SECOND DIVI SION DECEMBER 29, 2009

1-07-1769 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 05 CR 17920 ) DERRICK HATCHETT, ) Honorab le ) Thomas Sumner, Defend ant-App ellant. ) Judge Presi ding. PRESIDING

JUSTICE CUNNINGHA M delivered the modified opinion of the court upon denia l of pe titi on for rehear ing: Following a bench trial in the circuit court of Cook County , defendant Derrick Hatchett was convicted of first-degree murde

r and se ntenced to 45 ye ars of imprisonment. On appeal, the defendant argue s that: (1)

he was de

nied a fa ir tr ial when the t rial court admitted the decedent’s statement as an ex ci te d u tt er an ce an d/ or dyi ng dec la ration; (2) he was denied a fair trial when the trial court permitted the handwritten statement of a testify in g witness, Tron Johnson, to be introduced

as substan t ive evidence; (3) he was denied a f air trial when the trial court refused the defense counsel’s request s to reca ll Tron Johns on and fo r a one- day continua nce to se cure wit

nesses; (4) the defendant was denied eff ective assistance of

counsel; and (5) the defendant’s guilt was not proven b eyond a rea sonable d oubt. For the follow

ing rea sons, we a

ffirm. BACKGROUND OnSeptember 22, 2003, Patrick Tay lor was shotmultiple times on South Lowe Avenue i n Chicago, Illinois. Tay

lor died o f his injuries t

he next day . In 2 004, the d efenda nt and Ar thur Foo te1-07-1769

1 Counts I to V of the indictment charge d both the defendant and Foote with first-degr ee murder. Counts VI to VI I of the indictment charg ed the defendant with first-degre e murder. Co un ts VII I to IX o f t he in di ct me nt ch ar ge d t he de fe nd an t w it h a ggr av at ed ba tt er y. 2 were charged with first-de gree murder and aggravated battery of Taylor. 1 Prior to trial, the defendant filed a motion to quash arr

est and a moti on to suppr

ess state ment. OnMay 3, 2006, the trial cour t denied the d efenda

nt’ s motion to quash his arrest, but granted the motion to suppress his statement, finding that inexplicable injuries which the defendant sustained while in police

custody showed th at the defendant’s confession was a product of c oercion. The defendant’s and Foot

e’s cas es were

eventua lly severed and the defendant waived his right to a jury trial. OnMarch 6, 2007, a bench trial was held during w hich several witnesses gave the following te st im on y. Terry

Davis tes tified tha

t o n Se ptember 22, 2003, at approximately 10 p.m., he wa s selling marij u ana on the 5700 block of South Lowe Ave nue when he heard approximately 10 gunshot s coming from several cars par ked down the stree t. Davis then immediately saw a ma n, who
was later identified

as Taylor, running toward him on South Lowe Avenue and being chased by

three vehicles–a

2001 white Chevy I

mpala (white car), followed by a silver Dodg e Stratus (silver car) and
a maroon Tahoe sport

utility vehicle (maroon SUV). Da vis noticed that Taylor wa s wearing jeans and a white jersey

with some blood spots on it. As Tay lor ran w est

onto 57th Street, Davis saw the white car “jump the curb” and hit T aylor, who then f

ell, stood up and started running again. The
maroon SUV then also struck Tay lor. At this point, Davis hid in a “gangway ” and saw Tay

lor run past him. Davis sta

ted that h e lost sig

ht of Tay lor afte r Tay lor ran p ast

him, but heard 6 to 8 more1-07-1769

3

gunshot s following the chase. D avi s did not see who shot Taylor. Onc e Davis emerged from the ga ng wa y, he observed Tay lor lying on the g

round in front of Maurice Fields’ house and noted that the car s were nowhere

in sight. Maurice Fields testified tha t he resided at 5733 South Lowe Avenue . On the evening of September

22, 2003, Fields was home when he heard three or four gunshots. Fie lds observed a man, later identified as Taylor, ly

ing on the ground in front of Fields’ house and being punched by a

black
man. However, Fields neither witnessed anyone fir

e the gunshots nor observed the presence of any vehicles in front

of his home. Fields then walked onto his front porch and y elled at the man to stop beating Tay

lor, after which the perpetrator ra n away a nd Fields called the police. Sergeant John Ryan (Serg eant Ryan) of the Chicago police department testified that on September

22, 2003, he respond e d to a “call of a man shot” on the 5700 block of South L owe Avenue. When he ar

rived at the scene, he saw

Tay lor sitting on the side

walk agains t a fence w ith his ey es close d. Serg eant Ry an notice d that Tay

lor had a t least one gunshot wound to hi s face, was bleeding f

rom numer

ous spots on

his face , had a la

rge blo odstain on

his chest , and had

shall o w breath ing. Sergeant Ry

antestified that when he asked Tay lor what had happened, Tay lor replied

that “they shot me.”

