reg arding who helped Wil son up to her second- floor apar tment afte r she returne d home from the hospital. Wil son testified that when she arr ived home, defe ndant and her sister helped her
up the stairs to her apar

tment. In contra st, Saunders testified that he, defe ndant, and Wil son’s brother c arried Wils on up the stairs to her a partment. ¶ 24 After being admonished b y t h e t ri al co u rt , defe ndant chose not to testify . Following closing arguments, the jury returne d a verdic t of guilty of first-degree murder. Def endant’ s posttrial motion for a new trial was denied. He was sentenc ed to 40 y ear s’ imprisonment. The trial court de nied def

endant’ s motion t o rec onsider his sentenc e. This appe al followed.

¶ 25 ANALYSI S ¶ 26 Def

endant first raises a number of arguments relating to the State’s re- cross-e x amination of defe nse witness Kimy ona Tay lor, an investigator with the public defe nder’ s office

. None of the a rguments warr ant re versa l. ¶ 27 Taylor was ca l l ed as a d ef en s e wi tness to impeach Marg are t Fa ulkner’s c redibility

conce rning her identification of defe ndant as one of the shooters. On d i rec t examination, Taylor testified that on J anuar y 7, 2011, approximately a wee k befor e trial beg an, she spoke
t o Fa u l kn er conce rning the shooting. Taylor claimed she took written notes of the

conver satio n , rea d them back to Fa ulkner and allowed her to rea d and revie w the notes. When Fa ulkner verifie d the notes ref lected what she had said, she signe d the notes. Taylor’s testimony contra dict ed Fa u l k ner’ s claim that she never revie wed the notes befor e signing them. Taylor’s notes we re introduc ed as a n exhibi t. ¶ 28 On cross-e x amination, Taylor was asked whether her conver sation with Fa u l k n er o n J anuar y 7, 2011, was the first time she had spoken to Fa ulkner. Tay

lor answe red, “[n] o, it’s

-5-not the first time,” and then admitted that on Dec ember 14, 2009, she acc ompanied defe nse

counsel to interview Fa

ulkner. Taylor maintained she did not take any notes of the interview conducte d in Dece mber 2009. ¶ 29 Taylor testified that during the J anuar y 7 interview, Fa

ulkner told her Coley was one of the shooters and that there was a second or “o t her” shooter, descr ibed as short and dark. Taylor testified she wrote down “other shooter” in her notes only beca use Fa ulkner claimed the police told her there wer e two shooters and showed her a photogr aph of a man whose

name she did not rec og nize. Taylor acknow ledg ed she never showed Fa ulkner a photogr aph of def endant dur ing the interviews c onducted in De cembe r 2009 or January 2011. ¶ 30 On redire ct examination, defe nse coun s e l elicited testimony from Taylor to the eff ect that Fa ulkner was a teena g er, susceptibl e to sug g estion. Taylor testified that when she interviewe d Fa

ulkner on J anuar

y 7, 2011, she made an eff ort not to sug g est to Fa

ulkner what

answe rs to g ive beca

use Fa ulkner had alre ady claimed the police sug g ested to her whom to pick out as the shooter. Taylor’s testimony contra dicted Fa ulkner’s testimony that the police

never sug g ested to her

whom she should identify

. ¶ 31 Def

ense counsel t h en el i ci t ed t h e fo l l o wi n g testimony from Taylor reg ardingher interview w ith Col ey

conducte d on J anuar

y 6, 2011: “Q. And did any

thing happen with respe ct to this case the day befor e y ou went to see Marg are t Faulkne r, January 7, 2011?
A. Yes. Q. What was that?
A. I sat in on an interview

of anothe r individual on this case. Q. And that would have been on January 6th of this y ear

[2011] ?
A. Corre ct. Q. And who wa s that individual?
A. J ason Coley

. Q. And was it afte r that that y ou went back to Marg are t Fa ulkner and asked her about the eve nts, wrote your notes down a nd asked he r to sign the m?
A. Yes.” ¶ 32 After these questions an d an s we rs , t h e S t at e el i ci t ed t h e fo llowing on re- crossexamination: “Q. Ms. T aylor, since y ou mentioned an interview that y ou had the day befor e with J ason Coley , Iwould like to ask you some questions about that now. A. Okay

. Q. Did this interview take place here in the back of the cour troom?
A. Yes. Q. And who wa s prese nt for that intervie w?
A. My self, attorney Ruth McB eth, attorney Kelly McC ar thy
, J ason Coley and an individual from the I llinois Depa rtment of Corre ctions.

