                                                               Third Division
                                                               March 23, 2011



1-08-3588



THE PEOPLE OF THE STATE OF ILLINOIS,                           )       Appeal from the
                                                               )       Circuit Court of
                       Plaintiff-Appellee,                     )       Cook County.
                                                               )
v.                                                             )       06 CR 5756
                                                               )
SPENCER MARTIN,                                                )       Honorable
                                                               )       Dennis J. Porter,
                       Defendant-Appellant.                    )       Judge Presiding.


       JUSTICE NEVILLE delivered the judgment of the court, with opinion.
       Presiding Justice Quinn and Justice Steele concurred in the judgment and opinion.

                                              OPINION

       After a bench trial, the trial court found the defendant, Spencer Martin, guilty of the attempted

murder and the attempted armed robbery of Erlin Pinnix. On appeal, Martin argues the court should

not have allowed the State to present evidence that he shot someone else a month before the

attempted murder of Pinnix. Martin also contends that the court committed plain error when it

admitted evidence (1) that Pinnix’s cousin told Pinnix that Martin offered to pay Pinnix not to testify;

(2) that Pinnix discussed the offer with someone else; and (3) that Martin met Pinnix and offered

Pinnix cash not to testify. Because defense counsel failed to object to these three pieces of evidence,

Martin argues that he received ineffective assistance of counsel.

       We find that evidence that the prior shooting involved the same gun justified the court’s

decision to permit the evidence of the other crime to bolster the identification of Martin as the
1-08-3588


offender here. The record does not show that the trial court made any inappropriate use of the

evidence of what Pinnix’s cousin told Pinnix or of Pinnix’s discussion of the offer with another man.

Because Pinnix acted as an agent of the State, trying to elicit incriminating evidence when he met with

Martin, Martin’s counsel should have objected to the evidence of what Martin said to Pinnix in that

meeting and the trial court should have excluded that evidence. However, we find no reversible error

because the admissible evidence overwhelmingly proved Martin guilty.

                                          BACKGROUND

       In the early morning hours of February 4, 2006, Pinnix drove to a gas station on the north side

of Chicago to buy some food. As he paid for the food, a man walked up next to him and put a gun

to his head. The man said, “Gimme what you got.” Pinnix reached into his pocket. When the man

looked away, Pinnix grabbed the gun. The men struggled for control of the gun. During the struggle,

the gun discharged and injured Pinnix. The man walked away, then returned a few seconds later,

aimed the gun at Pinnix and pulled the trigger. The gun jammed. The man walked away again, and

again he turned around, approached Pinnix, aimed the gun and pulled the trigger. Again the gun

jammed. The gunman left the scene in a van. Pinnix drove himself to the hospital.

       Police officers who investigated the incident watched a video recording from the gas station’s

security camera. The man who shot the gun appeared to have braided hair. The officers showed

Pinnix an array of six photographs, of which two depicted men with braided hair. Pinnix chose one

of those photographs, the picture of Martin, as a photograph of the man who shot him. In a lineup

at the police station, Pinnix identified Martin again as the shooter.

       Investigators conducted ballistic tests on the shell casings found at the gas station and

                                                 -2-
1-08-3588


discovered that the bullets came from the same gun that someone had used to shoot Johnnie Williams

and another man at a restaurant on January 14, 2006. Police showed Williams an array of

photographs, and he chose the picture of Martin as the picture of the man who shot him. Williams

identified Martin again in a lineup at the police station.

        In March 2006, a grand jury indicted Martin for the attempted first degree murder and the

attempted armed robbery of Pinnix.

        On August 19, 2006, Pinnix went to the jail to visit his cousin, Ivan Byers. Martin came to

the same visiting room at the same time, because his girlfriend came to the jail to visit him. Martin

talked to Byers in jail, and later Pinnix came to the jail to talk to Martin. Pinnix wore an audio

transmission device so that police could listen to his conversation with Martin.

        Before trial, the State moved for permission to introduce evidence that Martin shot Williams

and that Martin sought to bribe Pinnix. The trial court granted the motion.

        At the bench trial, Pinnix again identified Martin as the man who shot him. He added that he

recognized Martin from the neighborhood, but he had never spoken to Martin, whom he knew only

as Spencer. The State played the video recording of the incident at trial, and the unclear video

showed a flash, which Pinnix identified as the gunshot which occurred during the struggle, at a point

just out of the camera’s range. A man who looked like Martin then appeared on screen, aiming a gun,

walking away, and returning and aiming the gun again, before he left the scene in a van.

