People v. Brown , 2023 IL App (4th) 220476 ( 2023 )

2023 IL App (4th) 220476FILED
NO. 4-22-0476 May 1, 2023
Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
ERIC L. BROWN, ) No. 19CF3386
Defendant-Appellant. )
) Honorable
) Ronald J. White,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Harris and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Eric L. Brown, was found guilty of one count of
being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2018)). The trial court
sentenced defendant to 20 years’ imprisonment. Defendant appeals, arguing that the court abused
its discretion by failing to order supplemental discovery and by failing to strike a witness’s
testimony. Defendant further argues that the court imposed an improper double enhancement in
sentencing him. We affirm.
¶2 I. BACKGROUND
¶3 In December 2019, defendant was charged with being an AHC (720 ILCS
5/24-1.7(a) (West 2018)) and two counts of possession of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2018)). The charges stemmed from a November 6, 2019, traffic stop, during
which the police forced defendant to the ground face-down and, after rolling defendant to his side,
found a handgun underneath him. The State ultimately dismissed both counts of possession of a
weapon by a felon and proceeded only on the AHC count.
¶4 In February 2020, the State filed a motion in limine seeking to admit a recording of
a November 7, 2019, phone call defendant made to an unidentified individual while in the
Winnebago County jail. The State asserted that, on the call, defendant “proceeds to talk about how
the police did not say anything about the ‘tough’ or ‘tug’ (speaking in code) and that it was ‘on me
on me [sic].’ ” The State asserted that “a sufficient foundation for the recording may be laid by
Winnebago County Jail staff reference [sic] the [Global Tel Link (GTL)] inmate telephone call
system, inmate usage, recording capability and accuracy, warnings, proper operation and
preservation of the recordings.” The State also noted that it would call Detective Scott St. Vincent,
who participated in the November 6, 2019, arrest and interview of defendant and who could
“testify as to his familiarity with the defendant’s voice and that the declarant on the phone call is
the defendant.” The record shows that St. Vincent had known defendant for over 10 years. St.
Vincent had conducted off-duty security work for a high school defendant attended, where they
“had numerous encounters.” St. Vincent also had encounters with defendant in 2011, 2017, and
2019 while working as a patrol officer.
¶5 The trial court considered the State’s motion in limine on the morning of trial,
February 15, 2022. At that time, the State informed the court that Detective Johnathan Deutsch of
the Rockford Police Department would identify defendant’s voice in the recording of the
November 7, 2019, phone call. The court replied, “Oh, then we have to have a hearing.”
Defendant’s counsel noted, “that has not been disclosed to me, that Detective Deutsch was gonna
testify to that.” Counsel explained that she believed the State had planned to associate defendant
with the call by presenting evidence that defendant’s inmate account personal identification
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number (PIN) matched that of the caller on the recording. The State responded that the “defense
did have notice,” as the State noted in its motion in limine that it sought to admit the recording
“through a correctional officer by the PIN” while also laying a “foundation for Detective St.
Vincent to testify about his familiarity with the defendant’s voice.” Defendant’s counsel replied
that it had not been disclosed that Deutsch would be providing the voice-identification testimony
and that she “did not speak to Detective Deutsch about this because it was not disclosed to [her].”
¶6 Thereafter, Deutsch was examined outside the presence of the jurors and testified
to the following. Deutsch first had contact with defendant in 2014 and spoke with him for 5 to 10
minutes “on a warrant service.” Deutsch also spoke with defendant for 5 to 10 minutes on
November 6, 2019, after defendant was taken into custody following the traffic stop, to obtain his
personal information. Deutsch testified that prior to that 2019 conversation, he had listened to
“probably 50 to 100” jail phone calls and was able to identify defendant’s voice on those calls.
Deutsch asserted that he had also listened to a jail phone call associated with defendant’s inmate
account PIN that had taken place at 7:36 p.m. on November 7, 2019. Deutsch testified that
defendant was one of the individuals on that call. A recording of the November 7 phone call was
marked as exhibit 14 and played in court. On cross-examination, Deutsch testified that he
“believe[d]” he had a report pertaining to defendant’s 2014 arrest. Deutsch further testified that he
identified defendant on the phone calls he listened to “[b]ased on [defendant’s] voice” and also
because the calls were “made from his PIN number.” Deutsch noted that he knew defendant’s
voice because it was “unique” and “a little higher pitched,” though Deutsch acknowledged that he
had no training or expertise in voice identification. On redirect examination, Deutsch agreed that
the November 7, 2019, phone call had a voice of the same tone and tenor as the jail phone calls he
had previously listened to involving defendant.
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¶7 The State argued that a sufficient foundation was laid for Deutsch to testify that
defendant was on the November 7, 2019, phone call. Defendant’s counsel responded that Deutsch
was not an expert in voice identification and that the State had an obligation to “disclose this report
from 2014” in order to verify that a conversation occurred between Deutsch and defendant. To that
end, counsel asserted that she was “making a motion for disclosure of that report.” Counsel also
argued that Deutsch’s exposure to defendant was only “twenty minutes over a period of five years,
and then the rest is an assumption based upon a PIN.” Additionally, counsel contended that “[t]his
is late disclosure of Detective Deutsch being able” to identify defendant’s voice. Counsel
explained that, because she did not have access to the 50 phone calls Deutsch listened to, she could
not thoroughly investigate whether defendant had been on any of those calls. Accordingly, as to
Deutsch’s voice-identification testimony, counsel argued that she “d[id]n’t think that it should be
allowed.” Counsel further argued that the court should “keep this jail phone call away from the
jury.”