When Serg eant Ry

an asked Tay lor who shot him, Tay

lor resp onde d, “Quick and Little Ride.” Ta

ylor also as ked Serg eant Ry an if he w as “go ing to die.” Sergeant Ry an’s conversation

with Tay lor laste d less than 30 seconds, after which paramedics ar rived to provide medical t reatmen

t for Tay lor. Ove r defen se counse l’s hearsay objectio ns, the tr

ial cour t admitt e d Taylor’s statements regarding the identities of the shooters as either an excited utterance or a dying declaration.1-07-1769

2 Patrick Taylor’ s nickname was “Cake.” 4 Debra Taylor, the mother of

the victim Taylor, testified that the def endant’s nickname was “Litt le Ride,” and that Foote’s nickname was “Quick.” She stated

that s he kne w thes e men t hrough her son, who “started hanging out with them” a bout a year

and a half prior to his murder. TronJohnson testified at trial that on the night of September 22, 2003, he was in the company of the de fendant , Foote, and two other individuals introduced to Johnson as “Cake” 2 and “Polo.” Johnson stated tha

t the def endant, F oote and Taylor r ode in a white car, while heand Polo followed ina separate vehicle. After visiting a restaurant, the five men drov e to a con cert in downtown Chicago. However, because the venue was crowded, the men did not stay for the concert and instead drove around the city . Johnson stated that he was intoxicated that night, and at some point

he fell asleep in the car while Polo drove. He later awoke in the ca r to “s ome gunshots bei ng let off by
some guys of

f the porch.” He stated that by that time, the car in which he was riding was parked on
a neighborhood street

near the white car and a truck. Johnson den ied seei ng the d efenda nt and Fo ote fire any wea

pons, but only saw them standing by the white car. He testified that the defendant and Foote fled after hearing

the gunshots, and that he did not see Tay lor at that time. At this point in the trial, the S tate impeached Johnson with a prior written statement that Johnson made to th e police and Assist

ant State ’s Attorney

Michele Popielewski (ASA Popie lewski) inJanuary 2005. I

n the written

statement, Johnson stated that on the night of the shooting, the five
mendrove around the city in separate cars as described a bove. Johnson fe ll aslee p in the “gray Buick” while Polo drove, and Johnson was startled awake w hen Polo su

ddenly stopped the car. At1-07-1769

5

that point, Johnson noticed that they were parked in a residentialneighborhood behind the white car. Johnson then immediately hear d gunfire and saw that “Quick wa s shooti ng a semiautomatic handgun at Taylor outside the

white Impala.” Johnson further stated that Quick shot at Ta

ylor betwee

n 8 to 12 times, and that “ Lil Rid e was als o out of the [white] I mpala [with] a semiaut

omatic g un in his hand.” When Polo began steering the gra y Buick a way from the scene, Johnson noticed “Lil Ride start to run down the street chasing after [Tay lor] and Quick,” an d heard “about five more shots.” At that mo men t, Johnson saw Lil Ride running “with the gun extended” and shooting at Taylor. Taylor, who wa s then about a half a block down the street, fell to the gr ound in front of a house. At trial, Johnson insisted that he was telling the truth on the witness stand and that his prior inconsiste nt s tatement implicating the defendant was only made out of fear that he would also be charged with the crime. On cross-examination, Johnson testified that he was prompted to lie about the identities of the shooters in his prior written statement because the police had shown hi m “something” with his name on it and that “something” was a “ lie.” Forensic investigator Joseph Dunigan also testified on behalf of the State. On the night of September

22, 2003, Dunigan responded to a shooting investiga tion and found a total of 17 spen t cartrid ges, an empty g

un magazine, and fire d bullets f rom semia

utomatic w eapons in

a trail leading fromthe 5600 block to the 5700 block of South Lowe Avenue. Further, he testified that there was a trail of blood leading southbound from the 5650 to the 5700 areas of South Lowe Avenue. Marc Pomerance, a

forensics scientist who specialized in firearms, testified that based on the firear ms evidenc e, at lea st

two di fferen t guns were us ed in t he sho otin g. He determined that it was unlikely that the shoote

rs fired their weapons while standing still in one location because some of1-07-1769

6

the cartrid

ges we re found more tha n 5 to 10 fe et apar

t, which w as the ty

pical range

of dista nce a firearm could eject a cartridg e case. Chad Meunier, a

loss control manager at

Enterprise Rent-A-Car, testified that on September 15, 2003, anin di vi du al na me d S ha ro n G ra dy r en te d a wh it e C he vy Im pa la fr om th e c om pa ny. Foote
was listed as a second driver on the vehicle. He stated that on September 23, 2004, the vehicle was returned with damage to the rear left bumper and the “front left quarter pane l.” By stipulations, the parties agreed that DNA evidence obtained f rom a baseball cap found at the crime scene excluded the defendant. The parties also agr eed that on September 24, 2003, Dr. Lawrence Cogan (Dr. Cogan), a medica l examiner in the Cook

