                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Wilson, 2012 IL App (1st) 092910




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DARRIUS WILSON, Defendant-Appellant.



District & No.             First District, Fourth Division
                           Docket No. 1-09-2910


Filed                      February 9, 2012
Rehearing denied           March 12, 2012
Held                       Defendant’s convictions for aggravated unlawful use of a weapon and
(Note: This syllabus       unlawful use of a weapon were reversed on the ground that the trial court
constitutes no part of     denied defendant his right to present a defense and cross-examine
the opinion of the court   witnesses when defense counsel was prevented from introducing records
but has been prepared      resulting from an investigation initiated to determine whether proper
by the Reporter of         police procedures were followed by the police officers involved in
Decisions for the          defendant’s apprehension and prosecution, especially when those records
convenience of the         demonstrated bias and a motive to testify falsely on the part of those
reader.)
                           officers and the exclusion of the evidence was not harmless.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-03618; the
Review                     Hon. Lawrence Flood, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                  Michael J. Pelletier and Alan D. Goldberg, both of State Appellate
Appeal                      Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter
                            Fisher, and Kathleen Warnick, Assistant State’s Attorneys, of counsel),
                            for the People.


Panel                       PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                            opinion.
                            Justice Pucinski concurred in the judgment and opinion.
                            Justice Sterba dissented, with opinion.



                                              OPINION

¶1           Following a jury trial, defendant Darrius Wilson was found guilty of aggravated unlawful
        use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2008)) and unlawful use of a weapon (720
        ILCS 5/24-1(a)(4) (West 2008)), and not guilty of aggravated assault (720 ILCS 5/12-2(a)(6)
        (West 2008)). For the charges on which he was convicted, defendant was respectively
        sentenced to two and three years’ imprisonment, to be served concurrently. On appeal,
        defendant contends that: (1) the trial court denied his right to present a defense and cross-
        examine witnesses when it prevented defense counsel from introducing Independent Police
        Review Authority (IPRA) records to demonstrate bias and motive to testify falsely; (2) the
        trial court violated defendant’s right to confront witnesses when it prevented defense counsel
        from “refreshing a witness’ recollection in order to impeach”; and (3) his conviction for
        aggravated unlawful use of a weapon must be vacated under the one-act, one-crime rule.

¶2                                        I. BACKGROUND
¶3          At trial, Bennie Parker first testified on behalf of the State. He testified that on January
        22, 2008, he was working as a security aide stationed at a metal detector in Wendell Phillips
        High School in Chicago. Two other security aides and Chicago police officer Anthony Davis
        were also present. At around 7 a.m. that morning, Parker observed that defendant was
        wearing a baggy, black coat, gray-hooded sweatshirt, and dark blue jeans. Because defendant
        set off the metal detector twice, Parker decided to conduct a search and asked defendant to
        raise his arms. During the search, Parker felt an object in defendant’s left hand. Defendant’s
        hands were not visible due to his clothing. Parker testified, “I felt something like a gun. I felt
        around, felt the hammer.” At that moment, Parker grabbed defendant’s wrist and brought it
        down to the ground and yelled “gun” to warn security and the other students. Defendant
        pulled away from Parker and fled from the school building.


                                                   -2-
¶4       Parker and Officer Davis pursued defendant. Outside of the school, Parker got into his
     car while Officer Davis chased defendant on foot. Parker picked Officer Davis up during the
     pursuit and temporarily lost sight of defendant until they saw defendant enter a Green Line
     El station at 43rd Street and South Indiana Avenue. Officer Davis exited the car and
     confronted defendant. Parker heard Officer Davis yell, “police” while telling defendant to
     “drop it and get on the ground” approximately three or four times. Parker then testified he
     saw defendant “drawing out of his waist a silver object *** facing Officer Davis.” Parker
     described the silver object as a “small silver semi-gun, a small metal gun.” Parker saw
     defendant “to try to point the gun towards Officer Davis.” Parker drove away from the station
     because he “knew that somebody was going to get shot.” He heard two or three shots, turned
     around, and saw defendant facedown with Officer Davis on top of him. Moments later,
     Parker saw Officers Hosley and Kelly arrive. Officer Hosley retrieved defendant’s gun,
     which was on the ground.1
¶5       During cross-examination, Parker stated that he had searched defendant on other days
     prior to the incident in question when “[s]omething real small maybe from his belt or a game
     boy,” had set off the metal detectors. Parker initially thought the object he discovered in
     defendant’s possession on the day of the incident could have been a Sony PlayStation
     Portable (PSP), a handheld videogame console, which defendant had previously brought to
     school.
¶6       Defense counsel also elicited testimony from Parker that he saw “[d]efendant putting
     something in his waist” during the chase. Defense counsel then asked Parker if he spoke to
     an Investigator Delaney on January 22, 2008, but Parker replied, “I spoke with a lot of
     detectives, so I don’t recall this particular detective.” A brief sidebar then occurred, with
     defense counsel requesting to use the IPRA records to refresh Parker’s recollection, which
     the trial court denied.
¶7       Lisa Gilbert, a latent print examiner for the Illinois State Police, testified that the gun,
     bullets, cartridges, and magazine recovered from defendant did not produce any latent prints
     suitable for a meaningful comparison, while still allowing that the lack of intact latent prints
     did not necessarily mean the weapon was never handled, since the leaving of a print on any
     given object is subject to highly variable circumstances.
¶8       Officer Anthony Davis testified that he was working off duty as a security guard at
     Wendell Phillips High School, wearing civilian clothing, with his badge dangling around his
     neck. At one point, Officer Davis heard a metal detector go off and then saw Parker doing
     a pat down of defendant. Officer Davis heard Parker yell that defendant had a gun and saw
     him turn and run out a door. Officer Davis called 911 and pursued defendant for several
     blocks on foot before getting into Parker’s car. The two briefly lost sight of defendant before
     seeing him walking toward an El train station on 43rd Street.