¶8 The trial court ruled that Deutsch would be permitted to identify defendant’s voice
in the phone call, should the proper foundation for the call be laid. Defendant’s counsel then
interjected, “I’m gonna need those 50 phone calls,” commenting that “this is all surprise, day of
trial.” In explaining its ruling, the court stated,
“it appeared to me initially that Detective Deutsch only spoke to defendant in 2014
and then had a conversation on November 6, 2019. If that was the only case, I don’t
know whether or not I’d let it in. But we now have conversations between—that
Detective Deutsch listened to over a period of time, 50 to 100 phone calls.”
Defendant’s counsel expressed her concern that she could not confirm that defendant was on the
50 to 100 calls Deutsch was relying on and commented, “the Court would not have let these jail
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phone calls come in if it came down to just two conversations.” The court responded, “I’m gonna
say perhaps. I’m not saying exactly.”
¶9 At trial, the State called Steve McCorkle, who testified to the following. McCorkle
was a sergeant at the Winnebago County Correctional Facility. His duties included fulfilling
subpoenas and requests from attorneys for inmates’ phone calls. The inmate jail phone call system
was operated by GTL, a third-party provider. McCorkle had training on the phone system when it
was installed by GTL. McCorkle explained that, when inmates are first booked into the jail, they
receive a randomly generated PIN. The first time an inmate makes a phone call, he or she must
register a voice-biometric phrase, which was a security feature that ensured that the person on the
call was the correct inmate using the proper PIN. In order to make a phone call, the inmate must
enter his or her PIN and provide the associated voice-biometric phrase. If the person making the
call did not match the registered voice biometric, the call would not go through. Defendant raised
no objection to McCorkle’s testimony regarding voice biometrics. McCorkle testified that every
phone call was recorded and stored offsite on a GTL server. He had the credentials and security
clearance to access the recordings. To obtain calls, he would go to a web-based application
provided by GTL, input his credentials, and enter a query for the requested calls by date range and
PIN number. McCorkle used that process to obtain the November 7, 2019, phone call, which was
admitted into evidence.
¶ 10 On cross-examination, the following exchange occurred between defendant’s
counsel and McCorkle:
“Q. [DEFENSE COUNSEL] Okay. And is it true that on occasion there are
inmates who use other people’s PINs and are able to access the phones and make
phone calls?
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A. [McCORKLE] They can try, but the voice biometrics tends to block that.
Q. Tends but not always. Is that fair?
A. That’s fair.
Q. So the voice biometrics is not foolproof.
A. It’s pretty bulletproof, but everything—you know, anything electronic can
have issues.
Q. You’re aware that inmates have been able to use other inmate’s PINs?
A. It’s happened, but the voice biometrics continuously checks and it will
hang up a call.”
¶ 11 Following McCorkle’s testimony, the parties spoke with the trial court outside the
presence of the jury. Defendant’s counsel argued that McCorkle provided expert testimony about
the voice-identification system being bulletproof, and the defense had not received any report.
After counsel acknowledged that the State had provided McCorkle’s name to her before trial, the
trial court responded that counsel “had an opportunity *** to speak with McCorkle before this.”
¶ 12 The State then called Deutsch, who testified to the following. On the morning of
November 6, 2019, an anonymous caller informed dispatch that defendant was at an apartment
located on Harrison Avenue in Rockford. Deutsch knew that defendant had an active arrest
warrant. Deutsch rode with Detective Brandon Pofelski to the apartment in an undercover van.
They surveilled the apartment from the van while Detectives St. Vincent and Ryan Marko
surveilled from their respective vehicles. Deutsch observed two black females and defendant exit
the apartment toward a Toyota Camry in the parking lot. One female got into the driver’s seat of
the Camry, while the other female got into the front passenger seat. Defendant got into the back
passenger seat. When the Camry left the parking lot, all three police vehicles pursued it. The
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detectives positioned their vehicles to box in the Camry while it was moving. The detectives
slowed their vehicles, forcing the Camry to stop. Deutsch exited his van and ran to the rear
passenger seat of the Camry. Deutsch opened the door and saw defendant next to a laundry tote.
Defendant’s torso was partially concealed with clothing and household items. Deutsch grabbed
defendant and pulled him from the Camry “right to the ground.” Deutsch and Pofelski then
handcuffed defendant and rolled him to his side. When they did so, they observed a .40-caliber
Beretta underneath defendant that was not on the ground when they had approached. Deutsch
looked in the Camry and saw household items inside of it. It looked “as if they were moving.”