        On cross-examination, Pinnix testified that he had drunk one beer on the night of February

3 to the morning of February 4. The State stipulated that tests at the hospital showed that Pinnix had

a blood alcohol level of .17 and that he also tested positive for cannabinoids.

                                                  -3-
1-08-3588


        Johnnie Williams testified that on January 14, 2006, he and three other men went to a

restaurant on the south side of Chicago. They bumped into two men walking in the other direction

on the sidewalk. The six men started arguing and then fighting. One of the two unfamiliar men

started shooting. The bullets struck Williams and one of his friends. Williams and his friends went

to the hospital. He identified Martin in court as the man who shot him. The parties stipulated that

tests showed that bullets found near the restaurant on the night of the shooting came from the same

gun as the one used to shoot Pinnix.

        Byers testified that when Pinnix entered the visiting room at the jail on August 19, 2006, he

and Martin looked at each other and Pinnix said, “[Y]ou shot me.” Martin answered, “Be cool, just

be cool.” Two weeks later Martin asked Byers if Pinnix would take money and weed not to come

to court to testify against him. Byers answered that he would discuss it with Pinnix. Defense counsel

did not object to Byers’s testimony that he called Pinnix to tell him about Martin’s offer, and he later

told Martin Pinnix would accept the deal. Martin confessed to Byers that he shot Pinnix because he

thought Pinnix had some money.

        Pinnix added more detail about his trip to the jail to visit Martin. He testified that he learned

that Martin had offered to pay him to stay out of court. Defense counsel objected, and the court

allowed the testimony not as evidence that Martin made such an offer, but only to explain why Pinnix

went to meet Martin in the jail. Pinnix testified that he told police what he had heard, and he agreed

to wear a wire when he went to the jail. After the court heard the recording of the conversation,

which required some translation from the vernacular, Pinnix explained that in that conversation

Martin offered Pinnix $3,000 not to come to court. Pinnix testified that he was “supposed to receive

                                                  -4-
1-08-3588


payment from some people of Spencer Martin.” Pinnix testified that he later discussed the payments

with Robert Hammond. The prosecutor asked, “To your knowledge was Robert in contact with

Spencer Martin?” The court sustained defense counsel’s prompt objection to the hearsay. Martin

never paid Pinnix not to testify.

       The trial court found Pinnix’s identification of Martin as the shooter very credible and well

corroborated by the video recording, and supported by Williams’s testimony about the earlier

shooting and Byers’s testimony about the bribe. The court found Martin guilty of attempted murder

and attempted armed robbery.

       The court denied Martin’s posttrial motion. At the sentencing hearing, the court expressly

found, in light of Martin’s extensive criminal history, that society needed protection from Martin. The

court sentenced Martin to 18 years in prison for the attempted murder and to 6 years in prison for

the armed robbery, with Martin to serve the sentences consecutively. Martin now appeals.

                                             ANALYSIS

       Martin objects to four separate parts of the evidence against him. He acknowledges that his

trial counsel did not preserve for review the issues of whether the court should have permitted (1)

Byers to testify about what he said to Pinnix and to Martin; (2) Pinnix to testify about his discussion

with Hammond; and (3) the State to present evidence about Pinnix’s discussions with Martin in

prison, after Pinnix agreed to wear a wire and to try to elicit incriminating statements from Martin.

Trial counsel preserved only one issue Martin asks us to address, and that is the issue of whether the

court should have allowed Williams to testify about the shooting on January 14, 2006.



                                                 -5-
1-08-3588


                                 Evidence That Martin Shot Williams

          The trial court should not admit evidence of other crimes to show the defendant’s propensity

to commit crimes, but the court may admit such evidence for other purposes, such as when it helps

establish the identity of the perpetrator of the crime. People v. McKibbins, 96 Ill. 2d 176, 182

(1983). Some similarity must tie the two crimes together to make the identification of the defendant

as the perpetrator of a different offense useful as evidence that he committed the offense at issue.

People v. Quintero, 394 Ill. App. 3d 716, 725 (2009). For example, in People v. Walls, 33 Ill. 2d

394, 398 (1965), the trial court properly admitted evidence that the defendant and his friends stole

the car in which the rape at issue occurred, because that evidence helped establish the defendant’s

proximity in time and place to the crime, and it corroborated part of the victim’s testimony about her

ordeal.