-6-Q. And of course y ou wer e taking notes during this interview of J ason Coley ; is that

corr ect? A. No, I was not. Q. I s this the first tim e that you had an oppor tunity to interview Jason Coley ? A. Yes, it wa s. Q. And so obviously y ou also wanted t o familiarize y ourself with the case and the fac ts of the ca se, cor

rec t?
A. Yes.” ¶ 33 The State s h o we d T ay l o r a d o cu m en t purporting to be notes taken duringColey ’s interview. Tay l o r acknow ledg ed she did not persona lly author the document, but added it

acc urate ly ref

lected her rec ollection of what Coley said during the interview. The State then noted that the document showed Coley stated four people, rathe r than three
, participated in the shooting. Taylor acknow ledg ed thi s , and when asked to elabor ate, testified that Coley stated one person rema ined in the car , while the other three exit ed the vehicle to lo ok for J ohnson. ¶ 34 The State pointed out to Tay lor that Coley ’s statement about three people shooting wa s not refle cted in the doc ument. Def ense c ounsel objected on the g round that Tay lor had not identified the document. The trial court overr uled the objection finding that defe nse counsel had introduce d the subject of Coley ’s interview

. ¶ 35 Taylor testified that during his interview, Coley stated he knew three of the people, one being defe ndant, but that defe ndant never fired his gun. Def ense co u n s el withdrew her objection. L ater , over another defe nse objection, the State elicited testimony fr o m Taylor that during the i nterview
, Coley mentioned defendant’s name, but added defe ndant neve r fire d his gun. ¶ 36 Def

endant now argues on appea l that the State’s re- cro s s -e x am i n ati on of Tay lor went beyond the scope of defe nse counsel’s redire ct examination. Def endant claims that when the State probed into the substance of Coley ’s statements during its re- cross-e x amination of Taylor, the questioningexceede d the scope of def ense c ounsel’s redirec t examination. W e disag ree

. ¶ 37 Trial court ruling s reg arding the s cope of cross-ex am i n at ion and re -cr oss-examination

are within the s ound discretion of the t rial court. People v. Blackwel l
, 7 6 I ll. App. 3d 371, 378 (1979); People v. Grave s , 2012 I L App (4th) 110536, ¶ 16. Such rul i n gs wi l l not be d i s tu rbed absent an abuse of discretion resulting in manifest prejudice to the defe ndant. Blackwell , 76 I ll. App. 3d at 378. We find no abuse of discretion her e. ¶ 38 Gene rally
, cross-e x am i n at i o n is limit ed in scope to the s ubject matter inquired i nto on direc t examination. People v. W illiams
, 66 I ll. 2d 478, 486 (1977). Howeve r, this limit ation is construed liberally to all o w i n quiry into whateve r subject tends to explain, qualify
, discredit or destroy the witness’s direc t te s ti mo ny a lthough it may incidentally constitute new matter which aids the cross-examiner’s case. Id

. at 486; People v. Terrell
, 185 I l l

. 2 d 467, 498 (1998). ¶ 39 As mentioned, Taylor testified on redire ct examination that on J anuar y 6, 2011, she sat

