2022 IL App (1st) 172483-U 

SIXTH DIVISION

November 23, 2022 

No. 1-17-2483 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

v. 

D’ANDRE FULLER, 

Defendant-Appellant. 

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 Appeal from the 

 Circuit Court of 

 Cook County 

 No. 13 CR 5805 

 The Honorable 

James B. Linn, 

 Judge, presiding. 

JUSTICE TAILOR delivered the judgment of the court. 

Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment. 

ORDER

¶ 1 Held: Trial counsel was not ineffective for failing to object to the admission of witness’s 

prior statements of identification. Trial court’s error in failing to question the jury 

in accordance with Illinois Supreme Court Rule 431(b) did not prejudice defendant 

because the evidence presented at trial was not closely balanced.

¶ 2 A jury found defendant, D’Andre Fuller, guilty of first degree murder and the circuit court 

sentenced him to 60 years’ imprisonment. Fuller appeals. We affirm. 

¶ 3 I. BACKGROUND

¶ 4 Fuller was charged with the first degree murder of Tyrone Scott, and a jury trial 

commenced on May 18, 2015. The evidence adduced at trial is summarized as follows.
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¶ 5 Timothy Lewis testified that he knew Fuller from the neighborhood as “Pookie.” Lewis 

had been a community representative at the grammar school that Fuller attended. In addition, 

Lewis was a very good friend of Scott’s, whom he knew from the neighborhood. 

¶ 6 Lewis has nine drug-related felony convictions and a misdemeanor conviction for retail 

theft. At the time of trial, Lewis was awaiting trial on a charge of possession of a controlled 

substance, but he had not been offered a deal in that case in exchange for his testimony in this case. 

Lewis served in the Navy for four months but previously falsely testified to the grand jury that he 

served in the Navy for four years and was stationed in the Philippines, San Diego, and Pearl 

Harbor. Lewis had previously told defense counsel that he worked at Fuller’s school as a substitute 

teacher, not a school community representative. Lewis was an active drug user at the time of the 

shooting, but he testified that he was not under the influence of drugs on the day of the shooting 

or at any point when speaking to police or testifying before the grand jury. A stipulation was later 

entered as to the testimony of Leanne Tyler, a substance abuse counselor who evaluated Lewis 

pursuant to a court order in an unrelated felony drug case. On June 27, 2015, a little more than a 

month after trial commenced in this case, Lewis reported to Tyler that he was a daily user of 

cocaine. Lewis also reported that he had used a bag of heroin daily until around the time of the 

shooting, when he increased his use from three to four bags of heroin per day. 

¶ 7 On November 26, 2012, Lewis was on the corner of South Kildare Avenue and West Van 

Buren Street in Chicago doing security for drug sales. On direct examination, Lewis stated that 

Taurean Holmes, Tyrone Scott, and Marcus Harrington were on the corner with him. On crossexamination, Lewis stated that Miguel Gore was also there. Lewis walked three blocks away to a 

nearby Blue Line train stop to drum up business for the drug sales. As Lewis walked back to the 

corner of Kildare and Van Buren, he saw Fuller walking 15 feet away. Lewis said, “What’s up, 
No. 1-17-2483 

3 

Pook,” but Fuller just looked at him and kept walking. Fuller was wearing jeans and a black hoodie 

tied around his face. Lewis could clearly see Fuller’s face, and noticed Fuller’s limp. Lewis lost 

sight of Fuller as the two walked in opposite directions. Five minutes later, as Lewis neared the 

corner of Kildare and Van Buren, he saw Fuller standing in front of Scott. Scott was standing on 

the corner of a vacant lot; Lewis was at the south end of that lot and could see across. Lewis was 

one or two vacant lots away. It was evening, and Lewis could see by the light of the streetlights. 

Lewis heard Fuller shoot Scott once, then observed Fuller shoot two more times before Lewis ran 

away. Lewis heard two more shots as he ran. Lewis had testified before the grand jury that he 

observed all the shots. 

