People v. Salgado , 2022 IL App (2d) 200537-U ( 2022 )

2022 IL App (2d) 200537-UNo. 2-20-0537
Order filed February 28, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-670
)
ALEX SALGADO, ) Honorable
) Brendan A. Maher,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Bridges and Justice Schostok concurred in the judgment.
ORDER
¶1 Held: Defendant’s convictions of home invasion and unlawful possession of weapons by
a felon were reversed, and the cause was remanded for a new trial. Although the
evidence was sufficient to sustain the convictions, and although defendant’s
counsel did not provide ineffective assistance in failing to request severance of the
charges, counsel was ineffective in failing to (1) request a limiting instruction, (2)
object to improper lay opinion identification testimony, and (3) object to an
improper comment during the State’s rebuttal argument.
¶2 Following a jury trial, defendant, Alex Salgado, was found guilty of four counts of home
invasion (720 ILCS 5/19-6(a)(2)-(5) (West 2016)), one count of aggravated battery with a firearm
(720 ILCS 5/12-3.05(e)(1) (West 2016)), and two counts of unlawful possession of weapons by a
2022 IL App (2d) 200537-Ufelon (UPW) (720 ILCS 5/24-1.1(a) (West 2016)). The trial court sentenced defendant to an
aggregate 38 years’ incarceration in the Illinois Department of Corrections. Defendant appeals,
and we reverse and remand for a new trial.
¶3 I. BACKGROUND
¶4 In April 2018, defendant was charged with the offenses referenced above arising out of the
shooting of Michael Padron on March 24, 2018.
¶5 Defendant’s jury trial commenced on July 10, 2018. Officer Jesse Geiken of the Rockford
Police Department testified that, at 1:17 p.m. on March 24, 2018, he responded to a report of shots
fired at 161 Broadway in Rockford. When he arrived, he parked in an alley directly behind the
residence, then walked toward the back door with another officer who had arrived just before he
had. The back door had bullet holes in it, and there were several spent .223 caliber casings on the
porch. As Geiken approached the door, Padron emerged from the house. Padron had a gunshot
wound to his lower left leg, and Geiken helped him into a nearby chair. Geiken then entered the
residence, where he located several bags containing what appeared to be cannabis. Thereafter,
Geiken traveled to 510 North Day Avenue in Rockford because he learned that the shooting
suspects were believed to be inside the house at that address. Other officers were present when
Geiken arrived. They formed a perimeter and called in an armored vehicle. After the armored
vehicle arrived, Ariel Galindo and defendant exited the house. Officers took them into custody,
then Geiken assisted in searching the house, where officers located, among other things, an AR-
15 rifle under a couch cushion.
¶6 Padron testified that, on March 24, 2018, he drove to Ana Juarez’s home at 161 Broadway
to visit her. He parked in the rear driveway, which was accessible from an alleyway that ran behind
the residence. Padron entered the house through the back door. After talking with Juarez for about
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2022 IL App (2d) 200537-Uthirty seconds, he heard two kicks at the door, then multiple gunshots. The gunshots came through
the door, and Padron and Juarez fled to the basement. Soon, two masked individuals came down
the steps. One of the individuals approached Padron, pointed a “big gun” at him, and asked “where
the money was at.” Padron responded that he did not know and that he did not live there. The
individual then shot Padron in the left leg, and both masked individuals left. After police officers
arrived at the scene, Padron was taken to Swedish American Hospital, where he remained for two
weeks. His tibia had been “completely destroyed,” and he had to have metal rods implanted. At
the time of trial, Padron was still using crutches. Padron acknowledged that, because the
individuals were masked and covered, he could not identify them or even tell what their races
were.
¶7 Dr. Richard Hermann treated Padron on March 24, 2018. Dr. Hermann explained that
Padron had a gunshot wound to his lower left leg, near his knee, that caused a complex fracture
and required orthopedic surgery.
¶8 Yesenia Ruacho testified that she was Juarez’s neighbor. At 1:17 p.m. on March 24, 2018,
Yesenia heard gunshots and called 911. She went outside to see where the shots were coming from
and saw a black “sporty looking car” with its doors open. No one was inside it. Soon, however,
she saw two individuals run to the car from 161 Broadway and drive away. Yesenia could not
describe what the individuals looked like or identify their races, because they wore ski masks.
¶9 Samuel Ruacho, Yesenia’s brother, testified that he lived down the street from 161
Broadway. On March 24, 2018, Samuel heard gunshots, then he stepped onto his porch to see what
was happening. He saw a black, sporty-looking Audi with its doors open. Two “guys” ran toward
the Audi from 161 Broadway. They were wearing black. One individual was “skinny,” and the
other was a “bigger heavyset guy.” Samuel could not discern the races of the individuals. Samuel
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2022 IL App (2d) 200537-Uhad security cameras on his home, including one that was pointed toward the alley behind 161
Broadway. When officers arrived at 161 Broadway, Samuel turned over footage from the cameras.
On cross-examination, Samuel acknowledged that he had told an officer after the shooting that he
saw “two black males running back to the black Audi.” He explained, however, that he only
“assumed they were black.”
¶ 10 Detective Spencer Berke, a crime scene detective with the Rockford Police Department,
testified that he collected .223 shell casings from the back porch and basement of 161 Broadway.
¶ 11 Sergeant Brad Stien of the Rockford Police Department testified that he responded to 161
Broadway upon learning of the shooting. He and Officer Geiken located Padron in the rear of the
house, and they helped him outside because his leg was injured. Thereafter, Stien met with Officer
David Watson to review Samuel’s surveillance footage. Stien testified as to what the video
depicted, and the following is his description of what he saw on the video. A blue Dodge Durango
drove westbound through the alley behind 161 Broadway, then turned into the driveway behind
the residence. A black Audi then drove through the alley in the same direction and moved out of
frame. The Audi had newer aftermarket rims, a shiny silver or chrome gas cap, and tinted windows.
