1-07-2506
                                                          FIRST DIVISION
                                                          March 8, 2010




No. 1-07-2506

THE PEOPLE OF THE STATE OF ILLINOIS,        )       Appeal from the
                                                    )     Circuit Court
             Plaintiff-Appellee,                    )     of Cook County.
                                                    )
v.                                                  )     No. 05 CR 25441
                                                    )
WARDELL NUGEN,                                      )     Honorable
                                                    )     Lon William Shultz,
             Defendant-Appellant.           )       Judge Presiding.

                        MODIFIED UPON DENIAL OF REHEARING

        JUSTICE LAMPKIN delivered the opinion of the court:

        A jury found defendant Wardell Nugen guilty of first degree murder.       He

was sentenced to 50 years’ imprisonment.    On appeal, defendant contends he was

denied his right to a fair trial where the jury was not read Illinois Pattern

Jury Instructions, Criminal, No. 2.04 (4th ed. 2000) (hereinafter IPI Criminal

4th No. 2.04), pertaining to his constitutional right not to testify.

Defendant also contends the admission of an out-of-court statement violated

the sixth amendment confrontation clause.       Defendant further contends his

sentence is excessive in light of mitigating factors.       We affirm.

FACTS

        On September 22, 2005, defendant stabbed the victim, Gary Hastings, in

retaliation for taking his bike without paying for it.      Salahuddin Muhammed

witnessed the stabbing.    The victim died as a result.

DECISION

I. Jury Instruction

        Defendant contends his trial was unfair because the trial court failed

to read his requested jury instruction, IPI Criminal 4th No. 2.04, at the
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close of trial.

      A defendant is constitutionally guaranteed the right to an impartial

jury trial.     U.S. Const. amends. VI, XIV; Ill. Const. 1970, art I, §8.

      We note defendant did not properly preserve his contention for review

because, although he included the issue in his posttrial motion, defendant did

not object to the alleged error at trial.      People v. Enoch, 122 Ill. 2d 176,

186, 522 N.E.2d 1124 (1988).    Notwithstanding, Supreme Court Rule 451(c)

permits review of “substantial defects” in jury instructions “if the interests

of justice require.”     210 Ill. 2d R. 451(c); see People v. Piatkowski, 225

Ill. 2d 551, 564, 870 N.E.2d 403 (2007).     Rule 451(c) is applied the same way

as the plain error rule in conjunction with Supreme Court Rule 615(a) (134

Ill. 2d R. 615(a)).     The plain error rule permits review of forfeited errors

where the evidence was closely balanced or the error substantially denied the

defendant’s right to a fair trial.    People v. Herron, 215 Ill. 2d 167, 178-79,

830 N.E. 2d 467 (2005).     Plain error review necessitates the initial finding

of error.    Piatkowski, 225 Ill. 2d at 565.

      IPI Criminal 4th No. 2.04 says “[t]he fact that [(a) (the)] defendant[s]

did not testify must not be considered by you in any way in arriving at your

verdict.”     The Committee Note advises “[t]his instruction should be given only

at the defendant’s request and, then, it must be given.”      (Emphasis in

original.)     Illinois Pattern Jury Instructions, Criminal, No. 2.04, Committee

Note, at 77 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 2.04, Committee

Note).

      There is no dispute defendant requested the instruction.      At the

instructions conference, the State submitted IPI Criminal 4th No. 2.04.       The

trial court said it would provide the instruction only if requested by

defendant.     Defense counsel said he wanted the instruction and the court

agreed to give it.     Then, at the close of evidence, the trial court failed to

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read IPI Criminal 4th No. 2.04 while otherwise instructing the jury.

      We find the trial court’s failure to read the instruction was an

oversight that did not amount to error.     Despite the court’s failure to read

the instruction in conjunction with the other admitted instructions, the jury

was given IPI Criminal 4th No. 2.04 as the Committee Note advises.    The jury

was given a physical copy of IPI Criminal 4th No. 2.04 when it retired to the

jury room for deliberations.   Cf. People v. Bryant, 391 Ill. App. 3d 1072,

1084, 909 N.E.2d 391 (2009) (error where the court orally advised the jury

regarding a statutorily required jury instruction, but failed to physically

provide the jury with the instruction during deliberations).    The physical

instruction was returned in the packet of jury instructions containing the

jury’s signed verdict form.    Notably, at defendant’s motion for a new trial,

the court said:

      “I have not reviewed the transcripts [from trial], but I accept

      the representation, that [the instruction] is not contained in the

      transcript.

