2013 I LApp (1st) 110413 FI FTH DI VI SI ON November

15, 2013

No. 1-11-0413 THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. ANTON I O MORRI S, Def endant- Appellant. ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County No. 06 CR 13757 Honora ble Thomas V. Ga iner, J udg e Presiding
. J USTI CE PAL MER delivered the judgme nt of the cour t, with opinion. J ustices Howse and Ta

ylor conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Followinga jury

trial, defe ndant Antonio Morris was f ound g uilty

of first degree murder based on a

theory of ac countability . Def

endant wa s sentence d to a term of 30 year s' imprisonment. On appea l, defe ndant contends tha t: (1) the trial c ourt err ed whe n it ruled that the State could use portions of de fenda nt's suppr essed videota

ped stateme nt to impeach two medica l experts that defe ndant intended to ca ll on his behalf; (2) he was de nied a f air trial whe n the cour

t preve nted him from eliciting evidenc e that a pr ior statement of one of the pa rticipants in the crime, who testified at def endant' s trial, was g iven in exchang e for a plea to a lesser

offe nse and a reduc ed sente nce; ( 3) he r ece ived ineff ective a ssistance of c ounsel; and (4) the cour t failed to proper ly admonish the potential jurors pursua nt to I llinois Supreme Court Rule 431(b) ( eff . May 1, 2007). F or the re asons that follow, we aff irm. ¶ 2 Def

endant a nd three other men w ere arr ested a nd char g ed with first degree murder a rising1-11-0413

out of the fatal beatingof the victim, Phill ip Thomas, in a vac ant par king lot on the e veningof May 8, 2006. Two of those me n, J ohnny Graves and L aronne Wallace, pled guilty to lesser offe nses and testified a

t defe ndant' s trial. 1 Def

endant a nd the other ma

n, codef endant Ma

rce l Simps on, wer e tried tog ether befor e a sing le jury
. ¶ 3 Prior to trial, defe ndant filed a motion to s uppress a

videotaped statement he g ave to police followinghis arre st. In that statement, def endant told police that he threw a metal pole at the dec edent' s back a

nd hit him wit h it in the ribs. The trial cour t gr anted the motion and suppressed de fenda

nt's state ment. The c ourt noted that its ruling w as base d on a " technica l violation of the Miranda war nings" and that ther e wa s no alleg ation that defe ndant' s statement
was c oerc ed. ¶ 4 Prior to trial, defe ndant also filed a motion in limine asking the trial cour t to prohibit t he State from introducingevidenc e of de fenda nt's vide otaped c onfession to police duringtrial. Def endant state d that he would not be testify ing a t trial but that he intended to introduce "e vidence from tre ating medical pe rsonnel at the Cook County jail that he was not a

ble to phy sically

commit the crime a s alleg ed due to a medical c ondition, specifically his Hills-S achs defor mity as diag nosed by

Cermak phy sicians." Def endant c laimed that the testimony of these experts would be base d on their own opinions and not on base d on statements that def endant made in his confe ssion. Defe ndant aske d the cour t to preclude the State from introduc ing a ny details of his confe ssion, including his statement that he thr ew a pipe at the victim.

1 Graves pled guilty

to conspirac y

to commit murder in exchang e for a 14-year prison sentenc e. Wallace pled guilty to second de g ree murder in e x chang e for a 17-year sentenc e. 21-11-0413

¶ 5 Def

endant submitted three documents to the trial cour t as an off er of proof in support of his moti on in limine . The fir st was a medic al intake f orm from the Cook County jail signe d by

a para medic on May

16, 2006. In the document, ther e is a mar k by the sec tion for " Assistive Device s (prostesis, ca

ne, etc .)" with the "e tc." circ led and the w ord " Br ace " written in. I n the
rema rks sec tion it s tates " Hx. R . shoulder injury 4/06 Rx . Pain Pil ls and Br ace ." T he next document wa s a Cook County radiolog y

repor t reg ardingtwo X-ra

y s taken of de fenda

nt's r ight shoulder on June 8, 2006. The document is sig ned by a " rea ding r adiolog ist" name d Osca r Jara. The re port lists "Reason for Ex am: Chronic Dislocation." The " Finding s" se ction states that "[t]wo views of the rig ht shoulder re veal[] no evidence of fra cture or dislocation. Ther e is flatteningof the late ral a spect of the humera l head sug g estive of Hill-Sac hs defor mity from previous dislocations." The fina l document was a definition of " Hill-Sachs def ormity " ta ken from the Interne t website biolog y -online.org , which def ines " Hill-Sachs def

ormity " a s "inde ntation or g roove on poster olatera l aspec t of humera l head, pr obably due to compre ssion of humera l head on poster ior lip of g lenoid, sug g ests repe ated or chronic anter ior shoulder dislocation, may

occur afte r one e pisode of dislocation assoc iated with: Ba nkhart lesion of g lenoid." B iology

Online, http:// www.biolog y -online.org/dictionary /Hill-sachs_def

ormity (last visited November 13, 2103)
. ¶ 6 The State re sponded by askingthe cour

t to deny defe ndant' s motion and to allow it t o play portions of defe ndant' s videotaped state ment to impeach de fenda nt's pr oposed medica l experts. The State pointed out that in his confe ssion, defenda nt admitted to throwing a pipe at the victim and to hitting the victim in the bac k and rib c ag e with the pipe. The State argued that allowingit 31-11-0413

to introduce e vidence of def endant' s confe ssion would further the State' s "truth se ekingfunction." ¶ 7 When arguing the motion before the trial court, de fense counsel stated that the experts examined defe ndant and diagnosed him with Hill-Sachs defor mity . Counsel argued that the testimony would be that def

endant would " at least have a diminished ca pability for pe rfor

ming that (throwingor hitting the vic tim with a pole)." In response , the State ar g ued that def endant wanted to c all witnesses who would testify to things that def

endant ha d told them about his phy sical condition and that it should be allowed to impea ch those e x perts with portions of defe ndant' s statement to rebut what amounted to "pe rjury by proxy ." D efe nse counse l responded that althoug h defe ndant made statements that he ha d a history of shoulder pr oblems that were
rec ently exacer bated, the doc tors would testify to information they

lear ned fr om "a

phy sical observation of [defendant]" a nd that defe ndant did not "have a c onversation with" the ra diologist who re ad def

endant' s X-ra

y . The trial c ourt ag ree d with the State and rule d that if defe ndant called the medical e x perts, the State would be allowed to conf ront them with portions of defe ndant' s videotaped state ment. 2 ¶ 8 The followingevidenc e wa s prese nted at trial. ¶ 9 J esse Rucke r, who wa s 74 y ear s old at the time of trial, lived next to t he vac ant lot where the victim's body

was found. O n the day

of the incide nt, Rucker wa s at home workingon his second- floor dec k when he hear d a loud noise comingfrom a ne arby alley . He sa

w two or thre e men cha sing a

nother man f

rom the alley

and ac ross a ne arby

vaca nt lot. The g roup of men w ere

2 Def endant did not ultimately

call these experts during trial.

41-11-0413

beingfollowed by

a beig e Chevy

and a F ord B ronco. The men did not have a ny thing in their hands at this time and they wer e shouting"vulg ar na mes" at the victim. The Chevy followed the men throug h the vac ant lot while the For d drove south to the " T" in the alley and then dr ove we st to Waller Street. Rucker

lost sight of the incide nt when he w alked to the be droom window at the front of his house to g et a be tter view. When Rucke r re ache d the bedr oom window, he sawsix men beating the vic tim and he also saw the Chevy and the B ronco, which wer e now e mpty . The victim was lying on the g round and c ould not protect himself bec ause " they wer e beating him too bad." All six men took turns using w eapons to be at the victim, and Rucke r explained that one of the wea pons looked like a bat and the other looked like a tire iron or cr owbar . Rucker did not see the men kickingor hitting the vic tim and he did not see a nyone throw a

pole or a bat at him. Rucker move d to his front porch a nd saw that the me n wer e still beating the victim. The victim tried to cra

wl under a

car but men pulled him out and continued to beat him. The be ating lasted approximately

10 minutes and the men then " jumped" into the two c ars with the ba t and the tire iron and drove from the sc ene. ¶ 10 Rucker spoke to the police that day and duringthe cour se of the inve stigation he was shown various photog raphs by the police. He could not descr ibe for police the attac kers' hairstyles or fa cial hair , but he did say that one of the attacke rs was muc h heavie r than the othe rs -appr ox imately

300 pounds- and that a

nother a ttacker had sca rs. On May

10, Detec tive David Gillespie showed Rucke r three photo arra y s which included photog raphs of Dway ne Thompson and Vonzell Fr anklin. Rucker ide ntified a photog raph of Powell as someone who c hased a nd beat the vic tim. Approx imately one we ek later , on May

14, Rucker vie wed a

lineup at the police 51-11-0413

station. He identified de fenda nt as one of the men who bea t the victim and as the pe rson who he was " almost sure" was drivingthe Chevy . Rucker a lso identified Simps on as one of the men chasingthe victim and Wallace a s a passe ng er in the Chevy
. ¶ 11 On cr oss-examination, Rucker testified that he g ave a handwr itten statement approximately

one we ek af

ter the inc ident but claimed that he did not re member te lling police that he sawthe attac kers stomp on the victim' s head. When shown his handwritten statement, Rucker de nied having

signe d it and claimed that his sig nature on the statement looked " altere d." Rucker f urther te stified that he wa s 100% sure of the lineup identifications he made on May 14, and he did not re call tellinga def ense inve stigator that was 90% sure of those identifications. ¶ 12 J ohnny