County medical examiner’s offic e, performed Taylor’ s autopsy . Based on the aut

opsy , Dr. Cog an opined

that Tay lor died a s a resul

t of multiple g

unshot wou

nds to his body

–inclu ding Ta

ylor’s neck, face , back, r ight uppe r arm, abdomen, lef

t buttocks, thighs a

nd geni tals. Othe

r injurie s also inc luded abr asions, la cerations, hemorrhaging, and skull fractures. Dr. Cogan concluded that the manner of death was homicide. The State the

n sought to admit Johns on’s prior written statemen t as su bstantive evidence, whichthe trial court granted, over the objections of defense counsel. Defense c ounsel thenrequested that Johnson be recalled to the witness stand for the purpose of clar ifying wha

t the police showed Johnso n durin g i nterrogation, which Johnson claimed had prompted him to lie in his written statemen t. The tria

l court de nied def ense cou nsel’s re quest to r

ecall Johnson. The State then rested and the tr ial cour t denied d efense counsel’ s motion for

directe d verdic t. After the State rested, defense counsel requested tha t a one-day

continuance be granted. The trial cou rt denie d the req

uest for a continu ance an d gran ted a 10- minute re cess.1-07-1769

7

Following the 10-minute recess, the defendant testified on his own behalf. He stated that on September

22, 2003, he and Tay

lor were passengers of a

white Chevy I

mpala driven by F oote. The three men were accompanied by Johnson and Polo, who drove behind them in a separate car. The defendant testified that

the group purchased liquor before heading to a concert, but did not stay for the concert because it was too crowd ed. S ubseque

ntly , the men d

rove to a gas sta tion for some “blunts.” While at the

gas sta tion, the d

efenda nt noti ced an o range

SU V and dec ided to ro

b it. Conseque nt ly, the g roup, still driving in two separate vehicles, followed the SUV to a residential neighborhood. The defendant stated that once the SUV stopped and par ked, the group parked about
a block away
. At that point, the defendant, Foote and Taylor exited the white ca r. According to the defenda nt, Taylor, ar med wi th a gu n, started ap proachi ng the SU

V with the

defenda nt and Fo ote follo wing. According to the defendant, neither he nor Foote was armed. A s the three m en approached the SUV, gunshots rang out. The defendant state d that he fled on foot and eve ntually hitched a ride with a

gentle man in exch ange f

or $50. Th e defen

dant state d that he d

id not see Taylor get killed and denied having any arguments with Tay

lor on the night of the murder. The trial court then found the defendant guilty of first-de gree murder. Subsequently, the trial court denied the defendant’s motion for a new trial and sentence d the defendant to 45 years in prison. OnJune 22, 2007, a notice of appeal was filed before this court. On August 22, 2007, the trial court issued an order granting a motion to amend the notice of appeal to “reflect the

correct judgment date” of June 1, 20 07. Subseq

uently , an amen

ded notic e of appe al was fi led before this co urt. ANA LYSIS We determine the following issues: (1) whether Tay lor’s statement to Ser geant Ryan was1-07-1769

8

properl y admitted as a dying

declaration or an ex cited utterance; (2) whether Johnson’s prior inconsistentstatement was properly admitted as substantive evidence and whether the defendant’s request to r ecall J ohnson was properly denied; (3) whether the trial court properly refused the defendant’s r equest

for a one-day

continuance; (4) whether the defenda nt was denied effective assistance of counsel; and (5) whether the defendant’s guilt was prove n beyond a

reasona ble doubt. We first det

ermine w hether T ay

lor’s st ate ment to Sergeant Ry an, which identified the shoote rs as “Quick a nd Little Ride,” was properly admitted as a dying

declaration or an excited utterance exception to hearsay e vidence. The defendant argues that Tay lor’s statement identifying his shooters

was not a dyi ng dec laration

because the evidence suggested that Ta ylor did not believe death was immine

nt and tha

t it was unc ertain w

hether T ay

lor had sufficien

t mental f

aculties to provide an accurate statement about the cir cumstances of his death. Deferenceis given to a

trial court’s determination to admit a statement as a dying

declaration
e xception to hears ay , and a re viewing court wil l not over

turn the d ecision u nless it is “

palpably agains tthe manifest weight of the evidence.” People v. Graham , 392 Ill. App. 3d 1001, 1005, 910 N.E.2d 1263, 1268 ( 2009) , quot ing People v. Gilmore , 356 Ill. App. 3d 1023, 1033-34, 828 N.E.2d 293, 303 (2005). Such a finding is agai nst the manifest

weight of the ev

idence i f the oppo site conclusionis clearly e

vident. People v. Stiff

, 391 Ill. App. 3d 494, 499 , 904 N.E.2d 1174, 1179 (2009). “A dying de claration qualifi es a s a hearsay exception because it is considered trustworthy where the likeli

hood of fa

bricatio n is minimal due to the declarant’s belief that death is imminent.” Graham , 392 Ill. App. 3d at 1006, 910 N.E.2d at 1268; Stiff , 391 Ill. App. 3d at 499, 904 N.E.2d at1-07-1769