-7-in on an interview with Coley
, and the next day she met with Fa ulkner to obtain her signature

on notes from an earlier interview. Taylo r’ s testimony could have left the jury with the impression that it was something Coley said during his interview that prompted Taylor to g o back and obtain Fa

ulkner’s signature on notes from the ear l i er interview. On re- crossexamination, the State was entitled to rebut the possible impression left by defe nse counsel’s redire ct examination of Taylor. ¶ 40 Def

endant next contends the trial court abused its discretion by denying defe nse counsel an opportunity to c onduct re- redire ct examination of Taylor reg arding the newly expanded scope of questioning. A g ain, we must disag ree

. ¶ 41 W e fi rst observe this issue has not been proper ly prese rved for revie w. Gene rally
, t o p re s erve the issue of the wrong ful exclusion of evidenc e, an offe r of proof must be submitt ed. People v. Cobb
, 186 I ll. App. 3d 898, 905 (1989). The purpo s e o f an o ffer of
p ro o f i s to inform the trial court and opposing counsel of the nature and substance of t h e evidenc e to be introduced and to prese rve the evidenc e for revie w. People v. Ferns
, 247 I ll. App. 3d 278, 286-87 (1993)

. ¶ 42 In this case , defe nse counsel did not m ak e an o ff er o f p ro o f at trial. When the State conclude d its re- cross-e x amination of Taylor, defe nse counsel mere ly reque sted to conduct

re- redire ct examination of Taylor, which the trial court denied. Thus, defe ndant has forf eited this issue by

failingto make an of

fer of proof . Moreove r, def

endant ha s not shown how he
was pre judiced by

beingprohibited from c onductingre- redire ct examination of Taylor. ¶ 43 The purpose of redire ct examination is to explain new m at t er s b roug ht out on crossexamination. People v. Tingle
, 279 I ll. App. 3d 706, 716 (1996). On redire ct examination a witness may be asked questions de signe d to remove unfavor able infere nces or impressions raised on cross-e x amination. People v. Sanchez
, 73 I ll. App. 3d 607, 610 (1979). In this case , Taylor testified on re -cr oss-examination that Coley told her the defe ndant never fired his

wea pon. There has been no showing of a need to further develop this testimony on re- redire ct examination. ¶ 44 Def

endant next argues that the substance of the statements Coley made in the J anuar y 6 interview wer e inadmissible hears ay not subject to any exception to the hear say rule. The State counter s that Coley ’s statements wer e not offe red as su b s t anti ve evidenc e but wer e, rathe r, offe red for impeachme nt purposes as prior inconsistent statements that contra dicted his trial testimony

. ¶ 45 The admission of evidenc e is within the sound discretion of the trial court, whose ruling will not be disturbed absent a n abuse of

that discretion. People v . Thomas , 171 I ll. 2d 207, 218 (1996). Hea

rsay is an out-of-c ourt statement offe re d t o p ro v e the truth of the matter

asser ted there in and depende nt f or its va lue on the cre dibilit y of the out-of-c ourt decla rant. People v. Crowe
, 327 I ll. App. 3d 930, 937 (2002). The fundame ntal basis for excluding such

a statement is the lack of an opportunity to test the cre dibilit y of the statement throug h crossexamination. Id

. ¶ 46 Hea

rsay is g ener ally inadmissible unless it falls within an exception to the hear say rule. People v. Caffey
, 205 I ll. 2d 52, 88 (2001). There is an exception to the hear say rule for prior inconsistent statements of a testifying witness, whi ch m ay b e admitted to impeach the

-8-witness’s cr edibility

. People v . W ilson , 2012 I LApp (1st) 101038, ¶ 38. ¶ 47 The State may attack the cre dibilit y of a witness by impeaching the witness with a prior inconsistent statement. People v. Donegan
, 2012 I L App (1st) 102325, ¶ 57. Howeve r, when the State impeache s its own witness with a prior inconsistent statement, the State must show
t hat the witness’s trial testimony aff irmatively damag ed its case

