                                         2017 IL App (3d) 150079

                                Opinion filed August 10, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-15-0079
            v.                                        )       Circuit No. 14-CF-274
                                                      )
     ERICK MAYA,                                      )       Honorable
                                                      )       Daniel J. Rozak,
            Defendant-Appellant.                      )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice McDade concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Erick Maya, appeals following his convictions for first degree murder,

     attempted first degree murder, and unlawful use of a weapon by a felon (UUWF). He argues that

     the circuit court abused its discretion both by admitting certain evidence of defendant’s prior bad

     acts and by failing to provide the jury with an instruction limiting the use of such evidence.

     Alternatively, defendant contends that defense counsel was ineffective for failing to request that

     jury instruction. As a separate argument, defendant contends that the circuit court abused its

     discretion in finding that the transcript of certain Facebook messages qualified for the business

     records exception to the rule against hearsay. Finally, defendant argues that the circuit court
     failed to conduct a satisfactory inquiry under People v. Krankel, 102 Ill. 2d 181 (1984), after

     defendant made pro se posttrial claims of ineffective assistance of counsel. We reject defendant’s

     evidentiary claims as well as the related claim of ineffective assistance of counsel. However, we

     remand the matter so the circuit court may make a proper preliminary inquiry into those separate,

     pro se claims of ineffectiveness raised by defendant at the posttrial stage.

¶2                                                  FACTS

¶3          On March 6, 2014, the State charged defendant by indictment with first degree murder

     (720 ILCS 5/9-1(a)(1) (West 2014)), attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1)

     (West 2014)), and UUWF (720 ILCS 5/24-1.1(a) (West 2014)). The indictment alleged that

     defendant shot Briana Valle, causing her death; it also alleged that defendant shot Alicia

     Guerrero with the intent to kill her. Defendant’s trial commenced on September 9, 2014. 1

¶4          Guerrero testified that she and her family moved to 342 Emery Avenue in Romeoville in

     October 2013. Prior to that, they lived in a Chicago neighborhood by Cicero. Guerrero testified

     that her daughter, Briana, was born on July 21, 1998. In the summer of 2012, Guerrero had a

     Facebook account for herself under the name of Jessica Guerrero.

¶5          On August 24, 2012, Briana ran away from home. Guerrero immediately began searching

     for her and called the police. In her attempt to find Briana, Guerrero searched Briana’s bedroom.

     In examining Briana’s computer, Guerrero learned that Briana had been accessing Guerrero’s

     own Facebook account. Guerrero saw that a number of messages had been exchanged between

     her account and a Facebook account under the name of Pandillero Diciochero. Guerrero had




            1
               The trial in this matter lasted two weeks, producing a record of approximately 2000 pages. For
     clarity, we will summarize the evidence in chronological order of the events in question rather than the
     order in which the evidence was presented at trial.
                                                        2
     never sent a friend request to that account and had not personally participated in that exchange of

     messages.

¶6          Through the messages, Guerrero learned that the owner of the Pandillero Diciochero

     account lived in Cicero. Briana had been gone for over a week when Guerrero went to Cicero in

     search of her. After driving around for some time, Guerrero spotted a building she recognized

     from the Pandillero Diciochero Facebook account. Guerrero called the police. However, after the

     police investigated, they informed Guerrero that Briana was not there.

¶7          The next day, Guerrero convinced the building’s superintendent to allow her into the

     apartment. Briana was not there. However, soon thereafter, the renters of the apartment arrived.

     They told Guerrero that Briana was not there but was located at an apartment a block away.

     Guerrero then gave that information to the police and returned home while police investigated.

     Later, Guerrero received a phone call from a number she did not recognize. She did not

     recognize the male voice on the phone. The individual told Guerrero that he needed to return

     Briana and that he would do so as long as Guerrero did not press charges. After that phone call,

     Guerrero learned from the Cicero police department that Briana had been found. The date was

     September 10, 2012.

¶8          Abisai Ortiz testified that he lived with his girlfriend, Cynthia Avila, and their daughter in

     Cicero. Prior to December 2013, Ortiz and Avila lived in an apartment at 1342 South 50th

     Avenue in Cicero for “more than four, five years.” At some point during that period, Ortiz’s

     brother, Andres, also lived with him and Avila. Andres was friends with defendant, and through

     Andres, defendant came to live at 1342 South 50th Avenue with Ortiz, Avila, and Andres for

     approximately one year. Ortiz identified defendant in court but indicated that he did not refer to

     defendant as “Erick Maya” but instead referred to him as “Little Green.”


                                                      3
¶9            Ortiz identified a photograph of Briana. He recognized her because she had been to the

       apartment on 50th Avenue. On September 10, 2012, a woman came to the apartment. Ortiz

       learned that she was Briana’s mother and that she was looking for her daughter. Ortiz told

       Guerrero that Briana had been in the apartment but that he did not know where she was at that

       moment.

¶ 10          Ortiz testified he had a Facebook account and was active on the service. He recognized

       an exhibit shown to him by the State as a printout of a Facebook page under the name Pandillero

       Diciochero. He recognized the printout because he was friends on Facebook with the Pandillero

       Diciochero account. Ortiz testified that that Facebook account belonged to and was used by

       defendant. The State also showed Ortiz a printout of a second Facebook account, this one under

       the name of Gangero Jente Difiesta. Ortiz was not Facebook friends with this account but

       recognized the individual in the profile picture as defendant.

¶ 11          Ortiz also testified that he owned a cell phone and that his phone number was (708) 953-

       2118. He shared his phone with defendant, often allowing defendant to borrow it at night. The

       phone had internet access and was equipped with the Facebook application. Ortiz further testified

       that he exchanged text messages with defendant. From his own phone, Ortiz would send the text

       messages to a number of (773) 349-2942, to which defendant would reply.

¶ 12          Avila testified that while she was living at the apartment on 50th Avenue, she met a girl

       named Briana, whom defendant had brought to the apartment. Avila met Briana in late August

       2012. Defendant was proud and happy when Briana was around. In speaking with Briana, Avila

       learned that she had run away from home. Some time after that, a Cicero police officer appeared

       at the apartment, looking for Briana. Avila was unable to help because she did not know where




                                                        4
       Briana was at that particular time. Avila later met Guerrero when she came to the apartment

       looking for Briana.

¶ 13          Guerrero testified that Briana could not stop talking about a “Carlos” after she returned

       from Cicero. Guerrero told Briana to stop talking about him and confiscated her electronics. As

       time passed, Guerrero knew that Briana remained in contact with the individual. Guerrero

       testified: “When there’s a will, there’s a way. She’ll find a way. She would sneak anything. She

       went to school and used people’s phones. I got calls from him on my phone. I knew it was still

       continuing.” Guerrero testified that the individual continued to contact her as well, and she came

       to recognize his voice. Guerrero learned from Briana that the individual’s name was actually

       Erick Maya.

¶ 14          Guerrero testified that defendant’s phone calls and text messages had been unceasing and

       that Briana had seen him around the neighborhood. In March 2013, fearing that defendant would

       attempt to influence Briana to leave again, Guerrero applied for an order of protection in Cook

       County on behalf of her and her family.