             1
              Officer Hosley was subpoenaed but did not testify at trial. It was later revealed he was out
     of the country for a period of time and did not receive the subpoena. Furthermore, for unspecified
     reasons, Officer Hosley was stripped of his duties, was not allowed to testify unless “forced to,” and
     was on furlough during the trial dates.

                                                  -3-
¶9         Officer Davis exited Parker’s car and entered the train station, where he saw defendant
       standing by a farecard vending machine. At that time, defendant’s back faced Officer Davis,
       who identified himself as a police officer and told defendant to put his hands up. Defendant
       turned around and reached for the right side of his waist. From this vantage point, Officer
       Davis saw a gun in defendant’s waist, prompting him to again tell defendant to put his hands
       up. Defendant then attempted to pull the gun from his waist, causing Officer Davis to fire his
       gun “for fear of [his] life and the life of others.” After the gun shot, defendant attempted to
       go behind a nearby pillar. Officer Davis repeated his instruction for defendant to stop and put
       his hands up. Because defendant did not comply and still had his hands on his gun, Officer
       Davis fired his gun two more times. At that point, defendant fell to the ground and a gun fell
       to his side, on the ground. Officer Davis approached defendant and secured him. Although
       Officer Davis testified that an ambulance and other police personnel arrived, he did not see
       who picked up defendant’s gun.
¶ 10       On cross-examination, Officer Davis stated that defendant only “attempted” to pull his
       gun out of his waistband and that the gun never left the waistband. Defense counsel then
       elicited testimony from Officer Davis that he was present for an “interview” in November
       2008, where Officer Davis was asked, “What did [defendant] do?” During that interview,
       Officer Davis answered, “He turned and faced me. He tried to go to the station, and I told
       him again to drop the gun. At that point he reached in his waistband and pulled the gun out.”
¶ 11       Sergeant Tony Brown testified next. On January 22, 2008, Sergeant Brown responded
       to a call at approximately 8:25 a.m. at an El train station on 43rd Street. Upon arriving, he
       saw Officer Hosley, who informed Sergeant Brown that he had recovered a gun. In order to
       secure it, the two went into Brown’s police car, where Brown “cleared” the gun, by removing
       the magazine and unchambering a round.
¶ 12       During cross-examination, Brown stated that, generally, gloves and a weapon recovery
       kit should be used if a gun is found at a crime scene. He conceded that a weapon recovery
       kit was not used in this instance and that he handled the gun without gloves. On redirect
       examination, Sergeant Brown stated that when a loaded gun is still within reach of a suspect
       or in the vicinity of civilians, a weapon recovery kit is not required to be used in securing the
       gun, because of the intrinsic safety considerations.
¶ 13       Fred Heidemann was the evidence technician on the day of the incident. He described the
       manner in which the evidence was collected from the crime scene, including receiving
       defendant’s gun, magazine and bullets from Officer Hosley and inventorying them. He stated
       that he did not see a PSP at any time while collecting and inventorying evidence. The State
       then rested its case.
¶ 14       Maxine Clark, defendant’s mother, was the first witness to testify on behalf of defendant.
       She stated defendant owned a PSP which he took out of the house everyday, including the
       morning of January 22, 2008. She acknowledged, however, that she was not with defendant
       when he was at the school or at the train station.
¶ 15       Tyrone Porter testified that on the morning of the incident, he was outside a store across
       the street from the 43rd Street El station. He heard “hollering” across the street which caught
       his attention. He testified that someone was saying, “Get down, get on the wall, get on the


                                                 -4-
       wall,” and a contemporaneous gunshot. Prior to the gunshot, Porter did not see defendant
       reach for anything in his waistband. After the first shot, defendant did not fall but began
       turning to a wall. Porter stated that the yelling continued and, after hearing another shot, he
       saw defendant fall to the ground. Porter did not see anything on the ground next to defendant.
       After the shooting, Porter saw the shooter get into a car with another individual. The two left
       for 10 to 15 minutes before returning. Porter stated that the shooting officer “smirked” after
       coming back.
¶ 16       On cross-examination, Porter acknowledged that he was across the street while
       witnessing the incident. He also denied he heard the shooter say “drop it.” The State then
       presented a written statement given to Sergio Seritello, a private investigator, by Porter
       which indicated that he heard the shooter say, “Drop it, drop it.” Porter, however, denied
       making this statement. When confronted with the written statement itself, Porter confirmed
       his signature on the statement but continued to deny that he stated he heard the shooter say
       “drop it” at any time. It was later stipulated that Seritello would testify that Porter stated to
       him that a man in front of the 43rd Street station shouted, “Drop it, drop it,” during the
       incident.
¶ 17       Frederick Stinson testified that on the day of the shooting, he was employed by the
       Chicago Transit Authority at the 43rd Street station. While Stinson was walking toward a
       booth, he saw a young man walk into the station. Shortly after entering a booth near the
       entrance of the station, he saw another man run into the station with a gun. Stinson dropped
       to the floor and heard him say, “[P]ut your hands up, put your hands up.” Stinson made an
       emergency transmission on his radio and then heard gunshots. Stinson remained in the booth
       for several minutes before exiting and talking to some people. At some point afterward, he
       saw a young man on the ground but did not see anything around him.
¶ 18       After the defense rested its case, Eric Osborne was called as a rebuttal witness by the
       State. Osborne testified that he was a paramedic that responded to the shooting of defendant
       on January 22, 2008. Defendant’s clothing was cut off and removed during the course of
       treatment, and Osborne stated that no PSP was present.
¶ 19       The jury found defendant not guilty of aggravated assault, but found him guilty of
       unlawful use of a weapon (firearm on school grounds) and aggravated unlawful use of a
       weapon (uncased, loaded, and accessible firearm). Defendant now timely appeals.