              Additionally, when the jury indicated that they have reached

      a verdict in the case, the verdict form that is signed is tendered

      to the deputy sheriff, per my instruction, which was done in this

      case.    After the jury is dismissed, I instruct the deputy sheriff

      to bring me the remaining instructions so that I make them part of

      the court file.    And in his case I have reviewed the jury

      instructions that were brought from the jury room, that I did

      review prior to placing them back in the court file, and it does

      include *** that particular instruction which is in question here.

      So I also know that it came from the jury room, and that they had

      it available during the deliberations.”

      Defendant cites People v. Vincent, 165 Ill. App. 3d 1023, 520 N.E.2d 913

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(1988), contending the trial court’s error was not cured “simply because the

court file contained a written copy of IPI 2.04.”           In Vincent, the defendant’s

conviction was reversed where the transcript demonstrated the trial judge

misstated the law while reading a jury instruction.           Vincent, 165 Ill. App. 3d

at 1031; see also People v. James, 255 Ill. App. 3d 516, 626 N.E.2d 1337

(1993); People v. Bland, 228 Ill. App. 3d 1080, 593 N.E.2d 639 (1992).                The

Vincent court ruled the inclusion of a correct copy of the instruction in the

court file did not prove the jury was accurately instructed.             Vincent, 165

Ill. App. 3d at 1031.       The court found it important that neither party

discussed the accurate instruction during the substance of their arguments.

Vincent, 165 Ill. App. 3d at 1031.        The court said:

                “The error in this case is more significant than in cases in

       which an instruction important to the defense is omitted.

       [Citations.]      Not only was the proper instruction not given, but

       the jury was misinformed as to the burden of proof.”            Vincent, 165

       Ill. App. 3d at 1031.

       The instant case is distinguishable.         Here, the jury was accurately

instructed.      The jury was not misinformed regarding defendant’s right not to

testify.      Rather, the jury was repeatedly admonished it could not consider

defendant’s privilege against self-incrimination in rendering a verdict.

       Initially, the jury was advised of defendant’s right to choose not to

testify prior to voir dire in accordance with the Zehr principles and Supreme

Court Rule 431(b).       See 177 Ill. 2d R. 431(b).1     Specifically, the court



       1
           We note the applicable version of Rule 431(b) was that amended in 1997, in

which, “[i]f requested by the defendant,” the trial court was required to ask the venire if

each member understood and accepted the Zehr principles. 177 Ill. 2d R. 431(b).

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advised the venire:

            “The charge in this case is contained in what is referred to

     as an indictment.   An indictment is not to be considered as any

     evidence against the defendant, nor does the law allow you to

     infer any presumption of guilt against the defendant simply

     because he is named in the indictment.       The indictment is merely a

     formal way in which a defendant is placed upon trial.       Under the

     law, a defendant is presumed to be innocent of the charges against

     him.   This presumption remains with him throughout every stage of

     the proceedings and is not overcome unless from all of the

     evidence in the case you are convinced beyond a reasonable doubt

     that the defendant is guilty.

            The State has the burden of proving the guilt of the

     defendant beyond a reasonable doubt, and this burden remains on

     the State throughout the case.

            A defendant is not required to prove his innocence nor is he

     required to present any evidence on his own behalf.       He may rely

     on the presumption of innocence.       If the defendant chooses not to

     testify, which is his Constitutional right, the fact that the

     defendant does not testify may not be considered by you in any way

     in arriving at your verdict.

                                      * * *

            I shall be instructing you on the law throughout these

     proceedings and again at the conclusion of the case.       You shall be

     bound by the oath you will take as jurors prior to hearing this

     case to follow the law as I give it to you.      You may not disregard

     the law as given to you by me and apply what you either

     individually or collectively believe the law should be.”

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      In addition, defense counsel reminded each juror individually that

defendant may or may not testify in the case.     Defense counsel then asked each

venire member whether he or she would hold it against defendant if he chose

not to testify.   Two venire members, Cook and Mennes, were dismissed when

their answers demonstrated a hesitation to withhold judgment in the event

defendant did not testify.    When Cook answered that he could not say whether

he would hold defendant’s decision not to testify against defendant until

hearing the evidence, the trial court said, in the presence of the venire:

             “I would advise you again, as I stated earlier, that if

      you’re selected as a juror, if the defendant does not testify in

      the case, you will receive an instruction of law at the conclusion

      of the case that you would be obligated to follow, and that is the

      fact that the defendant did not testify must not be considered by

      you in any way in arriving at your verdict.”

