                                      2013 IL App (1st) 100580

                                                                              FOURTH DIVISION
                                                                                 October 17, 2013


No. 1-10-0580

THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Appeal from the
                                                                 )   Circuit Court of
                Plaintiff-Appellee,                              )   Cook County
                                                                 )
       v.                                                        )   No. 02 CR 15430 (01)
                                                                 )
JAMES DEGORSKI,                                                  )   Honorable
                                                                 )   Vincent M. Gaughan,
                Defendant-Appellant.                             )   Judge Presiding.
                                                                 )

       JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
       Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.

                                            OPINION

¶1     Juan Luna and James Degorski were charged with multiple counts of first degree murder

for the 1993 shooting deaths of seven employees of a Brown's Chicken restaurant in Palatine,

Illinois. Following a severed jury trial, Degorski was convicted and sentenced to natural life

imprisonment. He argues on appeal that he was denied a fair trial where (1) former Assistant

State's Attorney Michael McHale testified that he was now a Cook County circuit court judge

and that he believed defendant's confession was reliable, and (2) the trial court allowed the State

to play a video depicting removal of several of the employees' bodies from a walk-in freezer. For

the reasons that follow, we affirm.

                                        ¶ 2 BACKGROUND

¶3     On January 8, 1993, seven Brown's Chicken employees—Michael Castro, Lynn

Ehlenfeldt, Richard Ehlenfeldt, Guadalupe Maldonado, Thomas Mennes, Marcus Nellsen, and
1-10-0580

Rico Solis—were shot to death. Defendant was charged with multiple counts of the first degree

murder. During his four-week trial, the parties presented dozens of witnesses. A jury found

defendant guilty and eligible for the death penalty, but sentenced him to natural life

imprisonment. On appeal, defendant raises several evidentiary issues. We summarize those

facts necessary to rule on the issues presented.

                                       ¶ 4 I. State's Evidence

¶5     Palatine police officer Ronald Conley testified that he was on duty in the early hours of

January 9, 1993, when he saw a car enter the Brown's Chicken parking lot. He learned that the

driver was looking for his older brother, who worked at the restaurant but had not come home

that night. Within a few hours, Conley responded to a radio call about a missing juvenile, who

also worked at Brown's Chicken. After meeting with the juvenile's family, he proceeded to the

restaurant, where he gained entry through an open employee door. Conley saw a bloody mop just

inside the doorway and called for backup.

¶6     According to Conley, Officer Saxsma arrived, and the two officers entered the restaurant

with guns drawn. Inside, Conley saw a foot and hand protruding from a walk-in freezer on the

building's east side. Upon opening the freezer door, they discovered five bodies. Officer Haas

arrived, and the three officers searched the rest of the restaurant, ultimately discovering two more

bodies in the walk-in cooler on the building's west side. All seven appeared to have suffered

fatal gunshot wounds. Assistant medical examiners later confirmed this observation.

¶7     Sergeant Robert Jacobsen testified that he helped remove the bodies from the cooler and

freezer. The only officer to enter the walk-ins, Jacobsen covered his shoes with plastic bags to


                                                   2
1-10-0580

protect them from blood and to avoid leaving shoe prints. Despite his efforts, the bags and shoes

filled with blood, and the bags adhered to the soles of his shoes. At trial, Jacobsen identified

shoe prints in the freezer as his own, but forensic comparison of the prints was not possible, as

Jacobsen threw his bloody shoes away. He admitted that he never reported or recorded that he

had left shoe prints in the freezer. On cross-examination, defendant questioned whether the shoe

prints were Jacobsen's. Consequently, on redirect, the State was allowed to play for the jury a

video depicting Jacobsen removing several of the bodies while wearing plastic bags on his shoes.

¶8     Forensic investigators discovered that the restaurant's trash cans were empty with the

exception of the remains of a four-piece chicken meal, a paper cup, and napkins. The cash

register appeared to have been closed and reopened to sell a meal at 9:08 p.m. The receipt was

consistent with the meal discovered in the trash can, leading investigators to believe that one of

the offenders may have purchased the meal. Investigators also collected extensive trace

evidence, including fibers, hairs, blood, and more than 200 fingerprints. On one of the discarded

napkins, investigators found a latent fingerprint impression, which was later found to match

codefendant's prints. None of the latent prints matched defendant's fingerprints.

¶9     Investigators also determined that two of the chicken bones recovered contained saliva.

One of these bones produced two DNA profiles: a major profile consistent with someone eating

the chicken, and a minor profile consistent with someone touching the chicken with their hands.

The major profile matched codefendant. Defendant was excluded as a contributor to the profiles.

¶ 10   Eileen Bakalla testified that she had been friends with defendant and codefendant. On

January 8, 1993, she received a telephone call from defendant, who asked her to meet him and


                                                 3
1-10-0580

codefendant in a Jewel grocery store parking lot in Carpentersville, Illinois. Defendant added

that they had "done something big." Bakalla left work at 9:30 p.m. and met defendant and

codefendant as planned. In the parking lot, she noticed green rubber gloves in the back of

codefendant's car. The friends drove to Bakalla's townhouse in her car. En route, she asked the

two men about a canvas money bag they had brought with them, and they replied that it

contained money from their Brown's Chicken robbery.