¶ 20                                      II. ANALYSIS
¶ 21                                  A. IPRA Investigations
¶ 22       Defendant first contends that the trial court denied his right to present a defense and to
       examine witnesses when it precluded him from utilizing IPRA records on cross-examination
       to demonstrate State witnesses’ bias and motive to testify falsely. Prior to trial, defendant
       presented a motion in limine to admit evidence of IPRA investigations involving Officer
       Hosley, Sergeant Brown, and Officer Davis, which were initiated to determine whether
       proper police procedure was followed. Officer Davis’s investigation involved the shooting
       of defendant and the investigations involving Officer Hosley and Sergeant Brown related to
       the handling of the gun at the crime scene. Defendant’s motion was ultimately denied.

                                                 -5-
¶ 23        As a threshold matter, we note that the parties dispute the applicable standard of review.
       Defendant asserts that this court must review his contention under a de novo standard of
       review, whereas the State asserts we must view the trial court’s decision under an abuse of
       discretion standard. Defendant argues that the trial court “completely denied [defendant] the
       opportunity to cross-examine on witness interest or bias,” and thus de novo review applies.
       See People v. Nutall, 312 Ill. App. 3d 620, 627 (2000) (stating that “the right of cross-
       examination is not subject to the court’s discretion”). We disagree. After reviewing the
       discussion during the hearing on the motion in limine and resulting proceedings, we find
       nothing to indicate that the trial court denied defendant the opportunity to cross-examine for
       bias. In fact, the trial court acknowledged during a hearing on the motion that bias and
       interest to testify falsely are “always relevant, but the question is the evidence that you want
       to introduce to establish that bias or interest or prejudice, whether or not that’s really relevant
       to that particular issue.” Furthermore, the trial court explicitly stated it was denying the
       “motion to admit the evidence regarding the IPRA investigations,” but stated that it could
       be used for impeachment and that trial testimony could possibly open the door to the
       evidence.
¶ 24        In our view, the trial court simply denied defendant’s motion in limine, thereby limiting
       the scope of whatever cross-examination defendant wished to offer. Defendant was still
       afforded the opportunity to cross-examine witnesses on any relevant matters, including
       interest or bias, albeit without the IPRA records. As a general matter, “a decision on an
       evidentiary motion, such as a motion in limine, is committed to the trial court’s discretion.”
       People v. Nelson, 235 Ill. 2d 386, 420 (2009). Furthermore, it is well established that while
       a trial court may not deprive a defendant of the right to question witnesses, it may limit the
       scope of cross-examination under its discretionary powers. People v. Stokes, 392 Ill. App.
       3d 335, 340 (2009). Accordingly, we will not reverse the trial court’s determinations here
       absent an abuse of discretion. Nelson, 235 Ill. 2d at 420.
¶ 25        As stated, defendant filed a motion to admit evidence from IPRA investigations related
       to the instant case regarding the handling of the gun and the shooting of defendant, in order
       to support his theory that he was unarmed and that the weapon was planted by police.
       Defendant also subpoenaed documents related to the investigations, which the court
       reviewed in camera. After reviewing the documents, the trial court heard arguments by both
       parties regarding the motion on June 1, 2009. Defense counsel argued that the IPRA
       proceedings were relevant to motive, bias and interest to testify falsely. It was further argued
       that despite the fact the IPRA investigations were still ongoing, because the officers involved
       were “under the microscope,” the investigations could nevertheless color their testimony.
       The State argued that there was no relevance because of the pending nature of the
       investigation, also asserting that such investigations are routinely initiated in a case involving
       a police shooting. The trial court generally agreed with the State’s observations and denied
       defendant’s motion, although it stated that statements given by a witness during an IPRA
       investigation could be used for impeachment. After Parker’s testimony, defense counsel
       indicated that it received a message that the allegations against Sergeant Brown had been
       “sustained” regarding the handling of the gun. The trial court did not alter its ruling, stating
       that there was still no detail as to what was actually “sustained,” and that the finding could