Shortly thereafter, a “heavier set person” wearing dark clothing and carrying a “shorter length
rifle” went through the alley and up the driveway, moving out of frame. A “taller, more slender”
individual in dark clothing followed. Minutes later, the tall, slender person went back through the
alley while carrying a container, and the “heavier set subject” followed while still carrying the
“same short style rifle.” Stien testified that “the definitive things that were in the video that you
could see” included “a short style rifle,” the individuals’ “size[s]” and “build[s],” their gaits, and
“their comparison of one versus the other.”
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2022 IL App (2d) 200537-U¶ 12 Stien testified that, while he was at the scene at 161 Broadway on March 24, 2018, he gave
a description of the Audi to dispatch. Stien then learned that a possible vehicle match had been
located at 510 North Day. Stien went to that address and saw the vehicle. He determined from its
rims, gas cap, and windows that it was the same car that he had seen in the surveillance footage.
Stien testified that, about 30 to 45 minutes after the Audi had initially been located, Galindo exited
the house. When Galindo emerged, Stien told nearby officers, “[T]hat’s the tall slender guy in the
security footage.” According to Stien, Galindo had an “extremely similar build, extremely similar
clothing,” and a similar gait to the tall person in the video. Stien testified that defendant then exited
the residence. According to Stien, defendant was not wearing the same clothing as the individual
in the footage, but “the body type and shape was very similar.” Defendant did not object to that
testimony. After officers detained defendant and Galindo, they searched the house. No one else
was inside. Stien explained that in the living room on the first floor, there was a bed and a couch.
On the bed, officers found a magazine for an AR-15 and plastic cartridges that were .223 caliber.
Under a cushion on the couch, Stien found a disassembled AR-15. Stien testified that the AR-15
used .223 caliber ammunition and that “the barrel length of this weapon was extremely short.” He
explained that the weapon was a “ghost AR-15,” meaning that it had no serial number or other
identifiable mark on it. In the kitchen, Stien located the charging handle for the AR-15 in an air
duct. Stien noted that officers also found a bag containing a 9-millimeter firearm that was missing
parts. Several parts to that weapon were found in the basement.
¶ 13 Officer Andrea Genkinger of the Rockford Police Department testified that she assisted in
the search of 510 North Day. Genkinger found a mask shoved between the bed and the wall in the
living room. She also searched the Audi and found a box of .223 caliber ammunition and several
rounds of handgun ammunition.
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2022 IL App (2d) 200537-U¶ 14 Officer Carl Bergstrom of the Rockford Police Department testified that, upon learning, at
1:17 p.m., that shooting suspects fled from 161 Broadway in a black Audi, he looked up police
reports that mentioned black Audis. He found one report from the prior evening in which a black
Audi fled from an officer. Bergstrom looked up that vehicle’s license plate and learned that it was
“associated” with 510 North Day, which he knew was about a 10-to-15-minute drive from 161
Broadway. Bergstrom drove to 510 North Day and arrived at 1:33 p.m. He saw a black Audi parked
in the driveway, and its license plate number matched the one from the police report. Bergstrom
felt the hood, which was warm to the touch, then notified dispatch. Officers arrived “very quickly.”
An armored vehicle was requested, and when it arrived, Galindo exited the house “on his own
will.” Officers then used the microphone system and ordered defendant outside. Defendant exited
the house. As he was being handcuffed, he started making “funny noises” and “flinching and
kicking” toward a police dog at the scene. According to Bergstrom, defendant “was very
nonchalant about the whole thing.” Bergstrom testified that, once he arrived at 510 North Day, no
one entered or exited the residence until Galindo and defendant emerged. Bergstrom then assisted
in searching the residence. He found multiple parts of a rifle in a pool of sewage under a rug in the
basement. Additionally, he found wet clothes and towels in the bathroom linen closet. On the toilet,
there were toilet paper rolls containing what smelled and appeared to be cannabis. There was
vacuum-sealed packaging on the floor, and the floor was wet.
¶ 15 Officer David Watson of the Rockford Police Department testified that, after responding
to the shooting at 161 Broadway, he reviewed and downloaded the surveillance video captured by
Samuel’s cameras. Watson explained that the timestamp on the video was three minutes fast. The
video was admitted into evidence.
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2022 IL App (2d) 200537-U¶ 16 Detective Bruce Voyles of the Rockford Police Department testified that he collected
evidence from 510 North Day. This evidence included the AR-15, the 9-millimeter handgun, boxes
of .223 and 9-millimeter ammunition, the black mask, and cannabis. Voyles also collected black
denim pants and a hooded sweatshirt that officers found. Voyles test-fired the AR-15 and
determined that it was working properly. He attempted to obtain fingerprints from the AR-15, but
he could not locate any that were suitable for comparison to a known fingerprint. Voyles
acknowledged that police officers did not attempt to obtain fingerprints from the spent shell
casings, test defendant’s clothes for any gunshot residue, test a hair that had been found on the
mask, or investigate the identity of “T. James,” whose name was written on the inside of the jeans
that had been recovered.
¶ 17 Heather May, a forensic scientist with the Illinois State Police, testified as an expert in
DNA analysis. May explained that she examined a swab from the AR-15 for DNA. May found no
DNA suitable for comparison because the swab contained a mixture of DNA from at least four
individuals. Accordingly, she had no opinion as to who had handled the AR-15.
¶ 18 Detective Brian Strawser of the Rockford Police Department testified that, on March 24,
2018, he photographed defendant and Galindo. Strawser also photographed and collected their
clothing, which was introduced into evidence.
¶ 19 Amanda Darnell, a forensic scientist with the Illinois State Police, testified as an expert in
firearms identification. Darnell reassembled the AR-15 recovered from 510 North Day and
obtained test shots to compare them against the spent .223 shell casings found at 161 Broadway.
Darnell testified that, after examining the characteristics of the test casings and the recovered
casings, it was her opinion that the AR-15 obtained from 510 North Day fired the .223 shell casings
recovered from 161 Broadway.