¶ 11   At Bakalla's house, defendant and codefendant split the money, and defendant gave

Bakalla $50 he owed her. The three smoked marijuana and remained at Bakalla's house for a few

hours before Bakalla dropped codefendant back off at his car. She and defendant drove past

Brown's Chicken, where they saw ambulances and squad cars in the parking lot. Defendant told

her that codefendant had gone "ballistic and started killing people," "slit the owner's throat from

ear to ear," and "put the rest of the employees in the cooler [and] in the freezer." Defendant said

codefendant had shot four people in the cooler and handed the gun to defendant, who shot two

people in the freezer. He added that they had worn gloves, mopped the floor afterward, and

thrown the gun in the Fox River. Bakalla and defendant then went to defendant's home, where

they spent the night. The following day, Bakalla accompanied defendant as he cleaned

codefendant's car at a Streamwood, Illinois, carwash.

¶ 12   Bakalla did not inform police about the murders until they approached her on May 15,

2002. She testified, however, that she informed her husband, Keith Abel, about the murders

prior to their 1998 wedding. Abel testified that, in 1998, Bakalla told her that defendant and

codefendant had done "something big" and mentioned Brown's Chicken.


                                                 4
1-10-0580

¶ 13   Anne Lockett testified that she had been friends with defendant, codefendant, and

Bakalla, and had also dated defendant. She frequently abused drugs and alcohol in 1992 and

1993 and twice attempted suicide. Following one such attempt, she was brought to a hospital,

where, on January 9, 1993, she received a telephone call from defendant, who told her to watch

the news that night because he had "done something big." The lead story that night concerned

the Brown's Chicken murders.

¶ 14   Following her January 25, 1993 release from the hospital, Lockett met defendant and

codefendant at defendant's home. Defendant offered to tell her about the Brown's Chicken

robbery, noting that they had already told Bakalla because they had to use her as an alibi.

Defendant and codefendant than told Lockett that, wearing old clothing and shoes, they had

driven codefendant's car to Brown's Chicken. There, they had placed a wedge behind the back

door to prevent the employees' escape. Codefendant ordered a chicken dinner, which upset

defendant, who was worried that he would leave greasy fingerprints. The two men then went

into the bathroom and put on gloves.

¶ 15   When they exited the bathroom, an employee tried to exit through the back door, but the

wedge prevented his escape. Defendant and codefendant crowded the employees into the freezer

and cooler and shot them. Codefendant slit one woman's throat, and another employee vomited

french fries when shot. Defendant and codefendant then mopped the floor and wiped the area

down to remove fingerprints. They later threw their clothes into a dumpster and the gun into the

Fox River.

¶ 16   They explained to Lockett that they had chosen Brown's Chicken because codefendant


                                                 5
1-10-0580

had worked there, and they committed the offense because codefendant wanted to see what it was

like to kill someone, and defendant agreed to help. They told Lockett that they would kill her if

she told anyone. Lockett further testified that defendant had owned a silver .38-caliber revolver

that he kept in his bedroom, but she never saw it after her hospital discharge.

¶ 17    On February 17, 1993, police interviewed codefendant because of his previous

employment at Brown's Chicken. Per his request, Lockett accompanied him, posing as his

girlfriend. She sat in a waiting room for less than a half-hour. No one spoke to her. In March of

2002, Lockett received a telephone call from a Palatine police officer named King. King was the

first law enforcement official she told about her knowledge of the Brown's Chicken murders.

Lockett explained that she had not come forward earlier because she was afraid defendant would

kill her if she did.

¶ 18    Police Commander William King testified that he spoke with Lockett in March of 2002.

After that conversation, he spoke with codefendant at his Carpentersville home on April 3, 2002.

Codefendant agreed to a buccal swab, which King later submitted for analysis. King also spoke

with defendant at the Palatine police station on April 27, 2002. Defendant denied involvement in

the murders and provided fingerprints and a buccal swab.

¶ 19    On May 7, 2002, King learned that the major DNA profile from the four-piece chicken

dinner matched codefendant. On May 16, 2002, King and Detective Briscoe met defendant in

Indianapolis, Indiana, and drove him to Palatine. Defendant returned voluntarily. They did not

discuss the case during the four-hour drive. En route, Palatine's police chief called King and told

him that the station was surrounded by reporters and they should proceed to the Streamwood


                                                 6
1-10-0580

police station instead.

¶ 20   After defendant waived his Miranda rights, King told him he believed he was involved in

the Brown's Chicken murders. Defendant responded that he was sorry for what happened. He

stated that he and codefendant had driven to Brown's Chicken in codefendant's Ford Tempo, and

defendant brought his .38-caliber handgun. They chose Brown's Chicken because codefendant

had worked there. They entered the restaurant, ordered a meal, and ate it. After the meal, they

announced a robbery. A young employee mopping the floor offered the men money, but they

told him to put it away and go to the back of the store. Codefendant then shot a woman. They

ran out of the restaurant, drove away, and disposed of the gun. Defendant's share of the robbery

proceeds was approximately $800.

¶ 21   After a break, King returned to the interview room with Assistant State's Attorney (ASA)

Michael McHale. McHale explained that he was a prosecutor and advised defendant of his

Miranda rights. McHale and defendant spoke for approximately one hour before McHale exited

the interview room, complaining that he felt ill and was going to rest.