      Moreover, the State reminded the venire the judge would provide

instructions on the law.     The State asked, “Is there anyone who won’t be able

to follow the law?”    There was no response.   The State added, “Is there anyone

who won’t follow the law even if you flat out disagree with it?”     There was no

response.

      Therefore, while the jurors were not read IPI Criminal 4th No. 2.04

prior to retiring to the deliberation room, they repeatedly heard the

substance of the instruction during the voir dire process and were given the

physical copy of the law in the packet of instructions taken to the

deliberation room.    Besides, IPI Criminal 4th No. 2.04 was part of the law

which the jurors swore to follow.    Cf. People v. Ramirez, 98 Ill. 2d 439, 450,

457 N.E.2d 31 (1983) (“the trial judge’s refusal to instruct the jury that

they were not to consider the defendant’s silence constituted reversible

error”).    No error occurred.

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      Even assuming, arguendo, the trial court erred in failing to read IPI

Criminal 4th No. 2.04, defendant cannot demonstrate he suffered reversible

error.   Automatic reversal is warranted in limited circumstances where the

error is deemed “structural.”   People v. Glasper, 234 Ill. 2d 173, 190 (2009).

A structural error is “a systemic error which serves to ‘erode the integrity

of the judicial process and undermine the fairness of the defendant’s trial.’

”   Glasper, 234 Ill. 2d at 197-98, quoting Herron, 215 Ill. 2d at 186.

      The record before us demonstrates no structural error existed.      The jury

was repeatedly admonished its verdict could not be influenced by defendant’s

decision not to testify.   Moreover, the threat of bias was extinguished when

the two jurors who hesitated to follow the law were dismissed.     The remaining

jurors swore to apply the law as given to them.     We must presume the jury

followed the law and instructions given.     People v. Sutton, 353 Ill. App. 3d

487, 501, 818 N.E.2d 793 (2004).

      The supreme court recently held a trial court’s error in failing to

question a jury in accordance with Supreme Court Rule 431(b)(4) was harmless.

Glasper, 234 Ill. 2d at 199-200.     Rule 431(b)(4) provides the defendant’s

decision not to testify cannot be held against him.     177 Ill. 2d R. 431(b)(4).

We recognize there is no Zehr challenge here; however, the supreme court’s

reasoning informs our conclusion here that defendant received a fair trial.

      The supreme court highlighted that Rule 431(b)(4), though designed to

ensure defendants have a fair jury trial, is not a constitutional right

“indispensable to a fair trial.”   Glasper, 234 Ill. 2d at 196.    The supreme

court found support in the rule itself, which, at the time, required

questioning only if requested by the defendant.     The Glasper court further

concluded it would be inconsistent to impose reversible error on a violation

of Rule 431(b)(4) when the supreme court has repeatedly held Doyle violations

do not require automatic reversal.    Glasper, 234 Ill. 2d at 198 (“automatic

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reversal is not required when a prosecutor mentions a defendant’s post-Miranda

silence and commits a Doyle violation”).

        Similarly here, IPI Criminal 4th No. 2.04 is discretionary and may only

be given if requested by the defendant.      IPI Criminal 4th No. 2.04, Committee

Note.    Moreover, where the instruction is based on a defendant’s right against

self-incrimination, we agree with the supreme court’s well-reasoned conclusion

in Glasper that it would be inconsistent to treat the instant instructional

error more harshly than a Doyle violation.

        The Glasper court relied on federal appellate decisions to find the

error there could be considered harmless where the evidence against the

defendant was overwhelming.     Glasper, 234 Ill. 2d at 202, citing United States

v. Brand, 80 F.3d 560 (1st Cir. 1996); Lewis v. Pinchak, 348 F.3d 355 (3d Cir.

2003); Beathard v. Johnson, 177 F.3d 340 (5th Cir. 1999); Finney v.

Rothgerber, 751 F.2d 858 (6th Cir. 1985); Hunter v. Clark, 934 F.2d 856 (7th

Cir. 1991); United States v. Soto, 519 F.3d 927 (9th Cir. 2008) (finding a

Carter error may be considered harmless, i.e., when a court fails to give a

defendant’s requested “no-adverse inference” instruction in violation of the

defendant’s fifth amendment).     Our courts have similarly held instructional

errors may be considered harmless where the outcome of trial would not have

been different had the proper instruction been given.     People v. Furdge, 332

Ill. App. 3d 1019, 774 N.E.2d 415 (2002), citing People v. Kirchner, 194 Ill.