¶ 13 Deutsch testified that he had a 5-to-10-minute conversation with defendant in 2014
and that they spoke again for 5 or 10 minutes during the November 6, 2019, stop. Additionally,
Deutsch noted that he had listened to phone calls placed by inmates at the Winnebago County jail,
including a November 7, 2019, call made with a PIN associated with defendant. The State played
exhibit 14 over defendant’s objection. No transcript of the call was introduced into evidence. From
this court’s review of the recording, a male voice seemingly mentioned that a “tough” or “tug” was
“on me, on me [sic].” Deutsch identified the individual who made that comment as defendant,
though Deutsch acknowledged that he was not an expert on voice identification.
¶ 14 Following Deutsch’s testimony, the court recessed. The next morning, defendant’s
counsel filed a motion to strike McCorkle’s testimony. The defense asserted that the State never
disclosed that McCorkle would testify about voice-imprint technology or that the jail phone system
was “bulletproof” in its ability to match inmates with their associated PINs. The parties argued the
motion outside the presence of the jury. The trial court believed Deutsch testified as an expert, as
his testimony about the operation of the jail phone system was not “common knowledge.” The
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court noted, however, that McCorkle also testified that it was possible that someone could use the
phone with somebody else’s PIN. Accordingly, the court denied defendant’s motion.
¶ 15 Testimony by Pofelski and Marko about the stop and arrest of defendant largely
mirrored Deutsch’s, with the following additions. Pofelski testified that he looked into the Camry
when the detectives stopped it and saw that clothing and other items partially covered defendant’s
body. The items in the vehicle led Pofelski to conclude that the individuals in it were moving.
Pofelski testified that as Deutsch started pulling defendant out of the Camry, Pofelski noticed that
defendant kept his left arm “real tight towards the waistband area of the body.” Pofelski then
grabbed defendant’s arm to pull it back until the detectives could handcuff him on the ground.
When defendant was pulled out of the vehicle, Pofelski did not hear a gun fall to the pavement or
observe anything pulled out of the vehicle with defendant. Pofelski testified that, once they rolled
defendant to his side, they found a black handgun on the ground where defendant’s waist had been.
¶ 16 Marko similarly testified that the detectives observed a firearm underneath
defendant after they rolled defendant to the side. Marko acknowledged that he knew the female
driver of the Camry because she was a waitress at a restaurant that he routinely visited. Marko
testified that he had talked with the driver at the restaurant, and during their conversations, the
driver had noted that her sons had been arrested “for gun cases.”
¶ 17 Following Marko’s testimony, the State introduced certified copies of defendant’s
2015 and 2018 convictions for unlawful use or possession of a weapon by a felon (UUWF).
¶ 18 During closing argument, the prosecutor explained that she did not know what a
“tug” was and that it was for the jury to decide. The prosecutor argued, however, that at the time
of the call on November 7, 2019, defendant had not yet been charged with any weapons offenses.
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The prosecutor mentioned that defendant stated that the police had not said anything about the
“tug” and that he had it “on me, on me [sic].”
¶ 19 During the jury’s deliberations, the jury sent notes asking whether there was a
written transcript of the November 7, 2019, phone call and whether the jury could listen to the call.
The court responded that there was no transcript and that the jurors had to rely on their memory of
the call.
¶ 20 The jury found defendant guilty of being an AHC. At sentencing, defendant’s
counsel objected “to the Court considering in aggravation anything that is alleged in the
indictment.” The trial court overruled counsel’s objection, noting, “It is his prior record. That had
to be proved up at the trial and I have to consider it because it is part of the record.” In sentencing
defendant, the court noted that it considered the presentence report. The court explained:
“[D]efendant has a history of prior delinquency and criminal activity. The
defendant had no juvenile record. All of a sudden he picks up some serious cases
as an adult. The defendant has a prior conviction from June 29, 2012, four years
and six months Illinois Department of Corrections for possession of a stolen
firearm. I understand [defense counsel]’s objection, but I do believe it’s proper for
the Court to consider his prior record on the sentencing in this [AHC] because those
offenses were proved up as part of the elements before the jury, but I can consider
those in sentencing. The defendant has a second [UUWF], a Class 2, three years
Department of Corrections on December 12, 2015. And then, finally, we have [a
UUWF], a Class 2. The date of the offense, of the judgment of conviction was June
29, 2018, four years Department of Corrections, and then the defendant is on parole
or mandatory supervised release at this time. You have a serious, serious criminal
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record regarding possession of weapons. And I do believe this sentence is necessary
to deter others from committing the same offense.”
The court further noted that it believed defendant’s conduct was the result of circumstances likely
to reoccur and that defendant’s character and attitude indicated that he was likely to commit
another criminal offense. Given the “history, character, and condition of the defendant,” and “for
the protection of the public,” the trial court sentenced defendant to 20 years’ imprisonment. This
appeal follows.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant argues that the trial court abused its discretion by failing to
order supplemental discovery of the jail phone calls Deutsch relied on in concluding that the voice
on the November 7, 2019, phone call was defendant’s. Defendant also argues that the trial court
abused its discretion by failing to strike McCorkle’s testimony regarding the voice-biometrics
feature of the jail phone system and how it was “bulletproof” because (1) such testimony was
expert testimony and (2) the State did not disclose McCorkle’s expert witness qualifications.