¶ 22   After defendant used the washroom, he asked to speak to King alone. After King

readvised defendant of his Miranda rights, they spoke for approximately two hours. Defendant

again told King that he and codefendant had planned to rob Brown's Chicken because

codefendant used to work there. They went at closing time because they thought fewer

employees would be there. Defendant brought a .38-caliber revolver and a knife with a brass-

knuckle handle. They drove to the restaurant in codefendant's Ford Tempo, parked in the mall

parking lot, and sat in the car while a young lady loaded "two crippled kids" into a van. After she


                                                 7
1-10-0580

left, they entered the restaurant and were surprised to find seven employees working. They

ordered a meal, which codefendant ate before throwing the remnants in the garbage. Defendant

then handed a set of green rubber gloves to codefendant, and they announced a robbery.

¶ 23   A young, skinny kid who was mopping the floor offered them money, but defendant told

him to put it away and get in the back. Defendant fired a warning shot and told the employees to

move to the back of the store. In the west walk-in cooler, defendant found two older men,

kneeling, facing the wall. He shot them in the back and then in the head. Defendant reloaded

and handed the weapon to codefendant, who was yelling at a female employee. Defendant

mopped the floor, and codefendant turned off the lights. Codefendant then slit the female

employee's throat, shot her and the other employees, and placed money in a cloth bag.

¶ 24   The two men left Brown's Chicken and drove to the Carpentersville Dam, where

defendant threw his gun, knife, and casings into the Fox River. They met Bakalla in a Jewel

parking lot in Carpentersville and proceeded to her house, where defendants split the money, and

defendant gave Bakalla $50 he owed her. They dropped codefendant back off at his car, which

he had left in the Jewel parking lot, and defendant and Bakalla drove toward Palatine. Along the

way, defendant told Bakalla about the robbery. They drove past Brown's Chicken, where they

saw several ambulances and squad cars. The following day, defendant and Bakalla took

codefendant's car to a car wash.

¶ 25   Defendant further told King that Lockett was the only other person defendant told about

the offense. Codefendant was mad that he told "the girls." Defendant added that the restaurant

employees were nice. King asked why he would kill them if they were nice. Defendant replied,


                                               8
1-10-0580

"because [we] wanted to do something big." Following his interview with King, defendant spoke

with ASA McHale for approximately three hours.

¶ 26    Former ASA McHale testified that he was a Cook County circuit court judge, but

previously served as an assistant State's Attorney and, in that capacity, had interviewed

defendant. His initial interviews with defendant were slow-going, and he learned only that

defendant and codefendant had robbed the Brown's Chicken with a silver gun and that a young

employee had been mopping the floors. Following the first interview, McHale, who was ill that

evening, slept while King interviewed defendant. McHale later returned to the interview room,

and defendant described the offense in greater detail.

¶ 27    Defendant told McHale that he and codefendant had driven to Brown's Chicken in

codefendant's Ford Tempo with bullets, rubber gloves, a .38-caliber revolver he had purchased

from Matt Wzientek, and a knife with a brass-knuckle handle. They entered at around closing

time when no other customers were present. Codefendant ordered a chicken dinner, ate some of

it, and threw the rest in the trash. The two men then put on rubber gloves, and defendant handed

the knife to codefendant. Defendant fired a warning shot and told the employees to go to the

back of the restaurant. A young man offered him cash, but defendant told him to go to the back

of the store.

¶ 28    Defendant shot two men in the walk-in cooler, reloaded, and handed the gun to

codefendant. As defendant mopped the floor to remove footprints, codefendant yelled at a

female employee, punched her, cut her with a knife, and then shot her and the other employees.

They then exited through a rear door. The men drove to the Fox River, where they discarded the


                                                 9
1-10-0580

gun and knife. They then drove to the Jewel in Carpentersville, where they met Bakalla. The

three drove to Bakalla's house, where they smoked marijuana and split the money. Defendant's

share was between $700 and $800. He also gave Bakalla a small amount of money.

¶ 29   Bakalla and defendant dropped codefendant off at his car, which was still in the Jewel

parking lot, and drove past Brown's Chicken, where they saw ambulances. Although defendant

had already told Bakalla that they had robbed Brown's Chicken, he now informed her that they

had also shot the employees. Bakalla dropped defendant off at home, and defendant threw his

clothes in a dumpster. Defendant also informed McHale that he had told Lockett about the

murders shortly after she was released from the hospital. McHale asked defendant if he wished

to memorialize his statement, but defendant declined because he was tired and wanted to sleep.

¶ 30   Matt Wzientek testified that he sold a .38-caliber revolver and a box of round-nose bullets

to defendant in 1992.

¶ 31   Medical Technician Alicia Hines testified that she spoke with defendant on May 19,

2002, after he had suffered a broken jaw. Hines learned that defendant had been arrested for the

Brown's Chicken murders and asked him how he could kill seven people and whether he had

been drunk or high at the time. Defendant responded that he had been sober, and the murders

were "just for fun." Hines did not document this conversation.

¶ 32   Firearms expert Peter Striupaitis testified that round-nose bullets were recovered from the

scene, and they had been fired from a .38-caliber revolver. He never received a gun for forensic

analysis.

¶ 33   Debbie Medow testified that, on January 8, 1993, she took two developmentally


                                               10
1-10-0580

challenged persons from the residential home where she worked to Brown's Chicken. They

remained at the restaurant until it closed at 9:00 p.m. The restaurant had no other customers, and

she did not notice any other cars in the parking lot.