¶ 8 On December 11, 2012, Lewis was arrested on an unrelated charge and asked to speak to 

police about the Scott shooting. On December 12, Lewis discussed the shooting with police and

identified Fuller as the shooter in a photo array lineup. 

¶ 9 Marcus Harrington testified that he was in custody for failing to appear in this case and had 

absconded from parole in an unrelated case. Harrington knew Tyrone Scott from the neighborhood

and Fuller from grammar school. Harrington knew Fuller by the nicknames of “Pookie” and “Ray 

Ray.” 

¶ 10 On November 26, 2012, Harrington was on the corner of Kildare and Van Buren with Scott 

and Gore selling heroin. Timothy Lewis was not working with them that day; Lewis had bought 

heroin earlier and left. Harrington was watching his girlfriend’s car exit a nearby alley when he 

heard a shot from his left side. He saw Scott falling forward and Harrington ran away. Harrington 

heard two or three more shots as he was running. Harrington got into his girlfriend’s car and later 

drove back towards the corner where Scott was shot, but he was not able to get close because 

emergency services had arrived and blocked off the area by that time. 
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¶ 11 On December 1, 2012, Harrington met with police officers investigating the shooting. 

Harrington testified that he told police he never observed the shooter. Police showed Harrington a 

photo array lineup and told him to identify anyone that he knew. Harrington identified Fuller as 

someone he knew, not as the shooter. 

¶ 12 Harrington met with police and an assistant state’s attorney (ASA) on February 25, 2013. 

Harrington testified that he met with an ASA and gave a video-recorded statement. The State 

introduced the statement, in which Harrington said that on the evening of November 26, 2012, he 

was on the corner of Kildare and Van Buren with Scott and Gore selling heroin. Harrington was 

watching his girlfriend when he heard a gunshot, looked, and saw Scott falling forward. Harrington 

was 25 to 35 feet away from Scott at that time. Scott was shot five or six times in all. The gunman 

was wearing a black hoodie and brown pants. The gunman was Black and carried a black handgun.

Over defense counsel’s objection, the State introduced that part of Harrington’s statement 

identifying Fuller as the shooter. Harrington was able to identify Fuller because he could see part 

of Fuller’s face.

¶ 13 Harrington was next asked about his grand jury testimony. The State introduced portions 

of Harrington’s March 15, 2013, grand jury testimony. Harrington told the grand jury that on the 

evening of November 26, 2012, he was on the corner of Kildare and Van Buren with Scott and 

Gore selling heroin. Harrington was watching his girlfriend when he heard a gunshot, looked, and 

saw Scott falling forward. He saw Scott get shot from behind four or five more times. The gunman 

was wearing a black hoodie and brown pants and carried a black handgun. The gunman was 

African American. It was about to get dark, and Harrington was able to see the shooter’s face by 

the light of the streetlights. He again identified Fuller as the gunman. 
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¶ 14 At no point on direct examination did the State ask Harrington whether, independent of 

what he told the ASA and grand jury, he saw the shooter. 

¶ 15 On cross-examination, Harrington testified that he did not know who the shooter was and 

that he lied to police, the ASA, and the grand jury about seeing the shooter. The streetlights had 

not come on yet at the time of the shooting. Harrington was high on ecstasy, marijuana, and alcohol 

that day. Harrington heard the first shot and jumped because it was loud. After the first shot was 

fired, Harrington turned in the direction of where the gunman was. He saw a man with a hood tied 

over his face. He saw a portion of the shooter’s face from his mouth to the top of his eyes, but the 

shooter was not Fuller. 

¶ 16 Henrine Courts testified that she was in her home on the evening of November 26, 2012, 

when she heard two gunshots. She got on the floor and heard two more gunshots. After some time, 

Courts got up to see if she could see anything. She went outside and saw Scott, who she knew 

through his mother, lying on the ground. Courts said “Tyrone,” and Scott groaned, but he did not 

move or breathe after that. Courts told other onlookers to call the police.