Graves testified that he was orig inally char g ed with first degree murder in
connec tion with his role in the victim' s death. Gr aves later pled guilty to conspirac y

to commit murder a nd enter ed into an agree ment with the State' s Attorney ' s office by which, in exchang e for his truthful testimony , he would be se ntence d to 14 y ear s' imprisonment with day -for -day g oodtime cre dit after de fenda

nt's tria l concluded. Grave s acknow ledg ed that he e x pecte d to serve 6 1/2 to 7 y ear s in prison after g ood-time cre dit and that a murde r convic tion would have mea nt a 20-y ear minimum sentenc e, a 60- y ear maxi mum sentence and no g ood-time cre dit. After making his deal with the prose cution, Graves wa s also put in a specia l are a of the prison and re ceive d specia l privileg es. Gra

ves also had a

prior fe lony

conviction for ma

nufac turing and deliver

y of a controlled substanc e. ¶ 13 Graves testified that on the a fternoon of May 8, 2006, he wa s at his cousin' s house when defe ndant and c odefe ndant Marc el Simpson arrived in def endant' s orang e F ord B ronco. G rave s 61-11-0413

g ot into the car a

nd the g roup drove to the store. While Simpson was in the store, Grave s was sitti ng in defe ndant' s vehicle when he sa w the victim g etting of

f the " el" train at Centra l and L ake Streets and pointed him out to defe ndant. Def endant then ma de a c all on his cell phone. The g roup wa s g oing to dr ive bac k to Grave s' s cousin' s house but defe ndant was on the phone and instead they

drove to West End and Waller. De fenda nt was driving , Simps on was in the fr ont passeng er se at and Gr aves w as sitting in the bac k. Graves knewthat there had bee n an alterc ation betwee n the victim and Dwa y ne Powell a month or two a g o during which the victim kicked out Powell' s teeth. Gra ves had ne ver ha d a proble m with the victim and he had " no clue" as to what wa s g oing to ha ppen that day
. ¶ 14 When the g roup ar rived at West End and Waller, defe ndant was usinghis cell phone when the group saw the victim coming out of a n alley . Graves saw D way ne Thompson following the victim in his t an or grey Chevy Cavalier a

nd also saw L arr on Wallace a nd Powell inside that vehicle. When the vic tim ran bac k down the alley g oing south, Powell g ot out of the Chevy and Simpson got out of the B ronco a nd they chase d the victim on foot while Graves and defe ndant stay ed in the B ronco. Thompson drove the Chevy throug h the alley

afte r the victim and def endant pulled his vehic le " behind them throug h the alley ." T he victim ran down the alley and throug h a vac ant lot. Thompson drove throug h the vac ant lot after the victim while defe ndant turned his vehic le ar ound to cut him off. ¶ 15 Graves testified that the vic tim ran around the Br onco and that he and de fenda nt jumped out of the vehic le. Def

endant thre w a pole at the victim and hit him i n the bac k with it from about five to seve n fee t away . Graves had not see n the pole in the B ronco a nd did not know 71-11-0413

wher e the de fenda

nt got it. The vic tim continued to run until Graves g rabbe d him. Grave s and defe ndant then starte d punchingand kickingthe victim, who fell to the g round. Simpson, Powell, Thompson and Wallace a lso approac hed and sur rounded the victim. Powell approac hed the victim with a wooded ba seball bat but he f ell and droppe d it. Si mpson picked up the ba t and used it to hit t he victim once in the he ad. The victim tried to ge t up but could not do so and then he wa s punched, kic ked and hit with the bat se vera l more times. Graves could not re call the victim ge tting hit ag ain with the pole and he did not know if anyone wa s holding the pole during the beating. Gr aves ide ntified a photog raph of a dumbell as the " pole" which def endant thre w at the victim. Whi le on the g round, the victim tried to cr awl under a ca r but Graves pulled him out by his leg s. The g roup continued to punc h and kick the vic tim and they also hit him wit h the pole seve ral more times. Som ebody said, " lets g o," a

nd then Gra

ves, Powell and Wallace enter ed Thompson's ve hicle while de fenda nt and Simpson got into defenda nt's ve hicle and the y

all drove
awa y from the sc ene. G rave s was ar rested a pproxi mately

three wee ks later a

nd initially

denied involvement in the crime. H e testified that he lied to the police whe n he denie d involvement in order to distance himself fr om the crime. H oweve r, whe n he most rec ently spoke to police, he told them a version of e vents that was the sa me as his testimony

at trial. ¶ 16 Graves testified that a lthough Wallace , Thompson and Powell stood in a circle around the victim, they

did not actually

participa te in beatingthe victim. He explained that Wallace w as the bigg est of the six m en and w eig hed appr ox imately 260 pounds. Grave s testified that he ha s a
scar on his forehe ad and a

nother on his nec k. ¶ 17 Dway

ne Thompson testified that he w as cur rently servingan eight-y ear

prison sentenc e 81-11-0413

for a drugconviction from Champa ign County alongwith two concur

rent one -year

sentenc es for drugconvictions in Cook Count y . He a lso had a prior conviction for dr iving on a revoke d license. Thompson testified that he had no a g ree ment with the prosec ution in ex chang e for his testimony in this case. ¶ 18 Thompson further testified that he " somewhat" rec alled the e vents of May 8, 2006. He used his g irlfriend' s beig e Chevy Cavalier to g o and buy

shoes for his c hildren but claimed he
never made it to the store be cause he starte d g ambling in a n alley near his home. Thompson also let Wallace bor

row the c ar later that da

y . Wallace lef

t with the car

but returne d a couple of hours later. Thompson e ntere d the ca r and he and Wallace drove a round the ne ighbor

hood for a

while until they "r an into the situation." He explained that they initially drove to L ake Stre et but then drove to " wher e some other g uy s was" at Waller and West End, whe re he saw de fenda nt's or ang e Br onco. Thompson did not see a ny one other

than def endant in the B ronco a

nd he did not see anyone running

in the are a. Thompson " couldn' t see fr om the distance" what wa s taking place beca use he " wasn' t close enough up on it to be able to pinpoint ex actly what wa s happening ." Around June 15, Thompson went to downstate I llinois in order to " lay low for a while" and he g ot into som e " leg al problems" while he wa s there. ¶ 19 On cr oss-examination, Thompson t estified that De tectives James Gilge r and V aulkner visited him i n the Champaig n County jail in September of 2007 a nd that they

said they wanted Thompson to be a witness. At trial, Thompson agree d that it was better to be a witness than a defe ndant. Thompson could " not rec all" if he told the detec tives that he drove to Waller and West End and saw the or ang e B ronco a nd Graves and Powe ll running in the a lley . Thompson 91-11-0413

then testified that he told the de tectives that he did see Gr aves a nd Powell chasingafte r the victim. He also told the detec tives that five people wer e involved in the bea ting, but he c ould not
rec all the names he g ave to the de tectives. On O ctober 24, 2007, while he wa s still in the Champaig n County

jail, he was visited by

Detec tive Gilge r and A ssistant S tate' s Attorney (ASA) Phy llis P orce lli. Thompson acknowledg ed that he a nswere d ASA Porcelli' s questions and that he g ave a handwr itten statement but he denie d telling the A SA any thing a bout the victim's murde r or say ing the things that we re c ontained in the stateme nt. He cla imed that the spec ific statements about the murde r had be en put in his statement by someone e lse. ¶ 20 ASA Phy llis W arr en testified that on Oc tober 24, 2007, she a ccompa nied Dete ctives Gilge r and V olker to the police station to int ervie w Thompson. 3 The ASA e x plained to Thompson her role in the case and that she w anted to spea k to him about the victim's death. Thompson ag ree d to speak with her . The ASA a nd the detec tives spoke to Thompson for about an hour a nd then ASA Warre n spoke to Thompson alone to ask if a nyone had ma de thre ats or promises to him and Thompson said no. ASA Warren then wrote out a state ment based upon what Thompson had told her and she showe d him some photogra phs, which he ide ntified. ASA Warren ve rified that Thompson could r ead by havinghim read the first para g raph of the statement to her a

nd then she re ad the r est of the state ment to him. Thompson s igne d ever y pag e and indicate d that he wa s g iving the statement voluntarily and that no thre ats or promises we re made to him in return f

or g iving the statement. The A SA also did not promise Thompson any

3 At the time of the investig ation, ASA Warren' s last name wa s "Porc elli." 101-11-0413

deal r eg ardinghis Cook C ounty drugcase s in ex chang e for his statement and she did not compar e his statement to the one he previously g ave to the de tectives. ASA Warr en then published Thompson's state ment to the jury
. ¶ 21 In the statement, Thompson stated that in F ebrua ry of 2006, the victim was a cting "c razy ," snatching people' s money or pouringout their liquor. Around that time, the victim g ot into a verba l confrontation with P owell, but Thompson did not know if it was phy sical. Thompson hear d that the day afte r the ve rbal c onfrontation, Powell had his tee th kicked in by the victim and his brother a

nd some other men w ith baseball bats and pole s. ¶ 22 At approximately 4 p.m. on the day

of the incide nt, Thompson borrowed his g irlfriend' s tan Chevy

Cavalier. H e stopped to play some ca rds and, while doingso, Wallace a sked to borrow the vehicle. T hompson let W allace use the c ar a nd Wallace r eturne d sometime later a nd told Thompson that Graves ha d called a nd told him t hat " they " w ere chasingthe victim. Thompson got into the ca r with Wallace a

nd they drove towa

rd Waller and L ake stre ets bec ause that is where Graves told Wallace they wer e g oing. A t that location, Thompson saw the victim runningthroug h an alley

and also saw

defe ndant' s orang e B ronco c hasing behind the victim. Powell and Simpson were r unning be hind the Br onco and G rave s g ot out of the Br onco and joined the cha se. Thompson and Wallace parke d near by and Thompson saw the victim ly ing on the g round next to a car while defe ndant, Simpson and Grave s beat the vic tim. Defenda nt had a metal pole, " may

be like a tire iron," and wa s hitti ng the victim with it every wher e but his head. Simps on was hitting the victim in the head with a ba seball bat a nd Graves wa s "stomping " a nd kicking the victim's body . Thompson did not know if Powell hit the victim and did not think 111-11-0413