¶ 34   Defendant's former coworker, Walter Hanger, testified that, in early May of 2002,

defendant asked him, "if you killed somebody, would God forgive you?"

                                     ¶ 35 II. Defense Evidence

¶ 36   James Bell, former coordinator of the Brown's Chicken Task Force, testified that a man

named Jonathan Simonek made several incriminating statements in 1998 and gave a videotaped

confession in August of 1999. He testified to the content of Simonek's 1999 confession.

¶ 37   Palatine police officer Keith Kirkpatrick testified that he took Simonek's videotaped

confession on August 5, 1999. Simonek claimed in his statement that he and Todd Wakefield

committed the murders. Simonek's statement was played for the jury.

¶ 38   Simonek testified at defendant's trial that he confessed to the murders because police

were harassing him and his parents. At the station, police told him that he would not be allowed

to leave or make a telephone call until he told them what they wanted to hear. He told them

things that he had read in the newspapers and made up other details. When he provided an

incorrect detail, detectives would say, "that's not what happened," and he would change his story.

Simonek testified that he had was not involved in the Brown's Chicken murders.

¶ 39   Casey Haefs, a former cashier at Brown's Chicken, testified that, after being harassed by

police, she gave a false statement implicating Simonek and Wakefield. She further stated that

Officer Jim Bell pressured her into giving that statement.


                                                 11
1-10-0580

¶ 40   Forensic analyst Charles Principe testified that he was responsible for photographing,

recovering, and preserving footwear impressions at the scene. He stated that he was unaware of

any bloody impressions in either the freezer or the cooler, but noted that he photographed only

impressions that had evidentiary value and would not have photographed prints left by police.

¶ 41   Forensic analyst Mark Acree testified that the mop handle found in Brown's Chicken had

a fingerprint suitable for comparison, but it did not match defendant's prints. Acree did not

compare the print to those of the seven employees.

¶ 42   Several witnesses testified that a dive team failed to recover a gun in the Fox River.

¶ 43   Jessica Mogilinski, defendant's former neighbor, and Mark Mogilinski, defendant's

former employer, testified to defendant's reputation for nonviolence.

¶ 44   The parties stipulated that defendant's DNA profile did not match the profiles recovered

from the Brown's Chicken trash can.

                                  ¶ 45 III. Verdict and Sentence

¶ 46   The jury found defendant guilty of seven counts of first degree murder. Although the jury

also found defendant death-eligible, they declined to impose the death penalty, and defendant

was sentenced to life imprisonment. Defendant now appeals.

                                         ¶ 47 ANALYSIS

¶ 48   Defendant argues on appeal that he was denied a fair trial where (1) former Assistant

State's Attorney Michael McHale testified that he was now a Cook County circuit court judge

and that he believed defendant's confession was reliable, and (2) the State played a video

depicting the removal of bodies from a walk-in freezer. We affirm.


                                                12
1-10-0580

                              ¶ 49 I. Michael McHale's Testimony

¶ 50   At trial, defendant argued that the only evidence tying him to this offense was his false

confessions to Bakalla, Lockett, King, and McHale. He now contends that this theory was

unfairly undermined when McHale testified that he is now a judge and that he believed

defendant's confession was reliable. We disagree.

                                   ¶ 51 A. McHale's Judgeship

¶ 52   Defendant moved in limine to bar "[u]se of the title 'Judge,' or any other reference to the

fact that he is a sitting Cook County Judge when referring to former Assistant State's Attorney

Michael McHale." He argued that McHale's occupation improperly bolstered his credibility.

The State responded that McHale's judgeship was relevant to his credibility. The trial court

denied defendant's motion, but cautioned the State, "I don't want you constantly every other word

saying, Judge, Judge, Judge. You can establish it then move on."

¶ 53   At trial, the State asked McHale two questions about his occupation:

               "Q. [State]: Sir, would you please tell us your name and spell your last name for

       the record?

               A. [McHale] Michael McHale, M-c-H-a-l-e.

               Q. Sir, what do you do for a living?

               A. I'm a Judge with the Circuit Court of Cook County.

               Q. And where are you assigned as a judge?

               A. I'm currently assigned to the domestic violence courthouse."

On cross-examination, defendant asked, "So from the time that you became a licensed attorney to


                                                13
1-10-0580

the time that you left the office to become a judge, you were always a prosecutor?" McHale

answered affirmatively. Later, during closing argument, the State contended, "Assistant State's

Attorney, now Judge McHale, gave [defendant] a choice" of how to memorialize his statement.

McHale's occupation was not otherwise mentioned during the proceedings.

¶ 54     Defendant maintains on appeal that McHale's judgeship was irrelevant and its prejudicial

effect outweighed its probative value. The State contends that McHale's occupation was relevant

to his credibility. Alternatively, the State argues that any error was harmless beyond a reasonable

doubt.

¶ 55     Initially, the parties disagree about the standard of review. The State argues that we

should review the trial court's denial of defendant's motion in limine for an abuse of discretion.