Finally, defendant argues that the court imposed an improper double enhancement by considering
defendant’s predicate felonies for the offense of AHC as an aggravating sentencing factor.
¶ 23 A. Supplemental Discovery of Additional Jail Phone Calls
¶ 24 Defendant argues that the trial court abused its discretion in failing to grant
supplemental discovery of the 50 to 100 jail phone calls Deutsch mentioned. Defendant contends
that the State engaged in surprise tactics by informing the defense on the morning of trial that
Deutsch, not St. Vincent, would lay the foundation for exhibit 14 and identify defendant’s voice.
Defendant argues that, as a result, his counsel was unable to prepare an adequate defense.
According to defendant, since the phone calls Deutsch relied upon were never disclosed, defense
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counsel was unable to examine Deutsch adequately and challenge the admission of exhibit 14 or
Deutsch’s voice-identification testimony.
¶ 25 The denial of a discovery motion in a criminal case is reviewed for an abuse of
discretion. People v. Sims, 2022 IL App (2d) 200391, ¶ 97. An abuse of discretion occurs only
when (1) the trial court’s ruling is arbitrary, fanciful, or unreasonable; (2) no reasonable person
would take the view adopted by the trial court; or (3) the ruling rests on an error of law. People v.
Walker, 2017 IL App (2d) 160589, ¶ 31.
¶ 26 Discovery in criminal cases is governed, in part, by Illinois Supreme Court Rule
412 (eff. Mar. 1, 2001). Rule 412(a) provides that, upon request of defense counsel, the State shall
disclose to the defense information including (1) the names and addresses of individuals the State
intends to call as witnesses, (2) the witnesses’ relevant written or recorded statements, (3) written
or recorded statements made by the defendant, (4) reports or statements of experts, and (5) any
documents or tangible objects the State intends to use at trial. Ill. S. Ct. R. 412(a) (eff. Mar. 1,
2001). “The purpose of the discovery provision is to afford the accused protection against surprise,
unfairness and inadequate preparation.” People v. Robinson, 157 Ill. 2d 68, 79 (1993). Rule 412(h)
provides, “Upon a showing of materiality to the preparation of the defense, and if the request is
reasonable, the court, in its discretion, may require disclosure to defense counsel of relevant
material and information not covered by this rule.” Ill. S. Ct. R. 412(h) (eff. Mar. 1, 2001). This
discretionary provision “was intended to have a small scope.” People v. Manley, 19 Ill. App. 3d
365, 370 (1974).
¶ 27 Although compliance with the discovery requirements is mandatory,
noncompliance requires a reversal only upon a showing of surprise or undue prejudice. Robinson,
157 Ill. 2d at 78. It is the defendant’s burden to show surprise. Robinson, 157 Ill. 2d at 78. A
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continuance for the purpose of pursuing an investigation addresses the issue of a late disclosure in
a less drastic way than the total exclusion of the evidence, as a continuance may allow the
defendant sufficient time to investigate the newly disclosed evidence. Robinson, 157 Ill. 2d at 78;
People v. Hood, 213 Ill. 2d 244, 262-63 (2004). Accordingly, the exclusion of evidence is a last
resort that is required only where a continuance would be ineffective. People v. Sutton, 327 Ill.
App. 3d 273, 283 (2002). Even if the time granted in a continuance would not be sufficient for
defendant’s counsel to investigate the new evidence fully, requesting a continuance establishes
that a substantial amount of time is both needed and seen as important by the defendant. See
Robinson, 157 Ill. 2d at 79. Thus, the failure to request a continuance is a relevant factor in
determining whether new evidence actually surprised or unduly prejudiced the defendant.
Robinson, 157 Ill. 2d at 78. Indeed, when a defendant elects to forgo more moderate measures to
deal with the purported discovery violation and proceeds with trial, the claimed error, if any, is
waived. Hood, 213 Ill. 2d at 262-63; see also People v. Dahl, 110 Ill. App. 3d 295, 301 (1982)
(“Failure by a defendant to request a continuance when evidence not contained in the State’s
answer to discovery is submitted is generally considered a waiver of the claim of surprise.”). A
defendant may not request only the most drastic measures to remediate a discovery violation, then
argue on appeal that he is entitled to a new trial when those drastic requests were not granted.
Robinson, 157 Ill. 2d at 78-79.
¶ 28 We find Dahl instructive. There, the defendant was charged for the theft of
electricity exceeding $150 from the Illinois Power Company. Dahl, 110 Ill. App. 3d at 296. At
trial, the State called a supervisor for the Illinois Power Company to testify as to the value of the
electricity stolen. Dahl, 110 Ill. App. 3d at 301. The witness explained that a rate increase had
gone into effect in July 1981, while the defendant was being investigated, and so, to give an
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accurate answer of the value of the stolen electricity, he would need both the pre-July 1981 and
post-July 1981 schedules. Dahl, 110 Ill. App. 3d at 301. During a recess, the witness obtained the
schedules from his office and brought them to court. Dahl, 110 Ill. App. 3d at 301. The State
offered the schedules into evidence to support the supervisor’s calculations, and the schedules were
admitted over the defendant’s objection that they had not been disclosed during discovery. Dahl,
110 Ill. App. 3d at 301. The defendant did not request a continuance. Dahl, 110 Ill. App. 3d at 301.
The appellate court affirmed the admission of the rate schedules, explaining that, although the
defendant claimed that the schedules were not contained in the State’s answer to discovery, the
defendant made no motion for a continuance. Therefore, he waived the issue. Dahl, 110 Ill. App.