                                                  -6-
       be based on some technical rule application or other internal procedure that was not
       followed.
¶ 26        Defendant argues on appeal that the trial court erred in preventing defense counsel from
       utilizing the IPRA records related to the shooting to show Officer Davis’s and Sergeant
       Brown’s motive, bias and interest to testify falsely. We agree. Part of a defendant’s
       fundamental, constitutional right to confront witnesses against him includes a right to inquire
       into a witness’s bias, interest, or motive to testify falsely. People v. Nelson, 235 Ill. 2d 386,
       420 (2009). The widest latitude should be given the defense on cross-examination when
       trying to establish a witness’s bias or motive. People v. Wilkerson, 87 Ill. 2d 151, 156 (1981).
       The evidence used in this manner must give rise to the inference that the witness has
       something to lose or gain by testifying. People v. Buckner, 376 Ill. App. 3d 251, 255 (2007).
       Accordingly, the evidence must not be remote or uncertain. Nelson, 235 Ill. 2d at 421.
¶ 27        The parties properly direct this court’s attention to two cases in support of their
       arguments. The State seeks legal refuge in People v. Williams, 267 Ill. App. 3d 82 (1994),
       in which a defendant was involved in a traffic stop that culminated in her being charged with
       battery and resisting arrest. At trial, the defendant wished to present evidence of one officer’s
       training and disciplinary record. She argued that the involved officer exhibited “odd
       behavior” before and during the traffic stop which may have “reflected a serious discipline
       problem,” and thus he may have been motivated to testify falsely regarding the stop to avoid
       another disciplinary incident. Id. at 86-87. The trial court rejected this argument and denied
       defendant’s request. The Second District affirmed, finding that the officer’s veracity
       regarding the procedures followed pursuant to a traffic stop was irrelevant to defendant’s
       actions after the stop, i.e., battery and resisting arrest. Id. at 87-88.
¶ 28        Defendant, on the other hand, points to People v. Averhart, 311 Ill. App. 3d 492 (1999),
       where a defendant was arrested by a police officer for possession of a controlled substance.
       Almost a year prior to that arrest, however, the defendant was arrested by the same police
       officer in an unrelated matter where a scuffle ensued, causing both him and the officer to
       become injured. Defendant had filed a complaint with the Office of Professional Standards
       (OPS), the IPRA’s predecessor, alleging physical abuse, verbal abuse, and false arrest. The
       complaint against the officer was “not sustained,” and defendant was ultimately found not
       guilty of the underlying possession charge. At defendant’s second trial, defendant wished to
       introduce evidence of the prior OPS complaint to show possible bias or motive that might
       color the officer’s testimony. The trial court, however, precluded the defendant from cross-
       examining the officer regarding the specifics of the OPS complaint.
¶ 29        This court reversed the trial court’s determination. After observing that the trial’s
       outcome turned almost entirely on credibility determinations, this court held that the OPS
       complaint from a prior arrest was very relevant in showing bias or motive in the officer’s
       testimony. Id. at 499. Furthermore, because part of the defendant’s theory at trial was that the
       officer had planted evidence to effect an arrest, it was noted that evidence showing motive
       to testify falsely could not be called collateral and the defendant had a right to develop his
       theory. Id. at 501.
¶ 30        We first observe that Williams is readily distinguishable from the instant case. That


                                                 -7-
       officer’s disciplinary record had no factual relevancy to the incident the defendant was
       involved in, thus making the evidence remote and collateral. We also agree with the
       observation that whether the officer followed procedure in effectuating the traffic stop has
       little relevance as to whether defendant ultimately committed a battery and resisted arrest.
       The State, however, argues that the instant case is similar to Williams because the handling
       of the gun was merely collateral to defendant’s guilt. We disagree. Essential to defendant’s
       theory of the case was that the gun was purposely planted and then mishandled in an effort
       to justify police conduct. Accordingly, evidence and testimony relating to whether the gun
       was planted or in defendant’s possession cannot be said to be merely collateral.
¶ 31        Contrarily, the circumstances of the instant case bear a close resemblance to Averhart.
       Both this case and Averhart involve allegations that evidence was possibly planted by
       officers that served as key State witnesses. Both cases lack significant physical evidence,
       with the respective outcomes relying heavily on credibility determinations by a jury. We also
       note that the IPRA investigations here, like the OPS investigation in Averhart, involved both
       the testifying officers and defendant at trial. Perhaps the only meaningful difference is that
       in Averhart, the OPS complaint related to a prior incident as opposed to the one at trial.
¶ 32        Furthermore, in applying the legal principles stated above, we also conclude that the
       IPRA investigations give rise to the requisite inference that the witness has something to lose
       or gain by testifying. See Buckner, 376 Ill. App. 3d at 255. The IPRA investigations involved
       the same incident at trial, with the outcomes relying heavily on the testifying officers’
       portrayal of events. For obvious reasons, if an officer subjected to an IPRA investigation
       provides a statement to an investigator, that same officer could be motivated to testify
       consistently at a trial regarding the same incident to maintain his or her credibility. Here, the
       defense theory was essentially that a police officer shot an unarmed defendant, planted a gun
       near him and then mishandled the gun to justify the lack of defendant’s fingerprints. The
       IPRA investigations concerning Officer Davis and Sergeant Brown, respectively, related to
       the shooting of defendant and the mishandling of the gun. In that sense, the evidence here is
       more compelling than the OPS investigation in Averhart because these investigations related
       directly to the incident at trial. For the reasons stated above, we find that the evidence is not
       remote or uncertain, and is hardly collateral to defendant’s theory of the case. See Averhart,
       311 Ill. App. 3d at 502.
¶ 33        The State has suggested that it would be improper to admit the evidence because the
       investigations were ongoing at the time and that it is “natural” for such investigations to be
       opened in police shooting cases. We disagree. We note that despite a “not sustained” finding
       in the OPS investigation in Averhart, this court nevertheless considered the investigation
       relevant to bias and motive. Averhart, 311 Ill. App. 3d at 504-05. We would find similarly
       here, because evidence of the IPRA investigations was not being offered for its truth; rather,
       it was being offered to show a witness’s potential motivation to testify falsely. Furthermore,
       we believe a witness would likely be motivated to testify consistently regardless of the
       outcome of the IPRA investigation. Next, although these investigations might be a “natural”
       occurrence, such an argument is more appropriate in determining the probative weight of the
       evidence, and not its relevancy or admissibility. Accordingly, given defendant’s theory of the
       case, as well as the close relation between the IPRA investigations, the witnesses at trial, and