Defendant agrees that evidentiary rulings in general, and the denial of a motions in limine in

particular, are normally reviewed for an abuse of discretion. See People v. Morgan, 197 Ill. 2d

404, 455 (2001) (evidentiary issues are reviewed for an abuse of discretion); People v. Illgen, 145

Ill. 2d 353, 364 (1991) (same); People v. Hanson, 238 Ill. 2d 74, 96 (2010) (trial court's ruling on

a motion in limine should not be reversed absent an abuse of discretion); People v. Kirchner, 194

Ill. 2d 502, 539 (2000) (same); People v. Williams, 188 Ill. 2d 365, 369 (1999) (same). Relying

on People v. Williams, 188 Ill. 2d at 368-69, however, defendant notes that "where the trial court

decides an evidentiary issue by erroneously applying the applicable law, a legal question is

presented and review is de novo." He argues that, in this case, "the trial court did not abuse its

discretion in allowing the admission of [McHale's] testimony, but rather, the court erred in

allowing that testimony because it had no discretion to do so."


                                                  14
1-10-0580

¶ 56    In Williams, the trial judge ignored a "quite-settled rule" in Illinois regarding the

consequences of a guilty plea and applied New York law instead. Id. at 373-74. Our supreme

court found that the trial court had not "exercise[d] its discretion within the bounds of the law,"

and therefore de novo review was appropriate. Id. at 369. The Illinois Supreme Court later

clarified that the Williams court held only that "reviewing courts should defer to trial court's

evidentiary rulings even if they involve legal issues unless [the] 'trial court's exercise of

discretion has been frustrated by an erroneous rule of law.' " People v. Taylor, 2011 IL 110067,

¶27 (quoting Williams, 188 Ill. 2d at 369); see also People v. Voit, 355 Ill. App. 3d 1015, 1023

(2004) (so long as the trial court exercises its discretion within the bounds of the law, a reviewing

court will not disturb the court's ruling on motions in limine absent an abuse of discretion).

¶ 57    Unlike in Williams, where the trial court applied the law of another jurisdiction instead of

well-established Illinois law, here, the law regarding whether a judge may testify to his or her

occupation where he or she is called to testify regarding a nonjudicial matter is not well

established. Defendant cites no authority that supports his allegation that the evidentiary matter

here was outside of the court's discretion or that the trial court acted outside of the bounds of the

law. We therefore apply the abuse-of-discretion standard. See People v. Hansen, 327 Ill. App.

3d 1012, 1016-17 (2002) (refusing to apply de novo review to a ruling on a motion in limine

where Williams was inapplicable).

¶ 58    Turning to the merits, we must decide whether the trial court abused its discretion in

allowing McHale to testify that he is a judge. People v. Jordan, 205 Ill. App. 3d 116 (1990), is

nearly identical to the instant case. There, Assistant State's Attorney Brian Telander interrogated


                                                  15
1-10-0580

the defendant and obtained a confession. Id. at 119-20. Prior to trial, he left the Du Page County

State's Attorney's office to serve as an associate judge of the circuit court. Id. at 117-19. The

defendant moved in limine to bar evidence that Telander was now a judge. Id. at 117-18. The

trial court denied the defendant's motion, but cautioned the State not to "refer to him as Judge

Telander in any manner or fashion." Id. at 118. At trial, the State referred to him as "Judge

Telander" nine times during direct examination and four times in closing argument. Id. at 121-

22.

¶ 59   The defendant argued on appeal that the trial court erred in denying his motion in limine,

because the State merely wanted to "qualify Telander as a sort of expert on credibility, coloring

the jurors' perception both of what Telander himself had to say and what [the defendants]

supposedly admitted to him" and that "the 'prestige and prominence' of his position as an

associate judge *** artificially enhanced his credibility in the eyes of the jury." Id. at 120-22.

The appellate court rejected the defendant's argument and held that the trial court had not abused

its discretion because the jury was "entitled to know that Brian Telander was now employed as an

associate judge in Du Page County *** [where a] witness' occupation and related background is

of value to the jury in determining the credibility of the witness and his testimony." Id. at 121.

The court further held that neither the State's repeated reference to "Judge Telander" nor its

alleged insinuation that Telander was a more believable witness due to his position improperly

bolstered his credibility. Id. at 122-23. See also Ginsberg v. McIntire, 704 A.2d 1246, 1259

(Md. 1998) (citing Jordan and holding that, "[i]nasmuch as [the party] had a right to call her

former attorney as a fact witness, the jury was entitled to hear that the witness was, at the time of


                                                 16
1-10-0580

testifying, a circuit court judge ***. It is simply a part of the customary, preliminary background

examination of any fact witness.").

¶ 60    The instant case is not meaningfully distinguishable from Jordan. McHale, like the

assistant State's Attorney there, interrogated defendant and obtained a confession. Prior to trial,

he left the State's Attorney's office to serve as a circuit court judge. Defendant, like the defendant

in that case, moved in limine to bar evidence that McHale was now a judge. The trial court

denied defendant's motion, but cautioned the State, "I don't want you constantly every other word

saying, Judge, Judge, Judge. You can establish it then move on."