Wallace did bec ause he was standingby the ca r. Simpson repeatedly

hit the victim in t he hea d with the bat and, a fter one of the blows, Thompson hea rd what sounded like a " turtle shell
cra cking " a

nd hear d a g irl say , "oh, the y killed him." Thompson and Wallace then left in the Cavalier. ¶ 23 Thompson concluded by stating that no deals had be en made in any of his case s in exchang e for

his statement, which he w as g iving f ree ly and voluntarily , and that no thre ats or promises wer e made to him. Thompson also st ated that the police and the ASA ha d trea ted him "r ight" and that whe n the police visited him in jail in S eptember of 2007, he told them the same version of e vents he wa s relatingin this st atement. ¶ 24 On cr oss-examination, ASA W arr en testified that she revie wed De tective Gilg er' s repor ts about his September 2007 inter view with Thompson and that, base d upon those repor ts, she considere d Thompson a witness and not a suspe ct. She ac knowledg ed that the de tective' s notes indicated that Thompson drove the Chevy and pursue d the dec edent. ¶ 25 Fr anklin testified that he wa s curr ently in custody

on two case s. He wa s char g ed with contempt of c ourt for not a ppear ing on a

subpoena in this case and he w as in possession of
narc otics when he was a

rre sted for c ontempt. Fra nklin also had three prior fe lony drug convictions. Howe ver, F ranklin testified that no promises we re ma de to him in ex chang e for his testimony in this case. ¶ 26 Fr anklin testified that he spoke with Sim pson on the nig ht of the incident but he c ould not
reme mber what Sim pson told him about the beating. F ranklin could not re member whether he told police that duringthat conver sation, Sim pson admitting hitting the vic tim 30 ti mes in the 121-11-0413

head w ith a baseba ll bat. Fra nklin admitted that he knew de fenda nt and that he told police whe re defe ndant' s Br onco wa s located. H e knew the location of the Br onco bec ause two da y s after the incident, he picke d defe ndant up and de fenda nt asked him to look at his car. F ranklin identified a photog raph of

himself and Powell that was taken on Mar ch 6, 2006, at F ranklin' s birthday which showe d Powell with his t eeth knoc ked out. He a lso admitted that Powell had been be aten up by the victim and others who knoc ked Powell' s teeth out with bats and sticks. On cr ossexamination, Franklin testified that the police threatened to cha rg e him with the victim's murde r if he did not tell them "something ," a nd that he wa s not charg ed in conne ction with the victim's death. ¶ 27 Chicag o police dete ctive John Valkner testified that he spoke with Fr anklin about a we ek afte r the incide nt and that Fr anklin was in custody at the time as a

suspect in the victim' s murder. The State played a vide otape of Detec tive Valkner ' s interview with F ranklin, in which F ranklin stated that Simpson admitt ed hitting the vic tim 30 ti mes in the hea d with a bat. ¶ 28 Detec tive David Gillespie testified that he met with Rucker at his home on May 10, 2006, and showe d him some photo arra y s. Rucker ide ntified Powell in the first arr ay as one of the men who beat the victim. Rucker made no identifications from the othe r two photo arr ay s which included photog raphs of

Thompson and Fr anklin. ¶ 29 Detec tive J ames Gilg er te stified that on May 14, 2006, he we nt with Fra nklin to an addre ss and locate d defe ndant' s 1987 orang e and ta n For d Br onco. L ater

that day , defe ndant signe d a conse nt to searc h form for the B ronco. D etec tive Gilge r sea rche d the vehicle and observe d a 12-inc h-longmetal pipe with a " collar" on the end that turne d out to be a dumbbell 131-11-0413

betwee n the driver ' s seat and the cente r console. A t approxim ately 9:45 a.m. that day , Rucker viewed a lineup at the police station made up of de fenda nt, Sim pson, Wallace, F ranklin and two "f illers." Ruc ker ide ntified defe ndant, Wallace a nd Simps on. Def

endant wa s identified as driving the B ronco, Simpson was identified a s chasingthe victim and Wallace w as identified a s beingsomeone who w as inside the vehic le and who g ot out of the vehicle . All three w ere identified as ha

ving pa rticipated in be ating the victim. Detec tive Gilge r also testified that ASA L aure tta Fr oelich took a ha ndwritten statement f

rom Rucker . Rucker told the ASA that six m en took turns beatingthe victim with a bat and a metal bar and stomping on the victim's he ad. The detec tive also testified that the Chevy Cavalier w as later

rec overe d and that a se arc h war rant wa s obtained for

the ca r. The Cavalier w as proc essed by an evide nce te chnician. D etec tive Gilge r went to Rucker ' s house on May 31 with a photo arr ay

that included Thompson but Rucker ma de no identification. Rucker also did not identify

Graves or Powell in ensuinglineups. ¶ 30 The pa

rties stipulated that the I llinois State Police crime la b detec ted no latent prints suitable for c omparison and no tra ces of blood on the dumbbell or the " collar" rec overe d from the Br onco. The parties f

urther stipulated that defe ndant was the reg istered owne r of the B ronco. The pa rties stipulated that no blood was found on a ny of the e vidence rec overe d from the B ronco or the Cava lier. I t was stipulated that the victim' s clothing w as re cover ed but neve r submitted for trac e or micr o analy sis. ¶ 31 The pa

rties furthe r stipulated to the re sults of the autopsy perf ormed on the vic tim's body
. The victim had fr actur es on both sides of his skull, a comminuted or multifrag mentary fra cture alongthe skull and three lace rations on this back of his he ad which a ligne d with the fra cture s 141-11-0413

underne ath. The vic tim also had a bruise a bove his rig ht ey e, interna l head injuries c aused by the comminuted fra cture s, and a total of 10 c ontusions to t he bra in located at the fra cture sites. The c ause of

death wa s cra

niocer ebra l injuries from blunt trauma due to assault. The State re sted its case f ollowing these stipulations. ¶ 32 The fir st defense witness called w as investig ator Que ntin Hall. Hall spoke with Rucker on J anuar y 25, 2007, and Rucke r told Hall that he wa s 90% sure of his identifications. Hall
measure d the distance from Rucke r' s second- floor window to the plac e the victim was f ound lying a nd it was 164 fee t. ¶ 33 The de fense also ca lled Detec tive Gilge r as a witness. The de tective testified that he and Detec tive Valkner

interviewe d Thompson at the Champaig n County jail on September 17, 2007, and that he w as pre sent when A SA Warren inter viewed T hompson in October of 2007. The detec tive ag ree d that there wer e some diff ere nces be tween what Thompson told the detectives in September a

nd what he told the ASA on Oc tober 24, 2007. Spec ifically , Thompson told Detec tive Gilge r that Powell and Gr aves c hased the victim by foot but he told ASA Warren that Powell and Simpson chased him by foot. Fur ther, Thompson told Detec tive Gilge r that defe ndant, Powell, Graves, Simpson and Wallace beat the victim but he told the ASA that defe ndant, Simpson and Grave s beat him. The de tective a lso testified that Thompson was not char g ed bec ause nobody

identified him. ¶ 34 The ne x t defe nse witness wa s Wallace, who w as Powell' s cousin. Wallace testified that on the day

of the incide nt he and Thompson rode to the are a of 123 N orth Waller in Thompson's Cavalier but that he did not remember anyone else in the car . Wallace a dmitted striking the 151-11-0413

victim twice with a base ball bat. At first, Wallace testified that he did not re member se eing defe ndant or his For d Br onco on Waller be fore the beating, statingthat "it we nt too fast" a nd "e very thing ha ppened too quick." Wallace then a g ree d, howeve r, that on May 8, at about 5:20 p.m., he saw de fenda

nt, Sim pson, Grave s, Thompson and Powell on the 100 block of Waller. H e also saw the vic tim, who was not his friend. Wallace then testified that " [o] ur ca r cha sed him down. I g ot out. And struck him twice with the objec t Iwas holding ." H e said the obje ct was a bat but he could not re member where he struck the victim. ¶ 35 On cr oss-examination by the State, Wallace a dmitted that defenda nt and Simpson were two of the men that he was w ith on the day of the incide nt. Wallace fur ther a dmitted that defe ndant' s Ford B ronco w as there that day but Wallace testified that he did not know who was in the Br onco. When aske d if the B ronco w as one of the vehicle s chasingthe victim, Wallace responde d, "I

g uess. I don' t know. Iwas in the fr ont car ." Wallac e then testified that he did not know if Simpson or defenda nt was pre sent when the victim was beaten or if other people hit the victim with a bat and a pole . Wallace then a dmitted that during a "pr ior proce eding " on Ma y 7, 2007, he agree d and swore to cer tain fac ts that were rea d into the rec ord. Wallace ag ree d to havingsworn that the victim was r unning towa

rd Waller stree t, that the victim was ca ug ht by all six men cha sing him and that Wallace kicke d the victim and hit him with a baseball bat. Wallace also swore that in addition to him self, def endant, Simpson, Grave s, Thompson and Powell punched a

nd kicked the vic tim and hit him with a bat and what was be lieved to be a barbe ll. ¶ 36 The jury

found def

endant guilty

of first degree murder a

nd the trial cour

t subsequently sentenc ed him to a term of 30 year s' imprisonment. This appeal followe d. 161-11-0413

¶ 37 Def

endant f irst contends that the trial c ourt err ed whe n denied his motion in limine to prec lude the State fr om introducing evidenc e fr om defe ndant' s videotaped c onfession to impeac h two phy sicians that def

endant intende d to call in his defense . Def endant c laims that this ruli ng denied him the rig ht to present " critica l probative e vidence " to the jur y that would have contra dicted the testimony of the State' s witnesses that def endant thre w a meta l pole at the victim or used one as a w eapon. ¶ 38 The State initially responds that de fenda

nt has forf

eited this issue beca

use he did not ultimately

call the medic al experts to testify at trial. The State r elies upon Luce v. U nited States , 469 U.S. 38 (1984), People v . W hitehead , 116 I ll. 2d 425 (1987), and People v . Patrick, 233 I ll. 2d 62 (2009). ¶ 39 In Luce , the petitioner moved f or a r uling to pre clude the g overnme nt from using a prior conviction to impeach him if he testified. The district c ourt ruled that the pr ior conviction fe ll within the categ ory

of per missibl e impeac hment evidenc e under Fe dera l Rule of Evidence 609(a)
. Luce , 469 U.S. at 39-40. The pe titioner did not testify , and the jury returne d g uilty verdic ts. The cour

t of appe als aff

irmed, holding that since the pe titioner did not testify , it would not consider the pe titioner' s contention that the district court a bused its discretion in denying his motion in limine without making a finding , as re quired by

Rule 609(a) (1), that the pr obative value of the prior c onviction outweig hed its prejudicial e ffe ct. At the time the ca se wa s decide d, Rule 609(a) provided:

"G ener al Rule.–For

the purpose of

attackingthe cr edibility

of a w itness, evidenc e that he ha s been c onvicted of a crime sha ll be admitted if elicited fr om 171-11-0413

him or established by

public rec ord duringcross-e x amination but only if the cr ime (1) wa s punishable by

death or imprisonment in ex cess of one year under the law under which he wa s convicted, a nd the cour

t determines that the pr obative value of admitting this evidenc e outweig hs its prejudicial eff ect to the de fenda

nt, or (2) involved dishonesty

or fa lse statement, re g ardle ss of the punishment." F ed. R. Evid. 609(a)
. The Supreme Court affir

med. The Court obser

ved the diff

iculty in review ing a

n evidentiar

y question under Rule 609(a )(1) :