¶ 15          On February 14, 2013, Guerrero picked her daughter up from school. Briana was carrying

       balloons and flowers. Though Briana told her mother the gifts were from friends, Guerrero

       suspected they were from defendant. In September 2013, Guerrero noticed that Briana was

       wearing what appeared to be an engagement ring on her finger. The next month, Guerrero moved

       her family to Romeoville in an attempt to get away from defendant. Guerrero testified that

       Briana adjusted well to her new school and seemed to be making friends. At that time, Guerrero

       believed that Briana and defendant were no longer communicating.

¶ 16          In December 2013, Ortiz, Avila, and their daughter moved to an apartment at 5600 West

       Park Avenue in Cicero. Defendant moved in with them again. Avila testified that at that time,


                                                       5
       defendant was still in love with Briana. Later, however, he told Avila that Briana had “broken up

       with him because she was actually moving on to somebody else.” Avila observed that defendant

       was very mad about the situation. Avila testified: “[H]e wanted to kill her. He would say that he

       wanted to kill her because *** she was only supposed to be with him, only with him.” He said

       that on more than one occasion. Defendant was also mad at Briana’s mother, blaming her for

       Briana moving on. Avila testified that defendant was so angry that he would punch walls.

¶ 17           S.M. testified that she and Briana met and became friends while the two attended

       Romeoville high school. S.M. had a cell phone, and Briana once asked S.M. if she could use the

       phone to text someone. When S.M. began receiving text messages to her phone from a number

       she did not recognize, S.M. labeled that number in her phone as “Briana’s guy.” The phone

       number was (773) 349-2942. When S.M. received messages from that number, she would show

       them to Briana the next day.

¶ 18           In December 2013, S.M. saw a number of threatening text messages that had come to her

       phone from “Briana’s guy.” S.M. met with Romeoville high school resource officer Tom Dorsey

       and allowed him to take screen captures of the text messages. S.M. read for the jury a transcript

       of a text message conversation between Briana and defendant, in which Briana was using S.M.’s

       phone. Because of the relevance of these text messages to the issue that defendant has raised on

       appeal, we quote them at length. 2

¶ 19           In those messages, exchanged on December 3 and 4, 2013, defendant explained that he

       had been in county jail since October of that year and had missed Briana. Briana told defendant




               2
                 While actual copies of the text messages in question were entered into evidence, for the sake of
       clarity, we will transcribe S.M.’s reading of the text messages on the witness stand, rather than the text
       messages themselves.
                                                           6
that she missed him as well. As the conversation progressed, defendant began expressing anger

and jealousy. S.M. read:

              “[Defendant]: Why are you still talking to niggas for? I keep telling you to stop

              and you just won’t listen. Am I not good enough for you that you got to talk and

              see other guys? I tell you to have respect for me and you just won’t. I know you

              still talk to niggas. I know you have a new boyfriend. I know you cheated on me. I

              have a big, strong feeling. *** Stop lying to me and just tell me the niggas you

              still talk to and how many niggas have you cheated on me with. ***

                      ***

                      *** Like I said, once a village hoe, always a village hoe. I’m sick and tired

              of telling, begging you please stop, please don’t do that, don’t do this. I’m tired

              and fed up. *** One day after you get tired of being the nation hoe, one day after

              you get tired of being used, abuse and reused by everyone, you finally realize that

              I had it good with Little Capone Erick did love me and now he is gone, out of my

              life forever. *** You talking and chillin with niggas, you cheating on me is what I

              don’t want. I don’t want to share you with no one. I want you all to myself. You

              are the person I want to spend the rest of my life with, but you can’t see that and

              obviously don’t want that. You are all I need and I am all you need, but I guess

              you are too young and stupid to know that. *** Any nigga don’t matter who it is

              would have beat the living fuck out of you. When you killed the baby, they

              probably would have killed you and your fuckin mom but I didn’t even though I

              thought about it I didn’t lay a finger on you because I love you.”




                                                7
       This portion of defendant’s text messages continued in the same tone and substance for 4 pages

       of text transcript, 13 pages of trial testimony as read by S.M.

¶ 20           Over the next several days of text messaging, 3 Briana informed defendant that she did

       have a new boyfriend but explained that she was not cheating on defendant because defendant

       previously ended their relationship. Defendant struck a more conciliatory tone than previously,

       telling Briana that he loved her and begging her to get back together with him. In this portion of

       the messages, defendant occasionally referenced his memories of Briana, including their sexual

       relationship. Occasionally, S.M. responded to defendant’s messages to inform him that she was

       not around Briana. On those occasions, defendant asked S.M. about Briana, as well as Briana’s

       new boyfriend.

¶ 21           In the late hours of December 9, 2013, Briana said to defendant (S.M. reading):

                       “Mmm, okay, but I don’t want to have sex anymore, so, no, baby, I mean I don’t

                       want to be with you. Please understand me, I have a boyfriend. I have been with

                       him for two months already. He is 17. He goes to my school. I’m moving in with

                       him next year.”

       In reply, defendant described the situation as “bogus as fuck,” and demanded the engagement

       ring back. Eventually, S.M. texted defendant herself, encouraging defendant to move on. When

       S.M. and defendant began exchanging messages, S.M. asked defendant what his name was, to

       which defendant replied: “[M]y name is gangero, cappone, lil green, but my real name is erick u

       can call me wat ever u want.”




               3
               People’s exhibit No. 48, the transcripts of text messages sent from defendant to S.M.’s phone, is
       30 pages long. S.M.’s testimony regarding and recitation of the text messages spans 125 pages of trial
       record.
                                                          8
¶ 22          In another exchange of text messages, beginning late on December 12 and continuing

       into the morning hours of December 13, Briana told defendant that she was happy with her new

       boyfriend. Defendant responded in part (S.M. reading):

                     “[J]ust give me my shit back or I will go to your crib and steal everything your

                     family has, your TVs, your jewelry, your money, everything, like I did before.

                     I’m glad I did that to you. I made your pussy bleed and made you not walk right. I

                     raped the shit out of you. Tell your new boyfriend how my dick tastes. On nation.

                     I’m glad I took that shit whether you wanted it or not. I didn’t let you leave my

                     folks crib until I had my nut. Woowee crazy. Either you give me my mother

                     fucking ring back or I will go to your crib and rape you again by gun point. I’ll

                     rape your mom and I’ll have my folks tripas rape your mom and little brother. I

                     don’t give a fuck. My folks weasel will rape your brother and mom. He’s been

                     locked up before for rape. He don’t mind getting some fresh meat you fucking

                     hoe. You want to fuck behind my back while I’m in the county? It’s cool. Just

                     give my shit back you whore before I hurt you little hoe ass.”

       Later, defendant wrote (S.M. reading):

                     “I’m a go pick up my ring, so have it ready before I kidnap you and keep you

                     locked up in a trap and rape you for months. No one will ever find you. So if you

                     know what’s good for you, you will give me my ring back or else you know

                     what’s coming. Watch your back because either I get it back or I’m coming for

                     that flat no good ass.”

       S.M. testified that all of the text messages sent from her phone were sent by either herself or

       Briana. S.M. did not allow anyone else to send text messages from her phone.


                                                      9
¶ 23          Dorsey, the Romeoville high school resource officer, testified that he met with Guerrero

       and Briana after reading the text messages sent to S.M.’s phone. Later, Dorsey placed a phone

       call to the number from which the texts had been sent. When no one answered, Dorsey left a

       message in which he explained that he was conducting an investigation regarding that phone

       number. Dorsey eventually received a return phone call. The individual who called Dorsey

       identified himself as Erick Martinez and admitted to sending the text messages in question. In his

       investigation, Dorsey acquired a photograph of defendant.

