                                                                      SIXTH DIVISION
                                                                      September 5, 2008




No.1-06-0594

THE PEOPLE OF THE STATE OF ILLINOIS,                           )   Appeal from
                                                               )   the Circuit Court
       Plaintiff-Appellee,                                     )   of Cook County
                                                               )
               v.                                              )   No. 02 CF 1617
                                                               )
TURNER REEVES,                                                 )   Honorable
                                                               )   Joseph J. Urso,
       Defendant-Appellant.                                    )   Judge Presiding.



       JUSTICE CAHILL delivered the opinion of the court:

       After a jury trial, defendant Turner Reeves was convicted of the aggravated kidnaping,

aggravated sexual assault and first-degree murder of Nassim Davoodi and the concealment of

her homicidal death. The trial court sentenced defendant to natural life in prison without parole

for murder. The court also imposed 30-year prison terms for aggravated kidnaping and

aggravated criminal sexual assault, concurrent with each other and consecutive to the natural life

sentence. Finally, the court imposed five years for the concealment of a homicidal death,

consecutive to the other sentences.

       Defendant raises six issues on appeal: (1) the State did not prove him guilty beyond a

reasonable doubt of aggravated kidnaping; (2) the State committed a discovery violation that

warrants a new trial; (3) the trial court denied defendant his right to exercise his peremptory
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challenges to prospective jurors “in a meaningful way”; (4) the trial court erred in admitting

testimony that he had a three-way sexual encounter with his friend Kristen Hill and codefendant

Skylar Chambers four days before the murder; (5) the State did not prove beyond a reasonable

doubt that defendant was death eligible, required for a sentence of natural life; and (6) the trial

court erred in imposing sentences to be served consecutive to his natural life sentence. We

affirm the convictions but vacate the consecutive sentences and order the mittimus corrected to

show that all sentences are to run concurrently.

       The record shows that on Friday, May 31, 2002, the victim's parents reported the 14-

year-old Bartlett High School freshman missing when she did not come home from school after

an early dismissal. The police investigation involved officers from the Carol Stream, Elmhurst

and Bartlett police departments. It led officers to question defendant, who gave differing

accounts of his involvement in the victim's disappearance. These accounts implicated Skylar

Chambers, who was staying at defendant's home in Hanover Park. Defendant also implicated

two others: Jarrett Curtis, his cousin and a Bartlett High School student who lived with

defendant's family, and Izabela Nagler, defendant’s former girlfriend.

       Chambers was arrested on June 3, 2002. On the same day, Carol Stream police officers

brought defendant to the police station for questioning. Defendant waived his Miranda rights

and gave several differing statements, including one on videotape. He was arrested for first-

degree murder on June 6, 2002. On defendant’s motions, the case was transferred from Du Page

to Cook County and severed from the case against Chambers.

       Defendant was represented by three different sets of attorneys: (1) Du Page County

assistant public defenders, who withdrew when the case was transferred to Cook County; (2)
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private attorney Thomas Brandstrader, who withdrew because of differences with defendant; and

(3) private attorneys Leland Shalgos and Mike Clancy, who represented defendant at trial and

sentencing. When the trial court granted the Du Page County assistant public defenders' motion

to withdraw, the trial court asked, "You have tendered everything?" Assistant Public Defender

William Padash answered in the affirmative. Brandstrader began representing defendant but the

relationship soon deteriorated. On July 7, 2005, the trial court allowed Shalgos to file an

appearance as counsel for defendant but declined to allow Brandstrader to withdraw until

Shalgos was "brought up to snuff" on the case. One week later, Shalgos told the court he had

familiarized himself with the case and reported the State had given him "an entirely new file."

At a later case management conference, Shalgos said he had read "all the transcripts" and

reviewed "all the files." Reiterating that the State had provided a new case file, Shalgos said, "I

know that I have everything. And I have reviewed everything."

       Shalgos and Clancy represented defendant at a pretrial hearing on a motion to suppress

statements on August 16, 2002. The motion alleged that defendant's statements were involuntary

because of sleep and food deprivation, intimidation and coercion. The State called Bartlett

police detective Scott Yarwood, who testified that he saw defendant sleeping at about 9:30 a.m.

on June 5, 2002, in a cell at the Bartlett police department. On cross-examination, Yarwood

admitted he did not know how long defendant had been sleeping but he said a video camera

would have recorded everything that happened in the cell. Yarwood said he did not know if the

department had kept the tapes. Defendant admitted that he had slept for four to five hours but

maintained it was not a deep sleep. The trial court denied the suppression motion, concluding

that the evidence did not show defendant had been deprived of sleep “in any meaningful way.”
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       Before jury selection, defendant proposed questions for prospective jurors, including the

following: "[T]here will be evidence of a false confession being made. Will you be willing to

evaluate the testimony of the police officers just as any other witness in this case and if you feel

the police officer [has] fabricated evidence, disregard his testimony?" The trial court ruled that

the question could not be asked as worded, but added: "You may again inquire of this. I believe

I will cover this area as to the weight that should be given to an officer's testimony or not given

to an officer's testimony. If that is not satisfactory, you may inquire."

       During voir dire, the trial judge asked prospective jurors whether they would use the

same standard to evaluate the testimony of a police officer as for other witnesses. After several

prospective jurors were questioned, defense counsel said to one: "There's going to be evidence

here of a false confession." The State objected and the trial court sustained the objection. In a

sidebar, the trial judge told defense counsel that a properly phrased question would be allowed.

The judge told defense counsel: "You may ask something to the [effect that] there may be

evidence *** of a false statement. You *** cannot presume that there is going to be evidence."