3d at 301.
¶ 29 Similarly, the record here shows that, on the morning of trial, the State informed
defendant’s counsel that Deutsch listened to 50 to 100 jail phone calls involving defendant and
would identify defendant’s voice on exhibit 14. Although defendant now claims that these
revelations came as a surprise and affected his counsel’s ability to prepare a defense, the record
establishes that defendant’s counsel did not request a continuance for the purpose of investigating
the phone calls. Instead, counsel merely explained that she did not have access to the phone calls
and sought their disclosure in a single comment, without follow-up, by stating that she was “gonna
need those 50 phone calls.” Counsel also argued that the November 7, 2019, phone call should not
be admitted as evidence. Had counsel requested a continuance, she may have had the opportunity
to consider Deutsch’s expected testimony more fully and investigate the new evidence connecting
defendant to exhibit 14. See Hood, 213 Ill. 2d at 262-63; Robinson, 157 Ill. 2d at 78-79. At the
very least, requesting a continuance would have established that counsel viewed the phone calls
as important and that she needed time to investigate more fully. Instead, counsel pursued measures
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other than a continuance, and when the trial court denied those requests, proceeded with trial.
Defendant cannot now complain that he should receive a new trial because the trial court denied
those more drastic requests. Robinson, 157 Ill. 2d at 78-79. Accordingly, by failing to seek a
continuance, defendant has forfeited this claim of error. Robinson, 157 Ill. 2d at 79.
¶ 30 B. Failure to Strike Voice-Biometric Testimony
¶ 31 Defendant argues that the trial court also abused its discretion by failing to strike
McCorkle’s testimony about the effectiveness of the jail phone system because such evidence was
expert testimony and McCorkle’s expert qualifications were not disclosed to the defense prior to
trial.
¶ 32 Rule 412(a)(iv) provides that, upon written motion of defense counsel, the State
shall disclose to the defense, inter alia, any report or statement of experts made in connection with
the case and a statement of qualifications of the expert. Ill. S. Ct. R. 412(a)(iv) (eff. Mar. 1, 2001).
¶ 33 Here, pursuant to Rule 412(a)(iv), the defense, prior to trial, requested any reports
or statements of experts in connection with the case and their qualifications. In response, the State
noted that, “[i]f and when the People intent [sic] to call an expert to testify, all relevant and
discoverable materials related to that expert’s opinion will be provided to the defense.” Defendant
argues that, although McCorkle was never disclosed as an expert, he nevertheless presented expert
testimony at trial. Specifically, defendant complains that McCorkle testified about the jail phone
system’s voice-biometrics feature and how that feature was “pretty bulletproof” in preventing one
inmate from using another inmate’s PIN to make a call. Defendant contends that this testimony
was prejudicial because the evidence of defendant’s possession of the firearm was weak.
According to defendant, McCorkle’s testimony suggested that defendant was the only person who
could have made the November 7, 2019, phone call. This argument is unavailing.
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¶ 34 To preserve a claim of error, a defendant must object to the error at trial and raise
the error in a posttrial motion; otherwise, the claim is forfeited. People v. Kinnerson, 2020 IL App
(4th) 170650, ¶ 51. An objection to evidence is untimely if not asserted as soon as its ground
becomes apparent. Kinnerson, 2020 IL App (4th) 170650, ¶ 52. However, where the ground for
an objection does not appear until after the admission of the evidence, the opponent of the evidence
should make a motion to strike. Kinnerson, 2020 IL App (4th) 170650, ¶ 52. Even so, once the
basis of the motion to strike is available, the motion must be made as soon as practicable or the
movant will be deemed to have waived any complaint regarding that evidence. Kinnerson, 2020
IL App (4th) 170650, ¶ 52.