¶ 24          Kelley Henson, a detective with the Romeoville police department, testified that she

       received permission from Guerrero to take control of her Facebook account. Henson was then

       able to retrieve a number of messages that had been sent to Guerrero’s Facebook account from

       the account bearing the name of Pandillero Diciochero. Henson read for the jury a series of

       messages that the Pandillero Diciochero account sent to the Jessica Guerrero account on

       December 24, 2013. In the messages, defendant apologized to Briana, told her that he loved her,

       and wished her a merry Christmas. Defendant ended the messages by writing “8-24-12 always n

       for ever :) erick and briana always n forever for eternity <3.”

¶ 25          Henson further testified that she executed search warrants for the Facebook account

       bearing the name of Gangero Jente Difiesta. A portion of a January 26, 2014, conversation

       between the Difiesta account and an account bearing the name of Brian Lopez was published to

       the jury. The defense took exception to the Difiesta-Lopez Facebook transcripts coming into

       evidence through Henson’s testimony. The State maintained that the transcripts satisfied the

       business records exception to the rule barring hearsay. In support, the State filed a certificate of

       authentication, in which an authorized custodian of records for Facebook averred that “[t]he

       records provided were made and kept by the automated systems of Facebook in the course of


                                                        10
       regularly conducted activity as a regular practice of Facebook. The records were made at or near

       the time the information was transmitted by the Facebook user.”

¶ 26          In the conversation, the Difiesta account asked Lopez if he had a gun. Lopez replied that

       he did and sent pictures of two guns to the Difiesta account. The Difiesta account agreed to pay

       $250 for one of the guns. The two then set up a time to meet each other. The Difiesta account

       told Lopez that his phone number was (708) 953-2118.

¶ 27          Jasmeet Atwal testified that he had met defendant years earlier on MySpace. The two

       would talk online, as well as exchanging phone calls and text messages. Some time in late 2013,

       Atwal told defendant that he had stolen a gun. Atwal testified that defendant had reacted

       excitedly upon hearing that news. In January and February 2014, Atwal and defendant

       exchanged numerous text messages.

¶ 28          Atwal identified People’s exhibit No. 40 as a transcript of text messages exchanged

       between himself and defendant beginning on January 5, 2014, and continuing through the early

       morning hours of February 13, 2014. The transcripts, which were distributed to the jury for the

       duration of Atwal’s testimony on the topic, showed that on January 24, defendant wrote to

       Atwal: “let me borrow dat thang ill pick it up next week.” On February 1, defendant inquired: “u

       think I can get that thang 2day give it back by tuesday.” The parties then had the following

       exchange on February 8:

                             “[Atwal]: My boy is asking around right now.

                             [Defendant]: I thought he already had it.

                             [Atwal]: Its from his cousin he said if his cousin dont have that fifty then

                     we can get a nine Or a 45.”




                                                      11
       Atwal explained at trial that the “thing” or “thang” to which he and defendant were referring to

       was a gun. Defendant picked up the pistol at Atwal’s apartment on February 1 or 2, 2014.

¶ 29           J.S. testified that when she was a sophomore in high school, she maintained a Facebook

       account. In December 2013, she received a Facebook friend request from the account of Gangero

       Jente Difiesta. Though she did not recognize the name, she accepted the request and began

       exchanging messages with that account. Those messages continued through February 2014. J.S.

       identified People’s exhibit No. 3 as a printout of the Gangero Jente Difiesta Facebook account

       with which she communicated and confirmed that the main profile picture was a photograph of

       the individual related to the account that she would eventually meet in person.

¶ 30           J.S. testified that the individual with whom she was messaging identified himself as

       Carlos. She met Carlos for the first time after school on January 15, 2014. She identified

       defendant as the individual she met that day. After that meeting, J.S. continued messaging

       defendant through Facebook and met with him again two weeks later. At the second meeting,

       J.S. met defendant’s roommates, who she described as a male, female, and a small child.

¶ 31           J.S. identified People’s exhibit No. 54 as a transcript of Facebook messages exchanged

       between herself and the Gangero Jente Difiesta Facebook account. J.S. read a message that was

       sent from the account on the night of February 9, 2014: “Whatever happens I need you to always

       be with me. Don’t cheat and lie. And if one day I disappear, wait till I come back. If I go to jail

       or really long time, wait till I come [out].” In further messages, J.S. implored defendant not to do

       anything that might result in his going to jail; defendant continued to insist that J.S. wait for him

       if he went to jail.

¶ 32           After that exchange of messages, J.S. met with defendant again on February 11, 2014.

       She and a friend walked from school to defendant’s apartment, arriving just after 8 a.m.


                                                        12
       Defendant, however, was not home. Defendant arrived an hour later, explaining to J.S. that he

       had been “[p]icking up some money.” That day at defendant’s apartment, defendant and J.S. had

       a similar conversation in which defendant requested that she wait for him. She never saw

       defendant again after that meeting.

¶ 33          Stephen Sanders testified that he was working for Morton Taxi in February 2014. On the

       morning of February 11, 2014, Sanders accepted a call to pick up an individual in Cicero and

       drop him off in Romeoville. At approximately 6 a.m., he arrived at the pick-up address, where

       defendant entered the cab. When Sanders dropped defendant off, he gave defendant a Morton

       Taxi business card with his personal phone number on the back. Defendant called Sanders later

       that morning to inquire about being driven back to Cicero, but Sanders had already left the area.

¶ 34          On the morning of February 13, 2014, Sanders received a call on his personal phone from

       defendant. At 6 a.m., Sanders picked up defendant from the same place in Cicero as he had two

       days earlier. Upon picking defendant up, Sanders noticed that he was “stressed out” and anxious.

       Defendant was wearing dark clothing. Sanders recalled that defendant spoke of a girl in

       Romeoville during the drive, but Sanders could not remember the details. Sanders drove

       defendant to Romeoville, dropping him off, at an address he recalled as being 320 Emery Lane,

       at approximately 6:45 a.m. Days later, Sanders identified defendant in a photographic lineup as

       the individual he twice drove to Cicero.

¶ 35          An audio recording of a phone call was played in court. That phone call was made on

       February 11, 2014, at 5:13 a.m. from Ortiz’s phone to Morton Taxi, which recorded the call. In

       the recording, a man, who identifies himself as Carlos, requests a cab to pick him up at 5618

       West Park Avenue in Cicero and drop him off at 320 Emery Avenue in Romeoville. Ortiz, who




                                                       13
       had listened to the recording of the phone call earlier, identified defendant as the individual

       making the call. Ortiz was familiar with defendant’s voice from years of living with him.

¶ 36           On the morning of February 13, 2014, Briana woke Guerrero around 6:50 a.m. Guerrero

       put on shoes and a jacket over her pajamas as Briana got ready for school. The two then went out

       to Guerrero’s car, which was parked in the driveway. Guerrero got into the driver’s seat while

       Briana got into the front passenger’s seat. Guerrero was putting her seatbelt on when she heard a

       pop. Guerrero testified:

                      “I remember thinking someone knocked on my window so hard and I was so

                      angry, and I remember turning and looking at my daughter. And first I saw glass

                      all over the floor and I was like oh, my God, why did they have to hit my window

                      so hard. When I looked she wasn’t moving, she was slouched sideways towards

                      me.”