9

1179. A statement

is admitted as a dying

declaration when it is shown bey ond a reasonable doubt that: “(1) the declaration pertains to the cause or circ umstance of

the homic ide; (2) t

he decla rant must believe that dea

this imminent; and (3) the declarant must possess mental faculties sufficient to give
anaccurate statement

about the circumstances of the homicide.” People v. Georgakapoulos , 303 I ll. App. 3d 1001, 1009, 708 N.E.2d 1196, 1203 (1999). The parties d

o not disput

e that the first prong of the

dyi ng dec laration

require me nts i s satisfied because Tay

lor’s statement regarding

t he identi

ties of his shooters pertain ed to the c ause or circumstance of the murder. T he second prong requires that the decla rant believe death is imminent. The d efendan t argues that Tay

lor lacked the belief

that death was imminent because Tay lor asked Sergeant Ry

an at the crime scene whether he was going to die. The defendant also points out that the trial cou rt, inlisting the requirements for a dyi ng dec laration , errone ously stated tha

t it must be demonstrated that the declaran t was cognizant of the fact that he may be dying . The State, on the other hand, argues that the se cond pro ng was e stablishe d becau se Taylor was shot multiple times and bleeding to death, and that

Taylor’s que stion about whether he was going to die hig hlighted Tay

lor’s belief of impending death. We agree. “Belief in the imminence of death may be shown by the dec larant’s own statements or from ci rcumsta ntial evidence, such as the nature of the wounds or state ments made in his presence.” Georgakapoulos , 303 Ill. A pp. 3d at 1009, 708 N.E.2d at 1204. “Proof of such a belief can be established

by any adequate method of communication, whether by words or signs.” Georgakapoulos , 303 I ll. App. 3d at 1010, 708 N.E.2d at 1204. In People v. Lawson , the victim was1-07-1769

10

shotnine times and was lying in a ravine when police arrived. People v. Lawson , 232 Ill. App. 3d 284, 287, 596 N.E.2d 1235, 1238 (1 992). The victim made statements such as, “ ‘Help me, I ’m dying. I’ve been shot in the bac k. Get me out of here. You nee d to get me out of here’ ” and “

‘ Brya n Lawson did this to me.’ ” Lawson , 232 Ill. App. 3d at 287, 596 N.E.2d at 1238. I n challenging

the admission of the victim’s statement identifying the defendant as the perpetrator, the defendant argued that the victim’s “get me out of he re” statements showed that “he had not given up hope for his survival nor despaired of life.” Lawson , 232 Ill. App. 3d at 292, 596 N.E.2d at 1241. The reviewi

ng cour t upheld th e admissib ility of the sta tement as a dying de claration, finding that it was reasonable to conclude that the victim “knew of the seriousness of his condition” because the victim was shot nine times with “powerful handguns” and was blee ding to death at the time he made the statement. Lawson , 232 Ill. App. 3d at 293, 596 N.E.2d at 1242. Further, the reviewing cour t held that the mere fact that the victim had some “nebulous ray s of hope” of

recovery did notnegate the victim’s belief of imminent death. Lawson , 232 I ll. App. 3d at 293, 596 N.E.2d at 1242; see also Peoplev. Davis , 93 Ill. App. 3d 217, 232, 416 N.E.2d 1197, 1208 (1981) (where the victim was shot four tim es, once in the head, and mentioned that he was dy ing, victim had an imminent bel ief o f death despite repeatedly

asking the driver to run the red lights en route to the hospital). Here, it was re asonable

to conclu

de th at Tay lor knew of the seriousness of his condition because he was shot multiple times with at least two semiautomatic weapons, resulting in gunshot wounds to vital areas of his body suc h as his neck, fa ce, back, a nd abdome

n. Evidence also suggested that Taylor

was struck by two ve

hicles during the chase. When Sergeant Ry an arrived at the scene, Tay

lor was si tti ng on a sidewalk, bleeding, and lea ning against a fence w

ith his eyes1-07-1769

3 We recognize that the trial court could have been c learer in listing the second requirement of a dy

ing declaration. However, we need not address this issue in light of our finding that Tay lor belie ved dea th was imminent.

11 closed. Under th ese cir

cumstanc es, we f

ind th at it was reasonable for the trial court to find that Taylor believed death was imminent, and the mere fact that he a sked Sergeant Ry

anif he was going to die did not neg ate such

belief. It is u

nlikely that a pe rson who d

id not belie

ve he wa s dy

ing woul d pose sucha question to anyone. But cf
. Stiff , 391 I ll. App. 3d

494, 904 N .E.2d 1174

(burn victim did not believe death was imminent where thevictim wa lked to se ek help, was never told of his s lim chance of survival , and was

hospitalize d for ove

r seven w eeks bef

ore succ umbing to

his injuries). Thus, we find thatTaylor believe d death was imminent and the second prong of the dy ing declar ation re quireme

nts was me

t. 3 The third pr ong req

uires that the declarant possess mental faculties sufficient to give an accurate statement about the circumstance s of the homicide. The defendant argues that the e xtent of Taylor’s injuries c alled into question his ability to s pe ak coherently to Sergeant Ry

an. The defendant also argues that

defense counselshould have introduced Tay lor’s medical records and the testimony of Taylor’ s treating paramedics at trial in order to provide more information to the trial
co u rt regarding Tay

lor’s physical condition. The State, howe ver, argues that Tay

lor possessed sufficient mental fa culties to establish the third p

rong of the dy ing dec laration

require ments bec ause Taylor was able to answer Sergeant Ry

an’s open-ended questions in a coherent manner . The State further contends that acc epting t

he notion t

hat a ser iously injured victim coul d not be suf ficientl y lucid for the purpose of a hearsay analysis would lead to the a bsurb result that no dying de claration1-07-1769