2d 502, 557, 743 N.E.2d 94 (2000).     In People v. Carreon, 225 Ill. App. 3d

133, 587 N.E.2d 532 (1992), this court held the trial court erred in

precluding inquiry into venire bias concerning the defendant’s privilege

against self-incrimination.     Carreon, 225 Ill. App. 3d at 143.   This court

concluded the error may be harmless.    Carreon, 225 Ill. App. 3d at 143.

        Based on the record before us, we find that the instant, arguendo, error

is harmless because the evidence overwhelmingly supports the jury’s verdict.

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Two main witnesses testified for the State, Muhammad and Louis Turner.

        Muhammad testified he was with the victim at a warming center for the

homeless at about 9 a.m. on the day in question.     The warming center was

located at 60th Street and Ashland Avenue, Chicago, Illinois.      The victim had

a bike with him at the time.    Muhammad knew the bike belonged to defendant.

Muhammad was friends with both defendant and the victim.      Muhammad and the

victim left the warming center to go to a soup kitchen across the street for

breakfast.     Muhammad saw defendant in the dining room and they exchanged

greetings.     Muhammad sat down next to defendant at a table and the victim sat

across the table.    During their conversation, Muhammad asked defendant for his

newspaper.     Defendant refused to give the newspaper to Muhammad, saying it was

old.    After breakfast, Muhammad and the victim left the soup kitchen to return

to the warming center.

        Muhammad and the victim walked eastbound across the street and began to

walk southbound when Muhammad heard footsteps quickly approaching.      Muhammad

turned around and saw defendant.     Defendant walked to Muhammad’s right side,

placing his arm around Muhammad.     The victim was walking on Muhhamad’s left

side.     Defendant said something to the victim about his bike.   The victim

indicated he intended to return the bike.    Defendant then reached across the

front of Muhammad with something wrapped inside of a newspaper and stabbed the

victim.     The victim grabbed his side and had a “funny look on his face.”

Muhammad jumped back and told defendant he was a “crazy a-- motherf-----.”

The victim moved to the west side of the street to get away from defendant.

Defendant danced a “little jig” and said something like “I told you I was gon’

get that motherf-----.”

        Defendant ran to the warming center and Muhammad walked over to the

victim.     The victim told Muhammad defendant “stuck him.”   Muhammad lifted the

victim’s shirt to examine the wound.     Muhammad then saw defendant walking down

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the street with the bike the victim had earlier.            Muhammad also saw defendant

carrying the newspaper and a knife approximately 12 inches long.            Defendant

fled on the bike.        Muhammad ran into the warming center and told someone to

call 911.       Muhammad immediately returned to the victim with a towel, which he

placed under the victim’s head.         The victim was on the western sidewalk at the

time.       An ambulance and the police arrived almost immediately.       Muhammad spoke

to the police.        He told the police defendant stabbed the victim.      Muhammad

later identified defendant in a police lineup and provided a handwritten

statement.

        On cross-examination, Muhammad testified he left the area for

approximately one or two hours after speaking to the police immediately after

the incident.        He could not recall where he went during that time.      The only

blood Muhammad saw was located on the ground where the victim was found.

Muhammad admitted he pled guilty to unlawful use of a weapon by a felon in

1994.

        Turner2 testified he was at the soup kitchen on the day in question.

Defendant sat down at a table with him.           Muhammad and the victim were also at

the soup kitchen.        Defendant told Turner the victim had defendant’s bike,

which the victim had not paid for.         Turner witnessed defendant and the victim

engage in a heated argument over the bike.          Then, Muhammad and the victim left

the soup kitchen.        When defendant finished his breakfast, he told Turner it

was time for “retribution.”         Turner inquired further and defendant said he was

“gon’ kill that n-----.”         Turner advised defendant that his threatened action

was not worth a disagreement over a bike.          Defendant showed Turner a knife he

had under his coat.        The knife was protruding from a case.     Turner estimated

the knife was about nine inches long.          Defendant said he was “gon’ get him.”



        2
            He admitted he has an alias of Louis Johnson.

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Defendant retrieved a gym bag and a newspaper and left the soup kitchen.



      According to Turner, about 15 minutes after defendant left, a “guy” ran

into the soup kitchen saying a “boy” had been stabbed.    When Turner asked for

clarification, the individual said defendant had stabbed the victim.      As a

result, Turner ran outside and saw the victim on the west side of the street.