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2022 IL App (2d) 200537-U¶ 20 At the close of the State’s evidence, the court informed the jury that the court would read
a stipulation by the parties pertaining to “facts that you can consider for purposes of the case.” The
stipulation, inter alia, concerned defendant’s prior felony convictions for possession of a firearm
without a firearm owner’s identification card, aggravated unlawful use of a weapon, and
aggravated fleeing to elude. However, the jury did not learn the details of those convictions. The
court informed the jury that defendant “was a convicted felon on March 24, 2018.” The defense
rested without presenting evidence.
¶ 21 During closing argument, the State contended that Stien’s testimony—that defendant’s
body type resembled the heavyset individual in the video—along with defendant’s presence at a
location where items connected to the shooting were recovered, was circumstantial evidence
establishing defendant’s guilt. On rebuttal argument, the State also compared the shoes that
defendant wore when he was arrested to the shoes seen in the surveillance video. The State argued,
without objection from defendant, “there’s something particular about those black shoes
[defendant wore during his arrest]. First of all, you’ll notice that they’re big. These are size 12
shoes. You’ll notice in the video those are big shoes. Size 12 shoes.”
¶ 22 The jury found defendant guilty on all counts. On August 13, 2018, both defendant, acting
pro se, and his counsel filed separate motions for a new trial. Defendant’s motion alleged several
claims of ineffective assistance of counsel. On August 27, 2018, defendant’s trial counsel
withdrew as counsel, and the court appointed the public defender’s office to represent defendant.
¶ 23 On September 19, 2018, the court held a preliminary hearing pursuant to People v. Krankel,
102 Ill. 2d 181, 189 (1984). An assistant public defender was present with defendant. The court
permitted defendant to explain his complaints regarding trial counsel’s representation and allowed
defendant’s trial counsel to respond. As is relevant here, defendant first alleged that counsel was
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2022 IL App (2d) 200537-Uineffective for failing to object to Stien’s lay opinion identification testimony that defendant fit the
“profile” of one of the subjects in the surveillance video. Defendant’s trial counsel responded that
Stien presented no explicit identification testimony but testified only that defendant “looked
similar in body shape” to the individual in the video.
¶ 24 Defendant also alleged that trial counsel should have prevented the State from introducing
evidence obtained from 510 North Day, including the firearms, ammunition, and cannabis.
Counsel responded that he believed that any such attempt would have failed, and the better strategy
was to argue that defendant “didn’t even know that stuff was there.” In response to a question from
the trial court, counsel noted that he did not seek to sever defendant’s UPW charges from the other
charges. Counsel explained that he and defendant believed that the State would be unable to prove
that defendant had participated in the home invasion. Accordingly, they wanted to “do nothing to
delay the running of the speedy trial clock,” which would have given the State additional time to
prepare for trial. Thus, after discussing the speedy trial implications, they “agreed that we were
not going to sever that count.”
¶ 25 Defendant further alleged that, because the State introduced the firearms and narcotics
evidence from 510 North Day, counsel should have requested Illinois Pattern Jury Instructions,
Criminal, No. 3.14 (approved October 17, 2014) (hereinafter IPI Criminal No. 3.14), which limits
the jury’s consideration of evidence of uncharged crimes. Counsel responded that the better
strategy was to emphasize that no evidence directly linked defendant to those items.
¶ 26 On November 8, 2018, the trial court denied all of defendant’s ineffective-assistance
claims, finding that each lacked “legal or factual merit and pertain only to matters of trial strategy.”
¶ 27 On November 1, 2019, defendant’s appointed counsel filed an amended motion for a new
trial. As is relevant here, defendant alleged that his trial counsel was ineffective for “failing to
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2022 IL App (2d) 200537-Uobject and allowing [Stien] to testify to the contents of a video as if he was an eye witness,” failing
to object to Stien’s identification testimony, and failing to “file a motion to sever the weapons
count from the other counts.” The motion further alleged that “the state improperly argued” that
the shoes worn in the video were size 12 when no such evidence was presented at trial.
¶ 28 On June 19, 2020, the trial court denied the amended motion for a new trial. On
September 11, 2020, the trial court sentenced defendant to 31 years in prison for home invasion
involving the personal discharge of a firearm. 1 Because the court found that defendant’s conduct
caused severe bodily harm, that sentence ran consecutively to concurrent terms of three years and
seven years for the UPW counts. Accordingly, the trial court sentenced defendant to a total term
of 38 years’ imprisonment. On September 14, 2020, defendant filed a motion to reconsider the
sentence, which the trial court denied. Defendant timely appealed.
¶ 29 II. ANALYSIS
¶ 30 A. Sufficiency of the Evidence
¶ 31 Defendant first argues that the State failed to prove him guilty beyond a reasonable doubt
of either home invasion or UPW because the State failed to prove that he was one of the
perpetrators of the offenses at 161 Broadway.
¶ 32 In all criminal prosecutions, the State must prove, beyond a reasonable doubt, that a crime
was committed and the identity of the person who committed the offense. People v. Lara, 2012 IL
112370, ¶ 17. When a defendant challenges the sufficiency of the evidence, a reviewing court must
determine whether, after viewing the evidence in the light most favorable to the prosecution, any
1
The remaining home invasion and aggravated-battery-with-a-firearm counts merged into
this count.
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2022 IL App (2d) 200537-Urational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Jackson, 2020 IL 124112, ¶ 64. All reasonable inferences are drawn in favor of a
finding of guilt. People v. Swenson, 2020 IL 124688, ¶ 35. This standard applies whether the
evidence is direct or circumstantial. Jackson, 2020 IL 124112, ¶ 64. Additionally, circumstantial
evidence that meets this standard is sufficient to sustain a criminal conviction. Jackson, 2020 IL
124112, ¶ 64. It is the trier of fact’s responsibility to fairly resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 2020
IL 124112, ¶ 64. The trier of fact need not “find each fact in the chain of circumstances beyond a
reasonable doubt.” Jackson, 2020 IL 124112, ¶ 70. Instead, it “must find only that the evidence
taken together supports a finding of the defendant’s guilt beyond a reasonable doubt.” Jackson,
2020 IL 124112, ¶ 70. It is not the function of the reviewing court to retry the defendant. Jackson,
2020 IL 124112, ¶ 64. Accordingly, the reviewing court will not substitute its judgment for that of
the trier of fact on issues involving the weight of the evidence or the credibility of witnesses.