12

exceptions would ever apply. We a gree. Indetermining whether a declara nt possessed mental competency to give an

accura te statemen t, a trial c ourt may

consider whether he was a ble to answ er qu estions a bout the incident. See People v. Rhoads , 110 I ll. App. 3d 1107, 1120 , 443 N.E. 2d 673, 683 (1982); Davis , 93 Ill. App. 3d at 232-33, 416 N.E.2d at 1208-09 (declarant had suffic ient mental faculties wher e he was able to answer questions promptly and a ccurately , despite suffering fro m four gunshot woun ds and having substantial levels of

morphine and alcohol in his blood). Moreover, questions requiring “more than
a simple yes or noan sw er ” m ay be a factor in assessing whether a declarant possessed sufficient mental faculties. See People v. Barnes , 117 Ill. App. 3d 965, 970, 453 N.E.2d 1371, 1377 (1983). Inthe instant case, Tay

lor was able to answer all of Serge ant Ryan’s open- ended questions at the crime scene. When asked wh at had happe ned, Taylor r eplied that “they shot me.” When Sergeant Ryan asked who

shot him, Taylor responded, “ Quick and Little Ride.”Although there was testimony to suggest that Tay

lor may have be e n drinking on the night of the shooting, evidence showed that Taylor

underst oo d a ll of

Se rg ea nt Rya n’ s q ue st io ns an d a ns we re d t he m p ro mp tl y. Further, Sergeant Ry

an testified that Taylor ’s answers to his questions were coherent. We disagr ee with the defendant’s argument that Tay lor’s medical records and testimony of the paramedics were necessary to establi shthe sufficiency of Taylor’ s mental competency . The paramedics arrived at the
scene after T ay

lor’s sta tements were ma

de to Serg eant Ry

an and tr eated Ta ylor for ap

proximatel

y 15 minutes before t

rans porting Tay

lor to the hospital. Testimony by the paramedics would not
nec essarily

ha ve been accurate to refle ct Taylor’s me ntal faculties minutes earlier when he spoke with Sergeant Ry

an. Because it is reasonable to conclude that the c ondition of aseriously injured1-07-1769

13

victim could dramat icall y change within minutes, we do not find thatthe absence of testimony by the par amedics or Tay

lor’s medical records rega rding Tay lor’s condition at the time of the arrival of the pa ramedic s provide d a basis f or a cla im of inef fective assistanc e of coun sel. Moreover, as the State argues, accepting the notion that a seriously injured victim could not be suf ficiently lucid for the pur pose of a hearsay

analysis would lead to the a bsurb result that no dying declaration exceptions would ever apply since these statements are alway s made a fter the declaran t has b een ser

iously injured a nd the cir cumstanc es are s

uch that d eath is lik ely imminent. Thus, althoug

h Tay lor was s e riously wounded, we f ind that the trial court could find bey ond a
reasona ble doubt that

Tay lor posse ssed suff

icient me ntal fac ulties to give acc

urate sta tements to Serge ant Ry

an about t he circ umstance s. The defendant also argues that th e police report produced following the incide nt did not indicate that Taylor cla

imed “Little Ride” was responsible for the s hooting; rath er, it stated that “Quick a nd Lil Red

” shot Taylor. We disagree that this discrepancy automatically ca

lled into question the defen d ant’s involvement

in the crime, in light

of the ev id ence presented at trial. Serge ant Ryan testified that Taylor named “Q

uick and L

ittle Ride”

as the sho oters. B oth

Foote and

the defendant–namely , Quick and Little Ride–were in the company of Taylor on the nig

ht of the murder. Moreover, t he polic e
re port was not prepa

red by Serge ant Ry

an, who ha

d first-h and knowl edge o f Tay

lor’s sta tements. Thus, we find that T ay

lor posse ssed the m ental fa culty sufficie nt to give an accu rate statement about the circumstances of the homicide and the third prong of the requirements was satisfied. Therefore, we find

the trial court’s admission of Tay lor’s incriminating statement against the1-07-1769

14

defendant as a dying

declaration

exception to the hearsay

rule was not against the manifest weight of the evidence. Moreover, the admission of T aylor ’s dying de claration did not violate the defendant’s rights to confrontation under the sixth amendment. See Graham , 392 Ill. App. 3d at 1008, 910 N.E.2d a

t 1270; Gilmore , 356 Ill. App. 3d at 1033, 828 N.E.2d at 302; see also People v. Ingram , 382 Ill. App. 3d 997, 1003-04, 888 N.E.2d 520, 525 (2008). Becau se we hold that Taylor’ s statement identifying the defendant as one of his shooters was properl y admitted as a dying

declaration exception to hearsay evidence, we need not address whether that statement was also properly admitted as an excited utterance. We ne xt de te rm in e w he th er Jo hn so n’ s p ri or in co ns is te nt st at em en t w as pr op er ly ad mitted
as substantive evidence at trial and whether the defenda nt’s req uest to re call Johnso n to the wit ness stand was properly

denied. The defendant arguesthat Johnson’s prior written statement implicating the defendant as one of the shooters should not have been admitted because Johnson denied having any knowledge of the murder until he provided the written statement at issue to the police, a nd the tria

l court improperly limiteddefense counsel’s cross-examination by refusing to allow the defense to rec a ll Johnso n to the witness stand. We disagree. Anevidenti ary rulin g will not be disturbed by a revie wing court absent an abuse of discretion. People v. Frankli n , 135 Ill. 2d 78, 96, 552 N.E.2d 743, 751 (1990). Section 115-10.1 of the Code o f Criminal