Defense counsel then told the prospective juror: "[You] may hear evidence during the course of

the trial of a false statement" made by defendant. Defense counsel then asked: "Would you be

able to evaluate [defendant's] testimony at the same level as the police officer who is taking the

opposition position?" The State objected and the trial judge sustained the objection "as to that

question." Defense counsel then ended his examination of the prospective juror and did not raise

the subject "false statement" or "false confession" again in voir dire.




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       The trial began on October 25, 2005. In opening statements, defense counsel said:

"[Y]ou will hear testimony that [defendant] was in a police station for almost 48 hours with no

sleep." "Basically, he was up for 48 hours."

       The State called 17 witnesses. Jackie Bahena, a friend of the victim, testified that she

saw Curtis introduce Chambers to the victim after school on the day before the murder. Bahena

said Chambers and the victim talked for a few minutes and when they said good-bye, Chambers

gave the victim a hug. The next day the victim at first hid from Chambers after school, but the

victim apparently changed her mind and approached Chambers. The victim then walked away

with Chambers and Curtis. Bahena said when she last saw the victim, she was holding open

defendant’s car door as if she were about to get in. On cross-examination, Bahena said the

victim did not want to approach Chambers at first on the day of the murder, but she did so freely

when he appeared about 20 feet away from where she was hiding.

       Jarrett Curtis testified for the State as a subpoenaed witness. Curtis said he usually took

the bus to and from school but defendant would pick him up "every blue moon." He said

defendant and Chambers unexpectedly picked him up from school in defendant's car on the day

before the murder. Chambers asked to be introduced to the victim and Curtis did so. Chambers

offered the victim a ride home, but she refused, saying Chambers could talk to her the next day.

       Curtis said when school was dismissed at 12:40 p.m. the next day, defendant and

Chambers were again at the school. Chambers again offered the victim a ride home. After the

victim accepted the ride, Chambers said they would be going to a mall instead of taking the

victim home and the victim agreed. Curtis sat in a front seat, defendant drove and Chambers and

the victim sat in the backseat. Defendant drove to the house of Izabela Nagler, defendant's
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girlfriend. After talking to Nagler, defendant drove to his own house. Defendant opened the

garage door and drove into the garage. Curtis got out and went into the house. Defendant

remained in the car but later entered and left the house two times. Curtis said he went outside at

about 2:30 p.m. but he did not hear the car in the garage or see defendant, Chambers or the

victim.

          Curtis said he next saw defendant at 6:30 p.m. that day when defendant told him that if

the police asked about the victim, Curtis should say he last saw her get into a white Buick with

some Mexicans. Defendant seemed "a little nervous" and acted as if he could not explain

himself in the presence of Chambers. Curtis said Chambers told him the victim ran away.

          Curtis stated on cross-examination that the victim agreed at school to get into defendant's

car and that no one forced her. Curtis spoke with defendant about the missing girl two nights

later when defendant said to him, "I've got to tell you something." Before defendant could do so,

Chambers entered the room and "[defendant] just changed his whole demeanor." Curtis

admitted on redirect he had given multiple videotaped statements to the police and that he had

lied in his first videotaped statement "[b]ecause I was trying to save [defendant]."

          Carol Stream police detective Kelly Lally testified that he questioned defendant at

defendant's parents’ home in Hanover Park on the evening of June 2, 2002. Lally said defendant

told him that he first saw the victim on May 31, 2002, shortly after he arrived at Bartlett High

School to pick up his cousin Curtis. Defendant told Lally he saw the victim get into a white

Buick with two male Hispanics and leave the school.

          Lally said the next evening, June 3, 2002, the Carol Stream police arrested defendant

outside his home. At about 11 p.m., defendant waived his rights and spoke with Lally and
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another officer. Defendant at first repeated the story about the victim getting into a Buick but

changed his story after being told the police had spoken with Curtis. Defendant admitted he had

been at Bartlett High School on both May 30 and 31, 2002, and that the victim had been in his

car with him, Curtis and Chambers on May 31, 2002. Defendant said he, the victim and

Chambers had driven around until they stopped at the Busse Woods Forest Preserve in

Schaumburg. Defendant said the victim and Chambers walked to the woods and defendant lost

sight of them for 45 minutes. Defendant said Chambers emerged from the woods alone, saying

the victim met some friends in the woods and left with them. Lally said defendant then agreed to

give a written statement. Lally introduced defendant to Du Page County Assistant State's

Attorney Jeff Kendall and defendant agreed to give a videotaped statement. The tape was

admitted into evidence and a written transcript of the tape was admitted over defense counsel's

objection. The tape was played and the transcript was published to the jury.

       Lally said in the early morning hours of June 4, 2002, defendant agreed to retrace the

route he drove on the day of the murder. The police searched Busse Woods for about 2 1/2

hours while defendant waited in a patrol car, drinking soda and napping. On cross-examination,

Lally said he went off duty after the search but when he saw defendant the next day, defendant

said he had eaten and slept.

       Elmhurst police officer Michael Campise testified that defendant gave him differing

accounts of the events of May 31, 2002. Campise said defendant told him he realized the victim

was dead but did not know how she died. Defendant later gave Campise detailed instructions on

where to find the victim’s body. On cross-examination, Campise said defendant told him he did

not want to ask Chambers questions about the victim because he feared Chambers "might go
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crazy or something." Campise inferred from defendant's statements that Chambers had martial

arts training. Defendant told him Chambers became "bug-eyed" and looked "in a crazy way" at

the burial site.

        Dr. Nancy Jones, a forensic pathologist who works as a Cook County medical examiner,

testified as an expert witness. She said the victim was sexually assaulted, suffered blunt trauma

to the head and suffocation and died from strangulation.