          Here, the gun tied the crime against Williams to the crime against Pinnix. The two crimes

occurred in Chicago less than three weeks apart. The crimes otherwise had little in common: one

occurred on the north side as part of an armed robbery, while the other occurred on the south side

when a man on the street took offense to a bump. One crime involved one man directly confronting

his victim, while the other involved a group of men quarreling and fighting. However, we find that

the connection between the gun used against Williams and the gun used against Pinnix, together with

the temporal proximity of the crimes, suffices to make the identification of Martin as the man who

shot Williams useful as evidence that Martin also shot Pinnix. See People v. Coleman, 158 Ill. 2d

319, 333-35 (1994) (where forensic analysis showed that the gun used for a murder was the same gun

used in a separate shooting a few days later, identification of the defendant as the shooter in the

                                                 -6-
1-08-3588


second shooting was admissible as evidence that he committed the earlier murder). Therefore, we

hold that the trial court did not abuse its discretion when it permitted Williams to testify that Martin

shot him.

                            Evidence That Pinnix Spoke With Hammond

        Pinnix testified, without objection, that after Martin promised to pay him to stay out of court,

Pinnix discussed the payments with Hammond. Martin now argues both that the court committed

plain error by allowing the testimony and that defense counsel provided ineffective assistance by

failing to object. We cannot find ineffective assistance unless counsel’s errors had a prejudicial effect.

See People v. Peeples, 205 Ill. 2d 480, 512 (2002). Before we can find plain error, we must first find

that the trial court erred. See People v. Harris, 225 Ill. 2d 1, 24 (2007).

        Defense counsel objected when the prosecutor sought to connect Martin to the conversations

between Pinnix and Hammond. The court sustained counsel’s objection to the question, “To your

knowledge was Robert in contact with Spencer Martin?” The trial judge, in this bench trial, showed

that he understood that the prosecutor had failed to show any connection between Martin and the

conversations between Pinnix and Hammond. We presume that the trial court made no inappropriate

use of the irrelevant testimony about conversations with Hammond. See People v. Kerwin, 159 Ill.

2d 436, 446 (1994).

        Because Martin cannot show that the trial court used the testimony about Pinnix’s

conversations with Hammond as evidence against Martin, we cannot find that the failure to object

had the prejudicial effect needed to show ineffective assistance of counsel. See Peeples, 205 Ill. 2d

at 512. In addition, because the court sustained the objection to the attempt to tie Martin to the

                                                  -7-
1-08-3588


conversations, we cannot say that the court committed any error, let alone plain error. See Harris,

225 Ill. 2d at 24.

                                Evidence of What Byers Told Pinnix

        Byers testified, without objection, that he called Pinnix from the jail and told Pinnix that

Martin offered to pay him not to testify. Byers added, again without objection, that he told Martin

that Pinnix accepted the deal. Again, Martin argues that the admission of the evidence, and the failure

to object, shows both plain error and ineffective assistance of counsel. Defense counsel objected to

Pinnix’s related testimony that he heard that Martin offered to pay him not to testify. The court

overruled the objection, noting that the testimony could explain why Pinnix went to see Martin in jail,

although the court would not allow the testimony as evidence that Martin offered to pay Pinnix not

to come to court. Again, we must presume that the trial court made no improper use of Byers’s

testimony about what he told Pinnix and Martin. See Kerwin, 159 Ill. 2d at 446. The trial court

should not have used the testimony for the hearsay purpose of proving the offer and its acceptance,

but the court could use the testimony for the nonhearsay purpose of explaining why Pinnix and Martin

agreed to meet in the jail. Because Martin cannot show that the trial court misused the hearsay

testimony as evidence, we can find no prejudice and therefore no showing of ineffective assistance

of counsel. See Peeples, 205 Ill. 2d at 512. Accordingly, we cannot find that the court committed

any error, let alone plain error. See Harris, 225 Ill. 2d at 24.

                              Evidence of What Martin Said to Pinnix

        Finally, defense counsel failed to object to the recording of the conversation between Pinnix

and Martin in the jail. Martin now contends that the conversation violated his right to counsel

                                                 -8-
1-08-3588


protected by the sixth amendment to the United States Constitution. According to Martin, the court

committed plain error by admitting the conversation into evidence, and trial counsel provided

ineffective assistance by failing to object.

        In Maine v. Moulton, 474 U.S. 159, 176 (1985), the United States Supreme Court restated

the applicable principles as follows:

        “The Sixth Amendment guarantees the accused, at least after the initiation of formal

        charges, the right to rely on counsel as a ‘medium’ between him and the State. As

        noted above, this guarantee includes the State's affirmative obligation not to act in a

        manner that circumvents the protections accorded the accused by invoking this right.