¶ 37           Guerrero then saw a male standing outside the front passenger window. The individual

       was wearing a black hooded sweatshirt with some “orange rusty color” on it and holding a

       revolver. In the moment, Guerrero was not able to make out any other distinguishing

       characteristics. As Guerrero begged the individual to stop, he shot her in the shoulder. Guerrero

       testified:

                      “I jumped back and I just remember seeing blood gushing out of me and I thought

                      I was going to die and no one was going to find my daughter, so I pushed my horn

                      and I started screaming for my husband to come out but he couldn’t hear me, so I

                      just kept putting my horn and then I grabbed my alarm system keypad and I

                      pushed the panic button.”




                                                      14
¶ 38          Alejandro Valle testified that he was married to Guerrero. He testified that he had lived in

       Romeoville with Guerrero and their son. Briana, was his daughter. Alejandro testified that he

       returned home from work at approximately 5 a.m. on the morning of February 13, 2014. He fell

       asleep before Briana left for school that morning. He went outside later that morning to see

       Guerrero screaming and crying. He saw Briana, and she was unresponsive. Alejandro testified:

       “There was blood all over.” On February 15, 2014, doctors at Loyola Hospital told Alejandro

       that Briana was brain dead.

¶ 39          A number of neighbors and emergency personnel testified regarding the scene at 342

       Emery Avenue on the morning of February 13, 2014. Neighbors described hearing pops, bangs,

       or gunshots, followed by screaming. First responders testified that Guerrero was screaming and

       bleeding from her neck, while Briana was slumped over in the front passenger’s seat. The front

       passenger window was shattered.

¶ 40          Shelie Jones testified that she was living at 344 Emery Avenue on February 13, 2014.

       She lived at the home with her daughter, Triana James. Shelie testified that the sound of gunshots

       caused her to look through her front window that morning. Shelie saw an individual running

       toward 135th Street, in a direction away from 342 Emery Avenue. The individual was wearing a

       black hooded sweatshirt. James testified that she saw an individual dressed in dark clothing run

       past her house. James described the individual as “pretty small with a small build.” She also

       described the individual as “[p]retty lean.” The individual was wearing a hood over their head.

       The individual was running in a direction from 342 Emery Avenue and toward 135th Street.

¶ 41          On February 13, 2014, at approximately 7:12 a.m., Dorsey was called to the scene of a

       shooting at 342 Emery Avenue. Upon arriving at the scene, Dorsey was informed that the

       victims were Alicia Guerrero and Briana Valle. Recognizing those names from his December


                                                      15
       investigation, Dorsey returned to the police station to print his previous report. Dorsey also

       printed copies of the photograph of defendant and distributed those to officers upon returning to

       the scene between 8 and 8:30 a.m.

¶ 42          Dylan Somma testified while in the custody of the Illinois Department of Corrections

       (IDOC) based on three felony convictions. He testified that prior to entering IDOC custody, he

       lived at 332 Emery Avenue in Romeoville in February 2014. Somma testified that his mother,

       knowing that he had warrants out for his arrest, woke him that morning to tell him that there

       were “police *** everywhere.” Somma thought that the police were in the vicinity to raid his

       mother’s house, so he ran. He left the house through the back door and ran through his own

       backyard. Somma testified that he was trying to get to his friend’s house, elsewhere in the

       neighborhood.

¶ 43          While running, Somma jumped over a fence, cutting his right hand in the process.

       Somma eventually made it to his friend’s house, but no one responded to his knocks on the front

       door. As he moved to the back door, he saw a police officer in the adjacent yard. Somma began

       running again, this time onto Hickory Avenue, two streets away from Emery Avenue. Somma

       was eventually apprehended by police officers in the backyard of a house on Hickory Avenue.

       Somma testified that he had no knowledge at that point that there had been a shooting. He did

       not know any people by the names of Briana Valle or Alicia Guerrero.

¶ 44          On cross-examination, Somma testified that he is Hispanic with long brown hair. He

       testified that he was wearing a black hooded sweatshirt and blue pants while he was running

       from the police on February 13, 2014. He wore a grey sweatshirt under the hooded sweatshirt.

       Somma’s hands were not tested for gunshot residue nor was the wound on his right hand ever

       photographed. He testified that he had never held a gun before.


                                                      16
¶ 45          Jonathan Allen of the Romeoville police department testified that on the morning of

       February 13, 2014, he arrived at 342 Emery Avenue with a police dog named Spike. After

       receiving initial information from officers on the scene, Allen began patrolling the area with

       Spike. While in his squad car, Allen received a call that an individual wearing dark clothing had

       been seen jumping over fences. Allen proceeded to Hickory Avenue where he observed the same

       and immediately moved to cut the individual off. Allen proceeded on foot, jumping over fences

       in pursuit of the individual. Allen eventually entered the backyard of 328 Hickory Avenue,

       where other officers had detained Somma.

¶ 46          After Somma was taken into custody, Allen continued to patrol the neighborhood. He

       was on foot with Spike searching for a weapon when he reentered the backyard on Hickory

       Avenue in which Somma was taken into custody. Upon entering the yard, Spike began to growl.

       Allen turned in the direction that Spike was growling and observed a leg protruding from

       underneath a porch. Allen drew his weapon and advised officers via radio that he had a subject at

       gunpoint. Other officers came to the yard and placed the individual under arrest. Allen had

       previously been shown a picture of the shooting suspect, and the individual placed under arrest

       matched that picture. In court, Allen identified that individual as defendant.

¶ 47          Michael Ryan of the Romeoville police department testified that he met with other

       officers at 342 Emery Avenue to discuss a plan of investigation. After learning that defendant

       was a possible suspect, Ryan was assigned to visit two addresses in Cicero. Ryan arrived at 5600

       West Park Avenue in Cicero at approximately 5 p.m. Upon arriving at that apartment, Ryan

       made contact with Avila. Avila told Ryan that defendant had been staying in the apartment.

       When Ryan asked Avila what defendant used for transportation, Avila provided Ryan with the

       business card for Morton Taxi. A phone number was handwritten on the back of the card.


                                                        17
¶ 48          On February 16, 2014, three days after the shooting, Ryan assisted in the search for a

       weapon. During the search, Ryan found a handgun in the snow between two fences, on the south

       side of 135th Street between Hale Avenue and Hickory Avenue. The gun was collected by

       evidence technician Brandon Helton. Helton noted that the gun contained three unfired bullets,

       and the casings of three fired bullets. He described the gun as a pearl-handled revolver, and

       identified a photograph of the gun. Viewing the same photograph, Atwal testified that the gun in

       the photograph was the same gun that he had given to defendant.

¶ 49          Woodsman Jones of the Romeoville police department testified that on the morning of

       February 13, 2014, he was dispatched to the area of 328 Hickory Avenue to assist in the

       apprehension of a suspect in a shooting that had occurred that morning. When Jones arrived at

       the scene, the suspect, who Jones identified as defendant, had already been taken into custody.

       Jones was tasked with transporting defendant to the police station. Jones testified that defendant

       was wearing a black zip-up hooded sweatshirt with red writing on the front and a red lining in

       the hood. He was also wearing blue jeans and “an ankle bracelet.” Upon arriving at the police

       station, Jones collected defendant’s clothing as evidence. The zip-up sweatshirt would later be

       transported to the Illinois State Police crime lab.