¶ 17 Frank Kawczyk, a firefighter and paramedic, and three of his partners responded to the 

scene at 5:08 p.m. Kawczyk saw a man lying on the ground. He rolled the man over to put 

electrodes on him and check his vital signs, but the man was already dead. 

¶ 18 Terrence McKitterick, an evidence technician, responded to the scene at around 5:30 p.m.

McKitterick took photo and video of the scene. He also recovered a bullet from the ground 

underneath Scott’s body. McKitterick then went to the medical examiner’s office to photograph 

and fingerprint Scott. 

¶ 19 The parties stipulated to the medical examiner’s report, which stated that Scott died of 

multiple gunshot wounds. Five bullets entered Scott’s body through his right back, right posterior 
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shoulder, right posterior thigh, left posterior forearm, and left chest. It was also stipulated that the 

bullet found in Scott’s brain and the bullet found on the ground beneath Scott’s body were fired 

from the same gun. 

¶ 20 Detective John Hillman testified that he obtained a video from a police department camera 

on the corner of Kildare and Van Buren. Two video clips from the camera were published to the 

jury. The first showed three people standing on the corner near where Scott’s body was found a 

short time later. The second clip showed a person running down Kildare Avenue, and several 

people approaching Scott’s body. 

¶ 21 On December 1, 2012, Hillman interviewed Harrington. Harrington did not appear to be 

under the influence of drugs or alcohol. Hillman testified that Harrington said he observed Fuller

shoot Scott, and watched Scott fall to the ground as Fuller continued to fire his gun. Hillman 

presented Harrington with a photo array lineup, and Harrington identified Fuller as the person who 

shot Scott. 

¶ 22 On December 12, 2012, Hillman interviewed Lewis. Lewis had contacted police to discuss 

the shooting after being released on bond for an unrelated arrest. Hillman showed Lewis a photo 

array lineup. Lewis identified Fuller as a person he saw approaching the scene where Scott was 

killed. 

¶ 23 After Fuller was arrested, Hillman re-interviewed Harrington on February 25, 2013. 

Harrington did not appear to be under the influence of drugs or alcohol. An ASA also met with 

Harrington that day. Harrington then agreed to record a video statement. Harrington’s video 

statement was published to the jury. 

¶ 24 A stipulation was entered that Timothy Lewis had 11 prior convictions and Marcus 

Harrington had 2 prior convictions. 
No. 1-17-2483 

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¶ 25 The jury found Fuller guilty of first degree murder. Defense counsel filed a motion for a 

new trial. Fuller raised a pro se claim of ineffective assistance of counsel, and the trial court 

ordered that a Krankel hearing be held. See People v. Krankel, 102 Ill. 2d 181 (1984). Fuller

obtained private counsel, and an evidentiary hearing was held. The trial court denied the posttrial 

motion, finding that defense counsel was not ineffective where her decision not to call a witness 

was strategic and Fuller’s alibi witness was not credible. 

¶ 26 Fuller was sentenced to 60 years’ imprisonment. This appeal followed. 

¶ 27 II. ANALYSIS

¶ 28 On appeal, Fuller argues that his trial counsel was ineffective. Fuller also argues that the 

circuit court erred when it failed to question the jury using the instructions required by Illinois 

Supreme Court Rule 431(b) (eff. July 1, 2012) and seeks plain error review. We address these 

arguments in turn. 

¶ 29 A. Fuller Was Not Deprived of Effective Assistance of Counsel 

 Because Harrington’s Prior Statements of Identification of Fuller as the 

 Shooter Were Admissible as Substantive Evidence Under Section 115-12 

¶ 30 Fuller argues that his trial counsel was ineffective for failing to object to the introduction 

of Harrington’s prior identifications of Fuller as the shooter because the State did not establish that 

Harrington perceived the shooter before it introduced his prior statements of identification, making 

the identification testimony inadmissible for lack of foundation. Fuller further argues that his trial 

counsel exacerbated this error by establishing the requisite foundation for Harrington’s prior 

statements of identification during cross-examination. The State responds that defense counsel’s 

failure to object to the admission of Harrington’s prior identifications of Fuller was not deficient 

because, as the trial court ruled, Harrington’s statements were admissible as prior statements of 

identification under section 115-12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
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12 (West 2014)), and the statute does not require the witness’s perception to be established before 

a prior statement of identification can be introduced as evidence. 