        Du Page County Assistant State's Attorney Jeff Kendall testified that he participated in a

videotaped conversation with defendant and Detective Lally at 2 a.m. on June 4, 2002. Kendall

said that when he asked defendant why he did not try to stop the victim from being assaulted and

killed, defendant said, "I don't know, I was afraid of Chambers."

        Barlett detective Scott Yarwood testified that he interviewed defendant at the Bartlett

police station. As at the pretrial hearing, Yarwood said that he saw defendant sleeping in a bed

in a cell at the station. Yarwood said the cell was equipped with a video recorder and that he had

seen a videotape of himself awakening defendant at 9:30 a.m. on June 5, 2002, in the cell.

        Defense counsel objected, and a sidebar was held. Defense counsel said he had watched

every videotape tendered through discovery and never saw a tape of defendant sleeping in a cell.

The assistant State’s Attorney referred to the transcript of the hearing on defendant's motion to

suppress statements to show that Yarwood had mentioned a videotape of the lockup area at that

time. The assistant State’s Attorney also pointed to page 238 of the State's inventory slip

tendered in discovery where an entry showed that three tapes from the Bartlett lockup of

defendant sleeping had been tendered to the defense. The assistant State’s Attorney said

defendant's attorneys had been to a room in the Carol Stream police department where "they
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went through all the evidence that we had on this case" and looked at the evidence custodian's

log. He said two videotape players were available to the defense attorneys.

       Defense counsel argued in rebuttal that Yarwood had said he did not know whether the

Carol Stream department had kept the videotapes. Defense counsel said the videotapes tendered

in discovery were "all over the place," unmarked and included tapes from defendant's home.

Counsel said the video player made available to them "was behind 40 chairs, and the video

machine was never turned on, and we didn't look at any tapes. *** No one knew what these

tapes were. And we've never seen and never had possession of that videotape." The assistant

State’s Attorney said a videotape of defendant sleeping existed and the State intended to

introduce it at trial. Defense counsel moved to bar the tape from being entered into evidence and

published to the jury. In the alternative, defense counsel asked to view the tape outside the

presence of the jury. The court denied the motion to bar the tape but allowed defense counsel to

view it outside the jury's presence before it was shown to the jury.

       After viewing the videotape that showed defendant sleeping, defense counsel challenged

the authenticity of the tape, arguing that the time stamp on the tape differed from the time given

by Yarwood in his testimony. Defense counsel again argued that the State had not disclosed the

tape in discovery, that defense counsel had viewed every tape tendered and that the large number

of tapes in the Carol Stream evidence room made it impossible to preview all tapes. The

assistant State’s Attorney admitted that the date and time on the tape were incorrect and said he

would address the discrepancy when he laid a foundation for the tape. He said he had not

planned to introduce the tape until earlier testimony showed that sleep would be an issue.

Defense counsel argued against admitting the tape, noting that defendant's current counsel was
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not the same counsel as when the tape and inventory slip were "supposedly tendered" to

defendant's attorneys. The trial court allowed the tape into evidence, finding that the State had

laid a proper foundation.

       On cross-examination, Yarwood admitted that it was not possible to determine whether

defendant's eyes were open or closed in the video of him in the lockup. Yarwood admitted that

defendant appeared to be "tossing and turning" when he was lying on the bed.

       Forensic scientist Tamera Camp of the Du Page County sheriff’s office crime laboratory

testified as an expert witness. She said she analyzed oral, rectal and vaginal swabs taken from

the victim. She also analyzed fluids found on the victim's pants and on the carpet inside

defendant's car. Camp said she found defendant's DNA on the vaginal and rectal swabs, on the

crotch of the victim's pants and on the carpet sample. On cross-examination, Camp said only

defendant's DNA was found on the carpet sample. She said the rectal and vaginal swabs and the

fluid on the crotch of the victim's pants showed defendant was the minor contributor while

Chambers was the major contributor of semen.

       The State rested. Defendant moved for a directed verdict. The trial court denied the

motion.

       Dr. Shaku Teas testified as an expert for defendant. He said Dr. Jones told him she might

have picked up some semen on the swabs from outside the victim’s vaginal opening. On cross-

examination, Dr. Teas admitted he was not present when Dr. Jones took the vaginal swabs. He

said he agreed with Dr. Jones’ findings and opinions.

       Defendant testified in his own behalf. He said he drove his car to Bartlett High School

on May 31, 2002, to pick up Curtis. Chambers got out of the car and returned with the victim
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whom defendant did not know. Chambers asked defendant to give the victim a ride home.

Defendant said he intended to drive directly to the victim's house but instead drove to Nagler’s

home. After that, defendant asked the victim where she lived, but Chambers suggested they

"just go by [defendant's] house real quick." Chambers insisted he needed to take a shower.

Defendant drove to his house and pulled into the garage, leaving the garage door open. The

victim asked him to close the garage door, saying she knew someone who lived across the street.

He then went inside the house with Curtis. Defendant said his mother was at work and was not

expected to arrive home until 2:45 or 3 p.m.

       Defendant said Chambers and the victim remained in the car in the closed garage while

he was inside the house. When defendant returned to the garage about five minutes later, he got

into the car near where the victim was sitting with her pants pulled down. She gave him a

“hand-job,” causing him to ejaculate.

       Chambers then told defendant to get a pillow from inside the house. Defendant got two

pillows, put them inside the car and went back inside the house for 20 to 25 minutes. When

defendant returned to the car, Chambers was on top of the victim and had her in a chokehold.