"Arevie wing court is handica pped in any

eff ort to rule on subtle evidentiar y questions outside a fac tual context. This i s particular ly true unde r Rule 609(a) (1), whic h direc ts the court to weig h the probative value of a prior conviction ag ainst the prejudicia l effe ct to the def endant. To pe rfor

m this balanc ing, the court must know the pre cise nature of the defe ndant' s testimony , which is unknowable when, a s here , the def endant doe s not testify ." Luce , 469 U.S. at 41. The Court fur

ther obser ved that any

possible harm fr om the ruling on the motion in limine was speculative beca

use the rulingwas subjec t was subject to cha ng e and, w ithout the defenda nt's testimony , a re viewingcourt c ould not determine whe ther the g overnme nt would have sought to impeach w ith the prior conviction. Id . at 42. The Court ther efor e held that " to raise a nd prese rve for r eview the claim of improper impeachme nt with a prior convic tion, a defe ndant must testify ." Id . at 43. 181-11-0413

¶ 40 In W

hitehead , our supre me cour t adopted the r easoning

set forth in Luce . In that case , the defe ndant made motions in limine seekingto limi t cross-e x amination of the de fenda nt's psy chiatric expert and admissions that the defe ndant made during his tre atment re g ardingprior attacks on young g irls. W hitehead , 116 I ll. 2d at 442-43. The tria l court denie d both motions and ruled that " the State would be a ffor ded an oppor tunity to raise the e arlier

admissions of knife attacks on young g irls dependingupon the testimony actua lly elicited on dire ct examination of [t he psychiatrist] and the defe ndant." Id . at 443. The c ourt also re fused the de fenda nt's of fer of proof on the substanc e of his dire ct testimony that the def

endant c laimed would have allowed the court to rule in limine on the scope of cr oss-examination. Id . On appe al, the def endant a rgued that these ruling s made him drop his insanity defe nse and f

orce d his decision not to testify on his own beha lf, and he claimed that he did not call the psy chiatrist bec ause e vidence of prior convictions would have been a llowed. Id
. ¶ 41 Our supre me cour t affir med. The c ourt rec og nized that the trial court' s ruling w as conditioned on the dire ct testimony actua lly g iven and obse rved: "B eca use neither

[t he psychiatrist] nor the defe ndant testified, this court cannot de termine whe ther the tria l court would have err oneously permitted the State to raise the substanc e of de fenda nt's 1975 state ments in cross-e x amination. The de fenda

nt claims that [t he psychiatrist] was not called be cause evidenc e of prior cr imes would have be en allowe d. The State re sponds to that claim by saying that the doctor w as not ca lled beca use the State would impea ch his testimony with evidenc e of pr evious false claims of amne sia by the def endant. The rec ord 191-11-0413

supports both ex planations, demonstratingthe difficulty of re viewinghy

pothetical
cross-e x amination. This court should not speculate what the substanc e of [the psy chiatrist' s] and the defe ndant' s testimony on direc t examination would have been or what the pr osecution would have asked dur ing c ross-examination of those witnesses, and it follows that no dec ision on the appropriate scope of
cross-e x amination can be had on appe al of this case . Counsel must st and on their objections and c all the witnesses, thus openingthe possibilit y that an er roneous decision on the scope of examination might occ ur and r equire revie w by a revie wing court, or f

org o callingthe witnesses a nd adopt an a lternative strategy . But de fense counsel may

not have it both way s by

alteringtheir trial strate g y to make the be st of the trial cour t's or der, de privingthe re viewingcourt of a revie wable r ecor d, and still maintain that the order w as er roneously enter ed." Id
. at 443-44. ¶ 42 Our supre me cour t rec ently considere d this iss ue in Patrick . In that case , the def endant filed a motion in limine askingthe trial cour t to rule on the admissibilit y of prior c onvictions if the def endant c hose to testify
. Patrick, 233 I ll. 2d at 67. The cour t gr anted the motion in part and dete rmined that one of the convictions could be admitted, but stated that it "c ould not deter mine whether

three other c onvictions *** were more proba tive than pre

judicial until he hear d [t he def

endant' s] t estimony . " Id . Ba sed on the trial judg e' s ruling, the defe ndant chose not to testify
. Id . The c ourt noted that the a ppellate c ourt had found that the trial court a bused its discretion in re fusing to rule on the a dmissibi lity of the prior

convictions until after the defe ndant 201-11-0413

testified but declined f

urther r eview of

the er ror be cause the def

endant did not testify
. Id . at 77. ¶ 43 The c ourt beg an by revie wing the dec ision in Luce and W hitehead . The c ourt noted that in W hitehead , "this cour

t require d defe nse witnesses a nd defe ndant to testify

and obtain a definitive rulingbefor e the issue c ould be prope rly revie wed on a

ppeal. This cour

t's r ationale in W hitehead g oes beyond the Luce rationale and provide s this court' s independe nt basis for requiringa def

endant to testify

and pre serve the issue for r eview." Id . at 79. The c ourt then observe d: "I

n both W hitehead and [the appellate court opinion in the ca se bef ore it], the def endant c ould not be cer

tain whether

the disputed evidenc e would be admitted until after the dir ect testimony was g iven. In both case s, the defe ndants
wer e makingdecisions about whe ther to pre sent direc t testimony without knowing if the unwa

nted evidenc e would be a dmitted. Nonetheless, this court rule d in W hitehead that defe ndants must take the risk and pr esent the te stimony for the issue to be re viewable ." ( Emphasis omitt ed.) Id . at 79. Ba sed on the for eg oing, the court he ld that the defe ndant fa iled to preser ve his rig ht to appellate revie w of the issue be cause he chose not to testify
. Id
. ¶ 44 Def

endant c laims that these ca ses ar e distinguishable from the pr esent c ase a nd, rely ing upon the holding in People v . Easley , 148 I ll. 2d 281 (1992), he c laims that he nee d not have called his e x perts to testify in order to pr eser

ve the issue. In Easley , the def endant made an incriminating statement to a De partment of Corr ections investig ator. Id . at 308. The tria l court suppressed the statement, findingthat under a rec ent appe llate cour

t decision, the informa

nt was 211-11-0413

an ag ent of the State a

nd was ther efor e re quired to appr ise the def endant of his fifth amendment rig hts. Id . at 309. In its final ruling on the issue, the trial cour t held that the otherw ise suppressed statement could be use d for impea chment purpose s if the def endant testified. Id
. ¶ 45 On appe al, our supre me cour t found that althoug h the def endant did not testify , the constitutional iss ues he r aised we re pr operly befor e the c ourt. Id . at 310. The c ourt noted that "a lthough the tr ial court wa s conce rned w ith making r ulings in adva

nce of the under lying issues beingraised, it did in fac t rule on the mer its of the constitutional iss ues def endant r aises." The court then a ddresse d and distinguished the holding in Luce :

"A nd, while the Supreme Court has held that to raise the claim of improper impea chment with a pr ior conviction, a de fenda nt must t estify

( Luce v. United States (1984), 469 U.S. 38, ***), the Court declined to re view the e rror s defe ndant ra ised on the basis of the spe cial re quirements of Rule 609( a) of the Fe dera l Rules of Evidence . J ustice B renna n, in a conc urre nce joined by J ustice Marsha ll, wrote that in ca ses ' in which the dete rminitive question turns on legal and not factual

considerations, a require ment that the def endant a ctually

testify at trial to prese rve the admissibili ty issue for a

ppeal mig ht not necessa

rily be appropr iate.' (Emphasis adde d.) Luce , 469 U.S. at 44, *** (B renna n, J ., concur ring , joined by

Marsha ll, J .)." Id
. ¶ 46 We believe that the pr esent c ase pr esents a situation more similar to that found in Easley than to the ones pre sented in Luce , W hitehead and Patrick, and we there fore find that defe ndant' s claim of e rror

is properly

befor e us. In this case, unlike in the c ases c ited by the State, the trial 221-11-0413

court made a def

initive ruling that de fenda nt's suppr essed state ment could be use d for impeachme nt purposes. The tr ial court' s ruling did not turn on primar ily fac tual considerations such as we ighingthe probative value of a prior c onviction versus its prejudicial e ffe ct under Fe dera l Rule of Evidence 609(a) (1). Nor was the tria l court' s ruling c onditional and dependa nt upon the testimony

actua lly elicited by

the witness on direc t examination. There is also no question as to whether

the State was g oing to impea ch def endant' s proposed e x perts with portions of def endant' s suppressed state ment, as the State c lear ly repr esente d to the court that it would do so if defe ndant ca lled those witnesses. The trial court' s ruling on the motion in limine was a lso one of c onstitut ional dimensions and the proprie ty of that rulingturns primarily on a leg al question, specific ally , whether under the United States Supreme Court' s holding in ca ses such a s Jame s v. Illinois , 493 U.S. 307 (1990), the State should be a llowed to use def endant' s suppressed statement to impeac h defe nse witnesses other than the def

endant himself. F inally , unlike the
case s cited by

the State and a s will be more fully explained below, the re cord is suff icient for this court to re view the pr opriety of the trial c ourt' s ruling a nd to conclude that, even if the ruling was
err or, it was har

mless bey ond a re asonable doubt. For the se re asons, we f ind that defe ndant has not forfe ited his claim that the court' s ruling de nied him the rig ht to present probative evidenc e on his own behalf. We now tur n to the merits of that cla im. ¶ 47 Rulings on evidentiar y matters, includingmotions in limine , are within the sound discretion of the trial court a nd will not be reve rsed a

bsent an a buse of that discr etion. People v

. Harve y , 211 I ll. 2d 368 (2004). An abuse of discre tion occurs whe n the trial cour t's de cision is arbitra ry , fanc iful, unrea sonable, or when no re asonable person would take the same vie w as the 231-11-0413

trial court. People v . Smith , 406 I ll. App. 3d 747 (2010). ¶ 48 Under

the exclusionary

rule, e vidence seized in violation of a defe ndant' s fourth amendment r ights is g ener ally inadmissible at trial. People v . Sutherland , 223 I ll. 2d 187, 227 (2006). How ever , an exception to the exclusionary rule a llows the prosec ution to int roduce illega lly obtained evide nce f