¶ 35 In this case, the grounds for defendant’s claim that McCorkle’s voice-biometric
testimony was undisclosed expert testimony became apparent when McCorkle began testifying
about the jail phone system’s voice-biometric feature on direct examination. Defendant, however,
raised no objection at that time and, in fact, proceeded to cross-examine McCorkle. Indeed, during
cross-examination, defense counsel elicited additional testimony that the voice-biometric feature
was “bulletproof” and would tend to “block” an inmate from using another inmate’s PIN to place
a call. The State cannot be faulted for questions asked by defendant’s counsel or responsible for
its witnesses’ answers to those questions. People v. Burage, 23 Ill. 2d 280, 282-83 (1961). “If a
defendant procures, invites or acquiesces in the admission of evidence, even though it be improper,
he cannot complain.” Burage, 23 Ill. 2d at 283; People v. Jefferson, 2021 IL App (2d) 190179,
¶ 38. Defendant did not file a motion to strike until the following morning, well after the grounds
for defendant’s claim became apparent, and only after defendant had completed his
cross-examination of McCorkle. Accordingly, we conclude that defendant failed to timely object
and that defendant’s motion to strike McCorkle’s expert testimony was untimely. Therefore, we
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hold that defendant forfeited this issue. See People v. Bean, 17 Ill. App. 3d 377, 382-83 (1974)
(holding the State waived any error regarding the reception of alibi witnesses’ testimony, where it
raised no objection to the testimony when it was elicited, proceeded to cross-examine the
witnesses, and failed to file a motion to strike the testimony until after the defense had concluded);
People v. Smith, 145 Ill. App. 3d 262, 264-65 (1986) (holding defendant waived claim that officer’s
testimony was not disclosed during discovery and was improperly admitted at trial, where
defendant did not object to the testimony, only raised the issue through a motion to strike during
cross-examination, did not ask for time to investigate, and proceeded with trial).
¶ 36 C. Cumulative Error Relating to the Foregoing Discovery Violations
¶ 37 Defendant argues that the cumulative impact of the foregoing discovery violations
denied him a fair trial.
¶ 38 The cumulative effect of multiple errors may deny a defendant a fair trial. People
v. Mays, 2023 IL App (4th) 210612, ¶ 114. Where errors, when individually considered, are not
sufficiently egregious to grant a new trial, but the errors nevertheless create a pervasive pattern of
unfair prejudice to the defendant, a new trial may be granted on the ground of cumulative error.
Mays, 2023 IL App (4th) 210612, ¶ 114. Where none of the alleged errors amount to reversible
error on any individual issue, there generally is no cumulative error. Mays, 2023 IL App (4th)
210612, ¶ 114.
¶ 39 As discussed, we have rejected defendant’s claims of error based on forfeiture.
Accordingly, defendant has not shown cumulative error. See People v. Darr, 2018 IL App (3d)
150562, ¶ 46 (“We are aware of no authority *** to support the contention that, by combining
multiple unpreserved, forfeited errors, a defendant may transform his claim into one that is
preserved or not forfeited.”).
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¶ 40 D. Sentencing Double Enhancement
¶ 41 Defendant argues that the trial court erred in sentencing him to 20 years for being
an AHC because the court considered in aggravation his prior convictions of UUWF, which served
as the predicate offenses for his AHC conviction.
¶ 42 One commits the offense of being an AHC if, inter alia, he or she possesses any
firearm after having been convicted two or more times of UUWF. 720 ILCS 5/24-1.7(a)(2) (West
2018). Defendant’s AHC conviction was based upon his 2015 and 2018 convictions for UUWF.
¶ 43 Whether the trial court relied on improper factors in fashioning a defendant’s
sentence is a question of law, which we review de novo. People v. Williams, 2018 IL App (4th)
150759, ¶ 18. There is a strong presumption that the trial court relied on proper legal reasoning in
determining a sentence, and a court of review must consider the record as a whole, rather than
focus on a few words or statements made by the trial court. Williams, 2018 IL App (4th) 150759,
¶ 18. It is the defendant’s burden to establish affirmatively that his sentence was based on improper
considerations. Williams, 2018 IL App (4th) 150759, ¶ 18.
¶ 44 A factor that is implicit in the offense for which the defendant has been convicted
generally cannot be used as an aggravating factor in sentencing for that offense. People v. Phelps,
211 Ill. 2d 1, 11 (2004). In other words, a single factor cannot be used both as an element of an
offense and as a basis for imposing a harsher sentence than might otherwise have been imposed.
Phelps, 211 Ill. 2d at 11-12. The prohibition of such a “double enhancement” is a rule of statutory
construction based on the assumption that, “in designating the appropriate range of punishment for
a criminal offense, the legislature necessarily considered the factors inherent in the offense.”
Phelps, 211 Ill. 2d at 12.
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¶ 45 In contending that the trial court subjected defendant to a double enhancement by
considering his predicate felonies during sentencing, defendant argues that we should disregard
two cases that rejected the argument he now raises—People v. Brown, 2018 IL App (1st) 160924,
and People v. Sherman, 2020 IL App (1st) 172162—and instead rely on People v. Taylor, 2022 IL
App (5th) 180192.