Defendant yelled to Chambers, “What are you doing? What are you doing?” The victim lost

and regained consciousness as Chambers held a pillow over her face. Defendant said Chambers

told him to grab the victim's arm and he did so “[b]ecause I thought if I grabbed her arm, he

would take the pillow off of her face.” But Chambers did not take the pillow off the victim’s

face. The victim then put her arm on Chambers’ shoulder and then her arm began to come down

"real slowly." Defendant said he asked Chambers what he was doing and said, "This isn’t right.”


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        Defendant said that Chambers had a “bug-eyed type of look” and told him to grab some

shovels. Defendant did not respond at first, so Chambers repeated loudly, “Grab some shovels.”

Defendant did so and Chambers put the shovels in the backseat of defendant's car. Defendant

drove for a couple of miles to the location where the victim would be buried. Defendant helped

Chambers pull the victim from the car, dig a hole and put the victim in the hole. They then

returned to his car. Defendant said he drove to a car wash where he cleaned the car's interior and

exterior.

        Defendant denied knowing that Chambers planned to kill the victim. He also denied

participating in the killing of the victim. He said when he was arrested at 8 p.m. on June 3,

2002, he had been up for about 12 hours. From the time he was arrested until his last videotaped

interrogation at about 7 p.m. on June 5, 2002, he had slept only about four hours.

        On cross-examination, defendant said his friend, Kristen Hill, visited him and Chambers

at defendant's home three nights before the murder. Defense counsel requested a sidebar with

the trial judge. Assistant State's Attorney Jane Radostits admitted that her questioning was

intended to elicit defendant's testimony that he and Chambers had a consensual three-way sexual

encounter with Hill. She said the purpose of the examination was to show defendant's

relationship with Chambers and that defendant was not afraid of or coerced by Chambers.

Defense counsel objected on the grounds that no criminal activity was involved and the

probative value of the evidence was minimal. The trial court overruled defense counsel's

objection, concluding that the evidence was more probative than prejudicial. Defendant testified

that he was not afraid of Chambers when he, Hill and Chambers were in defendant’s bedroom

together. Defendant admitted the three of them had sex that evening.
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       The jury returned a verdict of guilty. Defendant moved for a new trial. Among the

grounds was trial court error in refusing to exclude the videotape of him sleeping. The court

denied the motion, concluding that the videotape had been made available to the defense by the

prosecution. The court acknowledged that defendant had been represented by several sets of

attorneys but concluded that each set had given what it had to the next set of attorneys.

Defendant also argued that he was entitled to a new trial because the court erred in allowing the

State to question defendant about his sexual encounter with Hill and Chambers. The court

determined that the evidence was relevant and denied the motion.

       At sentencing, the trial court found defendant death eligible based on the aggravating

factors in sections 9-1(b)(6)(a)(ii), (b)(11) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-

1(b)(6)(a)(ii), (b)(11) (West 2002)). The court found defendant personally had inflicted physical

injuries substantially contemporaneously with the physical injuries caused by Chambers for

whose conduct defendant was accountable under section 9-1(b)(6)(a)(ii) of the Code (720 ILCS

5/9-1(b)(6)(a)(ii) (West 2002)). The court found defendant was an active participant in inflicting

the injuries that caused the victim’s death and that he acted with the intent to kill or knowledge

that his acts created a strong probability of death under section 9-1(b)(6)(b) of the Code (720

ILCS 5/9-1(b)(6)(b) (West 2002)). The court concluded that both defendant and Chambers had

actively participated in the sexual assault and murder because both were in the small area of the

backseat of defendant's car when the victim was killed. The court believed it would have been

impossible to murder the victim unless both defendant and Chambers had held her hands or

body. The court found that both defendant and Chambers planned to sexually assault and

murder the victim and that defendant acted with the intent to kill her.
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        The court also found under section 9-1(b)(11) of the Code (720 ILCS 5/9-1(b)(11) (West

2002)) another aggravating factor in support of death eligibility—that the murder was cold,

calculated and premeditated. The court noted that this finding was unnecessary because it

already had determined that defendant was an active participant in inflicting the victim's injuries

under section 9-1(b)(6)(a)(ii) of the Code (720 ILCS 5/9-1(b)(6)(a)(ii) (West 2002)), but it made

the ruling to further support its finding of death eligibility.

        Defendant first argues that the State failed to prove him guilty beyond a reasonable doubt

of aggravated kidnaping either as a principal or under a theory of accountability. He claims

there was no evidence that he was the principal offender and insufficient evidence that he was

Chambers’ accomplice in the kidnaping.

        The standard of review for a challenge to the sufficiency of the evidence is whether,

after viewing the evidence in the light most favorable to the prosecution, a rational judge or jury

could have found the essential elements of the offense beyond a reasonable doubt. People v.

Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262 (2005). The reviewing court will not retry the

defendant or impose its judgment of whether the evidence was sufficient. Collins, 214 Ill. 2d at

217. “We will not reverse a conviction unless the evidence is so improbable, unsatisfactory, or

inconclusive that it creates a reasonable doubt of [the] defendant’s guilt.” Collins, 214 Ill. 2d at

217.

        Under section 10-1(a)(3) of the Code, a person commits kidnaping when, by deceit or

enticement and with the intent to secretly confine a person against her will, he induces her to go

from one place to another. 720 ILCS 5/10-1(a)(3) (West 2002). The gist of the offense of

kidnaping is secret confinement which must be proved beyond a reasonable doubt. People v.
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Banks, 344 Ill. App. 3d 590, 593, 799 N.E.2d 503 (2003). "Secret confinement" is established

by showing that the victim was clearly " 'confined' or enclosed within something, such as a

house or a car." Banks, 344 Ill. App. 3d at 593. "[O]ne can be secretly confined in an

automobile within the meaning of the statute whether the automobile is moving or parked."