Turner saw Muhammad standing nearby.     A paramedic was assisting the victim.

Turner relayed the events to the police on the scene.     Later, Turner

identified defendant in a police lineup and provided a handwritten statement.

      Turner admitted he had a prior conviction for aggravated criminal sexual

assault and had pled guilty for failing to register as a sex offender.      Turner

said he testified before the grand jury as well and advised the Grand Jury

that he used both names, Louis Johnson and Louis Turner.

      The investigators did not recover a knife, a carrying case, a bike, a

gym bag, or a newspaper.   There were no bike tracks or footprints indicating

someone performed a dance found at the scene.     There was no evidence of a

blood trail from the east side of the street where the victim was stabbed to

the west side where the victim was ultimately found.     There was a red stain

that appeared to be blood found on the western sidewalk.    The presumptive

blood spot was swabbed and collected; however, the sample was never tested.

Pursuant to the information given by Muhammad and Turner, the police issued an

investigative alert for defendant.     Defendant was arrested on October 4, 2005,

at 1458 West 72nd Street, Chicago, Illinois.     No knife, bike, or duffel bag

was recovered.

      Wendy Lavezzi, an assistant medical examiner, testified she performed

the victim’s autopsy on September 26, 2005.     The victim had a stab wound to

his lower left chest and abrasions consistent with falling to the ground.        The

wound revealed an approximately eight-inch blade was used in the stabbing.        No

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trace evidence of newspaper was found in the wound.     According to Lavezzi, the

type of injury the victim suffered, namely, to his aorta, typically does not

produce a lot of blood.     Rather, an aorta injury generally bleeds into the

abdomen where it collects.    Lavezzi concluded the victim died of the stab

wound.

      Lavezzi testified the victim’s blood revealed a small presence of

ethanol.     However, because the autopsy was not performed until four days after

the victim died, the level of ethanol was not indicative of the level at the

time of the victim’s death.    Lavezzi also noted a small presence of a

metabolite of cocaine in the victim’s blood; however, there was no way to tell

when or how much cocaine was ingested.

      The evidence demonstrated defendant was angry the victim had defendant’s

bike and intended to make the victim “pay.”    Shortly after the victim and

Muhammad left the soup kitchen, defendant left with an approximately 9- to 12-

inch-long knife.     Defendant ran up and then fatally stabbed the victim with

his newspaper-wrapped knife and fled on his bike.     The victim’s injuries were

consistent with being stabbed with an approximately eight-inch- long blade and

falling on the sidewalk.

      Defendant contends the instructional error was prejudicial because the

evidence was not overwhelming but closely balanced, as demonstrated by the

conflicting testimony.     The jury, however, heard all of the evidence, weighed

it, and entered a guilty verdict.     It is the jury’s function to assess the

credibility of witnesses, weigh the testimony, and resolve conflicts and

inconsistencies in the evidence.    People v. Evans, 209 Ill. 2d 194, 211, 808

N.E.2d 939 (2004).     We will not question the jury’s determination.

      Defendant further contends the length of time the jury deliberated

demonstrates the evidence was closely balanced.     The jury began deliberations

at 11 a.m.     At 1:50 p.m., the jury sent a note requesting the police report

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containing Muhammad’s statement.    The parties agreed with the court’s

suggested response that the police reports were not admitted into evidence and

should not be considered.     The jury was directed to continue deliberations.

At 3:45 p.m., the jury sent a note requesting Muhammad’s trial transcript

“when he testified about the stabbing and events directly afterward” in order

“to clear up some confusion.”    The parties agreed with the court’s suggested

response that the transcripts were not available.     The jury was directed to

continue deliberations.     At 7 p.m., over the defense counsel’s objection, the

jury was sequestered for the night.     The jury resumed deliberations at 9 a.m.

the following morning.    At 11:15 a.m., the jury sent a note indicating it was

deadlocked 11 to 1 without saying which way the jury was split.     The court

denied defense counsel’s request for a hung jury or a mistrial.     The court

denied the State’s request for a Prim instruction.    The court simply

instructed the jury to continue deliberations.    The jury returned its verdict

at 12:20 p.m.

      We reject the general premise a lengthy deliberation necessarily means

the evidence is closely balanced.     We recognize People v. Ehlert, 274 Ill.