¶ 50          The parties stipulated that defendant had been convicted of a felony offense in Cook

       County on October 4, 2013. The parties further stipulated that defendant’s ankle bracelet

       recorded when defendant left and returned to 5600 West Park Avenue but did not record GPS

       locations. Monitoring records would show that defendant left his residence at 5:36 a.m. on

       February 11, 2014, and returned home at 9:11 a.m. Those same records would show that

       defendant left his residence at 6:01 a.m. on February 13, 2014.




                                                         18
¶ 51          Mary Wong testified that she was a forensic scientist with the Illinois State Police,

       specializing in gunshot residue. Wong explained that the series of explosions that create a

       gunshot produce a small cloud of gas, which cools to form gunshot residue particles. Samples

       taken from the backs of defendant’s hands tested negative for gunshot residue particles.

¶ 52          Wong also tested the zip-up sweatshirt that was removed from defendant. She tested the

       right and left cuff areas of the sweatshirt. Gunshot residue particles were found on the right cuff,

       from which Wong concluded that the right cuff of defendant’s sweatshirt “either was in the

       vicinity of a discharged firearm or it came in contact with a primer gunshot residue-related item.”

       She also found “consistent particles” in testing portions of defendant’s pants, which led her to the

       same conclusion.

¶ 53          After each party had presented its case-in-chief, the court and parties discussed the

       proposed jury instructions. Neither party proposed an instruction limiting the purposes for which

       bad acts evidence could be considered. No such instruction was thus delivered to the jury, either

       orally or in the packet of jury instructions.

¶ 54          In defense counsel’s closing argument, he insisted that the Romeoville police department

       had rushed to judgment against defendant once it suspected him of the charged offenses. In so

       arguing, the defense repeatedly referenced Somma. In fact, the defense argued:

                              “Dylan Somma, ladies and gentlemen, we will talk a lot about because it’s

                      our position that not only did the prosecution not prove beyond a reasonable

                      doubt that [defendant] committed these offenses, but I would submit to you even

                      though we don’t have a burden of proof, we proved to you beyond a reasonable

                      doubt that the killer was Dylan Somma.”

       The jury found defendant guilty on all counts.


                                                        19
¶ 55          On October 8, 2014, defendant filed a pro se motion for a new trial in which he alleged

       that defense counsel had been ineffective. At a hearing held six days later, defense counsel told

       the court that defendant wished to withdraw his pro se motion. Defendant confirmed that he was

       voluntarily withdrawing his motion. Defense counsel subsequently filed a motion for a new trial

       on defendant’s behalf, which was denied. The presentence investigation report listed defendant’s

       date of birth as July 9, 1990. On October 20, 2014, the court sentenced defendant to terms of

       imprisonment of 72, 39, and 11 years, to be served consecutively.

¶ 56          On December 30, 2014, defendant filed a pro se motion for reduction of sentence. In that

       motion, defendant listed 33 separate grounds on which he alleged counsel had provided

       ineffective assistance. One such allegation read: “Defendant’s counsel threatened him that if he

       did not withdraw his motion for ineffectiveness of counsel he would testify against him and

       make sure he would never get an appeal by fabricating false statements against him.” The court

       held a hearing on defendant’s motion but did not allow defendant to argue any of his

       ineffectiveness claims. The court ultimately denied the motion.

¶ 57          Defendant filed another pro se motion for new trial on January 29, 2015. In that motion,

       defendant reiterated his previous claims of ineffective assistance of counsel. The court did not

       address the motion.


¶ 58                                              ANALYSIS

¶ 59          Defendant raises a number of independent arguments on appeal. The majority of those

       arguments relate to the admission of what he describes as “large amounts of highly prejudicial

       other crimes and bad acts evidence.” Primarily, defendant contends that the circuit court abused

       its discretion by admitting such evidence at trial. He also argues that the court subsequently erred

       by not issuing Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter,

                                                       20
       IPI Criminal 4th No. 3.14), which limits the purposes for which such evidence may be

       considered. Defendant also argues that defense counsel was ineffective for failing to request that

       instruction. Finally, defendant contends that certain evidence should have been barred as hearsay

       and that the circuit court abused its discretion in determining that the evidence qualified for the

       business records exception.

¶ 60           Alternative to his trial-based arguments, defendant contends that the circuit court failed to

       conduct a proper preliminary inquiry into his many posttrial, pro se claims of ineffective

       assistance of counsel. He maintains that the circuit court, under Krankel, 102 Ill. 2d 181, was

       obligated to inquire as to the factual basis for defendant’s allegations in order to determine if

       there had been possible neglect of the case. For the reasons set forth below, we reject defendant’s

       evidentiary arguments and affirm his conviction, but remand the matter so that the circuit court

       may conduct a proper inquiry into defendant’s claims of ineffective assistance of counsel.

¶ 61                           I. Admission of Other Crimes and Bad Acts Evidence

¶ 62           Defendant identifies three groups of evidence which he claims were prejudicial to him:

       (1) the publication and recitation of Facebook messages exchanged between J.S. and defendant,

       (2) the publication and recitation of Facebook messages exchanged between Brian Lopez and

       defendant, and (3) the publication and S.M.’s recitation of text messages involving Briana,

       defendant, and S.M. 4 Defendant does not argue that the circuit court abused its discretion in



               4
                As a technical matter, all of the Facebook messages in question were sent to or from the account
       labeled “Gangero Jente Difiesta,” while the text messages in question were sent from a phone number
       labeled in S.M.’s phone as “Briana’s guy.” At certain points in his brief, defendant seems to concede that
       he participated in those communications, describing “correspondence between Defendant and other
       individuals” or “Facebook correspondence and text messages between Defendant and two of the State’s
       witnesses.” At other points, however, defendant implies that there is an open question concerning who
       actually wrote those messages, referring to messages sent by “a person alleged to be Defendant” or “an
       individual who was purportedly Defendant.” The record shows that the State thoroughly and exhaustively
       proved that defendant owned and operated the Gangero Jente Difiesta Facebook account and that he
                                                          21
       admitting, individually, each of those groups of evidence. Instead, defendant argues that those

       three groups of evidence, when combined, amounted to “overkill.” See People v. Bedoya, 325 Ill.

       App. 3d 926, 941 (2001). In other words, defendant contends that the cumulative effect of all of

       the evidence cited was unduly prejudicial and that the circuit court abused its discretion in

       admitting that amount of evidence.

¶ 63          In other portions of his brief, defendant identifies other possible examples of prejudicial

       other crimes or bad acts. Specifically, defendant points to evidence that Briana ran away from

       home and was found in Cicero with defendant, evidence of the orders of protection obtained by

       Guerrero against defendant, and that defendant was wearing an ankle bracelet related to another

       offense. Defendant raises these pieces of evidence only in the context of his ineffective

       assistance of counsel argument, citing them as proof that counsel should have requested a

       limiting jury instruction. See infra ¶¶ 92-98. At no point does defendant argue that the circuit

       court abused its discretion in admitting these particular pieces of evidence. Accordingly, for the

       purposes of defendant’s primary evidentiary argument, we only consider those three groups of

       evidence listed in the paragraph above.

¶ 64                                             A. Legal Principles

¶ 65          Rule 404(b) of the Illinois Rules of Evidence is titled “Other Crimes, Wrongs, or Acts.”

       Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). The rule provides that, with certain exceptions not

       relevant here,

                        “Evidence of other crimes, wrongs, or acts is not admissible to prove the character

                        of a person in order to show action in conformity therewith *** [citations]. Such

                        evidence may *** be admissible for other purposes, such as proof of motive,

       regularly used the phone number (773) 349-2942. Accordingly, for the remainder of this opinion, we will
       simply refer to Facebook and text messages written and sent by defendant.
                                                         22
                       opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

                       or accident.” Id.

       As summarized by our supreme court prior to the adoption of the Illinois Rules of Evidence,

       “Evidence regarding other crimes is generally inadmissible to demonstrate propensity to commit

       the charged crime ***.” People v. Donoho, 204 Ill. 2d 159, 170 (2003).

¶ 66           The restriction on the use of other crimes or bad acts evidence is primarily based upon the

       tendency of such evidence to cause unfair or undue prejudice to a defendant. See People v.

       Ward, 2011 IL 108690, ¶ 47. Of course, all evidence is prejudicial, in that it is intended to

       persuade the finder of fact in one direction or the other. E.g., People v. Gordon, 2017 IL App

       (3d) 140770, ¶ 25. In this context, as with the rules of evidence generally, the concern is with

       prejudice which is undue or unfair, the type of prejudice that “speaks to the capacity of some

       concededly relevant evidence to lure the factfinder into declaring guilt on a ground different

       from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180

       (1997). With other crimes or bad acts evidence, the possibility arises that juries will prejudge

       defendant based on their unrelated bad acts, or find them to be a “a bad person deserving

       punishment,” independent of the evidence of the charged offense presented. People v. Lindgren,

       79 Ill. 2d 129, 137 (1980); see also Ward, 2011 IL 108690, ¶ 47.

¶ 67           Still, Rule 404(b) provides that such evidence is admissible for a number of other

       purposes besides propensity. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Where such evidence is

       admissible for another purpose, it is subject to the standard test applied to all evidence. Donoho,

       204 Ill. 2d at 170.

¶ 68           Rule 404(b) thus contemplates a two-part inquiry. First, a court must determine if the

       evidence is offered for a purpose other than propensity; in other words, does the evidence tend to


                                                       23
       prove or disprove that the defendant committed the charged offense. Ill. R. Evid. 404(b) (eff.

       Jan. 1, 2011); see also Black’s Law Dictionary 1397 (10th ed. 2014) (defining “probative”). If

       the proffered evidence is not probative of anything except the defendant’s propensity to commit

       crimes or engage in bad acts, it is inadmissible. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). If the

       evidence is relevant—in proving, for example, motive or intent—the court must then determine

       if that probative value is substantially outweighed by the danger of unfair prejudice. Ill. R. Evid.

       403 (eff. Jan. 1, 2011).

¶ 69          Rule 403, in addition to setting forth the test for admissibility of prejudicial evidence,

       also prohibits the “needless presentation of cumulative evidence.” Id. “Evidence is considered

       cumulative when it adds nothing to what was already before the jury.” People v. Ortiz, 235 Ill.

       2d 319, 335 (2009).

¶ 70          The prohibition of the needless presentation of cumulative evidence is closely related to

       the rule that evidence must be relevant or probative to be admissible. Ill. Rs. Evid. 401, 402 (eff.

       Jan. 1, 2011). As more identical evidence is presented to a jury, it stands to reason that the

       probative value of any such evidence will continue to diminish. E.g., Underwood v. Elkay

       Mining, Inc., 105 F.3d 946, 950 (4th Cir. 1997) (“There is a point of diminishing returns and a

       point at which additional evidence provides almost no value.”). Moreover, as the probative value

       of each subsequent piece of cumulative evidence diminishes, the prejudicial effect, if there is

       any, remains the same, increasing the chances that the danger of undue prejudice will come to

       outweigh the probative value. Ill. Rs. Evid. 401, 402 (eff. Jan. 1, 2011).

¶ 71          In the context of other crimes or bad acts evidence, courts are especially wary of

       accumulation, given the high danger of undue prejudice inherent in such evidence. In People v.

       Nunley, 271 Ill. App. 3d 427 (1995), the defendant was charged with murder. The defendant had


                                                        24
       been arrested and taken to the police station for allegedly stabbing his mother and killing her

       dog. Id. at 428. It was in the police interrogation room that the defendant confessed to a murder

       he had committed years prior, the offense for which he would ultimately be charged. Id. Though

       the circuit court noted the possibility “the fact that some jurors may consider the killing of a dog

       more depraved than that of an individual,” it allowed the State to present full evidence regarding

       the stabbing and the killing of the dog as part of a continuing narrative. Id. At trial, detailed

       testimony was provided by the arresting officer; in closing, the State referenced defendant’s

       “reign of murder.” Id. at 432.

¶ 72          The Nunley court agreed that some evidence of defendant’s other crimes was relevant in

       demonstrating the voluntariness of his confession. Id. at 432. However, the court held that “the

       detail and repetitive manner in which the evidence was presented greatly exceeded what was

       required to accomplish this purpose [citation] and subjected defendant to a mini-trial over

       conduct far more grotesque than that for which he was on trial.” Id. Similarly, in Bedoya, 325 Ill.

       App. 3d at 940-41, where seven witnesses testified regarding earlier, uncharged shootings, the

       court found that “[t]he detail and repetition presented to the jury had nothing to do with the

       purported purpose of the evidence—proof of Bedoya’s intent and the absence of accident.”

       Reversing the defendant’s conviction, the court referred to that amount and repetition of other

       crimes evidence as “overkill.” Id. at 941.

¶ 73                          B. Messages Exchanged Between J.S. and Defendant

¶ 74          The first group of evidence to which defendant takes exception is the publication and

       recitation of the Facebook messages exchanged between himself and J.S. In those messages,

       defendant repeatedly implored J.S. to wait for him if he should one day go to jail for a long time.

       See supra ¶¶ 31-32.


                                                       25
¶ 75           It is unclear how this series of messages constitutes evidence of “Other Crimes, Wrongs,

       or Acts.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Though defendant argues that the messages (in

       concert with the other identified groups of evidence) should have been inadmissible under Rule

       404(b), he makes no effort to explain what “other” crime, act, or even wrong is implicated by the

       evidence. It was not a crime for defendant to ask J.S. to wait for him to return from jail nor was

       that an inherently bad act. 5 Though the messages give rise to an inference that defendant was

       contemplating committing a crime, the only actual crime or bad act that can be tied to that

       inference is the murder that occurred four days later. Of course that is not an “other” crime;

       rather, it is the actual offense defendant was charged with. In sum, the messages between

       defendant and J.S. do not constitute other crimes evidence under Rule 404(b) and show no

       apparent danger of undue prejudice.

¶ 76                            C. Messages Exchanged Between Brian Lopez and Defendant

¶ 77           Defendant next takes exception to the publication and recitation of the Facebook

       messages between himself and Brian Lopez, claiming that those messages “added to the

       prejudicial weight of the other crimes evidence.” Those messages detailed defendant’s attempts

       to purchase a gun from Lopez.