People v. Kittle, 140 Ill. App. 3d 951, 955, 489 N.E.2d 481 (1986).

       Under section 10-2(a)(3) of the Code, the offense becomes aggravated kidnaping if the

perpetrator "[i]nflicts great bodily harm, other than by the discharge of a firearm, or commits

another felony [on] his victim." 720 ILCS 5/10-2(a)(3) (West 2002). Aggravated criminal

sexual assault is a trigger that elevates kidnaping to aggravated kidnaping. People v. Boyd, 366

Ill. App. 3d 84, 96, 851 N.E.2d 827 (2006).

       A defendant will be convicted on an accountability theory when the evidence shows

"[e]ither before or during the commission of an offense, and with the intent to promote or

facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in

the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2005). Where, as here,

the evidence shows the defendant was at the scene of the kidnaping on the day before and again

on the day of the confinement, it supports the conclusion that the defendant was not merely

present but aided in the planning and commission of the act. People v. Rish, 208 Ill. App. 3d

751, 767-68, 566 N.E.2d 919 (1991). A defendant's involvement can be inferred from

inconsistent statements and after-the-fact behavior that amount to an attempt to conceal the truth.

Rish, 208 Ill. App. 3d at 768.

       Active participation is not required for a guilty verdict under an accountability theory.

People v. Taylor, 164 Ill. 2d 131, 140, 646 N.E.2d 567 (1995). A jury may find a defendant
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accountable for another’s acts if the "defendant shared the criminal intent of the principal, or if

there was a common criminal plan or purpose." Taylor, 164 Ill. 2d at 140-41. There need not be

evidence of words of agreement to establish a common purpose. Taylor, 164 Ill. 2d at 141. The

common design can be inferred from the circumstances. Taylor, 164 Ill. 2d at 141. Among the

factors the jury may consider in determining whether a defendant is legally accountable for

another person’s acts are: (1) proof that the defendant was present when the crime was

perpetrated; (2) proof that he maintained a close affiliation with his companion after the crime

was committed; (3) whether the defendant reported the crime to the police; and (4) whether the

defendant fled the scene. Taylor, 164 Ill. 2d at 141. "Evidence that [the] defendant voluntarily

attached himself to [someone] bent on illegal acts with knowledge of its design also supports an

inference that he shared the common purpose and will sustain his conviction for an offense

committed by another." Taylor, 164 Ill. 2d at 141.

       Here, the evidence was sufficient to convict defendant of aggravated kidnaping as a

principal. He deceived the victim by leading her to believe he would drive her home but he did

not do so. As the driver of the car, defendant transported her with him from school to Nagler's

house and then to his own house. There, she was confined to the inside of the car and enclosed

in the garage where she was sexually assaulted and murdered. Defendant inflicted great bodily

harm by restraining the victim while Chambers choked and smothered her. The DNA evidence

showed defendant was not merely present but committed the felony of aggravated criminal

sexual assault.

       Even if the evidence had not been sufficient to prove defendant’s guilt as a principal in

the kidnaping, it was sufficient under an accountability theory. Defendant’s testimony showed
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he was present for all facets of the crimes from beginning to end. He maintained a close

relationship with Chambers throughout. He did not report the crime and he fled from the burial

site, stopping to clean evidence from his car. Defendant’s voluntary association with Chambers

supports the inference that they shared a common purpose.

       Defendant relies on two opinions to argue that the State failed to prove him guilty of

aggravated kidnaping beyond a reasonable doubt. In People v. Parker, 311 Ill. App. 3d 80, 86-

87, 724 N.E.2d 203 (1999), the defendant argued he could not be held accountable for the

codefendants' kidnaping of the victim where the evidence showed only that the defendant was

present and knew of the illegal activity. This court agreed, finding no evidence that the

defendant acted at the behest of the principal. Parker, 311 Ill. App. 3d at 88. The evidence here

showed more. Defendant admitted that he drove his car to and from each location where crimes

were committed. His car was the location of the sexual assault and murder and the means used

to commit the kidnaping. Defendant admitted that he followed Chambers' directions to drive the

victim to defendant's house, bring pillows to the car, hold the arm of the dying victim, get

shovels, drive to the forest preserve and bury the body. Defendant was more than merely

present and aware of criminal activity.

       In People v. Sykes, 161 Ill. App. 3d 623, 628, 515 N.E.2d 253 (1987), the defendant

argued that the State had failed to show he secretly confined the victim where he detained her in

an alley but did not confine her within a place. This court agreed, finding that the State

established neither the "secret" nor the "confinement" element of aggravated kidnaping. Sykes,

161 Ill. App. 3d at 628-29. Here, the victim was confined both inside a car and inside a garage

with the door closed.
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       Defendant's second claim is that the trial court erred in admitting the videotape of him

sleeping in his jail cell because the State did not tender the tape in discovery. He argues he was

forced to reformulate his theory of defense when the State introduced the videotape on the third

day of the trial. Defendant argues that although the State made the tape available, it was not

"effective disclosure." The State maintains that the evidence shows the tape was properly

disclosed to the defense.

       Supreme Court Rule 412 governs the disclosure of the State's evidence to the defense.

188 Ill. 2d R. 412. One of the ways the State may fulfill its obligations is by "making available

to defense counsel at the time specified such material and information, and suitable facilities or

other arrangements for inspection." 188 Ill. 2d R. 412(e)(ii). When a defendant challenges a

trial court's ruling on a purported discovery violation, we first determine whether a violation

occurred. People v. Hood, 213 Ill. 2d 244, 256, 821 N.E.2d 258 (2004). Changes in defense

counsel during the course of the case and the possibility that evidence could have been left

behind or lost do not necessarily establish that the State failed to tender the discoverable

material. People v. Salgado, 366 Ill. App. 3d 596, 605, 852 N.E.2d 266 (2006).