. Id

. In order for witn es s testimony to be aff

irm at i v ely damag ing, as opposed to mere ly disappointing to the
prosec ution’s case , the t estimony must g ive “posit ive aid” to the defendant’s ca s e. People

v. Cruz
, 162 I ll. 2d 314, 360 (1994); People v. McCarter
, 385 I ll. App. 3d 919, 933 (2008). ¶ 48 Her e, the State contends Coley ’s trial testimony aff irmatively damag ed its case wher e he testified that he lied about “a lot o f stuff in the interrog ation.” The State also points to Coley ’s t estimony wher e he testified he implicated defendant after detectives showed him defe ndant’s photog raph a nd provided him with defe ndant’s name . The State fur ther points
to Coley ’s testimony wher e he testified that when he was interviewe d by detec tives, he knew defe ndant had been arr ested and then rele ased, and he beca me suspicious that defe ndant had implicated him in the crime. The State argues that the clea r import of Coley ’s testimony was to sugg est he implicated de fenda nt only afte r he came to believe de fenda nt had implicated him and beca

use dete ctives had pr ovided him with defenda nt’s name a

nd photogr aph. ¶ 49 We do not believe the State ’s case was aff irmatively damag ed by such testimony . Coley ’s
statements wer e not impeaching beca use they wer e not inconsistent with his trial testimony

. The State contends Coley ’s statements wer e impeaching beca use he mentioned defe ndant’s

name during the interview. Howeve r, Coley never wave red in his trial testimony that defe ndant was a

shooter. ¶ 50 Nonethele ss, even if the trial court err ed in admitting this evidenc e, it was harmless e rror in light of the fac t that similar evidenc e was hear d by the jury when defe nse counsel c rossexamined Coley

. See People v. Chatmon
, 236 I ll. App. 3d 913, 930-31 (1 9 9 2 ) (i mproper impeachme nt subject to harmless err or analy sis). On cross-e x amination, Coley testified that

a couple of wee ks prior to trial, he had a conver sation with defe nse counsel during which he stated four people instead of three participated in the crime, and that the third and fourth men

wer e his frie nds. ¶ 51 Def

endant ne x t contends the State was improperly allowed to re-c ross-examine Tay lor with the document purporting to be notes taken during Coley ’s interview. Def endant argues th at no adequate foundation was laid for the document wher e Taylor testified she had not authore d the document. We disa g ree

. A proper foundation was laid when Taylor testified that althoug h she did not persona lly author the document, it acc urate ly ref lected her rec ollection of what Coley said during the interview. See Peop l e v. L ew is , 52 I ll. App. 3d 477, 483 (1977). ¶ 52 Def

endant next contends the trial court committed reve rsible err or when it attempted to define “re asonable doubt” for the jury during voir dire

. During voir dire the trial court made the followingcomments: “The State has the burden of proof beyond a rea sonable doubt. In I llinois we do not–it is not define d by the Supreme Court or by the State leg islature. That’s something for y ou to decide

. But if any of y ou have serve d on a civil jury
, if y ou use the analogy of a scale
,

-9-all y ou have to do is tilt it . And that’s proof beyond a pre pondera

nce of the evidenc e. In a criminal case , if y ou use the same scale
, it’s a balanc e like this. (Indicating .) Proof beyond a rea sonable doubt is the highe st burden that there is at law in I llinois and the United States.” ¶ 53 The trial court’s comments show the court indicate d t o t h e j u ry that proof beyond a

rea sonable doubt is a highe r standard than the civil standard of proof by a preponde ranc e of
t h e ev i d en ce. Whil e ref