Jackson, 2020 IL 124112, ¶ 64. To set aside a criminal conviction on a challenge to the sufficiency
of the evidence, the evidence must be so improbable or unsatisfactory that it creates a reasonable
doubt of the defendant’s guilt. Jackson, 2020 IL 124112, ¶ 64. When addressing a challenge to the
sufficiency of the evidence, we consider both properly and improperly admitted evidence. People
v. King, 2020 IL 123926, ¶ 52.
¶ 33 Defendant’s sole challenge to the sufficiency of the evidence is that the State failed to prove
the element of identity, i.e., that he was one of the individuals who entered 161 Broadway and shot
Padron. Defendant asserts that no eyewitness identified him as a perpetrator of the offenses, and
the “only evidence” connecting him to the crimes was his presence at 510 North Day. The State
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2022 IL App (2d) 200537-Ucounters that sufficient circumstantial evidence established defendant’s identity as one of the
perpetrators.
¶ 34 We find People v. Darrah, 18 Ill. App. 3d 1018 (1974), instructive. In Darrah, a witness
observed two men exit the back of an apartment building and drive away in a black and gray
Oldsmobile Tornado at 9:00 p.m. Darrah, 18 Ill. App. 3d at 1019. Both men were six feet tall, one
was wearing a yellow windbreaker, and the other had dark hair. Darrah, 18 Ill. App. 3d at 1019.
The witness entered the building and saw that coin boxes were missing from the washer and dryer
in the laundry room. Darrah, 18 Ill. App. 3d at 1019. At 9:16 p.m., he called the police and gave
descriptions of the men and vehicle he observed. Darrah, 18 Ill. App. 3d at 1019. An officer, upon
hearing a description of the vehicle, pulled over a black and gray Tornado occupied by the
defendants at 9:25 p.m. Darrah, 18 Ill. App. 3d 1019-20. The officer noticed coins on the floor of
the defendants’ vehicle. Darrah, 18 Ill. App. 3d at 1020. The officer searched the vehicle and
found, inter alia, several socks filled with quarters and dimes, a pocket knife, coin wrappers, and
plastic trays for counting and rolling coins. Darrah, 18 Ill. App. 3d at 1020. One of the defendants
was found to be carrying keys used to open coin-operated washers and dryers. Darrah, 18 Ill. App.
3d at 1020. Although the defendants were not identified as the individuals seen at the crime scene,
they were found guilty of burglary, possession of burglary tools, and theft under $150. Darrah, 18
Ill. App. 3d at 1019, 1021-22. On appeal, they argued that there was insufficient evidence to prove
that they were the perpetrators of the offenses at the apartment building. Darrah, 18 Ill. App. 3d
at 1021. The appellate court rejected their argument and affirmed their convictions. Darrah, 18 Ill.
App. 3d at 1022. The court explained that “the identity of the accused may be established by
circumstantial evidence,” and that, as to the defendants, “the radioed descriptions, the time and
place at which defendants were apprehended and the product of the searches, provided substantial
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2022 IL App (2d) 200537-Ucircumstantial evidence” that they were the individuals who committed the charged crimes.
Darrah, 18 Ill. App. 3d at 1022.
¶ 35 Like Darrah, although no eyewitness identified defendant as one of the individuals who
entered 161 Broadway and shot Padron, circumstantial evidence permitted the jury to conclude
that he was one of the perpetrators. Padron testified that, on March 24, 2018, two people entered
161 Broadway, and that an individual with a “big gun” shot him in the leg. Both Yesenia and
Samuel testified that, after hearing gunshots at 1:17 p.m., they saw two masked individuals running
from 161 Broadway toward a black Audi. Yesenia called 911, and Samuel observed that one of
the “guys” was tall and skinny, while the other was a “bigger heavyset guy.” Security footage
taken at the time of the shooting first depicted a black Audi moving through the alley behind 161
Broadway, then showed two individuals moving toward the rear of the house and later running
back along the same path. Stien reviewed this footage and observed that one of the individuals was
tall and slender, while the other was a “heavier set person” who was carrying a “shorter length
rifle.” Within 17 minutes of the shooting, Bergstrom located a vehicle of interest at 510 North Day,
which he knew was a 10-to-15-minute drive from 161 Broadway, and Stien believed that the
vehicle was the same one the perpetrators used to flee 161 Broadway. From the time officers
arrived at 510 North Day until defendant and Galindo exited the house, no one else entered or
exited the residence. Stien testified that Galindo had a “similar build” to the tall, slender individual
in the security footage, and defendant had a “very similar” “body type and shape” to the heavier
set individual. Upon searching the house, officers found, inter alia, a mask, ammunition consistent
with the shell casings found at 161 Broadway, and an AR-15 that was ultimately determined to be
the same weapon used at 161 Broadway.
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2022 IL App (2d) 200537-U¶ 36 Although the evidence in this case was circumstantial and not overwhelming, it was the
jury’s responsibility to weigh that evidence and to draw reasonable inferences. Jackson, 2020 IL
124112, ¶ 64. When viewing the foregoing evidence in the light most favorable to the prosecution,
the jury could conclude that defendant committed the charged offenses. Accordingly, we hold that
the evidence was sufficient to prove defendant’s identity and convict him of home invasion and
UPW.
¶ 37 B. Ineffective Assistance of Counsel
¶ 38 Defendant next argues that his trial counsel provided ineffective assistance by failing to (1)
move to sever the UPW charges from the remaining charges, (2) request Illinois Pattern Jury
Instructions, Criminal, No. 3.13X (approved October 17, 2014) (hereinafter IPI Criminal No.
3.13X), (3) object to Stien’s narration of the surveillance video and lay opinion identification
testimony, and (4) object to the State’s claim in its rebuttal argument that defendant and one of the
individuals in the surveillance video both wore size 12 shoes. The State responds that each
argument is meritless because defendant failed to show either that counsel performed deficiently
or that any deficient performance prejudiced him.