       Here, no violation occurred. Shalgos repeatedly told the trial court he had received a new

file from the State and had everything he needed to proceed as counsel after Brandstrader was

granted leave to withdraw. Defense counsel admitted that evidence, including videotapes, was

made available at the Carol Stream police department as required by Rule 412(e)(ii) (188 Ill. 2d

R. 412(e)(ii)). It is undisputed that the file included an inventory slip that listed the lockup tapes

from Bartlett. The transcript of the hearing on defendant's motion to suppress, where Shalgos

was present, proves that Yarwood disclosed the existence and possible retention of the tape two
                                              18
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months before the defense opened the trial with a claim of sleep deprivation. The trial court did

not err in allowing the tape into evidence because no discovery violation occurred.

       Defendant next argues that the trial court erred in denying his request to ask potential

jurors about their attitudes on “false confessions.” He argues the court should not have

sustained the State's objection to defense counsel's question: "You may hear evidence during the

course of the trial of a false statement. *** Would you be able to evaluate [defendant's]

testimony at the same level as the police officer who is taking the opposition position?"

Defendant maintains that false confessions are controversial and the proposed question was

necessary to determine whether prospective jurors could be fair to a defendant who claimed he

gave a false confession. He argues that laypersons' perceptions of police behavior often is naive

and so people may be unwilling or reluctant to accept the notion that suspects sometimes give

false confessions.

       The State maintains that the question would have improperly indoctrinated the jury on

the defense.

       When we review a trial court's denial of a party's request to question prospective jurors

on a particular viewpoint, our standard of review is whether the court abused its discretion.

People v. Howard, 147 Ill. 2d 103, 134, 588 N.E.2d 1044 (1991). Voir dire in a criminal trial is

governed by Supreme Court Rule 431 (177 Ill. 2d R. 431) (parties are allowed to supplement the

trial court's examination "by such direct inquiry as the court deems proper"). The purpose of

voir dire is to select an impartial jury, not to indoctrinate a jury or choose a jury with a

predisposition. People v. Bowel, 111 Ill. 2d 58, 64, 488 N.E.2d 995 (1986). A trial court

properly refuses questions designed to educate the jurors on the defendant's theory of defense
                                                19
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and ensure the selected jurors are receptive to that defense. Bowel, 111 Ill. 2d at 65. In general,

a proposed voir dire question addressing an affirmative defense should be excluded. People v.

Kendricks, 121 Ill. App. 3d 442, 448, 459 N.E.2d 1137 (1984).

       The question here is defective because it would have improperly indoctrinated the

prospective jurors to defendant's affirmative defense. But the court's rationale for refusing the

question was not indoctrination. The court refused the question because it would have required

the prospective juror to accept as true that defendant had given a false statement. The jury was

not going to hear evidence that the statement was false but that it was coerced. After hearing

evidence that the statement was coerced, the jury might or might not have decided that the

statement was false. The trial court properly refused the question, as phrased, because it would

have required the prospective juror to accept as an ultimate fact that defendant's statement was

false before hearing the evidence.

       It is improper to assert falsity as an evidentiary fact. People v. Nwadiei, 207 Ill. App. 3d

869, 878, 566 N.E.2d 470 (1990). Once a jury has received falsity as an evidentiary fact, it

cannot escape the inference of falsity. Nwadiei, 207 Ill. App. 3d at 878. This invades the

province of the jury. Nwadiei, 207 Ill. App. 3d at 878. "The question [of] whether or not a

confession is coerced involves a complex judgment [on] facts inevitably entangled with

assumptions ***." Stroble v. State of California, 343 U.S. 181, 202-03, 96 L. Ed. 872, 887, 72

S. Ct. 599, 610 (1952) (Frankfurter, J., dissenting), citing Baumgartner v. United States, 322

U.S. 665, 670-71, 88 L. Ed. 1525, 1529, 64 S. Ct. 1240, 1243 (1943). The trial court here did

not abuse its discretion in rejecting a question where the wording would have required the jury to

assume that defendant's confession was coerced.
                                              20
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       Defendant next argues that the trial court abused its discretion in allowing the State to

elicit on cross-examination his admission to a three-way sexual encounter with Chambers and

Hill. He argues the evidence was prejudicial in suggesting he had a propensity for deviate sexual

acts and that the victim was murdered because she refused to consent to a threesome. The State

argues that the evidence was properly admitted and relevant to rebut the defendant's claim that

he was afraid of Chambers. The State argues that evidence of a sexual threesome among

consenting adults was not prejudicial as a crime or necessarily prejudicial as a "bad act."

       Evidentiary rulings are within the sound discretion of the trial court and will not be

disturbed on appeal absent a clear abuse of discretion. People v. Wheeler, 226 Ill. 2d 92, 132,

871 N.E.2d 728 (2007). A trial court abuses its discretion where no reasonable person would

take its view. Wheeler, 226 Ill. 2d at 133.

       In general, evidence of a defendant's other crimes is not admissible to show his

propensity to commit the charged offense. People v. Donoho, 204 Ill. 2d 159, 170, 788 N.E.2d

707 (2003). This rule applies to noncriminal conduct or "bad acts," as well as crimes. People v.

Bobo, 375 Ill. App. 3d 966, 971, 874 N.E.2d 297 (2007). "Courts generally prohibit the

admission of this evidence to protect against the jury convicting a defendant because he or she is

a bad person deserving punishment." Donoho, 204 Ill. 2d at 170. Such evidence generally is

admissible to prove "any material fact other than propensity that is relevant to the case."