¶ 61    We agree with the Jordan court. The trial court here did not abuse its discretion in

denying defendant's motion in limine. Occupation is an ordinary part of the background

information elicited from any witness. While a judge's occupation may lend an air of credibility

to his or her testimony, the jury is still free to disbelieve the witness. There was less of a danger

of unfairness in this case than in Jordan. Here, defendant concedes that the State complied with

the court's ruling, referring to McHale as "judge" only three times—twice during direct

examination, once in closing. The State in Jordan referred to Telander as "judge" no less than 11

times. Jordan, 205 Ill. App. 3d at 121-22. McHale was a critical witness. The State's failure to

ask about his occupation would only leave a conspicuous gap in his testimony. We therefore

conclude that the trial court did not abuse its discretion, as its ruling was not "fanciful, arbitrary,

or unreasonable to the degree that no reasonable person would agree with it." People v. Ortega,

209 Ill. 354, 359 (2004) (citing People v. Illgen, 145 Ill. 2d 353, 364 (1991)).

¶ 62    Defendant does not contest that Jordan is strikingly similar to the instant case. He


                                                   17
1-10-0580

argues, rather, that Jordan was wrongly decided. Specifically, according to defendant, the

Jordan court relied solely on People v. Crane, 302 Ill. 217 (1922), and section 607.6 of Michael

H. Graham, Cleary and Graham's Handbook of Illinois Evidence (4th ed. 1984), which did not

support the court's conclusion. Defendant correctly observes that Crane concerned a witness's

disreputable occupation. Crane, 302 Ill. at 224-25. But defendant cites no authority, and we

have found none, that draws a line for purposes of admissibility between reputable and

disreputable occupations. Although this line of cases may have stemmed from impeachment of a

witness using his or her disreputable occupation, none of the cases cited by defendant has limited

it to that purpose. Indeed, in some of the cases defendant cites, the court stated the general

proposition that witnesses may be examined about their occupations. See, e.g., People v. White,

251 Ill. 67, 73-74 (1911) ("It is *** proper to cross-examine a witness as to his occupation and

other matters which enable to [sic] jury to determine what weight ought to be given to his

testimony."); People v. Bond, 281 Ill. 490, 499 (1917) ("It is permissible to inquire of a witness

as to his or her occupation.").

¶ 63   Illinois courts have admitted testimony regarding several other reputable occupations.

See People v. Gray, 406 Ill. App. 3d 466, 475-76 (2010) (testimony regarding occupation as

soldier admissible); People v. Hawkins, 243 Ill. App. 3d 210, 220-21 (1993) (testimony regarding

occupation as a lawyer admissible); People v. Christiansen, 142 Ill. App. 3d 1050, 1058 (1986)

(testimony regarding occupation as a lawyer admissible); People v. Suriwka, 2 Ill. App. 3d 384,

390-91 (1971) (testimony regarding occupations as priests admissible). Nor does Cleary and

Graham's treatise limit disclosure of a witness's occupation to disreputable occupations. See


                                                 18
1-10-0580

Michael H. Graham, Cleary and Graham's Handbook of Illinois Evidence § 607.6 (10th ed. 2010)

("The occupation and related background of the witness are regarded as having value in

determining the credit to be given her testimony and may be inquired into as a matter of right

[citation], even though an illegal occupation is disclosed ***."). We therefore disagree with

defendant's claim that Jordan improperly relied on disreputable occupation cases.

¶ 64    Nor does People v. Grisset, 288 Ill. App. 3d 620 (1997), which defendant cites, require a

different result. The Grisset court held that the trial court in that case did not abuse its discretion

in sustaining the prosecution's objection when defense counsel asked the defendant, "Are you

employed now?" on direct examination. Id. at 631-32. The court held that defendant's

occupation in that case was irrelevant and, even if it were relevant, defendant failed to

demonstrate that he had suffered prejudice as a result. Id. at 632. The Grisset court did not hold

that a defendant's or a witness's occupation is never relevant, or that the trial court in that case

would have abused its discretion had it overruled the prosecution's objection. Id. at 631-32.

Therefore, Grisset is unavailing.

¶ 65    Nor do we believe that the prejudicial effect of McHale's judgeship outweighed its

probative value. Although circuit court judges hold positions of great authority and influence,

see People v. Willis, 349 Ill. App. 3d 1, 20 (2004), McHale did not testify regarding his judicial

duties or decision-making. He testified regarding his role as a prosecutor interrogating a witness.

The State never argued that the jury should give greater weight to McHale's testimony because of

his occupation. We cannot say that mentioning McHale's occupation three times during a four-

week trial greatly prejudiced defendant.


                                                  19
1-10-0580

¶ 66   Even if the trial court had abused its discretion in denying defendant's motion in limine,

we would find that any error was harmless. The State did not argue that McHale was more

credible because he was a judge. See People v. Williams, 289 Ill. App. 3d 24, 35-36 (1997)

(prosecution may not argue that a witness is more credible because he is a police officer). Nor

did the prosecution repeatedly refer to McHale as "Judge," "Your Honor," or any other term that

would indicate his position. Thus, even if the trial court had erred, defendant would not have

suffered prejudice as a result.

¶ 67   Defendant also confessed to this crime multiple times. He explained their robbery and

murder of the employees to Bakalla in great detail, including how many employees they shot,

codefendant's act of slitting the owner's throat "from ear to ear," forcing the employees into the

freezer, sharing a gun with codefendant, and throwing the gun in the Fox River. Bakalla even

saw defendant and codefendant split the money and accompanied defendant the following day

when he washed codefendant's car. Defendant's explanation of the offense to Lockett contained

even greater detail, noting that they wedged the back door shut, codefendant upset defendant by

eating part of a greasy chicken dinner, they entered the bathroom to put on gloves, an employee's

escape was foiled by the wedge at the back door, codefendant slit a woman's throat, they crowded

the employees into the cooler and freezer, they shot the employees, one employee vomited french

fries upon being shot, they mopped the floor and wiped the area for fingerprints, and threw the

gun into the Fox River. These are not generic descriptions that defendant could have garnered

from the news, but a thorough account of the offense.