or the limited purpose of impea chingthe cr edibility of a de fenda

nt's own testimony
. Jame

s , 493 U.S. at 312. ¶ 49 In Jame

s , the United States Supreme Court c onsidered whether this ex ception should be extended to allow the prosec ution to im peac h the testimony of all def ense w itnesses with illega lly obtained evide nce. I

n that case , the def

endant wa s arr ested for

murder a nd made a statement to police that the pr evious day his hair had be en re ddish brown, long and combe d straig ht back. Id. at 309. The tria l court later found that the de fenda

nt had bee n arr ested without probable cause and suppre ssed his statement to police. Id . At trial, witnesses identified the shooter as ha

ving r eddish hair that wa s long a nd slicked bac k and the de fenda nt called a

witness who testified that on the da y of the shooting defe ndant' s hair wa s black. Id . at 310. The State soug ht to introduce the de fenda nt's illeg ally

obtained stateme nt to impeach this witness' s testimony . The trial c ourt allowed the State to do so and defe ndant was ultimately found guilty of the c rimes cha

rg ed. Id
. ¶ 50 The I llinois Supreme Court af firmed the tr ial court' s ruling a nd extended the impeachme nt exception to the ex clusionary rule to " permit the prose cution to impeach the testimony of all def ense w itnesses with illega lly obtained evide nce." (Emphasis omitted.) Id . at 309 (citing People v . Jame s , 123 I ll. 2d 523 (1988)). The I llinois Supreme Court re asoned that in

241-11-0413

order to deter the defe ndant from e ng ag ing in " perjury by proxy ," the impeachme nt exception should be extended to allow the State to impeac h the testimony of def ense w itnesses other than the def endant himself. Id. at 311. ¶ 51 The United States Supre me Court reve rsed a nd declined to so e x tend the impeac hment exception. Id . The Court stated:

"I n this case, the I llinois Supreme Court held that our ba lancingapproa ch in W alder and its prog eny

justifies ex pandingthe scope of the impea chment exception to permit prosecutors to use illeg ally obtained evide nce to impea ch the
cre dibilit y

of def ense w itnesses. We disag ree . Ex pandingthe class of impeacha ble witnesses fr om the defe ndant alone to a ll defense witnesses would
cre ate diff

ere nt incentives af

fec ting the be havior of both de fenda nts and law enfor ceme nt office rs. As a r esult, this ex pansion would not promote the truthseekingfunction to the same e x tent as did cre ation of the orig inal exception, and y et it would significa

ntly undermine the deter

rent e ffe ct of the g ener al exclusionary

rule. He nce, w e believe that this proposed expansion would frustrate rathe r than fur

ther the pur

poses under lying the exclusionary rule." Id . at 313-14. The Court spec ifically

noted that the " perjury

by proxy " c oncer

n was " suspect" beca

use the thre at of cr iminal prosecution for pe rjury was more likely

to deter a witness from intentionally lying than to deter

a def endant, a lrea dy

fac ing c riminal prosec ution, from lying on his own be half. Id
. at 314. The Court a lso ex presse d conce rn that " expanding the impea chment exception to encompa ss the testimony

of all def ense w itnesses likely

would chill some defe ndants from 251-11-0413

prese nting their

best defe nse–and sometimes a ny defe nse at a ll–through the testimony of others." Id . at 314-15. ¶ 52 In this case, unde r the holdingin Jame s and its rejec tion of impeachme nt to rebut " perjury by proxy ," the State should not have bee n allowed to use por tions of defe ndant' s suppressed statement to impeac h defe ndant' s proposed medic al expert witnesses if they testified at trial. We also note that her e the r isk of so-ca lled "pe rjury by proxy " w as neg ligible in that the pr oposed defe nse testimony

was that of me dical prof

essionals with reg ard to their obje ctive finding s. Neve rtheless, for

the re asons that follow, we find that the er ror wa s harmless beyond a
rea sonable doubt. See Easley , 148 I ll. 2d at 320-21 (findingthat even if it was err or to allow a statement obtained in violation of the due proce ss clause to be used for impeachme nt purposes, the er ror wa s harmless beyond a re asonable doubt in light of the ove rwhe lming evide nce of the defe ndant' s g uilt). ¶ 53 Def

endant' s offe r of pr oof wa s weak at best and is an insuff icient basis upon which to conclude that the ver dict would have be en diffe rent ha d defe ndant' s medical e x perts testified. Def ense c ounsel neve r outlined exactly what the e x perts' opinions would be and instead c ounsel only indicated that the doc tors diag nosed def endant with Hill-Sachs de formity . Whil e counse l stated that this testimony

would prove that defe ndant could not have committed the crime a s alleg ed, counse l never

repr esente d that the experts would offe r this opinion. Most importantly , there was no off

er ma de that either

expert would testify

that defe ndant could not have thrown a metal pole or use d one as a wea pon or that he c ould not have other wise beaten the victim. At most, counsel repr esente d that the testimony would be that def

endant would " at least have a 261-11-0413

diminis hed ca

pability for pe rfor

ming that ( throwing or hitting the vic tim with a pole)." The off er of proof also did not indicate what arm def endant throw s with or if his alleg ed shoulder injury was to that same a

rm. The of

fer of proof did not even indicate if this alleg ed injury exis ted on the day of the murde r. ¶ 54 In contra st to defenda nt's of fer of proof , three ey ewitnesses ide ntified defe ndant as having participated in beatingthe victim. I t is true that the proposed e x pert testimony could have been used in an attempt to im peac h Graves' s testimony that defe ndant threwa metal pole at the victim and hit him with it in the back. H oweve r, Gra ves wa s the only

person to off

er this spec ific testimony and whe ther de fenda

nt threw a metal pole wa s at most a minor portion of the State' s
case . The re mainder of

Graves' s testimony

was c onsistent with the testim ony of the State' s other witnesses that def

endant pa rticipated in the be ating death of the victim. ¶ 55 Moreve r, def

endant wa s tried under

an ac countability

theory and ther efor e he ne ed not have e ven wielde d or thrown a metal pole at the vic tim in order to have be en found guilty . An individual commits the offe nse of f irst degree murder when he or she intends to kill or do gr eat bodily harm a nd knows that his or her a cts will cause de ath, or knows that the a cts cre ate a strong probability

of death or g reat bodily

harm. 720 I L CS 5/ 9-1(a )(1) , (2) ( West 2010). Under I llinois ' s acc ountability

statute, a pe rson is leg ally acc ountable for

the conduc t of another

when "e ither bef

ore or duringthe commission of an off ense, a nd with the intent to promote or fa cilitate [such] commission, he or she solicits, aids, abets, agree s, or attempts to aid that other pe rson in the planningor commission of the offe nse." 720 I L CS 5/ 5-2(c ) (West 2010). ¶ 56 To prove the defe ndant had the intent to promote or fac ilitate the crime, the State must 271-11-0413

prese nt evidence that establishes, beyond a re asonable doubt, that (1) the de fenda nt shared the criminal intent of the pr incipal or (2) there was a common criminal desig n. In re W .C. , 167 I ll. 2d 307, 337 (1995). " Active pa rticipation has neve r bee n a re quirement for the impositi on of criminal guilt upon the theory of ac countability ." People v . Ruiz , 94 I ll. 2d 245, 254 (1982). "A ccounta

bility may be esta blished throug h a per son' s knowledg e of a nd participation in the criminal sche me, eve n though the re is no evide nce that he direc tly participated in the cr iminal act itself." ( Interna l quotation marks omitted.) People v . Velez , 388 I ll. App. 3d 493, 512 (2009). Words of ag ree ment are not require d to prove a common desig n or purpose betwee n codef endants; a c ommon design ma y be infe rre d from the c ircumstance s surroundingthe cr ime. People v . Batchelor , 171 I ll. 2d 367, 376 (1996). In deter mining a de fenda

nt's le g al
acc ountability , the trier of fac t may consider the defe ndant' s prese nce dur ing its commission, the defe ndant' s continued close a ssociation with other off ender s after

its commiss ion, the defe ndant' s failure to report the c rime, and the defe ndant' s flight f rom the sce ne. People v . Taylor , 164 I ll. 2d 131, 141 (1995). " Evidence that a def endant voluntar ily

attache d himself to a g roup bent on illega l acts with knowledg e of its desig n supports an infer ence that he shar ed the c ommon purpose a nd will sustain his conviction for a n offe nse committed by

another ." In re W

.C. , 167 I ll. 2d at 338. "Abse nt other circ umstances indicating a common desig n, prese nce at the scene and flig ht theref

rom do not constitute prima facie evidenc e of a ccounta bility ; however , they

do constitute circumstantial e vidence which may tend to prove a

nd establish a def

endant' s g uilt." People v . Foster , 198 I ll. App. 3d 986, 993 (1990). ¶ 57 In this case, e ven if de fenda nt did not use a metal pole to attac k the victim, the evidenc e