App. 3d 1026, 1035, 654 N.E.2d 705 (1995), seemingly stands for that

proposition where the jury was deadlocked for three days.    However, in Ehlert,

the evidence was so conflicting the State virtually conceded it could not

prove its case based upon the charge advanced.    Here, the jury’s notes

indicate there was confusion regarding Muhammad’s police statement and

testimony.   The jury ultimately resolved its confusion and rendered the

verdict.

      Although not directly on point, our decision is supported by People v.

Casillas, 195 Ill. 2d 461, 749 N.E.2d 864 (2000).    In Casillas, the supreme

court applied a totality of the circumstances test to determine whether the

defendant received a fair trial where the jury was not given a written

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instruction as to the presumption of innocence and the burden of proof.

Casillas, 195 Ill. 2d at 474.    Neither the State nor the defense tendered the

appropriate instruction, IPI Criminal 4th No.     2.03.   The supreme court ruled

the trial court erred in failing to give the instruction sua sponte.

Casillas, 195 Ill. 2d at 474.    However, the court said “the trial court’s

failure to give this written instruction does not automatically result in a

finding that defendant’s constitutionally protected right to a fair trial has

been violated.”   Casillas, 195 Ill. 2d at 474, citing Kentucky v. Whorton, 441

U.S. 786, 789, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2090 (1979).      The

supreme court applied the totality of the circumstances analysis used in

Whorton and adopted by the supreme court in People v. Layhew, 139 Ill. 2d 476,

564 N.E.2d 1232 (1990).    The analysis requires a reviewing court to “look at

all the circumstances including all the instructions to the jury, the

arguments of counsel, whether the weight of the evidence was overwhelming and

any other relevant factors” to determine whether a defendant was denied his

right to a fair trial.    Casillas, 195 Ill. 2d at 474.

        As outlined, the totality of the circumstances in the instant case

demonstrate defendant received a fair trial.     The jury was repeatedly and

accurately instructed during voir dire and was given a physical copy of the

instruction to reference during deliberations.     Moreover, the overwhelming

evidence placed defendant at the warming center looking for retribution.        He

settled the score by fatally stabbing the victim and retrieving the disputed

bike.

II. Confrontation Clause

        Defendant contends his confrontation clause rights were violated where

the State introduced an unnamed individual’s hearsay statement.      Specifically,

defendant contends the confrontation error occurred when Turner testified that

a “guy” ran into the soup kitchen and said a “boy” had been stabbed.     Then,

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when Turner asked for clarification, the “guy” said defendant was the

offender.

      Defendant concedes he did not preserve his contention for review because

he did not object to the admission of the statement at trial and did not

include the issue in a posttrial motion.     See Enoch, 122 Ill. 2d at 186.

Defendant, however, requests that we review the contention under the doctrine

of plain error.    As stated, a reviewing court may review a forfeited error

affecting a substantial right where (1) the evidence is “so closely balanced

that the jury’s guilty verdict may have resulted from the error and not the

evidence”; or (2) the error was so serious it denied the defendant a fair

trial.   Herron, 215 Ill. 2d at 178-79.   Because defendant’s contention

involves the alleged violation of a constitutional right, we review the claim.

See People v. Sample, 326 Ill. App. 3d 914, 919, 761 N.E.2d 1199 (2001).

      The sixth amendment confrontation clause ensures a defendant’s right to

confront witnesses testifying against him through cross-examination.    U.S.

Const., amend. VI; Ill. Const. 1970, art. I, §8.     The hearsay rule generally

prohibits the admission of an out-of-court statement offered for the truth of

the matter asserted therein.     People v. Spicer, 379 Ill. App. 3d 441, 449, 884

N.E.2d 675 (2007).

      Defendant contends the statement at issue was hearsay admitted in

violation of the confrontation clause.     The State contends the statement was

not hearsay because it was offered to demonstrate why Turner left the soup

kitchen to go outside.     See People v. Gonzalez, 379 Ill. App. 3d 941, 954

(2008) (an out-of-court statement offered to show the effect on the listener

is not hearsay).     We agree.

      Turner testified regarding his conversation with defendant before

defendant left the soup kitchen.     Turner knew defendant left the soup kitchen

armed with a knife, seeking retribution for the victim having taken his bike.