err ing to a scale
, the trial court evidently g estured to show an imag inary tipping of the balanc e to demonstrate the diffe renc e betwe en the two standa rds. ¶ 54 Although we d o n o t co n d one the ref ere nce and compar ison to the civil standard, w e cannot say that the trial court’s comments constitute err or, particula rly wher e the court told jurors that rea sonable doubt was the highe st burden at law and that it was for them to decide what rea sonable doubt meant. There fore
, even if we revie wed this issue under the plain-er ror doctrine, w e would find ther e wa s no err or. ¶ 55 Finally
, we reje ct defe ndant’s contention that he was denied a fair trial on the g round that the trial court failed to question prospec tive jurors in acc ordanc e with the amende d version of Supreme Court Rule 431(b). Effe ctive May 1, 2007, Su p re m e C o urt Rule 431(b) was 2 amende d t o impose a sua sponte duty on trial courts to question prospec tive jurors, individually or in a g roup, as to whether they understood and acc epted the principles outlined in People v. Zehr
, 103 I ll. 2d 472, 477 (1984), “that a defe ndant is pr esumed innocent, that he is not requir ed to offe r any evidenc e in his own behalf
, that he must be proved g uilty beyond a rea sonable doubt, and that his failur e t o t es tify in his own behalf cannot be held
ag ainst him.” See People v . Hayne s , 399 I ll. App. 3d 903, 912 (2010). ¶ 56 Def

endant claims the trial court failed to comply with Rule 431(b), when afte r explaining

eac h principle, the court merely asked jurors if any of t hem had an y “q u al m s ” about t hese principles. Def

endant maintains that whi l e as k i n g about “qualms” may be sufficie nt to deter mine whether jurors acc epted the principles enumer ated in Rule 431(b), it does not offe r any insight into whe ther they actua lly understood them. Def endant acknow ledg es he failed
to prese rve this issue for revie w, but asks us to consider the matter under t h e plain-er ror doctrine on the g round that the evidenc e was closely balanc ed in light of his alibi evidenc e. ¶ 57 The issue of wh et h er a t ri al court complied with a supreme court rule is revie wed de

Supr eme CourtRul e 43 1(b ), a s a m end ed, pro vides : 2 “T he cou rt sha ll ask eac h pot ent ia l j uro r, ind ivi du a l l y or in a group, whet her tha t j uro r unde rs ta nds and acc ept s the fol lowi ng pri nci ple s: ( 1 ) t h a t the def end ant is pre sumed inn oce nt of the cha rge(s ) agains t him o r her ; (2) tha t bef ore a def end ant can be con vi c t ed the Sta te m

ust pro ve the def

end ant guilt y beyond a re aso nab le doub t; (3) tha t the def end ant is not re qui re d to offe r any eviden ce on his or her own beh al f; and (4) tha t the def end ant ’s fa il ure to te st if

y can not be hel d agains t him or h e r ; h o w ever, no inq uir y of a pro spe ct ive j uro r s hal l b e made i nto th e de fe nda nt’ s f ai lur e t o t est if

y when t he d ef

end ant obj ect s. T he cou rt ’s m et hod of inq uir y sh al l pro vide eac h j uro r an oppo rt u n i t y to re spo nd to spe ci fi c quest ion s conce rni ng the pri nci ple s set out in thi s s ect ion .” I ll . S. Ct. R. 431( b) (e ff . M ay 1, 200 7).

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. People v. Lloyd
, 338 I ll. App. 3d 379, 384 (2003). In People v. Thompson
, 238 I ll. 2d

598, 607 (2010), our supreme court held that in or der to c omply with Rule 431(b), the trial
court “must ask eac h potential juror whether he or she understands a nd acc epts ea ch of the principles in the rule.” The court stated that Rule 431(b) “ require s questioning on whether the potential jurors both under stand and a cce pt eac h of the e numerated principles.” Id. ¶ 58 We acknow ledg e som e courts have concluded that a trial cour t’s failure to specific ally question pot en t i al j u rors during voir dire as to whether they understood and acc epted the principles enumer ated in Rule 431(b) does not nece ssarily constitute err or. See, e.g. , People

v. Digby
, 405 I ll. App. 3d 544, 548-49 (2010) (trial court’s use of the phrase “have a problem with” did not constitute err or); People v. Ingram
, 401 I ll. App. 3d 38 2
, 3 93 (2010) (trial court’s inquiry as to whether potential jurors had any “diffic ulty or quarr el” with any of the Zehr principl es did not constitute err or); People v. Quinonez
, 2011 I L App (1st) 092333, ¶¶ 5, 50 (finding no err or wher e trial court asked prospec tive jurors if they had “a problem” or “disagree d” with any