Procedu re of 196 3 (Code) states in p ertinen t part: “In all crimin

al case s, eviden

ce of a s tatement mad e b y a witness is not made i

nadmissibl e by

the hearsay

rule if1-07-1769

15 (a) the state

ment is inc onsistent w

ith his test

imony at the hearing or trial, and (b) the witne ss is subjec

t to cross-examinationconcerning the statement, and (c) the statement--

*** (2) narrat

es, desc ribes, or explains a

n event o r condition of wh ich the witness had personal knowledge, and

*** (B) the witness acknowledged unde r oath the making of the sta

tement ei

th er in his testimony at the hearing or tria l in which the admission into evidence of the prior statement is being sought, or at a trial, hearing , or other p r oceeding.” 725 I LCS 5/1 15-10.1 ( West 2006). Here, the defendant does not dispute that subsections (a) and (c)(2) of section 115-10.1 we re
sa tisfied. Rather, he argu es that the

cross-e xamination p ortion und

er subse ction (b)was not me t
. The record shows that Johnson testified that on the night of the murder, he awakened to the sound of gunshots from a neighborhood porch, but denied se eing the defendant fire any weapons. At that1-07-1769

16

p ointin the trial, the State impeached Johnson with a prior written statement, in which Johns o n stated that he saw the defend ant ch ase Taylor whil e poin ting a semiautomatic weapon at Tay lor. The record shows that

defense counsel then cross-examined Johnson, during which Johnson claimed that his prior written statement was false and that he lied about the identities of the shooters for fear that he would also be charged with the crime. Onre-cross-examination, Johnson stated that the assistant State’s At to rn eys were “try ing to persuade me about something that I knew wasn’t true” and stated that he lied in the prior written statement under police coercion. At no po int did t he trial court restrict the scope of defense counsel’s cross-e xamination and re-cross-examination of Joh nson. Further, the record

shows that d uring a pretr ial he aring, the trial court clearly stated that Johnson’s prior inc onsistent s tatement could be u sed for s

ubstantiv e or impe achment purposes , and thus, we must assume that defense counsel knew or should have known the la w and was on notice th at the evidence could have been used by the State for either o r both of t hose purp oses. Thu s, becau se defense counsel had the opportunity to fully cross-examine and re-cross-examine Johnson regarding the prior inconsistent statement and had notice that such statement could be used for impea chment
or substantive purposes, the defendant cannot now claim that the trial cou

rt limited h

is right to crossexamination. Therefore, we find that the cross-e xamination requirement un der s ection 115-10.1 was met and the trial court did not abuse its discretion in admitt ing the prior inconsistent statement as substantive evidence. Nevertheless, the defendant argues that the State’s “delay” in waiting until the end ofits casein-chief to introduce Johnson’s pr io r written statement warranted the reca ll of Johnson for the purpose of de veloping his te stimo ny

reg ardi ng th e cir

cumst ance s that

induc ed him to li e. We1-07-1769

17

disagree. It is within the trial court’s

discreti on to dete

rmine whe

ther to allow a witness to be recalled. See People v. Lewis , 223 Ill. 2d 393, 405, 860 N.E.2d 299, 306 (2006). Here, Johnson had

alread y te stified on

the witne ss stand tw o hours pr ior to def ense counsel’s request to reca ll him. Acc ording t

o the State , Johnso n w as al re ad y on his way back to the
corr ectional facility wher e he was being detained for a n unrelated crime. As discus sed above , because defense counsel had a lready be en given unlimited latitude to cross-examine and re- crossexamine Johnson regarding what prompted him to lie about the identities of the shooters in the prior writtenstatement, any fur ther questioning on the issue would have been repetitive. See People v. Morando , 169 Ill. App. 3d 716, 723, 523 N.E.2d 1061, 1067 (1988) (trial court has the discr etion to prevent repetitive cross-examination). We also note that it was within the State’s tactical purview to seek admission o f Johnson’s

prior wr itten stat ement dur ing any point in its case-in-chief, and the defendant has p rovided n

o authori ty to support hi s argument that it was impro

per for the State to seek admision of

the evidence at the end of its case-in-chief. Therefore, we find that the trial court exercised proper discretion in deny ing the defendant’s request to rec all Johnson. We next determine whether the trial court properly re fused

the defendant’s request for a oneday continuanc e. The defendant argues that the trial cour tdid not properly balanc e the defendant’s right to call witnesses on his own beha lf aga inst the int

erest of judicial economy whe

n it denied the defendant’s request for a continuanc e to secu re witne sses. The State ar