(Emphasis added.) Donoho, 204 Ill. 2d at 170. The trial court must determine whether "the

prejudicial effect of the evidence substantially outweighs its probative value." Donoho, 204 Ill.

2d at 170. A defendant cannot be heard to complain where evidence of his past misconduct was


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not offered to show propensity but rather was invited by his own trial tactics. People v. Manley,

163 Ill. App. 3d 950, 953, 516 N.E.2d 1343 (1987).

       Here, the purpose of the evidence of the threesome was to impeach defendant's testimony

that he was afraid of Chambers, not to show his propensity to commit a sexual offense.

Defendant's trial strategy hinged on showing that he aided in the crimes because he was afraid of

Chambers. The evidence of the threesome was used to prove a fact other than propensity: that

there was a close, trusting relationship between defendant and Chambers, rebutting defendant's

claim that he feared Chambers.

       Defendant relies on People v. Manning, 182 Ill. 2d 193, 214-15, 695 N.E.2d 423 (1998),

to argue that the threesome evidence was not relevant to a material issue other than to imply bad

character or the propensity to commit crime. In Manning, our supreme court determined that the

trial court committed reversible error in admitting conversations between the defendant and a

police informant where the two discussed helping each other evade conviction. Manning, 182

Ill. 2d at 213. The defendant allegedly offered to kill or arrange to have a key witness against

the informant killed in exchange for the informant providing the defendant with an alibi.

Manning, 182 Ill. 2d at 213. The State introduced evidence of their conversations during its

direct examination of the informant. Manning, 182 Ill. 2d at 213. On appeal, the court

concluded that the conversations were more prejudicial than probative and should not have been

admitted. Manning, 182 Ill. 2d at 213. Noting that the State's evidence was "minimally

sufficient," the court found that the challenged conversations improperly portrayed the defendant

as a bad person who had a propensity to commit crime. Manning, 182 Ill. 2d at 215.


                                                22
1-06-0594


       This case differs from Manning in that the threesome evidence here was used for

impeachment, not as substantive evidence. Manning is also distinguishable because the bad acts

there were crimes of murder and perjury, not a legal sex act. Finally, unlike the circumstances in

Manning, the State's evidence here was overwhelming. Given the volume of incriminating

evidence against defendant, the use of the threesome evidence as impeachment was more

probative of the fact that defendant was not afraid of Chambers than prejudicial as deviant

conduct. The trial court did not abuse its discretion in allowing the State to elicit this testimony

on cross-examination.

       Defendant next argues the trial court erred when it sentenced him to natural life in prison

because the evidence did not establish beyond a reasonable doubt that he was death eligible. Our

standard of review is whether a rational fact finder could have found that the State proved the

necessary elements of death eligibility beyond a reasonable doubt. People v. Emerson, 189 Ill.

2d 436, 474, 727 N.E.2d 302 (2000). We view the evidence before the trial judge, sitting as the

finder of fact at sentencing (People v. Wiley, 205 Ill. 2d 212, 223, 792 N.E.2d 1274 (2001)), and

assess this evidence in the light most favorable to the prosecution (Emerson, 189 Ill. 2d at 474).

       Section 9-1 of the Code sets forth the law and procedures on first degree murder and the

death penalty. 720 ILCS 5/9-1 et seq. (West 2002). Section 9-1(b) enumerates the aggravating

factors that warrant a death sentence. 720 ILCS 5/9-1(b) (West 2002). Section 9-1(b)(6)

provides that a defendant convicted of first degree murder may be sentenced to death if:

               "the murdered individual was killed in the course of another felony if:

                        (a) the murdered individual:

                               (i) was actually killed by the defendant, or
                                                 23
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                                (ii) received physical injuries personally inflicted by

                      the defendant substantially contemporaneously with

                      physical injuries caused by one or more persons for whose

                      conduct the defendant is legally accountable *** and the

                      physical injuries inflected by either the defendant or the

                      other person or persons for whose conduct he is legally

                      accountable caused the death of the murdered individual;

                      and

                      (b) in performing the acts which caused the death of the murdered

              individual or which resulted in physical injuries personally inflicted by the

              defendant on the murdered individual *** the defendant acted with the

              intent to kill the murdered individual or with the knowledge that his acts

              created a strong probability of death or great bodily harm to the murdered

              individual ***; and

                      (c) the other felony was one of the following: *** aggravated

              criminal sexual assault, aggravated [kidnaping][.]" 720 ILCS 5/9-1(b)(6)

              (West 2002)).

       Section 9-1(b)(11) of the Code provides that a defendant convicted of first degree murder

may be sentenced to death if:

              "the murder was committed in a cold, calculated and premeditated manner

       pursuant to a preconceived plan, scheme or design to take a human life by

       unlawful means, and the conduct of the defendant created a reasonable
                                              24
1-06-0594


        expectation that the death of a human being would result." 720 ILCS 5/9-

        1(b)(11) (West 2002).

        Section 9-1(f) of the Code provides that the State bears the burden of proving beyond a

reasonable doubt the aggravating factors for death eligibility. 720 ILCS 5/9-1(f) (West 2002).

        Defendant maintains that he is not death eligible under section 9-1(b)(6)(a) (720 ILCS

5/9-1(b)(6)(a) (West 2002)) because the State failed to prove beyond a reasonable doubt that he

actually killed the victim or personally inflicted her injuries with the intent to kill her or that he

had knowledge that his acts probably would cause death or great bodily harm. The State argues

that defendant's actions in the kidnaping, sexual assault and murder of the victim, including

physically restraining her while Chambers suffocated and strangled her, were sufficient to

establish death eligibility under section 9-1(b)(6) of the Code. The State relies on People v.