¶ 78           Again, defendant asserts that the evidence in question was “other crimes” evidence but

       gives no explanation as to how or why that is the case. We surmise that defendant’s messages

       might be construed as an attempt to commit the criminal offense of unlawful possession of a

       weapon by a felon. In any event, Rule 404(b) is broader than “other crimes,” incorporating bad

       acts or wrongs, so we will assume, arguendo, that one’s efforts to illegally obtain a firearm

       constitutes a “wrong.” Id.

               5
                 We note that the circuit court properly exercised its discretion in prohibiting all references to any
       sort of romantic relationship between defendant and J.S.
                                                             26
¶ 79          Defendant’s messages to Lopez were probative of defendant’s intent to commit and

       preparation for the charged murder. Between the messages and Atwal’s testimony, the State

       showed that defendant was looking for a gun for a period of time before Briana was murdered. It

       was also a key piece of the State’s timeline, falling between the threats of December 2013 and

       the shooting in February 2014. On a more basic level, evidence that a defendant is searching for

       a gun is of clear probative value where that defendant is charged with shooting a person. Further,

       in those messages to Lopez, defendant, through the Gangero Jente Difiesta Facebook account,

       told Lopez that his phone number was (708) 953-2118. This bolstered the State’s case in

       connecting defendant, his Facebook account, and defendant’s use of Ortiz’s phone.

¶ 80          The Lopez messages were thus probative of a number of elements rather than on

       defendant’s propensity to commit crimes or wrongs. That evidence would not be automatically

       barred by Rule 404(b). Further, we find that the risk of undue prejudice arising from those

       messages was low. Defendant was charged with first degree murder and attempted first degree

       murder. It is highly unlikely that the jury’s verdict would conclude that defendant was a “bad

       person deserving punishment” because he tried to procure a gun. Lindgren, 79 Ill. 2d at 137.

       Accordingly, we find that the circuit court did not abuse its discretion in admitting this evidence.

¶ 81                          D. Messages Exchanged Between Briana, S.M., and Defendant

¶ 82          Finally, defendant takes exception to the publication and recitation of the text messages

       exchanged between himself, Briana, and S.M. In that lengthy exchange of messages, defendant

       exhibits jealousy toward Briana, then anger, as he repeatedly threatens to rob, rape, murder, or

       kidnap Briana or her family members. The messages also included multiple references to the

       sexual relationship between defendant and Briana.




                                                        27
¶ 83          First, we note that the messages in question were significantly probative with respect to

       the charged offenses in a number of ways. On a simple level, defendant’s threats to harm Briana

       were probative of his intent and probative of his identity as the shooter. Defendant’s history with

       Briana and anger toward her make him much more likely to be the shooter than Somma. Further,

       defendant’s severe jealousy upon learning that Briana had a new boyfriend was probative of his

       motive for killing her. Defendant’s inclusion of Briana’s family in his series of threats was

       probative of his preparation or plan, given that he was also charged with the attempted first

       degree murder of Guerrero. More broadly, the messages from December 2013, in conjunction

       with the State’s evidence from the next two months, further demonstrate the timeline of

       defendant’s preparation; that is the evidence allows the inference that defendant decided to kill

       Briana sometime in December 2013. And again, each of these factors were themselves probative

       of identity, which the defense brought into issue by so extensively arguing about Somma.

¶ 84          Though the messages in question had great probative value, they also carried a danger of

       unfair prejudice on a number of grounds. Primarily, the messages contained some graphic

       references to the sexual relationship between defendant and Briana. Given the ages of defendant

       and Briana, the existence of a sexual relationship between the two constituted defendant’s

       commission of criminal sexual assault. The messages also included threats made by defendant

       and were rife with defendant’s use of vulgar language, either of which might lead the jury to

       conclude that defendant is a person of bad character. See Ward, 2011 IL 108690, ¶ 47.

¶ 85          Importantly, the number of explicit references to the sexual nature of defendant’s

       relationship with Briana in the messages in question was somewhat few, especially when

       considered relative to the total length of the messages. To be sure, those references were there,

       but it was defendant’s jealousy, not the sexual relationship itself, that was the main thrust of the


                                                       28
       messages. In other words, defendant’s criminal offense was never the focus of that presentation

       of evidence. See People v. Perez, 2012 IL App (2d) 100865, ¶ 47 (“When weighing the

       prejudicial effect of admission, a court should consider whether the other-crimes evidence will

       become the focus of the trial ***.”). Further, while demonstrating defendant’s anger and jealousy

       was vital to the State’s case, showing jealousy without some reference to the existence of a

       romantic relationship would be almost impossible and quite confusing for the jury.

¶ 86          Defendant’s threats and vulgar language carried less danger of undue prejudice. While

       we agree with defendant that evidence of such threats and use of vulgar language may convince a

       jury that a defendant is of bad character, that effect must necessarily be less than when evidence

       is presented that a defendant committed an actual criminal offense. Indeed, the prejudicial effect

       of other crimes, acts, or wrongs evidence must include a consideration not only of the

       seriousness of the other crime or wrong but also the gravity of the charged offenses. The Nunley

       court alluded to this principle when it pointed out that the defendant had been subjected “to a

       mini-trial over conduct far more grotesque than that for which he was on trial.” Nunley, 271 Ill.

       App. 3d at 432.

¶ 87          The Nunley court’s conclusion was logical: where the other crime or wrong is worse—or

       “far more grotesque”—than the charged offense, the possibility of undue prejudice is especially

       high. Id. The inverse is also true. By way of example, where a defendant is charged with

       misdemeanor disorderly conduct, and evidence is presented showing that he committed an

       unrelated murder, that evidence is likely to be prejudicial. On the other hand, where a defendant

       is on trial for murder and evidence is presented showing that he tended to use vulgar language, it

       is far less likely that such evidence will play any role in the jury’s decision-making process. See

       also, e.g., People v. Carter, 2016 IL App (3d) 140196, ¶ 39 (“[E]vidence that defendant wished


                                                       29
       to escape from jail and acquired various items of contraband including hacksaw blades to do so

       was unlikely to inflame the passions of the jury. This is especially true when compared with the

       strong evidence of the relatively more heinous offense of attempted murder.”).

¶ 88          In sum, the messages exchanged between defendant, Briana, and S.M., certainly

       contained some elements that risked undue prejudice against defendant. However, the messages

       were also highly probative in numerous ways. Given this great probative value, the circuit

       court’s ruling that the probative value was not substantially outweighed by the danger of undue

       prejudice was not “arbitrary, fanciful, or unreasonable.” People v. Caffey, 205 Ill. 2d 52, 89

       (2001) (providing definition of “abuse of discretion”).

¶ 89          We also conclude that the admission of all of the evidence cited by defendant on appeal

       did not, collectively, amount to an abuse of discretion. The J.S. messages did not even constitute

       other crimes or wrongs evidence (see supra ¶¶ 74-75), and the Lopez messages carried little

       danger of undue prejudice (see supra ¶¶ 77-80). While the messages on S.M.’s phone certainly

       present a closer case, if the risk of prejudice there is not enough to constitute an abuse of

       discretion, the other messages in question do little more for defendant’s case.

¶ 90          Furthermore, we find that the evidence presented in this case does not run afoul of Rule

       403 or the “overkill” doctrine. See supra ¶¶ 69-72. The evidence in question added a great deal

       to what was before the jury, bolstering the State’s case with respect to defendant’s motive, intent,

       preparation, and, ultimately, his identity. Obviously each bit of identity evidence was important,

       given that the defense’s closing argument was premised on Somma being the actual shooter.