                                                 -8-
       the incident that precipitated the trial, we would find that it was an abuse of discretion for the
       trial court to preclude defense counsel from introducing the IPRA investigations to show
       possible bias or motive to testify falsely.
¶ 34        The State argues that even if an error occurred, any error was harmless. Our supreme
       court has held the burden is on the State to establish beyond a reasonable doubt that
       infringement of a defendant’s constitutional right of confrontation did not contribute to the
       outcome of the case. People v. Lofton, 194 Ill. 2d 40, 61 (2000). The State, however, simply
       argues that the jury was made sufficiently aware of the IPRA investigations through cross-
       examination. We disagree. Defendant was only allowed to use isolated statements given
       during the course of the IPRA investigations for the purposes of impeachment. Defense
       counsel, however, was precluded from explaining the context of these statements, that is, that
       they were given pursuant to an independent and separate internal investigation on the
       propriety of the testifying witness’s conduct. Again, this is similar to Averhart, where this
       court found it insufficient that the jury was aware of an OPS investigation but was not made
       aware of the factual underpinnings of it.
¶ 35        Furthermore, we reiterate that there is a distinct lack of any physical evidence in this case.
       Officer Davis was the only individual to witness the gun fall from defendant after the
       shooting. Although Parker also connected defendant to a gun, his ability to observe was
       limited as his conclusions were based on feeling an object under defendant’s clothing and
       events he saw while driving a vehicle during a chase. The jury also did not appear to totally
       accept Parker’s testimony. Although Parker stated he saw defendant pulling out a gun from
       his waistband in the train station, mere feet from Officer Davis, defendant was nevertheless
       found not guilty of aggravated assault. Added to this, another witness testified that he never
       saw a gun at the scene and the gun lacked any identifiable prints. Finally, we find it would
       be circular to conclude that evidence here was overwhelming where the evidence is based
       on witness credibility, which the error directly affects. Accordingly, we find that the error
       was not harmless and we reverse on this issue.

¶ 36                        B. Officer Davis–Excessive Force Complaint
¶ 37       Defendant also appears to advance a related claim that the trial court improperly excluded
       evidence of a prior excessive force claim against Officer Davis mentioned in an OPS report.
       As an initial matter, we note that the State has correctly argued that defendant has forfeited
       this issue by failing to: (1) object to the judgment and sentence on both counts; and (2) raise
       the instant issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988).
       Defendant, however, also correctly concedes that this issue may be reviewed under the plain
       error doctrine. See People v. Harvey, 211 Ill. 2d 368, 389 (2004). Under the plain error
       doctrine, we will review unpreserved error when either: (1) the evidence is closely balanced,
       regardless of the seriousness of the error; or (2) the error is serious, regardless of the
       closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The first step
       of plain error analysis, however, is deciding whether any error has occurred. People v.
       Walker, 232 Ill. 2d 113, 124-25 (2009). If an error is deemed to have occurred, only then do
       we turn to the prongs of the plain error analysis.


                                                  -9-
¶ 38       Unlike the IPRA investigations discussed above, we do not see the relevancy of this OPS
       complaint. As stated above, evidence offered to show bias and motive must not be remote
       or uncertain. Nelson, 235 Ill. 2d at 421. The report, however, indicates that the complainant
       in the OPS investigation was not defendant, does not relate to the incident in the instant
       case’s trial in any way, concerns a claim (excessive force) dissimilar from the one at hand,
       and was concluded well over a year prior to defendant’s trial. Furthermore, given the lack of
       any relation to the case sub judice, we find nothing to create an inference that Officer Davis
       may have something to gain or lose in relation to the excessive force complaint by testifying
       here. Finally, the only reference to this OPS complaint in the record is when the State asked
       during a hearing on a motion in limine if defense counsel was seeking to introduce it. No
       response was given. Defendant’s motion in limine to introduce the above-discussed IPRA
       investigations did not mention the OPS complaint. Accordingly, it appears that the trial court
       did not even rule on this issue. For these reasons, we find that no error occurred here. Unless
       defendant is somehow able to establish the relevancy of the OPS report on retrial, we find
       that it would remain inadmissible to show bias or motive on the part of Officer Davis.