Palmer, 162 Ill. 2d 465, 485, 643 N.E.2d 797 (1994), where our supreme court determined that

the appropriate factors for death eligibility existed where the evidence showed the defendant had

held the victim while a codefendant slashed her throat. The court found that just because a

codefendant "had [a] more culpable mental state does not support [the] conclusion that [the]

defendant's participation and involvement in the commission of [the] offense was less than [the

codefendant's]." Palmer, 162 Ill. 2d at 485. The question of who strikes the fatal blow "is not

necessarily determinative of relative culpability." Palmer, 162 Ill. 2d at 486.

        Here, the physical injuries inflicted by Chambers, a person for whose conduct defendant

was legally accountable, caused the victim's death. Under Palmer, the fact that Chambers may

have been more culpable does not diminish defendant's culpability. Defendant restrained the

victim by holding her arm while Chambers strangled and suffocated her. This act supports the
                                             25
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conclusion that he acted either with the intent to kill or with the knowledge that his acts created a

strong probability that the victim would die or suffer great bodily harm. Viewing the evidence in

the light most favorable to the State, we believe that a reasonable judge could have found that

the State proved death eligibility under section 9-1(b)(6) of the Code (720 ILCS 5/9-1(b)(6)

(West 2002)) beyond a reasonable doubt.

       Defendant also argues that he is not death eligible under section 9-1(b)(11) because there

was no evidence that the crime was cold, calculated or premeditated or that defendant and

Chambers had a preconceived plan. A murder is calculated, premeditated and committed

according to a preconceived plan if the evidence shows it was "deliberated or reflected upon for

an extended period of time." People v. Williams, 193 Ill. 2d 1, 37, 737 N.E.2d 230 (2000). See

People v. Williams, 173 Ill. 2d 48, 91, 670 N.E.2d 638 (1996) (the defendant's contact with the

victim over a two-day period supported the conclusion that the defendant murdered the victim

after much thought and reflection and that the murder was cold, calculated and premeditated);

People v. Kavinsky, 91 Ill. App. 3d 784, 799, 414 N.E.2d 1206 (1980) (the premeditated murder

of a defenseless 11-year-old boy was cold and calculating). "[T]ime is an essential element of

the aggravating factor" in section 9-1(b)(11). Williams, 193 Ill. 2d at 31; 720 ILCS 5/9-1(b)(11)

(West 2002).

       Here, the evidence showed that defendant aided Chambers in the murder of a defenseless

14-year-old girl. The timing component here was particularly incriminating, suggesting that

defendant and Chambers had a detailed plan of action. They conducted reconnaissance at the

high school on May 30, 2002, identifying a victim. Their return to the school the next day

coincided with the time of the early dismissal at 12:40 p.m. That gave them enough time to
                                                 26
1-06-0594


carry out a well-orchestrated plan. Defendant testified that he did not expect his mother to return

home until 2:45 or 3 p.m. By 2:30 p.m., the victim had been sexually assaulted by both men,

murdered and taken away from defendant's home. As Curtis testified, the car, the victim,

defendant and codefendant were no longer in the garage at 2:30 p.m. By 6:30 p.m., the victim's

body had been buried and the perpetrators had devised alternative explanations for her

disappearance—she met friends in the woods or got into a Buick with Mexicans. This time

sequence supports the existence and implementation of a carefully premeditated plan, the result

of reflection and deliberation. This meets the criteria for death eligibility under section 9-

1(b)(11) of the Code. 720 ILCS 5/9-1(b)(11) (West 2002).

       Even if we had determined that defendant was not death eligible under one of the

aggravating factors, our conclusion that he was eligible under one factor is sufficient: "[W]here a

defendant is eligible based upon two or more statutory aggravating factors, the fact that one of

those factors may later be invalidated may not impair the eligibility finding as long as a separate,

valid aggravating factor supported eligibility." People v. Macri, 185 Ill. 2d 1, 58, 705 N.E.2d

772 (1998).

       Defendant's final claim is that the trial court erred in ordering certain sentences to run

consecutive to, instead of concurrently with, his natural life sentence. The State concedes that

this is correct. Our supreme court in People v. Palmer, 218 Ill. 2d 148, 169, 843 N.E.2d 292

(2006), found that multiple life sentences must be served concurrently. This, the court said, "is

governed by the laws of nature, regardless of whether a trial judge imposes his sentence

consecutively or concurrently." Palmer, 218 Ill. 2d at 169. Nor can a term of years be served

consecutively to a natural life sentence. People v. Dixon, 366 Ill. App. 3d 848, 853 N.E.2d 1235
                                                27
1-06-0594


(2006). Accord People v. Spears, 371 Ill. App. 3d 1000, 1008, 864 N.E.2d 758 (2007). Under

Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we modify defendant's consecutive

sentences to sentences concurrent with his natural life sentence.

       In summary, we conclude that the evidence was sufficient to support defendant's

conviction of aggravated kidnaping; the State did not commit a discovery violation as to the

videotape of defendant sleeping in his jail cell; the trial court did not err in denying defendant's

request to ask prospective jurors about the affirmative defense of a "false statement"; the trial

court did not err in admitting evidence of defendant's participation in a three-way sexual

encounter with Chambers to rebut defendant's testimony that he was afraid of Chambers; the

death eligibility requirement for the imposition of a natural life sentence was met; and the trial

court erred in sentencing by imposing sentences of terms of years consecutive to defendant's

sentence of natural life in prison.

       The judgment of the trial court is affirmed, the sentence is modified and the mittimus

corrected under the authority of Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)).

       Affirmed; sentence modified and mittimus corrected.

       WOLFSON and GARCIA, JJ., concur.




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