¶ 46 In Brown, the trial court stated at sentencing, following the defendant’s AHC
conviction, that it had considered all factors in aggravation and mitigation, including the
defendant’s criminal history—most of which, aside from his 2008 UUWF conviction, was
nonviolent. Brown, 2018 IL App (1st) 160924, ¶¶ 1, 7. The defendant argued that the trial court
improperly considered his prior UUWF conviction as an aggravating factor at sentencing, where
that offense served as a predicate offense for his AHC conviction. Brown, 2018 IL App (1st)
160924, ¶ 19. In rejecting that argument, the First District noted that the process of fashioning an
appropriate sentence that is tailored to the needs of society and the defendant, within the framework
set by the legislature, is not an enhancement. Brown, 2018 IL App (1st) 160924, ¶ 20. Because
that framework requires the trial court to consider aggravating and mitigating factors in imposing
a sentence, including the defendant’s criminal history, the appellate court concluded that the trial
court could properly consider the predicate offense of UUWF “as part of [the defendant]’s criminal
history.” Brown, 2018 IL App (1st) 160924, ¶ 21. The appellate court explained that “while the
fact of [defendant]’s prior UUWF conviction determined his eligibility for an AHC charge, it is
the nature and circumstances of that conviction which, along with other factors in aggravation and
mitigation, determined the exact length of his sentence.” (Emphases in original.) Brown, 2018 IL
App (1st) 160924, ¶ 21. Thus, for the trial court to consider the defendant’s criminal history, it had
to consider his prior UUWF conviction. Brown, 2018 IL App (1st) 160924, ¶ 21.
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¶ 47 Defendant contends that the conclusion in Brown rested upon an improper reading
of People v. Thomas, 171 Ill. 2d 207 (1996). In Thomas, the defendant’s prior criminal history,
which included two Class 2 felonies, subjected him to Class X sentencing on his second degree
murder conviction, which is normally a Class 1 felony. Thomas, 171 Ill. 2d at 210. Our supreme
court concluded that the trial court’s consideration of those Class 2 felonies in aggravation during
sentencing did not constitute a double enhancement because the offense of second degree murder
was not enhanced from a Class 1 to a Class X felony. Thomas, 171 Ill. 2d at 224-25. Instead,
defendant was merely subjected to a single punishment enhancement to the Class X range, due to
his prior convictions, and the trial court was free to consider the nature and circumstances of those
convictions to determine the exact length of the sentence. Thomas, 171 Ill. 2d at 224, 227-28.
¶ 48 Defendant asserts that because Thomas did not involve a double enhancement
stemming from the trial court’s consideration, in aggravation, of a defendant’s prior felonies that
also served as elements of the underlying offense, Thomas is distinguishable, and Brown was
incorrect to rely on it. We reject this argument. The court in Brown acknowledged that Thomas
“concerned the mandatory Class X sentencing statute rather than the Class X AHC offense” and,
nevertheless, found Thomas’s reasoning applicable. Brown, 2018 IL App (1st) 160924, ¶ 21. We
reach the same conclusion. In fact, this court has previously adopted the same position, albeit in
an unpublished order. See People v. Mumphrey, 2020 IL App (4th) 180015-U, ¶ 52 (“[W]e see no
reason that because in Thomas the prior offenses were used to make the defendant eligible for
Class X sentencing, and here the prior offense constituted an element of a Class X felony, makes
any difference.”).
¶ 49 In Sherman, the trial court told the defendant during sentencing following his
conviction for AHC that his “ ‘background is not conducive to a six-year sentence. You’ve had a
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gun in your background. You have got two burglaries that you were sentenced to 10 years and 9
months.’ ” Sherman, 2020 IL App (1st) 172162, ¶ 22. The trial court further noted, in aggravation,
the fact (underlying his AHC conviction) that the defendant possessed a pistol loaded with 25
rounds. Sherman, 2020 IL App (1st) 172162, ¶ 22. The defendant argued that the court’s
consideration of the burglaries underlying his AHC offense constituted a double enhancement.
Sherman, 2020 IL App (1st) 172162, ¶ 48. The First District rejected that argument, concluding
that the trial court did not err in referring to the underlying burglaries because in doing so, the trial
court was properly weighing the defendant’s criminal history as it related to his rehabilitative
potential. Sherman, 2020 IL App (1st) 172162, ¶ 54. Additionally, even if the reference to the
burglaries had been improper, the court also referenced the loaded pistol as an independent
aggravating factor at sentencing. Sherman, 2020 IL App (1st) 172162, ¶ 54.
¶ 50 By contrast, in Taylor, the defendant, following his conviction for being an AHC,
argued on appeal that his trial counsel was ineffective for failing to stipulate to the defendant’s
felon status, causing the jury to hear the nature of his prior conviction. Taylor, 2022 IL App (5th)
180192, ¶¶ 16, 24. The defendant also argued that, at sentencing, the trial court imposed a double
enhancement because it improperly considered his prior felonies for aggravated battery and
unlawful delivery of a controlled substance, which were the predicate felonies for his AHC
conviction. Taylor, 2022 IL App (5th) 180192, ¶¶ 1, 24. During sentencing, the trial court,
considering the defendant’s criminal history, noted that the defendant had mostly minor offenses,
except for his convictions for obstructing justice, criminal damage to property, delivery of a
controlled substance, and aggravated battery, which the trial court found “ ‘concern[ing].’ ”
Taylor, 2022 IL App (5th) 180192, ¶ 21. The Fifth District reversed and remanded for a new trial
based upon the defendant’s ineffective-assistance claim but went on to “briefly acknowledge” the
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defendant’s sentencing argument. Taylor, 2022 IL App (5th) 180192, ¶ 54. After citing two cases
for boilerplate, the appellate court noted, without any citation to (or analysis of) additional
authority, that, if the defendant was subject to sentencing following retrial, “the predicate felonies
used to form the basis of his criminal charges should not be considered as aggravating factors at
sentencing.” Taylor, 2022 IL App (5th) 180192, ¶¶ 54-55.