281-11-0413

prese nted at trial wa s more than suff icient to find him guilty

of murder

under a n acc ountability theory . The e vidence indicated that de fenda nt was drivinghis vehicle with Gra ves and Simpson when Gr aves sa

w the victim and pointed him out to defenda nt. Defe ndant made a

call on his ce ll phone and the n drove the g roup to the ar ea of West End and Waller Streets. Ac cordingto Thompson's state ment, Wallace picke d Thompson up in Thompson's ca r and sa id that Grave s had just called a

nd said that " they " w ere chasingthe victim and wer e hea ded towar d Waller and L ake Stre ets. Thompson' s vehicle the n heade d to the are a of West End and Waller. I n other words, the e vidence established that these two vehicles be g an in diffe rent locations, that there
was c ell-phone c ommunication betwee n people in ea ch vehic le and the two ve hicles ultimately
conver g ed at the loc ation wher e the be ating occur red. The jury

could infer

from this evidenc e that defe ndant was know ingly part of a common plan or de sign to attack the victim. The evidenc e fur

ther indicated that when de fenda nt's ve hicle ar

rived in that ar ea, the g roup spotted the victim coming out of

an alley and def endant pur sued him in his vehicle and c orner ed him in a
vaca nt lot. After the be ating , defe ndant also fled the scene in his vehicle with at lea st one of the other attacker s. See People v . Gomez , 127 I ll. App. 3d 551, 556 (1984) (" a per son who knowing ly

drives a g et-a

way car is acc ountable for

the cr imes committed"). D efe ndant did not repor t the crime a fter it occ urre d. ¶ 58 This evidence established that def endant wa s more than mer ely prese nt at the sce ne of the crime. The evidenc e wa s sufficient f or the jury

to conclude that defe ndant was a ctively eng ag ed in aiding a

nd abettingthe other attacker s in pursuing the victim, committ ing the crime c harg ed and then dr iving one of the g et-a way car s. There fore , even if

defe ndant had introduc ed evide nce 291-11-0413

that he had a

diminis hed ca

pacity to either throw or

wield a meta l pole, defe ndant would have still been f

ound g uilty

beyond a re asonable doubt. Accor dingly , the trial cour t's r uling on defe ndant' s motion in limine was ha rmless. ¶ 59 Def

endant ne x t contends that he w as denie d a fa ir trial when the trial court pr eclude d defe nse counse l from introducingevidenc e that Wallace ' s prior statements implicating defe ndant
wer e made in exchang e for a plea to a lesser

offe nse and a

reduc ed sente nce. ¶ 60 The re cord shows that after the State re sted its case, c odefe ndant Simpson's counse l indicated that he would be ca lling Wallace as a w itness. The State made a motion in limine to bar de fense counsel fr om introducingevidenc e that Wallace , who was or igina lly char g ed as a codef endant in this case with first deg ree murder, ple d g uilty to second de g ree murder a nd
rec eived a

17-y ear prison sentenc e. The State pointed out that Wallace pled guilty without any promise to testify

for the pr osecution and that no deals we re ma de with him for later testimony
. The State a lso ex presse d conce rn that Wallace was be ing c alled so that the de fense could ar g ue or imply that the ca ses ag ainst defe ndant and Simpson was a c ase of second de g ree rathe r than first deg ree murder. When a rguing the motion, codefe ndant Simpson's counse l claimed that it was prope r to bringout that Wallace wa s in prison, that he was c harg ed in conne ction with his role in this case and that he ple d g uilty to second de g ree murder in e x chang e for a 17-year sentenc e. Counsel claimed that the State had opene d to the door to the issue by explaining what happene d to the other five men involved in the cr ime and that the de fense had a r ight to explain to the jury

what happe ned to the six th man, Wallace. Simpson's c ounsel furthe r stated that he did intend to make an a

rgument to the jury

based upon the deal that Wallace made with the State. 301-11-0413

Def endant' s counsel stated that he ag ree d and adopte d Simps on' s counsel' s arg ument. The trial court found that this l ine of que stioning wa s not releva nt and ruled that counsel could not bring out the fac t that Wallace pled guilty to second de g ree murder or the sentenc e that he r ece ived. The c ourt noted that unlike with Wallace, the line of questioning was re levant whe n Graves had been c alled as a

witness by

the State bec ause he pled guilty to a lesser

offe nse in exchang e for

his testimony ag ainst defe ndant and Simpson. The cour t also ag ree d with the State that it would be improper to let the de fense argue or imply that beca use Wallace was c onvicted of se cond degree murder, de fenda

nt should be convicted of the same of

fense or that the c ase a g ainst defe ndant did not amount to first deg ree murder. ¶ 61 Def

endant c laims that the trial court' s ruling w as an a buse of discr etion beca

use the ter

ms of Wallace ' s plea we re r eleva nt to showing bias a

nd beca use Wallace ' s testimony

on direc t examination challeng ed the stre ng th of the State' s identification evidenc e. De fenda nt claims that the terms of Wallac e' s plea a g ree ment wer e re levant bec ause the fac ts he swore to at his plea hear ing implicate d defe ndant in the cr ime and ther efor e evide nce that Wallace pled guilty to a reduc ed cha

rg e would have supported an a rgument that the sworn f

acts fr om Wallace' s plea we re unreliable . Thus, defe ndant ar g ues that he w as denie d the right to rehabilitate a witness afte r that witness was impea ched w ith a prior inconsistent statement. ¶ 62 As noted, ruling s on motions in limine and other evidentiar

y issues are within the sound discretion of the trial court a nd will not be reve rsed a

bsent an a buse of that discr etion. People v

. Harve y , 211 I ll. 2d 368 (2004). Moreove r, evide nce is re levant if it has a te ndency to prove or disprove a f

act that is of c onsequenc e to the dete rmination of the ac tion. Id. Howeve r, eve n 311-11-0413

when e vidence is releva

nt, it may , in the trial court' s discretion, be e x cluded if its pre judicial eff ect substantially

outweig hs its probative value. People v . Lewis , 165 I ll. 2d 305, 329 (1995). Thus, in decidingwhether to admit evidence , a trial c ourt must weig h the likely prejudicia l effe ct of evide nce a g ainst its probative value. People v . W alker , 211 I ll. 2d 317, 338 (2004). ¶ 63 We find no abuse of discretion in the trial c ourt' s ruling on the motion in limine . I t is true, a s defe ndant points out, that the ex posure of a witness' s motivation i n testifying is a proper and important func tion of the constitutionally protec ted rig ht of cross- examination. S ee Davis v. Alaska , 415 U.S. 308, 316-17 (1974). Similarly , the fa ct that a witness ha s been a rre sted or himself char g ed with an of fense may

be inquired into for

the purpose of

showing that his testimony might be inf

luence d by

bias, interest or a

motive to testify

falsely
. People v . Adams , 129 I ll. App. 3d 202, 207 (1984). The ref ore, " [t ]he jury

is entitled to hear the de fense theory that the witness may

be testifying f

alsely beca use he is or w as vulnera

ble to pressure from the police reg ardinghis own connec tion with the crime." Id
. ¶ 64 Howeve r, unlike in the ca ses cited a bove, Wallace was c alled by defe nse, not the State, and ther efor e ther e is no issue as to whethe r he te stified at trial pursua nt to an agree ment with the State. Def

endant points out that Grave s was questioned a bout his deal with the State. Howe ver, Graves wa s orig inally

char g ed with first degree murder but pled guilty to conspirac y

to commit murder a nd enter ed into an agree ment with the State' s Attorney ' s office by which, in exchang e for his truthful testimony , he would be se ntence d to 14 y ear s' imprisonment with day -for -day g oodtime cre dit after de fenda

nt's tria l concluded. T here fore , inquiry into the nature of

that deal a

nd whether it influenced his testimony was re levant and a

proper subject of e x amination. Her e, 321-11-0413

howeve r, there was ne ver a ny indication by

defe nse counse l that Wallace' s plea a g ree ment was conditioned on his ag ree ment to the fac tual basis prese nted. Def ense c ounsel mere ly

wanted to bringout the plea de al to raise that impli cation. The trial court wa s rea sonably conce rned that bring ing out Wallace ' s plea de al would imply to the jury

that the ca se ag ainst defe ndant did not amount to first deg ree murder. I n the abse nce of

any substantiation of the theory that Wallace ag ree d to this factual basis as a result of his plea de al, it was not an a buse of discr etion for the trial court to bar

details of the plea

ag ree ment. ¶ 65 We also find that defe ndant has for feited this claim. The motion in limine was not ar g ued in the context of rehabilitating Wallace a fter he was impea ched. Rather, the State move d in limine to bar the te rms of the plea deal whe n counsel for

Simps on announce d that Wallace would be ca lled as a w itness. When the motion in limine was a rgued, the c ontext in which it was ra ised was the State' s reque st to bar details of the ple a agree ment during direc t examination of W allace
. Counsel for Simpson argued that he should be allowed to explain during his ex amination of Wallace what happene d to the other pe rsons cha rg ed in this offense . Counsel for the de fenda nt here in joined in that argument. The State a rgued that this was irre levant and w ould imply to the jury that other dispositions were more appropr iate than a finding of guilty

of first degree murder. The trial c ourt ag ree d with the State' s position i n this reg ard. The re w as some vague ar g ument by Simps on' s counsel that if Wallace did not testify acc ording to his ex pectations from the fac tual basis of the plea

then the ter

ms of the plea c ould become r eleva nt. The trial cour

t responded by indicating that defe nse counse l could impeach Wallac e with his sworn testimony at the plea hear ing if he strayed fr om that testimony . Howeve r, def ense c ounsel neve r ar g ued that he should 331-11-0413

be allowe d to reha

bilitate Wallace with the ter ms of his deal if he w as impeac hed by the State. Fur ther, a fter Wallac e wa s impeache d by the State, def

ense c ounsel neve r attempted to reha bilitate him with t he ter

ms of the dea l or otherwise asked the trial court to re visit i ts prior ruling on the issue. In order to preser ve an issue f

or appe al, def

endant must raise the issue at trial and in a posttrial motion. People v . Enoch , 122 I ll. 2d 176, 186 (1988); see a lso People v . Leak, 398 I ll. App. 3d 798, 829 (2010) (a n objection upon a spe cific ground is a wa iver of a ll gr ounds not specified) . By

failingto do so, defenda

nt deprived the trial court of an opportunity

to rule on the issue and pe rhaps to have g rante d defe ndant' s reque st. For this rea son, we find de fenda nt's claim forf eited. ¶ 66 Def

endant ne x t contends that he r ece ived ineff ective a ssistance of c ounsel. Def endant claims that his counsel conc eded de fenda nt's pr esenc e at the sc ene of the cr ime and ther eby demonstrated a

lack of understandingof ac countability theory . Def

endant a rgues that counse l was thus ineff

ective f or pre senting a def

ense that left the jury

with no choice but to re turn a guilty verdic t. ¶ 67 Claims of ineffe ctive assistanc e of c ounsel are resolved unde r the standa rd set for th in Strickland v. W

ashington , 466 U.S. 668 (1984). In Strickland , the Supreme Court de lineated a two-par t test to use when eva luating whether a def endant wa s denied the e ffe ctive assistanc e of counsel in violation of the six th amendment of the United States Constit ution. Under Strickland, a def endant must demonstrate that counsel' s perf ormanc e wa s deficie nt and that such de ficient perf ormanc e substantially

prejudice d defe ndant. Strickland , 466 U.S. at 687. To demonstrate perf ormanc e def