¶ 68   Defendant's confessions to Lockett and Bakalla were bolstered by testimony that he


                                                 20
1-10-0580

owned a .38-caliber revolver, Hines' testimony that defendant told her the murders were "just for

fun," as well as the question he posed to Hanger: "if you killed somebody, would God forgive

you?" Even though no physical evidence connected defendant to this offense, both DNA and

fingerprint evidence inculpated codefendant, defendant's best friend, with whom he was seen

almost immediately after the offense. Viewing this evidence in addition to defendant's multiple,

detailed confessions over the course of nearly decade, we believe that any error in mentioning the

word "Judge" was harmless beyond a reasonable doubt.

                      ¶ 69 B. Testimony Regarding Degorski's Confession

¶ 70   Defendant next claims that McHale improperly testified that he had found defendant's

confession to be reliable. At trial, defense counsel cross-examined McHale about obtaining a

reliable confession, attempting to draw a sharp distinction between ideal interrogation practices

and defendant's interrogation. He eventually focused on whether defendant had been shown any

crime scene photographs or diagrams that could have led to a false confession. To one of the

questions, McHale responded, "his statement to me was reliable." Defendant did not object to

McHale's testimony, but later moved for a mistrial, arguing that McHale had improperly

volunteered his personal opinion that defendant's confession was reliable and truthful. The State

contended that McHale was merely responding to defense counsel's questions. The trial court

denied defendant's motion.

¶ 71   As he did at trial, defendant now argues that McHale improperly volunteered his personal

opinion that defendant's confession was reliable and truthful. According to defendant, McHale's

opinion was unsolicited, unresponsive, and highly prejudicial. The State again contends that


                                                21
1-10-0580

McHale's answers were responsive to defense counsel's questions and adds that McHale's

testimony was not his present opinion of defendant's guilt, but rather a statement of his opinion at

the time of the interrogation.

¶ 72   The parties agree that the admission of this evidence should be reviewed for an abuse of

discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010) (the admission of evidence is within the

trial court's sound discretion, and a reviewing court will not reverse absent an abuse of

discretion). Specifically, whether to declare a mistrial falls within a trial judge's discretion.

People v. Redd, 135 Ill. 2d 252, 323 (1990). A trial court abuses its discretion where its decision

was "fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree

with it." Ortega, 209 Ill. at 359 (2004) (citing People v. Illgen, 145 Ill. 2d 353, 364 (1991)).

¶ 73   At the outset, we note that McHale's disputed testimony arose during defendant's cross-

examination, not during the State's direct examination:

               "Q. [Defense] I'm asking you if that night or that day you asked Jim Degorski

       whether he had been shown photos?

               A. [McHale] I have already told you, no, other than the photo [of Juan Luna] that I

       showed him.

               Q. And you didn't ask him if he had seen photographs or diagrams of the scene?

               The Court: That's been asked and answered. Move on. ***

               Q. And those things would be important, wouldn't they?

               A. I don't know what you mean, they would be important. What do you mean by

       that?


                                                  22
1-10-0580

                Q. Well, when you talk about getting a statement that's reliable and truthful, you

       want a statement that is not contaminated by someone having information from outside;

       right?

                A. I suppose that's true, but his statement to me was reliable." (Emphasis added.)

We agree with defendant that McHale's answer was unresponsive. Defendant asked a general question:

whether McHale sought statements uncontaminated by outside information. This was not an attempt to

elicit McHale's opinion regarding the reliability of defendant's statement. McHale's answer—"his

statement to me was reliable"—was therefore not a direct response to defendant's question.

¶ 74   Defendant did not object, however, that McHale's testimony was unresponsive or improper

opinion testimony. Instead, he chose to continue to question McHale about his opinion:

                "Q. That's your judgment?

                A. You got it. It sure is.

                Q. Based on your time that you spent with Mr. Degorski?

                A. Based on a three hour, face-to-face conversation where he detailed how he murdered

       seven people, yes, and I believed him, Counsel.

                Q. So you want Mr. Degorski to be convicted?

                A. I don't -- I want this jury to decide what the right thing to do is. I'm just telling you

       what happened despite a lot of the insinuations that you're making. I'm telling you what I did that

       night truthfully, and this is for a jury to decide.

                Q. Mr. McHale, you just felt the need to give us your opinion about whether Mr.

       Degorski's statement to you [objection overruled] *** was believable or not?


                                                      23
1-10-0580

               A. You asked me the question if it would be reliable, and I told you why I believed it was

       reliable, yes." (Emphasis added.)

McHale's follow-up answers—"I believed him, Counsel" and "I told you why I believed

[defendant's confession] was reliable"—were direct responses to defendant's questions. As to

these follow-up questions, we do not believe that defendant should reap the benefit of an error he

created.