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Fifteen minutes later, Turner ran outside and found the victim on the ground

with a stab wound.     Turner ran outside because, after the nontestifying

witness said someone had been stabbed, the nontestifying witness clarified

that defendant was the offender.        The statement was offered to show its effect

on Turner.   The statement was not admitted as substantive evidence.       The

statement was briefly referenced in the State’s rebuttal argument; however,

the substance of the statement was not argued.       Specifically, the State said

“[t]ime disparity is when [Turner’s] at the soup kitchen and he hears about

Old Boy getting stabbed.     I believe that’s what he said.    That’s what he heard

about it [sic].”     Reading the State’s brief reference in context demonstrates

the State was not using it as substantive evidence.

      Defendant contends Turner’s testimony regarding the nontestifying

witness’ follow-up statement naming defendant was unnecessary to demonstrate

why Turner left the soup kitchen and was therefore offered for the truth of

the matter asserted.     We disagree.     The statement directly affected Turner’s

behavior because Turner did not attempt to leave the soup kitchen until he

asked for the identity of the “guy” and learned it was defendant.        Given

Turner’s prior interaction with defendant, the follow-up statement, in

conjunction with the initial statement, was admissible to explain why Turner

left the soup kitchen to investigate the aftermath of the offense.

Accordingly, we find the overall statement was not hearsay, and therefore no

confrontation error occurred.    Crawford v. Washington, 541 U.S. 36, 60 n.9,

158 L. Ed. 2d 177, 198 n.9, 124 S. Ct. 1354, 1370 n.9 (2004) (the

confrontation clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted”); People v.

Peoples, 377 Ill. App. 3d 978, 983, 880 N.E.2d 598 (2007) (“[a]dmissible

nonhearsay does not implicate the confrontation clause”).

      Even assuming, arguendo, that the combined statement was hearsay

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admitted in violation of the confrontation clause, reversal is not

automatically warranted.    Sample, 326 Ill. App. 3d at 924.   Rather,

confrontation errors are considered harmless where “there is ‘no reasonable

possibility the verdict would have been different had the hearsay been

excluded.’ ”   Sample, 326 Ill. App. 3d at 925, quoting People v. McCoy, 238

Ill. App. 3d 240, 249, 606 N.E.2d 245 (1992).

     Again, assuming, arguendo, the statement was a confrontation error, we

find the alleged error did not constitute plain error.    Based on the evidence,

there is no reasonable probability the jury would have acquitted defendant if

the combined statement at issue had been excluded.     The substance of Turner’s

contested testimony is that an unnamed individual said defendant stabbed the

victim.   Even with the exclusion of that statement, the remaining evidence

overwhelmingly supported the jury’s guilty verdict.     The evidence demonstrated

defendant and the victim exchanged contentious words over the victim having

defendant’s bike.   According to Turner, when Muhammad and the victim left the

soup kitchen, defendant expressed his intent for “retribution,” explaining he

“gon’ kill that n-----.”     Defendant flashed Turner his long-blade knife.

Defendant left with the knife and a newspaper and said he was “gon’ get” the

victim.   Muhammad said defendant approached him and the victim and reached

across the front of Muhammad to stab the victim.     Muhammad then saw defendant

flee with his bike and a long-blade knife wrapped in a newspaper.        The victim

died of the stab wound.     The evidence was not so closely balanced that the

jury’s verdict may have resulted from the admission of the alleged hearsay and

not from the evidence.     Moreover, the alleged error was not so serious as to

deny defendant a fair trial.

     We need not address defendant’s alternate contention that his counsel

was ineffective for failing to preserve the issue.     Even if trial counsel

objected to and included the error in a posttrial motion, the outcome of the

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trial would have been the same.

III. Sentence

      Defendant contends his 50-year sentence is excessive in light of

mitigating factors, namely, his lack of a felony criminal record and his

potential for rehabilitation.

      A trial court’s sentence is entitled to great deference and weight and

may not be disturbed absent an abuse of discretion.     People v. Perruquet, 68

Ill. 2d 149, 154, 368 N.E.2d 882 (1977).     The sentence must be balanced

between the seriousness of the offense at issue and the potential for the

defendant’s rehabilitation.     See Ill. Const. 1970, art. I, §11.   The trial

court weighs the defendant’s credibility, demeanor, general moral character,

mentality, social environment, habits, and age.     People v. Stacey, 193 Ill. 2d

203, 209, 737 N.E.2d 626 (2000).     A reviewing court may not substitute its

judgment for that of the trial court simply because it would have weighed

those factors differently.    Stacey, 193 Ill. 2d at 209.    Moreover, a sentence

within the statutory limits will not be considered excessive unless it greatly

varies with the spirit and purpose of the law or is manifestly

disproportionate to the nature of the offense.     Stacey, 193 Ill. 2d at 210.