¶ 39 To succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy
the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant
must show that his counsel’s performance was deficient and that such deficiency prejudiced the
defense. Strickland, 466 U.S. at 687; People v. Moore, 2020 IL 124538, ¶ 29. An attorney’s
performance is deficient where he or she made an error that was so serious that he or she “was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. We apply a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and a defendant must overcome the presumption that his
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2022 IL App (2d) 200537-Ucounsel pursued a sound trial strategy. Strickland, 466 U.S. at 689. A defendant establishes
prejudice where “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. In other words, a defendant “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The defendant must satisfy
both prongs under Strickland, and if a reviewing court determines that he has failed to satisfy either
one, it need not consider the other. People v. Guerrero, 2011 IL App (2d) 090972, ¶ 60. Whether
counsel provided ineffective assistance “requires a bifurcated standard of review, wherein a
reviewing court must defer to the trial court’s findings of fact unless they are against the manifest
weight of the evidence but make a de novo assessment of the ultimate legal issue of whether
counsel’s omission supports an ineffective assistance claim.” People v. Bailey, 375 Ill. App. 3d
1055, 1059 (2007).
¶ 40 Before we reach the merits of defendant’s claims, we note that defendant’s arguments that
counsel was ineffective for failing to offer IPI Criminal No. 3.13X and for failing to object to the
State’s reference to a shoe size during closing argument were not raised in the trial court.
Ordinarily, we would deem these arguments forfeited. See People v. Fretch, 2017 IL App (2d)
151107, ¶ 136 (where defendant, who was represented by new posttrial counsel, failed to raise part
of ineffectiveness claim in trial court, that portion of defendant’s claim was forfeited); People v.
Ramos, 339 Ill. App. 3d 891, 899-900 (2003) (court would not address argument that defendant,
who was represented by new posttrial counsel, “did not include *** in either the motion or
amended posttrial motion he filed”). In the trial court, defendant complained that counsel failed to
request IPI Criminal No. 3.14, not IPI Criminal No. 3.13X. Similarly, while defendant argued that
the State improperly commented on shoe size during closing arguments, he did not frame that
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2022 IL App (2d) 200537-Uclaim as one involving ineffective assistance stemming from counsel’s failure to object to that
comment. The State, however, does not argue forfeiture of these claims, and thus, we will consider
them. See People v. McKown, 236 Ill. 2d 278, 308 (2010) (State forfeits a forfeiture argument by
failing to raise it in appellate court).
¶ 41 Defendant first argues that counsel was ineffective in failing to move to sever the UPW
charges from the home invasion charges. Defendant asserts that, while the State had to establish
that he had a prior felony conviction to prove him guilty of UPW,2 evidence of that conviction
would not have been permitted for the home invasion charges. He thus claims that counsel’s
omission allowed the jury to learn that he was a felon and to improperly use that evidence in
considering his guilt on the home invasion charges.
¶ 42 However, a defense decision not to seek severance is generally regarded as a matter of trial
strategy, even if such a decision may prove unwise in hindsight. See People v. Fields, 2017 IL
App (1st) 110311-B, ¶ 28 (reasonable strategy not to seek severance and instead to pursue “all or
nothing” strategy, thereby exposing jury to information it would not have otherwise heard, where
counsel believed getting two acquittals in one proceeding was more likely than in two); People v.
Gapski, 283 Ill. App. 3d 937, 942 (1996) (reasonable strategy not to seek severance based upon
counsel’s determination that, even in the trial on the severed count, the jury would learn of
defendant’s prior felony because he intended to testify, and his credibly would be impeached with
2
It is “unlawful for a person to knowingly possess on or about his person *** any weapon
prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person
has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS
5/24-1.1(a) (West 2016).
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2022 IL App (2d) 200537-Uprior felony). Defendant relies on People v. Utley, 2019 IL App (1st) 152112, to counter that the
failure to file a motion to sever cannot constitute reasonable trial strategy. Utley is distinguishable.
¶ 43 In Utley, the defendant faced charges of possession of a controlled substance with intent to
deliver, being an armed habitual criminal, and unlawful use of a weapon by a felon. Utley, 2019
IL App (1st) 152112, ¶ 1. Although evidence of the defendant’s prior convictions was required to
prove only the firearm offenses, counsel did not move to sever the charges. Utley, 2019 IL App
(1st) 152112, ¶¶ 1, 35. Additionally, counsel did not file a motion in limine or stipulate to the fact
of the defendant’s convictions, which would have limited what the State could introduce in proving
them. Utley, 2019 IL App (1st) 152112, ¶ 48. Thus, at trial, the State offered into evidence certified
copies of the defendant’s prior convictions for aggravated battery with a firearm and unlawful
delivery of a controlled substance. Utley, 2019 IL App (1st) 152112, ¶ 15. On appeal, the defendant
argued that counsel’s failure to move to sever the firearm charges from the drug charges constituted
ineffective assistance because it allowed the jury to consider his prior felonies when determining
his guilt on offenses for which such evidence was unnecessary. Utley, 2019 IL App (1st) 152112,
¶¶ 35, 39. The appellate court agreed and reversed the defendant’s convictions. Utley, 2019 IL
App (1st) 152112, ¶¶ 48, 52, 72. The court rejected the State’s argument that counsel’s omission
“should be seen as trial strategy,” because the State did not “identify any particular ‘strategy’ that
was served by [counsel’s] decision,” and nothing in the record suggested any strategic motive.
Utley, 2019 IL App (1st) 152112, ¶¶ 43, 48. Additionally, because counsel “made no attempt” to
file a motion in limine or to stipulate to the offenses, the jury was permitted to hear the specific
nature of the felonies and consider that evidence without any minimization of the prejudice to the
defendant. Utley, 2019 IL App (1st) 152112, ¶¶ 48, 52.