¶ 31 “A criminal defendant has a constitutional right to effective assistance of counsel.” People 

v. Veach, 2017 IL 120649, ¶ 29 (citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). 

We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. 

Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504, 526 (1984). “To 

succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s 

performance was deficient and that the deficient performance prejudiced the defense.” People v. 

Brown, 2017 IL App (1st) 142877, ¶ 55 (citing Strickland, 466 U.S. at 687). In other words, “a 

defendant must show both that counsel’s representation fell below an objective standard of 

reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” People v. Wood, 2014 IL App (1st) 

121408, ¶ 60. 

¶ 32 Fuller argues that under section 115-12, the State was required to establish Harrington’s 

perception of the shooter before introducing Harrington’s prior identifying statements. In other 

words, it was not sufficient for the perception evidence to be offered as part of the prior identifying 

statements. We disagree. 

¶ 33 Section 115-12 provides that “[a] statement is not rendered inadmissible by the hearsay 

rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to crossexamination concerning the statement, and (c) the statement is one of identification of a person 

made after perceiving him.” 725 ILCS 5/115-12. “[T]he declarant’s prior out-of-court 

identification of the defendant is admissible as substantive evidence, regardless of whether it 

corroborates the declarant’s in-court identification of the defendant or is instead introduced ‘as a 
No. 1-17-2483 

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substitute for in-court identification or to bolster a weak one.’ ” People v. Neal, 2020 IL App (2d) 

170356, ¶ 33 (quoting Michael H. Graham, Handbook of Illinois Evidence § 801.13, at 969 (2020 

ed.)). Prior to the enactment of section 115-12, when a declarant testified and was subject to crossexamination, the declarant’s prior statement identifying someone after seeing him or her (usually 

in a lineup or photo array) was admissible to corroborate the declarant’s in-court identification, 

but it was not admissible as substantive evidence. People v. Rogers, 81 Ill. 2d 571, 579 (1980). 

¶ 34 “When statutory language is plain and unambiguous, we must apply the statute as written 

without resort to aids of statutory construction.” Lewis, 223 Ill. 2d at 402. A court may not read in 

additions or limitations to the statutory language that were not expressed by the legislature. Id. 

¶ 35 Here, the statute is clear that the declarant must testify at trial and be subject to crossexamination regarding the statement. The statute further requires that the statement be an 

identification made by the declarant after perceiving the person. Thus, the plain language of the 

statute suggests that the statement of identification itself will always contain details of the 

declarant’s perception. Regardless, the statute contains no requirements regarding the order of the 

declarant’s testimony at trial. “This court may not add a requirement for the order of the witness’ 

testimony when it is not found in the plain language of the statute.” Id. at 403 (holding that section 

115-12 “does not expressly require the declarant to testify on the out-of-court identification before 

a third party may testify about that identification.”). 

¶ 36 Under the statute, the prior statement of identification may be introduced as substantive or 

corroborative evidence. The statute does not require the declarant to be a victim of or an eyewitness 

to the commission of the crime. Neal, 2020 IL App (2d) 170356, ¶ 36. Nor does the statute require 

the declarant to testify to the statement of identification before a third party does so. Lewis, 223 

Ill. 2d at 403. 
No. 1-17-2483 

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¶ 37 Because the statute allows varying formulations for the introduction of this kind of prior 

identification evidence, to require the State to introduce evidence of the declarant’s perception of 

the defendant prior to allowing the introduction of the identification statement would severely 

restrict the statute’s application. Where the legislature did not include this requirement in the 

statute, we decline to impose such a condition. We therefore find that the statute does not require 

a witness’s perception to be established prior to the introduction of the prior identification 

statement. Rather, it is sufficient if such perception evidence is introduced as part of the prior 

statement of identification, as occurred here.