¶ 39                   C. Parker–Refreshing Recollection and Impeachment
¶ 40       Although we have reversed on the first issue, we are inclined to address defendant’s next
       contention, as it may arise on retrial. Defendant next contends that defense counsel was
       improperly precluded from “refreshing [Parker’s] recollection in order to impeach” him.
       During Parker’s cross-examination, he was asked by defense counsel if he saw defendant
       “remove anything from his sleeve and put it in his waist.” Parker responded, “I saw him
       moving around when he was running, I seen the Defendant putting something in his waist,
       yes.” Defense counsel then asked Parker whether he had told Investigator Delaney (who was
       involved in the IPRA investigations) this factual detail. Parker stated he did not recall. A
       sidebar was then held, where the following took place:
               “MS. SCHOR: Your Honor, we knew this was going to come up about Investigator
           Delaney–I left out the word independent police review according to your ruling
           (inaudible).
               THE COURT: Okay.
               MS. SCHOR: However, the investigator, I can’t call the defendant–I can’t call him,
           Delaney. But he’s not understanding who I’m speaking of. I would like to refresh his
           recollection about going through the independent police review authority and talking–
               MS. PARA [Assistant State’s Attorney]: It is not impeaching because he’s not
           testified that [sic]. He did not speak to him, his testimony is that he spoke with a lot of
           people that day and he did not remember all of their names.
                                                ***
               THE COURT: It’s not a prior inconsistent statement.
               MS. SCHOR: Your Honor–
               THE COURT: It’s improper refreshing your recollection also. Okay.
               MS. SCHOR: So I cannot?

                                                -10-
                THE COURT: He said he doesn’t know. Okay.
                MS. SCHOR: So I can’t refresh his recollection?
                THE COURT: No. Because you can’t refresh his recollection.”
¶ 41       After the sidebar, defense counsel then asked, “Did you tell a Richard Delaney in Area
       Two at 12:00 on January 22nd *** that you saw [defendant] remove something from his
       wrist and make a movement towards his waist?” Parker responded, “I don’t recall, Ma’am,
       because we were in the police station all day from that time of the incident happened until,
       what, 5:00 or 6:00 that evening.” Defense counsel then asked if anything would refresh
       Parker’s recollection regarding what he told Delaney but the trial court sustained the State’s
       subsequent objection to the question.
¶ 42       Here, it appears that two distinct evidentiary concepts were being intertwined at trial:
       impeachment and refreshing a recollection. After a review of the relevant IPRA statement,
       we can conclude that defense counsel sought to impeach Parker by omission by attempting
       to show that he had omitted a factual detail during an earlier interview with an investigator.
       Impeachment by omission of facts may be used where a witness had the opportunity to make
       a statement about the omitted facts and, under the circumstances, a reasonable person
       ordinarily would have included the facts. People v. McWhite, 399 Ill. App. 3d 637, 643
       (2010). Parker, however, was unable to recall if he had even spoken to Delaney. Accordingly,
       to impeach Parker, defense counsel was first required to refresh Parker’s recollection on this
       matter. The relevant question before us is whether the trial court abused its discretion in
       regard to defense counsel’s manner and mode of attempting to refresh Parker’s recollection.
       See People v. Connolly, 322 Ill. App. 3d 905, 921 (2001).
¶ 43       We find no abuse of discretion here. Although it is unclear why the trial court stated,
       “Because you can’t refresh his recollection,” it nevertheless appears that the trial court was
       not satisfied with the manner in which defense counsel was attempting to lay a foundation
       for refreshing Parker’s recollection or impeachment. Defense counsel asked Parker if he had
       made a particular statement to Delaney on a particular date, with Parker responding that he
       did not recall. In People v. Shatner, 174 Ill. 2d 133 (1996), our supreme court held that a
       witness’s inability to “recall making one particular statement to a police detective” is, by
       itself, “not sufficient to fulfill the foundational requirement that the witness’s memory had
       been exhausted.” Shatner, 174 Ill. 2d at 153-54. Defense counsel here only established that
       Parker did not recall making a statement to Delaney and asked no other questions on the
       matter to explore whether Parker’s memory had been exhausted. The trial court, consistent
       with Shatner, found this to be insufficient. Furthermore, even if this court believes that
       another trial court may have decided differently under the circumstances, we will not
       substitute our judgment for a trial court’s discretionary decision unless the decision is
       “arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court’s
       view.” People v. Ward, 2011 IL 108690, ¶ 21. We do not find that the trial court’s holding
       resembles such a decision.
¶ 44       We note that defendant also argues that the trial court’s ruling was “curious” because
       defense counsel was later permitted to refresh Officer Davis’s and Sergeant Brown’s
       recollection with IPRA records. In both instances, however, the witness being cross-


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       examined stated that he remembered the specific interview but did not recall a particular
       detail, and that a transcript of the interview would refresh his recollection. A similar
       exchange did not occur during Parker’s cross-examination and thus we find no inconsistency
       in the trial court’s discretion. In sum, while we find that the IPRA records could have been
       used to refresh Parker’s recollection or impeach him (as they were used with Officer Davis
       and Sergeant Brown), they can only be used in such a way after a proper foundation is laid.