       Further, the “overkill” doctrine, as explained in cases such as Nunley and Bedoya, contemplates

       trials in which another offense by a defendant becomes the focus of the trial. Here, evidence was

       presented that alluded to certain other criminal offenses committed by defendant as well as


                                                       30
       certain “wrongs,” such as making threats or using vulgar language. However, not one of those

       other crimes or wrongs ever became the focus of the trial, such that a “mini-trial” arose relating

       to that other conduct. See Nunley, 271 Ill. App. 3d at 432. Nor was evidence presented regarding

       any of those crimes or wrongs in needless detail and repetition. See Bedoya, 325 Ill. App. 3d at

       941. Overall, the risk that the jury found defendant guilty in part because it found him to be a

       “bad person deserving punishment” (Lindgren, 79 Ill. 2d at 137) is especially low in light of the

       great amount of compelling evidence the State presented.

¶ 91                                          E. Jury Instructions

¶ 92          Defendant also argues that IPI Criminal 4th No. 3.14 should have been delivered to the

       jury in conjunction with the admission of other crimes or wrongs evidence. He contends first that

       the circuit court itself erred in failing to give that instruction sua sponte. Alternatively, he

       contends that defense counsel was ineffective for failing to request the instruction.

¶ 93          IPI Criminal 4th No. 3.14 informs jurors that when evidence of a defendant’s other

       crimes or wrongs had been admitted, it may only be considered for certain purposes. That

       instruction thus ensures that such evidence will not be considered as character or propensity

       evidence, as barred by Rule 404(b). Because the State presented evidence of other crimes or

       wrongs committed by defendant, this instruction would have been appropriate if given.

¶ 94          Initially, neither party in the present case requested that the circuit court deliver IPI

       Criminal 4th No. 3.14. The defense was certainly on notice that evidence warranting the

       instruction would be presented but did not request the instruction pretrial, nor did it do so in a

       jury instruction conference. The circuit court itself does not have a duty to sua sponte deliver IPI

       Criminal 4th No. 3.14. People v. Mullen, 80 Ill. App. 3d 369, 375 (1980). Accordingly, we




                                                        31
       proceed directly to defendant’s argument that counsel was ineffective for failing to request the

       instruction.

¶ 95          Claims of ineffective assistance of counsel are analyzed under the two-part framework set

       forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984). See People v.

       Manning, 241 Ill. 2d 319, 326 (2011). To prevail on such a claim, “[a] defendant must show that

       counsel’s performance fell below an objective standard of reasonableness and that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

       would have been different.” Id. In order to satisfy the prejudice prong, a defendant must prove a

       reasonable probability exists that, but for counsel’s deficient performance, the outcome of the

       trial would have been different. People v. Smith, 195 Ill. 2d 179, 188 (2000). It is well-settled

       that courts “may resolve ineffectiveness claims under the two-part Strickland test by reaching

       only the prejudice component, for lack of prejudice renders irrelevant the issue of counsel’s

       performance.” People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).

¶ 96          Defendant’s ineffectiveness claim fails because there is no reasonable probability that the

       outcome of his trial would have been different had counsel procured the delivery of IPI Criminal

       4th No. 3.14. The evidence at trial showed that defendant was infatuated with Briana but became

       jealous and enraged when the relationship ended. He repeatedly threatened to kill her. Soon

       thereafter, defendant attempted to procure a firearm. Just days before the shooting, defendant

       was apparently contemplating an act that would result in him going to jail for a long time.

       Defendant eventually did receive a gun from Atwal, who identified the gun he gave defendant as

       the one found by police blocks away from the scene of the crime.

¶ 97          The State showed that defendant took two cab rides from his home in Cicero to an

       address in Briana’s neighborhood. The second of those cab rides occurred on the morning of the


                                                      32
        shooting. Multiple neighbors testified that an individual generally matching defendant’s

        description fled past their house after they heard gunshots. Defendant was arrested two streets

        over from the scene of the crime. The sweatshirt he was wearing at the time was later found to

        have gunshot residue particles on the right cuff.

¶ 98           The jury concluded that defendant was guilty of murdering Briana and shooting Guerrero

        because the evidence presented allowed for no other conclusion. The circuit court’s delivery of

        IPI Criminal 4th No. 3.14 would not have affected the outcome. Thus, we reject defendant’s

        argument that defense counsel was ineffective for failing to request that instruction.

¶ 99                                          II. Business Records

¶ 100          Within his other crimes arguments, defendant raises the independent and distinct

        argument that the Facebook messages exchanged between himself and Lopez should not have

        been admissible because they constitute hearsay. While those messages were admitted under the

        business records exception, defendant claims that ruling was an abuse of discretion. Though

        defendant failed to include this point in the “Issues Presented for Review” section of his brief,

        the State fully responds to the argument. Accordingly, we will consider defendant’s contention

        that the Facebook posts were “not made to record any business event, nor are they made by any

        business during the regular course of business.”

¶ 101          Defendant’s argument is directly contradicted by the certificate of authentication filed by

        the State accompanying the evidence in question. Rule 803(6), commonly known as the business

        records exception, provides that certain hearsay evidence is admissible where it constitutes

                       “[a] memorandum, report, record, or data compilation, in any form, of acts,

                       events, conditions, opinions, or diagnoses, made at or near the time by, or from

                       information transmitted by, a person with knowledge, if kept in the course of a


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                       regularly conducted business activity, and if it was the regular practice of that

                       business activity to make the memorandum, report, record or data compilation, all

                       as shown by the testimony of the custodian or other qualified witness, or by

                       certification that complies with Rule 902(11).” Ill. R. Evid. 803(6) (eff. Jan. 1,

                       2011).

¶ 102          The certificate of authenticity provided by a Facebook authorized custodian of records

        and filed by the State indicated that “[t]he records provided were made and kept by the

        automated systems of Facebook in the course of regularly conducted activity as a regular practice

        of Facebook. The records were made at or near the time the information was transmitted by the

        Facebook user.” The certificate of authenticity complied with Rule 902(11), and thus provided

        the necessary foundation contemplated by Rule 803(6). The circuit court did not abuse its

        discretion in admitting the evidence.

¶ 103                           III. Pro Se Claims of Ineffective Assistance of Counsel

¶ 104          Finally, defendant argues that the circuit court failed to conduct an adequate inquiry into

        defendant’s multiple pro se claims of ineffective assistance of counsel made in his

        postsentencing motion. The State confesses error and concedes that the matter should be

        remanded so that the circuit court may make the proper inquiry into defendant’s claims.

¶ 105          When a defendant makes a pro se claim of ineffective assistance of counsel, the circuit

        court must examine the factual basis of that claim, appointing new counsel if the allegations

        show “possible neglect of the case.” People v. Moore, 207 Ill. 2d 68, 78 (2003). After he was

        sentenced, defendant filed a pro se motion explicitly setting forth 33 claims of ineffective

        assistance of counsel. The court, however, made no inquiry into those claims, refusing to allow

        defendant to argue those points. We therefore accept the State’s confession of error and remand


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        the matter for the limited purpose of an inquiry into defendant’s pro se claims of ineffective

        assistance of counsel.

¶ 106                                          CONCLUSION

¶ 107          The judgment of the circuit court of Will County is affirmed in part and remanded with

        instructions.

¶ 108          Affirmed in part and reversed in part; cause remanded.




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