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2022 IL App (2d) 200537-U¶ 44 Unlike Utley, the record clearly establishes that counsel made a strategic decision not to
move to sever the charges. At the Krankel hearing, counsel explained that, because he and
defendant did not believe that the State could prove that defendant participated in the home
invasion, they decided to “do nothing to delay the running of the speedy trial clock,” including
moving to sever the counts, because they did not want to give the State additional time to prepare
for trial. Additionally, unlike Utley, counsel attempted to minimize the prejudice that defendant
faced by stipulating to the fact of his prior convictions, such that the jury did not learn of the
specific nature of his prior offenses.
¶ 45 This case more closely resembles Fields, 2017 IL App (1st) 110311-B. In Fields, the
defendant, a felon, was charged with armed robbery and being an armed habitual criminal. Fields,
2017 IL App (1st) 110311-B, ¶¶ 1, 14. Trial counsel did not move to sever the charges, and instead
agreed to stipulate to the fact of the prior convictions without indicating the nature of the offenses.
Fields, 2017 IL App (1st) 110311-B, ¶¶ 4, 23. At trial, the jury was read the parties’ stipulation
that the defendant had “two qualifying felony convictions to be considered” in connection with the
armed habitual criminal charge. Fields, 2017 IL App (1st) 110311-B, ¶ 14. On appeal, the
defendant argued that counsel was ineffective in failing to move to sever the charges. Fields, 2017
IL App (1st) 110311-B, ¶ 23. The court rejected the defendant’s argument, noting that, “when
deciding whether to seek a severance, defense counsel may choose to pursue an ‘all or nothing’
trial strategy, in which the defendant is acquitted or convicted of all charges in a single
proceeding.” Fields, 2017 IL App (1st) 110311-B, ¶ 28. The court reasoned that, because counsel
“may have believed that the odds of getting two acquittals were greater in one proceeding, rather
than two proceedings,” the defendant failed to overcome the presumption that counsel’s inaction
was reasonable trial strategy. Fields, 2017 IL App (1st) 110311-B, ¶ 28. This was particularly so
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2022 IL App (2d) 200537-Uwhere counsel’s stipulation prevented the jury from hearing the specific nature of the offenses.
Fields, 2017 IL App (1st) 110311-B, ¶ 28.
¶ 46 Here, counsel similarly pursued an “all-or-nothing” trial strategy, opting to prevent any
delay and try the case based upon his determination that the State’s evidence was too weak to
prove that defendant was one of the perpetrators. Notably, in lieu of a motion to sever the charges,
counsel stipulated to the fact of defendant’s convictions, without disclosing the nature of the
offenses, thereby minimizing the prejudice defendant faced by trying all counts at once. Under
these circumstances, we cannot find that counsel’s representation fell below an objective standard
of reasonableness, and we hold that counsel did not provide ineffective assistance by failing to file
a motion to sever the charges against defendant.
¶ 47 Defendant also contends that counsel was ineffective in failing to request IPI Criminal No.
3.13X, which, because he did not testify, would have read:
“Ordinarily, evidence of a defendant's prior conviction of an offense may not be
considered by you as evidence of his guilt of the offense with which he is charged.
However, in this case, because the State must prove beyond a reasonable doubt the
proposition that the defendant has previously been convicted of ____, you may consider
evidence of defendant's prior conviction of the offense of ____ only for the purpose of
determining whether the State has proved that proposition.” IPI Criminal No. 3.13X.
Defendant argues that no strategic reason can explain counsel’s failure to request IPI Criminal No.
3.13X in this case, where defendant stipulated to the fact that he is a felon. Defendant asserts that
counsel’s omission prejudiced him because the jury was permitted to “consider his prior felony as
evidence of his guilt” and may have convicted him simply because it believed he was a bad person.
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2022 IL App (2d) 200537-U¶ 48 While counsel’s choice of jury instructions is a matter of trial strategy, the failure to request
a particular instruction may be grounds for finding ineffective assistance of counsel if the
instruction was so critical to the defense that its omission denied the right of the accused to a fair
trial. People v. Falco, 2014 IL App (1st) 111797, ¶ 16. In determining whether the failure to give
an instruction deprived a defendant of a fair trial, we must look to all the circumstances,
“ ‘including all the instructions to the jury, the arguments of counsel, whether the weight of the
evidence was overwhelming, and other relevant factors.’ ” People v. Bustos, 2020 IL App (2d)
170497, ¶ 98 (quoting People v. Layhew, 139 Ill. 2d 476, 486 (1990)).
¶ 49 Evidence of other offenses is not admissible to establish a defendant’s propensity to
commit the offense charged. People v. Park, 245 Ill. App. 3d 994, 1002 (1993). Here, the evidence
against defendant was sufficient but not overwhelming. The jury learned that defendant was a
convicted felon and was informed by the trial court—without restriction—that it could consider
that fact “for purposes of the case.” Because counsel did not request IPI Criminal No. 3.13X, the
jury was never apprised that it could only consider defendant’s conviction with respect to the UPW
charge.
¶ 50 The State argues that counsel’s omission was trial strategy, particularly in light of the
Committee Note to IPI Criminal No. 3.13X. That note provides that the instruction should be given
only at the defendant’s request if he or she does not testify at trial; otherwise, the instruction should
not be given. IPI Criminal No. 3.13X, Committee Note (approved Oct. 17, 2014). The State
contends that counsel “may have reasonably concluded” that requesting IPI Criminal No. 3.13X
would have harmed the defense “by needlessly reminding the jury that defendant had a prior felony
conviction.” Thus, the State argues, counsel opted not to request the instruction to minimize the
number of times the jury heard that defendant had a prior felony. However, we discern no basis in
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2022 IL App (2d) 200537-Uthe record to conclude that counsel’s failure to request IPI Criminal No. 3.13X was in pursuit of
such a strategy. Moreover, in a case such as this one, where the evidence against defendant was
circumstantial and not overwhelming, we conclude that reasonable counsel would have recognized
the importance of informing the jury that it could only consider defendant’s status as a felon for a
limited purpose. See Park, 245 Ill. App. 3d at 1002 (in close case, reasonable counsel would have
asked for limiting instruction to impress upon jury importance of considering other crimes
evidence only for limited purpose). While the jury was instructed not to consider “evidence that
was received for a limited purpose *** for any other purpose,” nothing informed the jury that
defendant’s prior felony conviction was received for a limited purpose. Accordingly, we conclude
that counsel’s failure to request IPI Criminal No. 3.13X was objectively unreasonable.