¶ 45                                    D. Double Jeopardy
¶ 46        Because we reverse on the grounds stated above, we are now bound to consider the
       double jeopardy implications of our finding that the denial of defendant’s right to present the
       IPRA record on cross-examination warrants reversal. The double jeopardy clause prohibits
       retrial for the purpose of affording the prosecution another opportunity to supply evidence
       which it failed to present in the first proceeding. Burks v. United States, 437 U.S. 1, 11
       (1978). It does not, however, preclude retrial where a conviction has been set aside because
       of an error in the proceedings leading to the conviction. People v. Mink, 141 Ill. 2d 163, 173-
       74 (1990). Furthermore, “retrial is permitted even though evidence is insufficient to sustain
       a verdict once erroneously admitted evidence has been discounted, and for the purposes of
       double jeopardy all evidence submitted at the original trial may be considered when
       determining the sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995)
       (citing Lockhart v. Nelson, 488 U.S. 33 (1988)).
¶ 47        When reviewing the sufficiency of the evidence, the appropriate standard of review is
       whether, after viewing the evidence in the light most favorable to the prosecution, any
       rational trier of fact could have found the essential elements of the offense were proven
       beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217 (2002) (quoting Jackson
       v. Virginia, 443 U.S. 307, 318-19 (1979)). After viewing the relevant evidence in the light
       most favorable to the State, we conclude that a rational trier of fact could have found
       defendant guilty of the charges. However, this determination is not binding on retrial and is
       not intended to express an opinion concerning defendant’s guilt or innocence. Accordingly,
       we find no double jeopardy impediment to retrial.

¶ 48                                   III. CONCLUSION
¶ 49       Because we have reversed on the first issue, we find that defendant’s alternative
       contention that his aggravated unlawful use of a weapon conviction must be vacated under
       the one-act, one-crime doctrine is moot. For the foregoing reasons we reverse the judgment
       of the trial court of Cook County and remand for further proceedings.

¶ 50      Reversed and remanded.

¶ 51      JUSTICE STERBA, dissenting:
¶ 52      I cannot join in today’s decision because, while I agree with the majority that the trial
       court erred in precluding defense counsel from introducing evidence of the IPRA

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       investigations to show possible witness bias or motive to testify falsely, I believe the error
       was harmless. Accordingly, I would affirm the judgment of the trial court.
¶ 53       As an initial matter, I disagree with the majority’s conclusion that because the trial
       court’s ruling did not deny defendant the opportunity to cross-examine the witness for bias,
       but merely limited the scope of such examination, the ruling is subject to an abuse of
       discretion standard of review. As the majority acknowledges, a defendant has a constitutional
       right to inquire into bias, interest, or any potential motive of a witness to testify falsely. The
       exposure of a witness’s motive in testifying is an important component of the constitutionally
       protected right of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).
       Moreover, I agree with the majority that evidence related to the IPRA investigations was
       relevant to defendant’s theory of the case, namely, that the gun was purposely planted and
       then mishandled in an effort to justify police conduct. The majority also correctly points out
       that defendant was not completely denied the opportunity to cross-examine on witness
       interest or motive to testify falsely.
¶ 54       However, as this court noted in Averhart, the discretionary authority of the trial court to
       limit the scope of cross-examination does not come into play unless the court has first
       permitted sufficient cross-examination to satisfy the confrontation clause. Averhart, 311 Ill.
       App. 3d at 497. The test to determine constitutional sufficiency is whether the “limitation on
       cross-examination created a substantial danger of prejudice by denying defendant his right
       to test the truth of the testimony.” Id. In order to preserve a defendant’s constitutional right
       to confront the witnesses against him, a trial court should consider whether barring the
       evidence would result, for all practical purposes, in an evisceration of the defendant’s theory
       of the case. Id. When making the initial determination of whether a confrontation clause
       violation has occurred, the focus is on the individual witness, not on the outcome of the
       entire trial. Van Arsdall, 475 U.S. at 680.
¶ 55       The decision of the trial court to bar evidence of the IPRA investigations hindered
       defendant’s ability to demonstrate interest or motive on the part of a witness to testify falsely
       and had the potential to eviscerate his theory of the case. Moreover, between the time of the
       ruling on the motion in limine and the trial, IPRA charges against Sergeant Brown for
       mishandling the weapon were sustained, providing additional support for defendant’s theory
       of witness motive to testify falsely in order to avoid potential disciplinary action. The circuit
       court revisited this issue and upheld its earlier ruling barring any details of the IPRA
       investigations, thereby depriving defendant of his only avenue for presenting this specific
       type of impeachment evidence. The jury never heard testimony about what an IPRA
       investigation is, or that both Officer Davis and Sergeant Brown gave statements because they
       were the subjects of the investigations and not merely being interviewed as witnesses. The
       jury also never heard testimony regarding the potential consequences to either officer as a
       result of the investigations. Where a defendant shows that he is prohibited from engaging in
       otherwise appropriate cross-examination designed to show a witness’s motive in testifying,
       he has stated a confrontation clause violation. See Van Arsdall, 475 U.S. at 680. Thus, in my
       view, the trial court’s decision to bar evidence of the actual IPRA investigations constituted
       a violation of the confrontation clause and is therefore subject to a harmless error analysis.
       See People v. Patterson, 217 Ill. 2d 407, 427-28 (2005). It is axiomatic that a criminal