iciency , a def

endant must establish that counsel' s perf ormanc e fe ll below an 341-11-0413

objective standa

rd of r easona

bleness. People v . Edwards , 195 I ll. 2d 142, 162 (2001). In evaluating suff

icient pre judice, “[t]he defenda

nt must show that there is a re asonable probability that, but for counse l's unpr ofessional e rror s, the result of the pr ocee ding w ould have be en differ ent. A re asonable probability is a probability

sufficie nt to undermine conf idence in the outcome.” Strickland , 466 U.S. at 694. Def endant must satisfy

both prong s of this test in order to prove inef

fec tive assistance of counse l. Strickland , 466 U.S. at 687. ¶ 68 In order

to properly

evaluate def

endant' s claim, we f

irst rec ount the prosec ution's c losing argument beca

use def ense c ounsel' s argument was pa rtially made in re sponse to that closing
. The prose cution beg an its closing by rea ding the acc ountability instruction that would later be g iven to the jury

and then e x plaining to the jur y how the instruction applied to the f acts of the
case . The prose cutor stated, " [b] asica lly that means the te am. The kill team." The prose cutor then used seve ral sports ana logie s to ill ustrate the c oncept, includingthat the Chicag o Bla ckhawks had won the Stanley Cup and that eve ryone on the tea m rec eived a

ring , including the owner s and the pe ople in char g e of the play ers' bag g ag e. The prosec utor stated, " it is t he same for criminals. He know ingly solicits, aids, abets, ag ree s to aid or attempts to aid the other person." ¶ 69 I t was in this context that defe nse counse l made his closingargument. Counsel beg an by arguing that there w as a la ck of phy sical or c orrobor ating evidenc e. Counsel discussed the othe r evidenc e and stated, " [b] ut Itell y ou if y ou believe tha t Antonio was part of

a kill team, or tea

m kill, then y ou have to be cer tain that all the players a

re pla ying w ith the same g oal. That they are playing by

the same r

ules." Counsel further

argued that " there was no tea m involvement for 351-11-0413

Antonio" a

nd no evidenc e of a

long- planned mission to ge t reve ng e upon the victim. Counsel attacke d the testimony

of the State' s ey ewitnesses a nd then made the followingcomplained- of
rema rks: "T he State has ta lked at leng th about the computer g ener ation about the leg al re sponsibili ty

of the c onduct of a

nother pe rson. And I

submit t o y ou that in this case, be fore y ou assess [defenda nt's] responsibility

as beingone of the se team play ers, you must be cer

tain they are all playing by

the same r

ules and the same g oal. [Defenda

nt] didn't r

un interfe renc e for

the quar terba ck. Or

the running back. H e wa sn' t the lead r unner in a marathon rac e, try

ing to make cer

tain that somebody

wins the rac e. His mere prese nce the re, w ithout any active participation in hit ting a

nd striking a

nd causingthe dea

th, does not make him leg ally responsible for

somebody

else, a nd their ac tiviti es of swing ing the bat. The bat that did not come from his ca r. The bat that was not found in his
car . The bat that J ohnny

Graves indicate d that he knew wher e it was. The bat that contains the blood of [the vicitm] . That blood was ne ver br oug ht back into the Br onco." ¶ 70 Def

endant c laims through the se comments, counse l "insisted" that defe ndant was pr esent at the sce ne and ove rlooked the pr inciple that ac tive participation is not a re quirement unde r
acc ountability . Def

endant c oncluded that, be cause there was some e vidence of a c ommon plan, counsel' s arguments left the jury no choice but to return a guilty verdic t. We disagr ee. 361-11-0413

¶ 71 Counsel did not "insist" that def endant wa s prese nt at the sce ne. Counsel initially attacke d the State' s ey ewitness evide nce that placed de fenda nt at the sce ne with the other attacke rs. Howe ver, in likely rec og nition that three eyewitnesses pla ced de fenda nt at the sce ne, counsel a rgued that def

endant' s mere pr esenc e at the sc ene w as insufficie nt to find him guilty under a ccounta

bility . This was a r easona ble strategy

and an a ccur ate state ment of the law . See Foster , 198 I ll. App. 3d at 993. Moreove r, as noted a bove, to prove that defe ndant had the intent to promote or fa cilitate the cr ime, the State was r equire d to prove be y ond a re asonable doubt that (1) the de fenda

nt shared the criminal intent of the pr incipal or (2) there was a common criminal desig n. See In re W

.C. , 167 I ll. 2d at 337. Counsel was essentially arguing that the State had failed to prove that defe ndant share d the cr iminal intent of the principal or that there w as common criminal desig n when c ounsel told the jury that even if

it believed def

endant wa s part of the " kill team," the jur

y had to be sure that all the play ers we re pla ying w ith the "same g oal." Counsel also told the jury that "a s y ou look throug h the witnesses, you see that there w as no team involvement for [defe ndant]," that there was no " g reat plan that [defendant] was par t of" and that "[t]here wa sn' t a mission to s eek [the victim] out ." A g ain, this argument was ba sed on an
acc urate understandingof the law
. ¶ 72 Def

endant take s counsel' s argument out of context when he c laims that counsel ar g ued that defe ndant had to ac tively participate in the beating in orde r to be found guilty . When counsel' s arguments are viewed in their entirety , counsel wa s arguing that the State had fa iled to prove that defe ndant knowing ly participa ted in the cr iminal scheme. In addition to arguing that defe ndant did not hit or strike the victim, counsel also ar gued that def endant did not bringthe bat 371-11-0413

to the scene of the c rime and that he did not take the bat into his car afte r the c rime. In other words, counse l was ar g uing that defe ndant did not perfor m any acts in fur

thera nce of the cr iminal scheme , such as br inginga we apon that wa s used or attempting to hide a w eapon that was used to beat the vic tim. Thus, defense c ounsel' s arguments were part of a rea sonable trial strateg y

and defe ndant was not pre

judiced by

counsel' s closing a

rgument. For

these re asons, we f

ind that defe ndant did not rec eive inef fec tive assistance of counse l. ¶ 73 Def

endant ne x t claims that counsel wa s ineffe ctive for callingWallace a s a witness. Def endant c laims that counsel should have known that Wallace would be impeache d with the fac ts he ag ree d to at his plea proc eedingand that those fa cts would be damag ing to de fenda nt's
case . ¶ 74 Dec isions such as what evide nce to pr esent, whe ther to ca ll a cer tain witness and what theory of def ense to pursue are matters of tria l strateg y . People v . Enis , 194 I ll. 2d 361, 381 (2000). Matters of trial strateg y are g ener ally

immune from claims of inef fec tive assistance of counsel. People v . Smith , 195 I ll. 2d 179, 188 (2000). A def endant may

overc ome the " strong presumption" that the challeng ed ac tion or inaction of counse l was a matter of sound trial strateg y by showing that counsel' s decision was " so irrational a nd unrea sonable that no
rea sonably

eff ective de fense attorney , fac ing similar c ircumstance s, would pursue such a strateg y ." People v . Jones , 2012 I LApp (2d) 110346, ¶ 82. ¶ 75 Def

endant' s arg

ument fails bec ause de fense counsel did not ca ll W allace as a w itness. Instead, it was c odefe ndant Simpson's counse l that did so. Defenda nt makes no sug g estion that he ca n asser t a claim of ine ffe ctive assistanc e of a codef endant' s counsel and w e ther efor e find 381-11-0413

his claim without merit. Moreover , callingWallace a s a witness wa s part of a rea sonable trial strateg y to present multiple versions of the be ating to the jury in order to c reate re asonable doubt as to defe ndant' s g uilt. I n his reply brief, de fenda

nt claims that counsel wa s ineffe ctive for questioning Wallac e af

ter he had bee n called by

codef endant' s counsel. Howe ver, de fense counsel a sked only

a fe w questions of Wallace reg ardinghis heig ht and weig ht and whethe r the item he used to hit the victim was a bat. These que stions did not harm de fenda nt's c ase a nd do not establish that counsel wa s ineffe ctive. F inally , defe ndant has not shown that he w as prejudice d by

the addition of Wallace ' s testimony in light of the othe r evide nce pr esente d at trial. This evidence included Gr aves' s testimony that defe ndant par

ticipated in the cr ime, Thompson's statements re g ardingdefe ndant' s role in the victim' s beating , as testified to by ASA Warren, a

nd Rucker' s identification of de fenda nt as the per son who drove the Br onco and a s one of the me n who beat the victim. Given this evidence , defe ndant has not shown that ther e is a re asonable probability

that the re sult of his trial would have bee n differ ent had Wallace not been c alled as a witness. Acc ording ly , defe ndant has fa iled to car ry his burden under

the sec ond prongof Strickland
. ¶ 76 Def

endant ne x t contends that he w as denie d a fa ir trial bec ause the trial court f ailed to question the prospec tive jurors on their unde rstandingand ac cepta nce of the leg al principles outlined in People v . Zehr , 103 I ll. 2d 472 (1984) and se t forth in I llinois Supreme Court Rule 431(b) ( eff

. May 1, 2007). We revie w def endant’ s contention de novo . See People v . Tlatenchi , 391 I ll. App. 3d 705, 721 (2009) (a trial court’ s compliance with supreme c ourt rules is re viewed de novo ). 391-11-0413

¶ 77 In Zehr , 103 I ll. 2d at 476-78, our supre me cour t held a trial c ourt abused its discre tion during voir dire by

ref using the defe nse counse l's r equest to ask que stions about the State's burden of proof, de fenda

nt's r ight not to testify , and the pr esumption of innocenc e. The court
rea soned that " essential to the qualific ation of jurors in a c riminal case is that they know that a defe ndant is presumed innoc ent, that he is not requir ed to offe r any evidenc e in his own beha lf, that he must be prove d g uilty beyond a re asonable doubt, and that his failure to testify in his own behalf cannot be held ag ainst him." Zehr , 103 I ll.2d at 477. ¶ 78 Rule 431(b), whic h is designe d to ensure c ompliance with Zehr , provides:

"T he cour t shall ask eac h potential juror, individually or in a group, whether that juror under stands and ac cepts the f ollowing principles: (1) that the defe ndant is presumed innoc ent of the char g e(s) ag ainst him or her; (2) that befor e a de fenda nt can be convicted the State must prove the def endant guilty

beyond a
rea sonable doubt; (3) that the defe ndant is not require d to offer any evidenc e on his or her

own beha lf; and (4) that the def endant' s failure to testify

cannot be held ag ainst him or her; howe ver, no inquiry of a pr ospective juror

shall be made into the defe ndant' s failure to testify

when the de fenda

nt objects." I ll. S. C t. R. 431(b) (ef f. May 1, 2007). Rule 431(b) imposes a sua sponte duty on the trial cour

t to question the potential jurors as to whether they understand a

nd acc ept the Zehr

principles. Such questioning is not dependent upon 401-11-0413

a re quest by

defe nse counse l. People v . Y arbor , 383 I ll. App. 3d 676, 682 (2008). ¶ 79 In People v . Thompson , 238 I ll. 2d 598, 607 (2010), our supre me cour t considere d the require ments of Rule 431(b) a nd observe d that "[t]he rule states that the trial c ourt ' shall ask' potential jurors whe ther they understand a

nd acc ept the enume rate d principles." The c ourt explained: "Rule 431( b), there fore , mandates a specific question and re sponse proce ss. The trial cour

t must ask each pote ntial juror whethe r he or she understands a

nd acc epts ea ch of the principles in the rule . The que stioning may be perf ormed e ither individually or in a g roup, but the rule r equire s an opportunity for a response from ea ch prospe ctive juror on [his or her] understa nding a nd
acc eptanc e of those pr inciples." Id
. ¶ 80 In this case, the tr ial court initially admonished the ve nire a s follows: "It is absolutely

essential as w e sele ct this jury that eac h of you understand and embr ace these funda

mental principles of

law, that all per sons who are char g ed with crimes ar e pre sumed to be innoce nt and that it's the burden of the State to prove the m guilty

beyond a re asonable doubt. What thi s means is that the defe ndants have no obligation to testi fy in their own beha lf or to ca ll any witnesses in their def

ense. The y

may simply sit and rely

upon what they

and their lawy ers pe rce ive to be the inability of the State to pre sent sufficie nt evidence to meet the bur den of pr oof. *** The fa ct that either

defe ndant choose s not to testify must not be considere d 411-11-0413

by y ou in any

way in arrivingat y our ver dict. *** The bottom line, howeve r, is that there is no burden upon either defe ndant to prove the ir innocenc e. It is the State' s burden to prove them g uilty beyond a re asonable doubt. * * * Now, bef ore w e beg in the individual voir dire, I want to g o back a

nd touch upon those fundame ntal principles of la w I spoke about e arlier . And ag ain, I want to treat the r oom in the four sec tions that Ihave. T here are approximately –well, not approxim ately . I n front of the jury box there are 14 and on ea ch side of the g allery there are approximately

20 people, may

be 25. I spoke about the f

act that the def endant is pre sumed to be–the de fenda nts are pr esumed to be innoc ent of the cha rg es ag ainst them and this presumption stay s with them throughout the tr ial and is not overc ome unless and until the jury deter mines the defe ndant is g uilty beyond a re asonable doubt. L et' s for the pur pose of these questions combine the people in the c ourtroom in one g roup. I s there a ny body in the courtroom who disag ree s with this fundamental principle of law? I f so, ra ise y our hand. No hands ra ised. Ispoke about the f

act that the de fenda

nts are pr esumed to be innoc ent of the cha rg es ag ainst them and this presumption stay s with them throughout the tr ial and is not overc ome unless and until the jury deter mines the defe ndants are g uilty beyond a re asonable doubt. I s there a ny one on the lef

t side of the g allery

who disag ree s with this 421-11-0413

fundame ntal principle of la w? I f so, ra ise y our hand. No hands ra ised. Right side of the g allery , Ispoke about the f act that the de fenda

nts are presumed to be innocent of the char g es ag ainst them and this presumption stay s with them throug hout the trial and is not overc ome unless and until the jury deter mines the defe ndants are g uilty beyond a re asonable doubt. I s there a ny one on the left side of

the g allery

who disag ree s with this fundamental principle of law? I f so, ra ise y our hand. No hands ra ised. Ag ain to the folks in the cour troom, Ialso spoke about the f act that the defe ndant bea

rs the burde n of proving

–I ' m sorry . Ialso spoke about the f act that the State, the prose cutors, bea r the burde n of provingthe def endants g uilty beyond
a re asonable doubt. I s there a ny one in the cour

troom who disag ree s with this fundame ntal principle of la w? I f so, ra ise y our hand. No hands ra ised. L eft side of

the g allery , Ispoke about the f act that the State be ars the burden of provingthe def

endant guilty

beyond a re asonable doubt. I s there anyone on the lef

t side of the g allery

who disagree s with this fundamental principle of la

w? I f so, ra ise y our hand. No hands ra ised. And finally

the rig ht side of the g allery , Ispoke about the f act that the 431-11-0413

State bear s the burden of

proving the def

endant guilty

beyond a re asonable doubt. I s there a ny one on the r ight side of the g allery

who disag ree s with this fundame ntal principle of la w? I f so, ra ise y our hand. And ag ain, no hands ra ised. Be cause these de fenda

nts are pr esumed to be innoc ent, they do not have to prese nt any

evidenc e at a ll in thi s case . They can simply

rely on the pre sumption of innoce nce. I s there a

ny one in the cour

troom who disag ree s with this fundame ntal principle of la w? I f so, ra ise y our hand. No hands ra ised. Be cause these de fenda

nts are pr esumed to be innoc ent, they do not have to prese nt any

evidenc e at a ll in thi s case . They can simply

rely on the pre sumption of innoce nce. I s there a

ny one on the lef

t side of the g allery

who disag ree s with that fundame ntal principle of la w? I f so, ra ise y our hand. No hands a

re r aised. Right side of the g allery , beca use the de fenda

nts are pr esumed to be innocent, they

do not have to pre sent any evidenc e at a ll in thi s case . They can simply rely on the pre sumption of innocence . I s there a ny one on the r ight side of the g allery

who disag ree s with that fundamental pr inciple of law ? I f so, ra ise y our hand. No hands a

re r aised. And finally

to the folks in the courtroom, the de fenda nts have a 441-11-0413

constitutional right to choose not to testify in this case. Should the defe ndants choose not to testify , y ou must not consider that dec ision in any way in arrivingat y our ver dict. I s there a

ny one in the g allery

- I ' m sorry

- in the cour

troom who disag ree s with that fundamental pr inciple of law ? Please ra ise y our hand if you do. No hands a

re r aised. L eft side of

the g allery , the def

endants have a c onstitut ional rig ht to choose not to testify

in this case. Should the defe ndants choose not to testify , you must not, m ay

not consider that de cision in any way in arrivingat y our ver dict. I s there anyone on the lef

t side of the g allery

who disag ree s with that fundamental principle of la

w? I f so, ra ise y our hand. No hands a

re r aised. And finally

rig ht side of the g allery , the def endants ha

ve a c onstitut ional rig ht to choose not to testify in this case. Should the defe ndants choose not to testify , y ou must not consider that dec ision in any way in arrivingat your ver dict. I s there a ny one on the r ight side of the g allery

who disag ree s with that fundame ntal principle of la w? I f so, ra ise y our hand. And ag ain no hands a

re r aised." ¶ 81 In this case, de fenda nt acknowle dg es that the trial c ourt collec tively asked a ll of the potential jurors whe ther they understood the f

our Zehr principles. De fenda

nt claims that the court' s inquiry

was ne verthe less insufficient be cause the cour t did not ask the potential jurors 451-11-0413

whether they also acce pted those principles. ¶ 82 Def

endant a cknowledg es that his claim is subject to forf eiture be cause he did not raise a n objection in the trial cour t or in his postt rial motion. See Enoch , 122 I ll. 2d at 186. Defe ndant asks that we r eview the issue under the plain-er ror doc trine. Our supr eme c ourt has explained that doctrine a s follows: "[T]he plain-er

ror doc trine allows a r eviewingcourt to consider unprese rved e rror when ( 1) a c lear

or obvious err or occ urre d and the e vidence is so closely balanc ed that the er ror a lone threa

tened to tip the sca les of justice a g ainst the defe ndant, reg ardle ss of the ser iousness of the er ror, or (2) a clea r or obvious er

ror oc curr ed and that er

ror is so serious that it aff ecte d the fa irness of the de fenda nt's tria l and challeng ed the integ rity

of the judicial proc ess, re g ardle ss of the closene ss of the evidenc e." People v . Piatkowski , 225 I ll. 2d 551, 565 (2007). Def endants be ar the burden of persua sion under ea ch prongof the doc trine. People v . Naylor , 229 I ll. 2d 584, 593 (2008). Where a defe ndant is unable to establish plain er ror, it is incumbent upon a re viewingcourt to honor the pr ocedur al def ault. People v . Keene , 169 I ll. 2d 1, 17 (1995). How ever , befor e conside ringwhether plain err or occ urre d, we f irst determine whether
an er ror a ctually

occur red. ¶ 83 We find no err or in this case be cause the trial cour t complied with the require ments of Rule 431(b). De fenda

nt essentially

complains that the trial cour t did not employ

the pre cise lang uag e of the rule. How ever , there is no require ment that a trial c ourt use the e x act languag e of the rule a nd the rule doe s not "pre scribe a prec ise formula f

or trial judg es to use in asc erta ining 461-11-0413

jurors’ pr ejudices or

attitudes." People v . Emerson , 122 I ll. 2d 411, 426-27 (1987); People v

. Ingram, 409 I ll. App. 3d 1, 12 (2011); People v . Vargas , 409 I ll. App. 3d 790, 796 (2011); People v . Strickland , 399 I ll. App. 3d 590, 604 (2010). In this case, the tr ial court initially told the venire that it was essential that they all "unde rstand" and " embra ce" the four pr inciples. The court then r eviewe d eac h principle in depth a nd confirme d that none of the venire disag ree d the principle. We find that the c ourt' s admonishments were substantially in acc ordanc e with the mandate of

Rule 431(b) a

nd wer e suff

icient to confirm the ve nire’s unde rstandingand ac cepta nce of all the princ iples set forth in the rule . Be cause we f ind no error

in this case, ther e ca

n be no plain err or and w e thus conc lude that def endant' s claim is forfe ited. See Vargas , 409 I ll. App. 3d at 796 (" we f

ind no error

in the trial court' s inquiry and fur ther c onsideration as to for feiture or harmless e rror

is unnece ssary ")
. ¶ 84 For

the re asons stated, the judg ment of the c ircuit court of Cook County

is affirme d. ¶ 85 Affir

med.

47