gues tha t the issue

is forfe ited to the

exte nt t he defendant argues that the tria l1-07-1769

18

court erred in deny

ing his continuance to “secure witnesses,” be cause the defendant’s motion for a
newtrial only alleg ed the trial court’s failure to grant the de fendant a continuance to “locate and recall [Johnson].” For the reasons discussed above, the defenda nt was not e

ntitled to a

continua nce to locate and recall Johnson. We also find that the defendant has forfeited review of t his iss ue as it re lates to securingother te stify

ing witne sses bec ause he f ailed to r aise this c laim in a po st trial motion. See Peoplev. Woods , 214 Ill. 2d 455, 470, 828 N.E.2d 247, 256-57 (2005). Howeve r, the plain error doctrine gives a n arr ow and limited exception to a reviewing court to consider certa in forfeited
errors . People v. Herron , 215 Ill. 2d 167, 177, 830 N.E.2d 467, 474 (2005). The plain error doctrine allows this court to review unpreserved issues when either:

“(1) a clear

or obvious

error o ccurre d and the e

vidence is so closely balance d that the

error a lone thre atened t

o tip the sc ale s of justice against the defendant, reg ard less of the seriousness of the error, or (2) a clear or

obvious error occurs and that error is so ser ious that it affected the fairness of the def endant’s trial and challenged the integr ity of the jud

icial pro cess, re gardle ss of the closeness of the evidenc e.” People v. Piatkowski , 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). The first step in a plain error analysis is to determine whether an error occurred at all. People v. Hudson , 228 Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008). Absent a clear abuse of discretion, a reviewing court will not disturb a trial court’s ruling t o1-07-1769

19

grant or deny

a continuance. People v. Walker , 232 I ll. 2d 113, 125, 902 N.E.2d 691, 697 (2009). Section 114-4(f) in the Code states that “a reasonably brief continuance may

be granted to either side inthe interests of justice” after trial has beg un. 725 I LCS 5/114-4(f) (West 2006). No “mechanical test” exists to det

ermine w hen the de

nial of a continua nce for judicial e conomy

violates a defendant’s right to defend. Walker , 232 Ill. 2d at 12 5, 902 N.E.2d at 697. Factors a court may consider include “the movant’s diligence, the defenda nt’s ri gh t t o a sp ee dy, fair and impartial trial and the interests of justice.” Walker , 232 Ill. 2d at 125, 902 N.E.2d at 697. “Other re levant factors include w hether [d efense counsel] was unable to preparefor tria l becaus e he or she had be en held to trial in another cause (725 I LCS 5/114-4(b)(2) (West 1994)), the history of the case ( People v
. Coleman , 203 Ill. App. 3d 83, 100, 560 N.E.2d 9 91, 1003 (1990)), the complexity of the matter ( Peoplev. Ni ck ols , 41 Ill. App. 3d 974, 979, 354 N.E.2d 474, 479 (1976)), the seriousne ss of the charg es ( People v. Hamilton , 17 Ill. App. 3d 740, 742, 308 N.E.2d 216, 217 (1974)), as we l l a s docket man agement, judicial economy and inconvenience to the parties and witnesses.” Walker , 232 Ill. 2d at 125-26, 902 N.E.2d at 697. Here, the defendant

requested a continuance after the State had rested and the trial court had denied the defendant’s motion for a direc ted findin g. We note

that the d

efenda nt did not in

itially specify why he wante d a contin

uance. Defense counsel did not inform the trial court that he was unprepa red for trial nor that desp ite due di ligenc e he was unable to secure the presence

of defe nse witnesse s. In fact, i t was only after the trial court asked how many defense witnesses would be testifying did defense counsel say

that the defendant would be the defense’s only witness. The trial court then correctly

stated that it would not delay the proceedings, and pointed out that a demand for1-07-1769

20

trial “means y

ou’re r eady .” Wit

hout mu ch information provided regarding the alleged potential defense witnesses, the trial court could well have concluded that the def endant’s request was an
unreasonabledelay

inthe trial proceedings. Thus, we find that the trial court did not err in denying the defenda

nt’s req uest for a continu

ance an d the plai n error doctrine does not a

pply to rea ch the forfeited issue. Next, we de

termine w

hether t he defe ndant wa s denied e ffectiv e assista nce of c ounsel. The defenda

nt argu es that de fense c ounsel wa s acting under a c onflict of

in t erests by representing

both the defendant and Foote during the pretrial proceedings. Specifically, he a rgues that defense counsel’ s dual re

present ation impe ded the Sta

te from making a plea of

fer tha t would have benefitted one defendant ag ainst the interest of the other. To successfully e stablish aclaim of i neffective assis tance of

counsel, the defe

ndant: (1) must prove that the a

ttorney ’s perf

ormance fell below an obje cti ve s tandard of reas onablene ss so as to deprive him of

the rig ht to couns el under

the sixth ame

ndment (p erforma

nce pron g); and (2) that t his substandard

performance resulted in prejudice ( prejudice prong). Strickland v. Washington , 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-97, 104 S. Ct. 2052, 2064-68 (1984). To prove prejudice, the defendant must show that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” People v. King , 316 Ill. App. 3d 901 , 913, 738 N. E.2d 5 56, 56 6 (200 0), qu otin g People v. Haynes , 192 Ill. 2d 437, 473, 737 N.E.2d 169, 189 (2000). A reasonable probability is one that sufficiently und ermines co nfidence inthe outcome. King , 316 Ill. App. 3d at 913, 738 N.E.2d at 566. The defenda nt must satisfy both prongs to preva