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       defendant is constitutionally entitled to a fair trial, not a perfect one. Van Arsdall, 475 U.S.
       at 681. Thus, not all constitutional errors require reversal of a judgment of conviction. Id.
¶ 56       The test we apply in a harmless error analysis is whether the State has met its burden of
       establishing beyond a reasonable doubt that the constitutional error did not contribute to the
       verdict obtained. Patterson, 217 Ill. 2d at 428. There are three different approaches to
       measuring harmless error: “(1) focusing on the error to determine whether it might have
       contributed to the conviction, (2) examining the other evidence in the case to see if
       overwhelming evidence supports the conviction, and (3) determining whether the improperly
       admitted [or excluded] evidence is merely cumulative or duplicates properly admitted
       evidence.” Id. The Supreme Court has noted that factors to consider in determining whether
       an error is harmless include: (1) the importance of the witness’s testimony in the
       prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence
       of evidence corroborating or contradicting the testimony of the witness on material points,
       (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the
       prosecution’s case. Van Arsdall, 475 U.S. at 684.
¶ 57       The majority concludes that the error was not harmless because, inter alia, the jury did
       not appear to completely accept Parker’s testimony. The majority goes on to explain that
       although “Parker stated he saw defendant pulling out a gun from his waistband in the train
       station, mere feet from Officer Davis,” the jury nevertheless found him not guilty of
       aggravated assault. Supra ¶ 35. While Parker did in fact testify that he saw defendant reach
       his hand toward his waist and come out with a gun, when asked if he saw defendant bring
       out the weapon, Parker replied, “Not all the way.” Parker said that he saw defendant bring
       the gun halfway out. This testimony, in the minds of the jury, may not have supported the
       aggravated assault charge as the gun was never pointed at Officer Davis or in his direction
       and, therefore, does not necessarily support the majority’s conclusion that the jury did not
       accept Parker’s testimony when it found defendant not guilty of aggravated assault.
¶ 58       The majority also concludes that the only meaningful difference between the case sub
       judice and Averhart is that in Averhart, the police investigation involved a prior incident as
       opposed to the one at trial. Supra ¶ 31. I disagree. In my view, the most important distinction
       between the investigations at issue in both cases is that in Averhart, the investigation
       involved a prior incident between the defendant and the key prosecution witness, the officer,
       and therefore was directly relevant to defendant’s theory that the officer had a grudge against
       him and a reason to frame him. Averhart, 311 Ill. App. 3d at 498. Moreover, importantly, the
       investigation in Averhart was initiated because the defendant in that case filed a complaint
       against the officer, and the defendant contended that the officer subsequently threatened to
       arrest him every time he saw him in order to get back at him for filing the complaint. Id.
       Furthermore, in Averhart, the officer suffered an injury during a struggle with the defendant
       during the prior incident at issue; and the defendant was ultimately acquitted of the earlier
       charged offense, which allegedly resulted in an escalation of the officer’s hostility toward the
       defendant. Id. Here, defendant merely wanted to use the fact that IPRA conducted routine
       investigations into the incident to show that the officers, with whom he had no prior history,
       had motive to frame him and testify falsely to cover up their alleged wrongdoing.
¶ 59       I believe that the State met its burden of establishing that the error did not contribute to

                                                -14-
       the jury’s verdict. Defendant was able to establish that IPRA conducted investigations into
       the incident. He was further allowed to question Officer Davis and Sergeant Brown about
       statements they gave to IPRA investigators. Sergeant Brown was also questioned about his
       handling of the gun. He acknowledged on cross-examination that he had not followed the
       proper procedures when he examined and unloaded the gun without wearing gloves.
       Therefore, defendant was able to introduce evidence to support his theory of the case that the
       gun was mishandled intentionally as part of the attempt to frame him.
¶ 60        Moreover, in my view, the evidence against defendant was overwhelming. Parker
       testified unequivocally that he was familiar with guns and that when he searched defendant,
       he felt the hammer of a gun. Parker shouted, “gun,” and defendant broke away from him and
       ran, evidencing his consciousness of guilt. Parker further unequivocally stated that he then
       observed defendant pull a gun halfway out of his waistband when Officer Davis confronted
       him at the El station. Parker was a security guard and not a police officer, and thus not
       subject to potential disciplinary action as a result of the IPRA investigations, so the exclusion
       of evidence relating to those investigations had no bearing on Parker’s credibility.
¶ 61        Porter, a civilian bystander, testified that he did not see defendant reach for anything and
       that he did not see anything next to defendant on the ground after the shots were fired.
       However, he also testified that he was across the street from the station, and his testimony
       did not establish the distance between his vantage point and defendant, or his angle of vision.
       Thus, Porter’s testimony that he did not see a gun or see defendant reaching for anything is
       not definitive evidence that defendant did not have a gun. In contrast, the testimony of
       Parker, who was in a position to see what was happening, carries much more weight. Porter
       was also impeached with a statement he gave to a private investigator in which he stated that
       he heard the officer say, “Drop it!” before the shots were fired, even though he testified at
       trial that he did not hear those words. Finally, the paramedic who responded to the shooting
       testified that defendant’s clothing was removed and no PSP was recovered. Thus, the
       evidence supporting defendant’s convictions was overwhelming and the error in precluding
       specific evidence related to the IPRA investigations was harmless. Because I would therefore
       affirm the judgment of the circuit court, I respectfully dissent.




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