of the Zehr

principles). ¶ 59 Ne v er t h el ess, we find that the supreme court’s holding in Thompson compels us t o conclude otherwise. We believe that if trial courts followed the languag e of Rule 431(b), and specific ally asked p ro s p ective jurors during voir dire if they understood and acc epted the principles enumer ated in the rule, this would have the benef icial eff ect of putting an end to arguments as to whether particula r words chosen by a trial judge complied with the rule. That being said, we must decline defe ndant’s reque st to review t h i s matter under the closely balanc ed prong of the plain-er ror analy sis

. Un der the closely balanc ed evidenc e prong of
p l ai n-er ror revie w, a defe ndant must show both that there was plain err or and t h at t h e evidenc e was so closely balanc ed that the err or alone sever ely threa tened to tip the scale s of justice ag ainst him. People v . Herron , 215 I ll. 2d 167, 187 (2005). ¶ 60 In light of the evidenc e prese nted at trial, we do not find that the evidenc e was so closely balanc ed that the trial court’s err or i n q u es t ioning prospec tive jurors conce rning their understanding and acc eptanc e of the principles enumer ated in Rule 431(b) constituted plain

err or. In his rec orded statement to detec tives, J ason Coley identified defe ndant as one of the shooters and stated that he and defe ndan t we re both arme d with 9-millim eter handguns. Evidence technicia

ns and lab analy sts testified that th e s hell casing s rec overe d from the scene

came from two diffe rent guns. ¶ 61 On the date defe ndant was arr ested, Marg are t Fa ulkner viewed a phy s i ca l l i n eu p and identified him as one of the shooters. Fa ulkner testified befor e a g rand jury and identified a photogr aph of defe ndant as one of the shooters. Fa ulkner testified at trial that just befor e the shooting beg an, she saw two men wea ring hoodies emer g e from the alley near her window. The men looked toward Doug las J ohnson and started shooting. Fa ulkner testified defe ndant

was the second shooter, and if there was a third shooter, she would not have seen him from her va ntag e point at the window. ¶ 62 Doug las J ohnson testified that just befor e the shooting beg an, he saw three men standing

acr oss the street from him, at the mouth of an alley

. The men wer e standing in a tri ang le formation and two of the men wore h o o d ies. J ohnson rec ognized Coley as one of the shooters. J ohnson later viewed two photo arr ay s and identified Coley as one of the shooters

-11-and identified defe ndant as being with Coley when the shooting beg an. J ohnson also

appea red befor e a g rand jury and i d en t i fi ed defe ndant as one of the men who raised a handgun and fire d. ¶ 63 Although defe ndant emphasizes that he prese nted alibi testimony
, we note that his a libi witnesses included his g irlfriend and her cou s i n

. The trier of fac t is not require d to acc ept alibi tes timony over positive identification of an acc used, particula rly wher e the alibi
test i m o n y i s p rovi ded by biased witnesses. People v. Mullen
, 313 I ll. App. 3d 718, 729 (2000). Moreove r, the alibi testimony was inconsistent and not cre dible. Def endant’ s g irlfriend, Eng lish Wil son, testified that when she arr ived home from the hospital, defe ndant and her sist er h el p ed her up the s tairs t o her second-f loor apar tment. In contra st, Wil son’s cousin, Deonta e Saunder s, testified he, defe ndant, and Wilson’s brother ca rried Wilson up th e s tairs t o her apartment. I n sum, defe ndant has failed to show that the t rial court’s err or in questioning prospec tive jurors as to their understanding and acc eptanc e of the principles

enumer ated in Rule 431(b) amounted to plain err or under the closely balanc ed prong of the plain-er ror a naly sis. ¶ 64 Acc ording ly
, for the rea sons set forth above, we aff irm the judgme nt of the circ uit court.

¶ 65 Affir

med.

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