¶ 51 Defendant also argues that counsel’s failure to object to Stien’s testimony narrating the
surveillance video (including testifying about the body types of the individuals, their gaits, and the
rifle seen in one of the perpetrators’ hands) and identifying defendant as one of the individuals
therein constituted ineffective assistance. The State responds that counsel’s performance was not
deficient because any objection to Stien’s testimony would be meritless. Specifically, the State
claims that Stien’s narration of the events in the video was properly based upon his perception of
what the video showed. The State further argues that, by testifying only that defendant had a “very
similar” body type to the heavyset individual in the video, Stien provided no improper lay opinion
identification testimony.
¶ 52 A lay witness may only testify to events of which he has personal knowledge. Ill. R. Evid.
602 (eff. Jan. 1, 2011). “Testimony about the contents of a video recording by a witness with no
firsthand knowledge of the events depicted is treated as the opinion testimony of a lay witness.”
People v. Hampton, 2021 IL App (5th) 170341, ¶ 83. Lay opinion identification testimony is
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2022 IL App (2d) 200537-Uadmissible if “(a) the testimony is rationally based on the perception of the witness and (b) the
testimony is helpful to a clear understanding of the witness’s testimony or a determination of a fact
in issue.” People v. Thompson, 2016 IL 118667, ¶ 50; Ill. R. Evid. 701 (eff. Jan. 1, 2011). Such
testimony is helpful “where there is some basis for concluding the witness is more likely to
correctly identify the defendant from the surveillance recording than the jury.” Thompson, 2016
IL 118667, ¶ 50. A witness’s opinion as to the contents of a video recording is “inadmissible if the
jury is as capable as the witness of drawing inferences or conclusions from the recording.”
Hampton, 2021 IL App (5th) 170341, ¶ 83. “A showing of sustained contact, intimate familiarity,
or special knowledge of the defendant is not required.” Thompson, 2016 IL 118667, ¶ 50. Instead,
“the witness must only have had contact with the defendant, that the jury would not possess, to
achieve a level of familiarity that renders the opinion helpful.” Thompson, 2016 IL 118667, ¶ 50.
To determine whether lay opinion testimony is helpful, courts view the totality of the
circumstances and consider
“the witness’s general familiarity with the defendant; the witnesses’ familiarity with the
defendant at the time the recording was made or where the witness observed the defendant
dressed in a manner similar to the individual depicted in the recording; whether the
defendant was disguised in the recording or changed his/her appearance between the time
of the recording and trial; and the clarity of the recording and extent to which the individual
is depicted.” Thompson, 2016 IL 118667, ¶ 51.
The absence of any particular factor does not render the testimony inadmissible, but the testimony
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Thompson, 2016 IL 118667, ¶¶ 51, 54.
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2022 IL App (2d) 200537-U¶ 53 Lay opinion identification testimony from a law enforcement officer is admissible.
Thompson, 2016 IL 118667, ¶ 56. However, when the State seeks to introduce such testimony, the
circuit court should engage in precautionary measures that safeguard the defendant’s right to cross-
examine the officer concerning his or her familiarity with the defendant and any bias without
revealing to the jury the defendant’s criminal record. Thompson, 2016 IL 118667, ¶ 59. The circuit
court “should afford the defendant an opportunity to examine the officer outside the presence of
the jury.” Thompson, 2016 IL 118667, ¶ 59. Additionally, the court should instruct the jury before
the testimony and in the final charge to the jury that it need not give any weight to the officer’s
testimony and that the jury is not to draw any adverse inference from the fact that the witness is a
law enforcement officer. Thompson, 2016 IL 118667, ¶ 59.
¶ 54 Applying these principles, we hold that Stien’s narration of the surveillance video and his
identification testimony were improper. The State correctly notes that Stien’s testimony detailing
the events of the video was rationally based on his perception of what it showed. See People v.
Mister, 2016 IL App (4th) 130180-B, ¶ 76 (while lay witness only observed surveillance video and
did not personally observe the events depicted therein, testimony as to what the video depicted
was nevertheless rationally based on witness’s perception of the video). However, nothing in the
record suggested that Stien was better equipped than the jury to discern the events depicted therein,
identify the rifle held by one of the individuals, or observe the body types and gaits of the
perpetrators. To the contrary, Stien himself testified that the rifle and the individuals’ body types
and gaits were “definitive things that *** you could see” in the video. See Hampton, 2021 IL App
(5th) 170341, ¶ 86 (testimony that object in video did not look like gun was improper because it
was not helpful to the jury; no evidence suggested witness was in a better position than the jury to
reach conclusions or draw inferences from video); see also King, 2020 IL 123926, ¶ 38 (holding
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2022 IL App (2d) 200537-Uwitness’s testimony inadmissible where he testified to numerous conclusions that ordinary jurors
could easily draw for themselves). Accordingly, Stien’s narration of the video was not helpful to
the jury in interpreting the events depicted therein or in making a correct identification of
defendant.