¶ 38 Fuller’s reading of section 115-12 is too narrow. When, as here, a prior out-of-court 

statement of identification is introduced as substantive evidence, the out-of-court statement itself 

will necessarily supply the details of the declarant’s perception and identification. The facts 

regarding the declarant’s perception of the defendant and details of the identification are part of 

the statement of identification that allow a fact-finder to determine the reliability of the 

identification itself. These details are not separable from an otherwise admissible statement of 

identification. 

¶ 39 Harrington’s testimony at trial met the requirements for admissibility of his prior 

statements of identification. Harrington testified at trial and was subject to cross-examination 

concerning his previous statements of identification, and the identifying statements were made 

after Harrington observed Fuller shoot Scott. Because the requirements for admissibility were met 

under section 115-12, defense counsel’s cross-examination eliciting inconsistencies in 

Harrington’s testimony was not required to establish the admissibility of the prior identifications. 

Accordingly, we find that defense counsel was not deficient for failing to object to the introduction 
No. 1-17-2483 

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of these statements into evidence, nor was defense counsel deficient in cross-examining 

Harrington. 

¶ 40 In sum, we hold that defense counsel was not deficient in failing to object to the 

introduction of Harrington’s prior statements of identification because Harrington was not required 

to testify to his perception of Fuller as the shooter independently of his prior identification 

statements for those statements to be admissible under section 115-12. Because Fuller cannot 

establish deficient performance by his trial counsel, his claim of ineffective assistance fails.

¶ 41 B. The Trial Court’s Failure to Ensure Jurors’ Understanding of and 

 Agreement with the Zehr Principles was Plain Error, but a 

 New Trial is Not Warranted Because the Evidence Was Not Closely Balanced.

¶ 42 Fuller next argues that this case should be remanded for a new trial because the trial court 

plainly erred when it failed to question the jury using the instructions required by Rule 431(b). 

Fuller advances this argument for the first time on appeal.

¶ 43 “To preserve an issue for review, a party ordinarily must raise it at trial and in a written

posttrial motion.” People v. Elizondo, 2021 IL App (1st) 161699, ¶ 79. A reviewing court may 

consider an unpreserved error 

“when (1) a clear or obvious error occurred and the evidence is so closely balanced 

that the error alone threatened to tip the scales of justice against the defendant, 

regardless of the seriousness of the error, or (2) a clear or obvious error occurred 

and that error is so serious that it affected the fairness of the defendant’s trial and 

challenged the integrity of the judicial process, regardless of the closeness of the 

evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). 

¶ 44 Rule 431(b) requires the trial court to ask potential jurors whether they 

“understand and accept the following principles: (1) that the defendant is presumed 

innocent of the charge(s) against him or her; (2) that before a defendant can be 
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convicted the State must prove the defendant guilty beyond a reasonable doubt; 

(3) that the defendant is not required to offer any evidence on his or her own behalf; 

and (4) that if a defendant does not testify it cannot be held against him or her; 

however, no inquiry of a prospective juror shall be made into the defendant's 

decision not to testify when the defendant objects.” 

The rule “mandates a specific question and response process” that must provide each juror with 

the opportunity to respond. People v. Thompson, 238 Ill. 2d 598, 607 (2010). 

¶ 45 Here, the trial court asked whether the prospective jurors had a “disagreement or problem” 

with the Rule 431(b) principles but did not ask whether potential jurors understood and accepted 

those principles. The State acknowledges this failure to comply with the requirements of Rule 

431(b) constitutes error under People v. Wilmington, 2013 IL 112938, ¶ 32 (trial court erred in 

asking only whether prospective jurors “disagreed with” the Rule 431(b) principles, but not 

whether they understood them.). But the State argues that there are no grounds upon which this 

unpreserved error may be reviewed by the court. 