        *** [K]nowing exploitation by the State of an opportunity to confront the accused

        without counsel being present is as much a breach of the State's obligation not to

        circumvent the right to the assistance of counsel as is the intentional creation of such

        an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains

        incriminating statements by knowingly circumventing the accused's right to have

        counsel present in a confrontation between the accused and a state agent.”

        The State formally charged Martin with the attempted murder of Pinnix at the latest by March

2006, when the grand jury indicted Martin for the crime. See Kirby v. Illinois, 406 U.S. 682, 688-89

(1972). Thus, Martin had a right to counsel for all encounters with State agents after that date. See

Moulton, 474 U.S. at 176. Pinnix became a state agent when he agreed to wear a wire while he

talked with Martin. See Massiah v. United States, 377 U.S. 201 (1964) (a codefendant became a

government agent when he agreed to wear a wire for discussions with the defendant).

                                                 -9-
1-08-3588


        The State answers that Martin and Pinnix did not discuss the substance of the testimony

Martin hoped to prevent the court from hearing. However, the rule of Moulton precludes any use

by the State of the conversation between Pinnix and Martin in court proceedings to determine

Martin’s guilt of any crime for which the State had formally charged him. Moulton, 474 U.S. at 176;

see also People v. Brown, 358 Ill. App. 3d 580, 591-93 (2005).

        Therefore, we find that defense counsel should have objected to evidence of the conversation

between Pinnix and Martin for which Pinnix agreed to wear a wire. We also find that if counsel had

objected, the trial court should have found the evidence inadmissible. See Moulton, 474 U.S. at 176;

Brown, 358 Ill. App. 3d at 593. But we find that Martin cannot meet his burden of showing that he

would have achieved a better result but for counsel’s error. While the State introduced inadmissible

evidence of Pinnix’s recorded conversation with Martin, the State also introduced admissible evidence

that Pinnix, who recognized Martin from the neighborhood, identified Martin as the man who shot

him after a struggle in which Pinnix had an excellent opportunity to view his assailant, and a video

recording of the shooting which corroborated Pinnix’s account and showed a man who looked like

Martin pointing a gun. Ballistics tests also showed that the gun that shot a bullet into Pinnix also shot

a bullet into Williams about three weeks before the shooting of Pinnix, and Williams identified Martin

as the man who shot him. The State also presented Byers’s testimony that Martin offered to give

Pinnix money and marijuana if he would refuse to testify against Martin. Most significantly, Byers

testified that Martin confessed to Byers that Martin shot Pinnix after trying to rob him. The

aforementioned admissible evidence overwhelmingly shows that Martin attempted to commit both

armed robbery and first degree murder on February 4, 2006. Because Martin has not established a

                                                 - 10 -
1-08-3588


reasonable probability that he would have achieved a better result if defense counsel had not erred,

Martin has not shown that he received ineffective assistance of counsel.

        Neither can we find that plain error analysis warrants reversal. To find plain error, we must

find either that the error could have changed the outcome of a case with closely balanced evidence,

or it “affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.”

People v. Herron, 215 Ill. 2d 167, 187 (2005). Martin does not argue that the error here challenged

the integrity of the judicial process. Instead, he argues that the evidence that he committed the

offenses balanced closely against the evidence that Pinnix misidentified him as the offender, stressing

that marijuana and alcohol severely affected Pinnix’s perception at the time of the fight, and he lied

under oath about that influence, and police used a suggestive photo array to induce Pinnix and

Williams to identify Martin as the man who shot them. The trial court found Pinnix’s identification

of Martin credible because he had no motive to lie, and the court found the photo array not

impermissibly suggestive. We agree. We find the admissible evidence against Martin overwhelming,

and therefore we find no plain error. See Herron, 215 Ill. 2d at 187.

                                             CONCLUSION

        The trial court properly allowed Williams to testify that Martin shot him on January 14, 2006,

because that testimony, with evidence that the gun used against Williams also shot the bullet that hit

Pinnix, helped identify Martin as the perpetrator of the offense against Pinnix. The record shows no

inappropriate use of Byers’s testimony that he told Pinnix about Martin’s offer, or that he told Martin

that Pinnix accepted. The trial court also made no inappropriate use of evidence that Pinnix spoke

with Hammond about Martin’s offer. Finally, the State violated Martin’s right to counsel when it

                                                  - 11 -
1-08-3588


used its agent, Pinnix, to elicit incriminating statements from Martin. However, we find that the

evidence the State obtained did not affect the result here because the admissible evidence

overwhelmingly proved Martin’s guilt. Therefore, we affirm the trial court’s judgment.

       Affirmed.




                                             - 12 -