      A first degree murder conviction carries a sentence of not less than 20

years and not more than 60 years.     730 ILCS 5/5-8-1(a)(1) (West 2004).

Defendant’s 50-year prison term is within the permissible statutory range.

      Moreover, the record demonstrates the sentence is not manifestly

disproportionate to the nature of first degree murder.      The trial court

considered the mitigating and aggravating evidence presented before

determining the appropriate sentence.     At the sentencing hearing, the court

said it considered the seriousness of the offense, the mitigating and

aggravating statutory factors, the attorneys’ arguments, defendant’s

presentence investigation report, defendant’s criminal history, defendant’s

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potential for rehabilitation, and the deterrence value of the sentence.

Specifically in reference to defendant’s criminal history and potential for

rehabilitation, the court said:

            “In looking at the factors that I’ve referenced, and in

      considering the information contained in the presentence

      investigation report, I would note that defendant obviously is in

      his mid forties, and as both sides have stated, his criminal

      history derives primarily from Wisconsin.   And beginning at what

      is, at least reported to me, in 1998, there are battery

      convictions, intimidating a victim, additional battery

      convictions.   Although counsels wish to, I suppose, minimize them

      in terms of how they relate, they are important to the Court to

      determine the type of life the defendant leads and how likely it

      is that he’s going to assault other individuals when he gets into

      some particular disagreement with them.

            I find that the fact that he has, as least three that have

      been reported, battery and intimidating a victim, and criminal

      damage to property incidents, that it indicates to this Court that

      the defendant is not able to control himself when something arises

      that he has disagreement with and finds himself acting out

      violently towards those around him.    So that that [sic] is the

      significance I see to the criminal history that is before me.

                                     * * *

            Your lawyer has stated that your background is such that

      this is your first felony conviction, and unfortunately in this

      business sometimes one can see a progression from more minor

      offenses up to the greater offenses, the greatest being first

      d[e]gree murder; but sometimes people come into the court and they

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     start right out at the top, which you have done in this case, and

     that’s taking the life, without justification, of Gary Hastings,

     on the plan that you formulated for the reason–-or the reasons

     that you had within your own mind.

             The Court believes that a sentence other than that which the

     Court is going to impose would deprecate the seriousness of the

     offense.    And the Court does believe at this point in time, and

     for the likely future, that you do pose a danger of physical

     violence to those around you, if they cross your path, or they

     upset you in any way, shape or form.     I do not believe you have

     the ability to control yourself or the emotions that you have

     within you; and that because of those facts, that you are an

     imminent danger to those around you.     I would strongly suggest

     while you’re in the Department of Corrections, if made available

     to you, that you avail yourself of any anger management or

     counseling programs that might be available, so that if and when

     you are released to the public you do not find yourself getting

     into these altercations again, where you have to resort to this

     type of deadly force to make your point, so to speak.”

     The record expressly demonstrates the trial court considered defendant’s

criminal history and potential for rehabilitation while fashioning its

sentence.    “[I]t is presumed that the trial court properly considered all

mitigating factors and rehabilitative potential before it; and the burden is

on the defendant to affirmatively show the contrary.”   People v. Garcia, 296

Ill. App. 3d 769, 781, 695 N.E.2d 1292 (1998).    The instant defendant has

failed to meet that burden.   The trial court did not abuse its discretion in

sentencing defendant.

CONCLUSION

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     We affirm the judgment of the trial court.

     Affirmed.

     HALL, P.J., and GARCIA, J., concur.




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              REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



                    THE PEOPLE OF THE STATE OF ILLINOIS,

                            Plaintiff-Appellee,

                                     v.

                              WARDELL NUGEN,

                           Defendant-Appellant.



                            No. 1-07-2506

                         Appellate Court of Illinois
                       First District, FIRST DIVISION

                               March 8, 2010


  Justice Bertina E. Lampkin authored the modified opinion of the court:

             Presiding Justice Hall and Justice Garcia concur.


               Appeal from the Circuit Court of Cook County.
               The Hon. Lon William Shultz, Judge Presiding.


                          COUNSEL FOR APPELLANT
      Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
                      Patricia Unsinn, Deputy Defender
                      OF COUNSEL: Melinda Grace Palacio


                            COUNSEL FOR APPELLEE
       Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
        OF COUNSEL: James E. Fitzgerald, Veronica Calderon Malavia,
                     Miles J. Keleher and Ugo H. Buzzi




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