¶ 46 Fuller does not argue that the trial court’s error resulted in a biased jury, meaning the error 

was so serious that it affected the fundamental fairness of his trial. Id. at ¶ 33. Instead, Fuller argues 

that the evidence was so closely balanced that this error “threatened to tip the scales of justice 

against [him].” Piatkowski, 225 Ill. 2d at 565. “In determining whether the evidence adduced at 

trial was close, a reviewing court must evaluate the totality of the evidence and conduct a 

qualitative, commonsense assessment of it within the context of the case.” People v. Sebby, 2017 

IL 119445, ¶ 53. 

¶ 47 In Piatkowski, our supreme court determined that where, as here, the evidence to convict 

the defendant came solely from the testimony of two witnesses, no physical evidence connected 
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the defendant to the crime, no inculpatory statements from the defendant were introduced at trial, 

and where the defendant presented no evidence, we consider the reliability of the witness testimony 

in determining whether the evidence was closely balanced. 225 Ill. 2d at 567. We evaluate 

“(1) the opportunity of the witness to view the criminal at the time of the crime, 

(2) the witness’ degree of attention, (3) the accuracy of the witness’ prior 

description of the criminal, (4) the level of certainty demonstrated by the witness at 

the confrontation, and (5) the length of time between the crime and the 

confrontation.” Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). 

¶ 48 Here, we find that the evidence regarding the reliability of the witnesses’ identifications 

was not close. The State presented two witnesses who identified Fuller as the shooter. Although at 

trial Harrington disavowed his numerous prior statements to police and the grand jury in this case, 

those prior statements all consistently identified Fuller as the shooter. Lewis identified Fuller as 

the shooter to police in a photo array, before the grand jury, and again at trial. Harrington, who 

knew Fuller from grammar school, was able to see part of Fuller’s face at the time of the shooting, 

although he did so from 25 to 35 feet away. Lewis was not able to see the shooter’s face at the 

time of the shooting but recognized him from a distance of one or two vacant lots as Fuller after 

seeing him earlier in the day. Lewis had known Fuller for a long time. Harrington and Lewis both 

described Fuller as wearing a hoodie tied around his face. Both witnesses demonstrated 

consistency in identifying Fuller as the shooter in their statements to police and identifying Fuller

as the shooter in photo arrays. Lewis first identified Fuller to police two weeks after the shooting 

and testified to this identification at trial. Although at trial Harrington denied identifying Fuller as 

the shooter to police, the evidence showed that Harrington first identified Fuller as the shooter to 

police in an interview five days after the shooting and consistently identified Fuller as the shooter 
No. 1-17-2483 

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on three prior occasions: a video statement to police, in a photo array lineup, and in his testimony 

to the grand jury. Both Harrington and Lewis testified that they heard Fuller fire five shots, and 

this testimony was corroborated by the medical examiner’s report that five bullets had entered 

Scott’s body. 

¶ 49 Fuller argues that certain discrepancies in the witnesses’ testimony undermine the 

reliability of the witness identifications and show the evidence was closely balanced. We disagree. 

That, for example, Harrington described Fuller as wearing brown pants while Lewis described him 

as wearing jeans, does not sufficiently undermine the other evidence demonstrating the reliability 

of the witnesses’ multiple identifications of Fuller. Nor do we find that the evidence elicited 

regarding Lewis’s and Harrington’s criminal backgrounds and drug use undermines their

otherwise consistent testimony as to the identity of the shooter. 

¶ 50 Based on the foregoing, we find that the trial court’s error did not prejudice Fuller because 

the evidence presented at trial was not closely balanced. Accordingly, Fuller is not entitled to relief 

under the plain error doctrine. 

¶ 51 III. CONCLUSION

¶ 52 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 53 Affirmed.