il on his claim of ineffective assistance of counsel. Howe ver, a reviewing

court may1-07-1769

21

anal yz e the facts of the case under either prong first, and, if it deems that the standard for that prong is not satisfied, it need

not consider the other prong. People v. Irvine , 379 Ill. App. 3d 116, 129-30, 882 N.E.2d 1124, 1136-37 (2008). We find thatthis issue i s not appr opriate for res olution in the context o f this dire ct appea l. Rather, this issue should be appropriately ra ised in a postconv iction proceeding in which the defendant could subm

it affida vits and pr

esent extr insic evid ence at a hearing to determine whether
a conflic t of inter

ests existe d in h is trial representation. This is exactly the ty pe of issue that the postconviction proceeding s, set for th in case law and s tatutory

provision s, is intend

ed to addr

ess. Thus, we will not address the issue of a conflict of interests any further. The defenda

nt also makes a number of other arguments to support his claim for ineffective assistance of

counsel. T o the exten

t that thes e argu

ments rel ate to de fense c ounsel’s failure to ch allen ge Taylor’s menta l faculties and the discrepancy in the police report, we find that th e performance prong under Strickland was not satisfied, for the reasons discussed above. L ikewise, the defendant’s argument that defe nse counsel was ineffective for failing to pre sent any witnesses at trial is a

lso without

merit. He

re, the d efenda nt testifie d on his own

behalf a t tr ial, giving hi s versionof the ev ents that o ccurre d on the nig ht at issue . The def

endant ha s not shown

how defe nse counsel’s performance fell below an ob jective s tandard

by n ot prese nting mor

e witness es, particu larly where the State carried the burden of proof. Therefore, we find that neither prong was satisfied under Strickland

and the defendant did not estab lish the nece ssary facts to s

upport his claims of ineffe ctive as sistance

of counse l. Fi na ll y, we determine whether the defe ndant’s g uilt was pr

oven bey ond a rea sonable

doubt.1-07-1769

22

The defendant argues that there was insufficient evidence to support his conviction forfirstdegreemurder because ey ewitnesses to the c rime were unable to identify the perpetrators and the only evidence against the defend ant were Tay

lor’s statement to Sergeant Ry an and Johnson’s recant ed prior written s tatement
. When the sufficiency

of the evidence is challenged on a ppeal, we must determine “ ‘whether, after viewing the evidence in thelight most favora ble to the [State], anyrationa l trier of fact co uld have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Graham , 392 Ill. App . 3d at 1008- 09, 91 0 N.E. 2d at 1 271, q uoti ng Jackson v. Virg inia , 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is within the trier of fact’s province “to
assess the cre dibility

of the witnesses, determine the appropriate weig ht of the testimony, and

resolve conflic ts or inconsistencies in the evidence.” Graham , 392 Ill. App. 3d at 1009, 910 N.E.2d at 1272. A criminal

convicti on will not b e reversed “unle ss the evi dence is so improbab le or unsatisfactory that it creates a reasonable doubt as to the defe ndant’s guilt.” Graham , 392 Ill. App. 3d at 1009, 910 N.E.2d at 1271. Inthe case

at bar, T ay

lor’s sta tement to Sergea

nt Ryan, which was a

ppropriately a

dmitted
as a dying de claration, was singly sufficient to convict the defendant of first-degree murder. F

urther, Taylor’s statement was corroborated by Johnson’s prior written statement to the police, which stated th at the defendan t chased Tay lor with a semiautomatic weapon in hand. The trails of blood and spent cartrid ges fou nd at the c

rime sce ne also c orrobor

ated witness testimony

of th e c has e. In reviewing the evidence, the trial court was free to believe Johnson’s prior inconsistent statement and Taylor’s dy

ing declaration, rather

than Johnson’s recanted statement and the defendant’s denial at1-07-1769

23

trial. Therefore, we find that the evidence was more than sufficient to establish the defendant’s guilt and support the defendant’s conviction. As a final note, because the condition of the Sta

te’s brie f fell so f

ar below compliance with Supreme Court Rule s 612 (210

Ill. 2d R. 612), 341 (210 Ill. 2d R. 341) and 6 (145 Ill. 2d R. 6), that
we feel compelled to comment on this violation of a mandatory re quirement. Both the State’s and the defendant’s briefs inappropriately contained numerous improper citations, including the use of

“ supras .” Howev er, th e Stat e’s bri ef comp ounde d the p roble m by usin g a co ndensed, small font whichmade the brief extremely difficult to read. As the assistant State’s Attorney was a dmonished inoral argument, we reitera te that the supreme court

rules re gardin

g appe llate practice are not mere sugge stions, but are mandatory rules from which parties must not deviate. We caution that parties who violate these rules will run the risk of having their briefs stricke n and sanctions imposed. Affirmed. HOFFMAN and THEI S, JJ., concur.