¶ 51 We reject defendant’s invitation to apply Taylor instead of cases like Brown and
Sherman here. Because Taylor ultimately rested on the appellate court’s finding of ineffective
assistance of counsel, and only “briefly acknowledge[d]” the defendant’s sentencing argument, the
appellate court, understandably, did not provide significant analysis of the defendant’s
double-enhancement claim. Taylor, 2022 IL App (5th) 180192, ¶¶ 54-55. As a result, the appellate
court did not address Brown and Sherman, which deemed as appropriate the consideration of a
defendant’s criminal history (including predicate offenses) in fashioning a sentence. Taylor, 2022
IL App (5th) 180192. Indeed, the Fifth District later, albeit in an unpublished order, cited Sherman
with approval in concluding that no double enhancement occurred when the trial court considered
the defendant’s criminal history, which included the offenses that rendered him eligible for Class
X sentencing, in sentencing the defendant for his conviction of aggravated battery. People v. Wade,
2022 IL App (5th) 190458-U, ¶¶ 5, 25.
¶ 52 We conclude that, though defendant’s prior UUWF convictions were predicate
offenses for the AHC conviction, the trial court could consider them in the context of defendant’s
criminal history. “[F]actors inherent in the offense can sometimes be considered, along with other
factors in aggravation and mitigation, as part of the nature and circumstances of the case.” People
v. McGath, 2017 IL App (4th) 150608, ¶ 73.
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¶ 53 Defendant nevertheless cites some of the trial court’s comments as indicative of its
reliance on an improper sentencing factor. At sentencing, after defendant’s counsel objected to the
court’s consideration “in aggravation anything that is alleged in the indictment,” the court
responded, “It is his prior record. That had to be proved up at the trial and I have to consider it
because it is part of the record.” Thereafter, when imposing its sentence, the court stated:
“[D]efendant has a history of prior delinquency and criminal activity. The
defendant had no juvenile record. All of a sudden he picks up some serious cases
as an adult. The defendant has a prior conviction from June 29, 2012, four years
and six months Illinois Department of Corrections for possession of a stolen
firearm. I understand [defense counsel]’s objection, but I do believe it’s proper for
the Court to consider his prior record on the sentencing in this [AHC] because those
offenses were proved up as part of the elements before the jury, but I can consider
those in sentencing. The defendant has a second [UUWF], a Class 2, three years
Department of Corrections on December 12, 2015. And then, finally, we have [a
UUWF], a Class 2. The date of the offense, of the judgment of conviction was June
29, 2018, four years Department of Corrections, and then the defendant is on parole
or mandatory supervised release at this time. You have a serious, serious criminal
record regarding possession of weapons. And I do believe this sentence is necessary
to deter others from committing the same offense.”
Defendant focuses on these statements to claim that the court improperly considered his predicate
felonies in aggravation. However, as previously noted, we presume that the court based its
sentencing determination on proper legal reasoning, and we will consider the record as a whole,
rather than focus on a few words or statements by the court. Williams, 2018 IL App (4th) 150759,
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¶ 18. When read in context, these comments were made in reference to defendant’s criminal
history, which the court properly considered in fashioning an appropriate sentence within the
statutory range. The court explicitly noted defendant’s prior record and listed his convictions as
part of defendant’s “history of prior delinquency and criminal activity.” The court then stated that
it believed defendant’s conduct was likely to reoccur. Thus, the court’s comments pertaining to
defendant’s prior convictions were its reflection on defendant’s rehabilitative potential. This was
a proper sentencing consideration.
¶ 54 Further, even assuming the trial court improperly considered defendant’s prior
convictions in aggravation, it referenced other independent aggravating factors to support
defendant’s sentence. See People v. Scott, 2015 IL App (4th) 130222, ¶¶ 55-56 (holding that
though the trial court considered, in aggravation, an improper factor of compensation at
sentencing, remand was unnecessary, since the trial court also discussed the extreme nature of the
defendant’s criminal history, which was an appropriate aggravating factor); Sherman, 2020 IL App
(1st) 172162, ¶ 54 (stating that even if consideration of predicate felonies was improper, the trial
court noted evidence that the firearm held 25 bullets as independent reason in aggravation). In
imposing its sentence, the court noted that it had also considered defendant’s character and attitude,
which made it likely that he would commit another criminal offense; that its sentence was
necessary to deter others from committing the same offense; and that the sentence was necessary
for the protection of the public. These independent factors were proper for the court to consider in
fashioning its sentence. We hold that defendant’s sentence was not the result of a double
enhancement.
¶ 55 III. CONCLUSION
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¶ 56 For the reasons stated, we affirm the judgment of the trial court.
¶ 57 Affirmed.
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People v. Brown, 2023 IL App (4th) 220476Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 19-
CF-3386; the Hon. Ronald J. White, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Austin Wright, of State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino, David
for J. Robinson, and Matthew S. Goldman, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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