¶ 55 Contrary to the State’s argument, Stien’s testimony regarding defendant’s body type was
lay opinion identification testimony. Although Stien did not explicitly identify defendant as the
heavyset individual in the surveillance video, he strongly insinuated as much by saying that
defendant’s body type was “very similar” to that individual’s. See Thompson, 2016 IL 118667, ¶
63 (officer’s testimony that, inter alia, individual in video still “resembled” defendant was lay
opinion identification testimony that required circuit court to engage in precautionary procedures
required for law enforcement witnesses); People v. Crawford, 2021 IL App (5th) 170496, ¶¶ 51-
52 (while witness never identified defendant in video as person “throwing up gang signs,” his
testimony “as a whole *** indicated as such”). As with Stien’s narration testimony, we hold that
his lay opinion identification testimony was not helpful to the jury in correctly identifying
defendant. Stien observed defendant after having viewed the surveillance video and explicitly
noted that, at the time of defendant’s arrest, defendant wore different clothing than the individual
in the video. Additionally, as previously noted, Stien admitted that the body types of the
individuals in the video were readily apparent. Nothing suggests that Stien was in a better position
to observe the heavyset individual in the video and draw conclusions based upon a comparison of
that individual’s body type to defendant’s. By opining that defendant had a “very similar” body
type to the heavyset individual in the video, Stien’s lay opinion identifying defendant invaded the
province of the jury and was improper. People v. Brown, 2017 IL App (1st) 142197, ¶ 64 (where
record did not indicate how long detective reviewed recording to discern defendant or establish
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2022 IL App (2d) 200537-Uthat he was more likely than jury to identify defendant, detective’s lay opinion identification
testimony was improper). Moreover, Stien provided identification testimony without the trial court
first engaging in any of the precautionary measures outlined in Thompson to safeguard defendant’s
right to confrontation. Thompson, 2016 IL 118667, ¶ 59; Brown, 2017 IL App (1st) 142197, ¶ 64.
The State does not assert any particular trial strategy for counsel’s failure to object to Stien’s
testimony, and we discern none from the record. Where defendant’s identity as the perpetrator was
at issue, we hold that counsel provided ineffective assistance in failing to object to Stien’s improper
lay opinion identification testimony.
¶ 56 Finally, defendant argues that counsel provided ineffective assistance in failing to object
to the State’s assertion, during rebuttal argument, that both defendant and one of the individuals in
the surveillance video wore size 12 shoes.
¶ 57 Prosecutors generally have wide latitude in making a closing argument and may comment
on the evidence and any fair, reasonable inferences it yields. People v. Nicholas, 218 Ill. 2d 104,
121 (2005). However, it is improper for the prosecutor to argue assumptions or facts not based
upon evidence in the case or to present to the jury what amounts to his own testimony. People v.
Smith, 141 Ill. 2d 40, 60 (1990). A reviewing court will find reversible error only if the defendant
demonstrates that the remarks were improper and so prejudicial that real justice was denied or the
verdict resulted from the error. Jackson, 2020 IL 124112, ¶ 83.
¶ 58 The State contends that an objection to its comment attributing a size 12 shoe size to both
defendant and the heavyset individual in the video would have been meritless because, although
no direct evidence established any particular shoe size, the remark was a fair comment on the
consistency of the appearance of both individuals’ shoes. The State further asserts that, in any
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2022 IL App (2d) 200537-Uevent, any error resulting from its comment was cured because the jury instructions included an
admonishment that closing arguments are not evidence. These arguments are unavailing.
¶ 59 “Instructing the jury that arguments are not evidence will not, in every instance, cure the
defect caused by the introduction of such evidence.” People v. Blue, 189 Ill. 2d 99, 132 (2000);
People v. Wheeler, 226 Ill. 2d 92, 130 (2007). Whether a remark constitutes error depends on the
nature and extent of the statements and whether they are probative of defendant’s guilt. Blue, 189
Ill. 2d 99, 132 (2000). Under the circumstances of this case, we hold that the State’s remark was
improper. During closing argument, the State asserted that defendant could be placed at 161
Broadway because he was linked to the heavyset individual in the surveillance video. However, to
establish that link, the State not only relied on Stien’s improper lay opinion identification
testimony, but it also injected speculative evidence that the shoes in the video were size 12, like
defendant’s. No such evidence was presented to support that assertion. The State does not contend
that counsel’s failure to object to this comment was premised upon any trial strategy, and we have
identified no strategic motive for counsel’s lack of objection in the record. Instead, we hold that
reasonable counsel would have objected to the State’s improper comment, particularly where the
State’s ability to link defendant to the heavyset individual in the surveillance video was key to
establishing his presence at 161 Broadway. Counsel’s failure to do so was objectively
unreasonable.
¶ 60 We further hold that defendant suffered prejudice as a result of counsel’s errors. The
evidence of defendant’s guilt was not overwhelming. Defendant’s involvement in the crimes at
161 Broadway was substantially premised upon (1) his purported appearance in the surveillance
video and (2) his being located at 510 North Day, where items used in the shooting were found.
Had counsel objected to Stien’s improper identification testimony and to the State’s impermissible
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2022 IL App (2d) 200537-Ucomment during its rebuttal argument, which was particularly prejudicial since defendant had no
opportunity to respond, the jury would be left, primarily, with defendant’s presence at 510 North
Day to connect him to the offenses. See People v. Mpulamasaka, 2016 IL App (2d) 130703, ¶ 110
(misstating evidence in rebuttal is particularly damaging since defendant has no opportunity to
respond). However, suspicious conduct or probabilities alone cannot "substitute for proof,” and
the “mere presence of defendant at the scene of the crime is not itself sufficient to sustain a
conviction.” People v. Jakes, 207 Ill. App. 3d 762, 770 (1990). On top of that, because counsel
failed to request a limiting instruction regarding defendant’s felon status, there is the distinct
possibility that the jury convicted defendant because it believed he had a “propensity to commit
crime” or because it “fe[lt] that defendant is a bad person who deserves punishment.” People v.
Manning, 182 Ill. 2d 193, 213-14 (1998). But for counsel’s errors, there is a reasonable probability
that the result of the proceeding would have been different. See People v. Lewis, 2020 IL App (2d)
170900, ¶ 59 (prejudice established where cumulative effect of counsel’s deficient performance
rendered proceeding unreliable under Strickland). We hold that defendant has established
ineffective assistance of counsel. Because we determined that the evidence was sufficient for a
rational trier of fact to have found defendant guilty of the charged offenses, there is no double
jeopardy impediment for a new trial. Accordingly, we reverse and remand the matter for a new
trial.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we reverse the judgment of the circuit court of Winnebago County
and remand for a new trial.
¶ 63 Reversed and remanded.
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