¶ 75   In People v. Tolbert, 323 Ill. App. 3d 793 (2001), the defendant complained on appeal

that the trial court allowed lay opinion testimony that he was guilty of murder. The appellate

court noted that defense counsel, not the State, elicited that opinion. Id. at 805. The court held

that defendant was barred from complaining about that testimony, because he "opened the door

to the line of inquiry." Id. at 806; see also People v. Payne, 98 Ill. 2d 45, 50 (1983) (defendant

cannot complain of improper evidence he invited). Similarly, here, defendant could have

objected to McHale's first answer as unresponsive and improper opinion testimony or, at the very

least, refocused his cross-examination on another subject. Instead, he continued to question

McHale about his opinion of defendant's confession. Defendant cannot now complain of error he

invited. We therefore turn our attention to McHale's only unsolicited, unresponsive comment:

"his statement to me was reliable."

¶ 76   The State relies primarily on People v. Hanson, 238 Ill. 2d 74, 88 (2010). There, an

investigating detective testified that, after speaking with the defendant's sister, he confronted the

defendant, stating, " '[your sister] thinks you did this.' " The defendant's sister confirmed this

statement during her testimony. Id. at 101. Defendant argued on appeal that this constituted


                                                  24
1-10-0580

improper opinion evidence. Id. at 99. Our supreme court noted that neither the detective nor the

defendant's sister testified that he or she believed defendant was guilty. Id. at 101. Rather, the

testimony indicated that, at the time the statement was made, the sister believed defendant had

caused the deaths in that case. Id. The defendant's sister's present opinion of his guilt or

innocence was never elicited. Id.

¶ 77   This court recently relied on Hanson in deciding People v. Chaban, 2013 IL App (1st)

112588. There, the State elicited the defendant's wife's testimony that, at the time of the offense,

she believed her husband had committed the act, but no longer harbored that belief. Id. ¶ 35.

The defendant argued on appeal that this constituted improper opinion testimony. Id. ¶ 43. The

Chaban court disagreed and applied Hanson, finding that his wife's statements were not opinion

testimony, but rather a statement about her belief at the time of the offense. Id. ¶ 48.

¶ 78   This cases resembles Hanson and Chaban. McHale expressed an opinion regarding

defendant's guilt, but like the witnesses in Hanson and Chaban, it was not his present opinion.

Rather, he testified in the past tense in both his solicited and unsolicited testimony: "his

statement to me was reliable"; "I believed him, Counsel"; and "I told you why I believed it was

reliable." (Emphasis added.) McHale was referring to his belief at the time of the interrogation,

not his belief at the time of trial. But there is a difference between the instant case, on the one

hand, and Hanson and Chaban, on the other. In those cases, the opinions expressed were those

of the defendants' family members—in Hanson, his sister; in Chaban, his wife. Hanson, 238 Ill.

2d at 88; Chaban, ¶ 35. Here, McHale was defendant's interrogator and an authority figure. See

People v. Crump, 319 Ill. App. 3d 538, 542 (2001) ("A police officer is a figure of authority


                                                  25
1-10-0580

whose testimony may be prejudicial if the officer informs the jurors that they should believe a

portion of the prosecution's case."); see also People v. Munoz, 398 Ill. App. 3d 455, 489 (2010)

(witness was "a police officer, and therefore a 'figure of authority,' whose testimony the jury

likely would have credited with more weight."). Much like police officers, assistant State's

Attorneys are authority figures whose testimony may be prejudicial if they inform the jurors that

they should believe the prosecution's case. In this case, however, McHale did not tell the jury

what to believe: "I want this jury to decide what the right thing to do is. I'm just telling you what

happened despite a lot of the insinuations that you're making. I'm telling you what I did that

night truthfully, and this is for a jury to decide." Thus, while McHale briefly expressed his

personal opinion regarding the truth of defendant's statement, he did not inform the jury that it

should believe the prosecution's case.

¶ 79   Although neither Hanson nor Chaban involved testimony by police or assistant State's

Attorneys, People v. Moore, 2012 IL App (1st) 100857, did. In that case, the State played a

video of the defendant's interrogation, which the defendant claimed contained police opinions of

his credibility and guilt. Id. ¶ 52. The Moore court held that, "[w]here the testimony is not a

current comment on the defendant's credibility *** the police accusations may be seen as a

standard interrogation tactic, rather than an improper opinion on [the defendant's] credibility."

Id.

¶ 80   We find Moore instructive. The Moore court extended the Hanson court's logic to

authority figures interrogating a defendant. McHale, like the witnesses in Hanson, Chaban, and

Moore, testified not to his present opinion of the guilt, but to his belief at the time of defendant's


                                                  26
1-10-0580

interrogation that defendant's confession was reliable. We find no reason to part from the Moore

decision.

¶ 81   Defendant seeks to distinguish Hanson and Chaban on additional grounds, but in doing

so strays from those courts' improper-opinion-testimony analyses and into their relevance and

hearsay analyses. Because this case does not present a hearsay problem and because defendant

did not raise relevance as an issue in his briefs, we will not address these issues. See Hanson,

238 Ill. 2d at 101 ("while defendant may arguably challenge the testimony as to relevance and

hearsay concerns, we reject defendant's argument that this testimony constituted improper

opinion testimony"); Chaban, 2012 IL App (1st) 112588 ¶ 48 ("this statement is not opinion

testimony ***. ***Therefore, the evidence is admissible if its relevance, or probative value,

outweighs its prejudicial effect ***").

¶ 82   Still, defendant urges that McHale's comment was improper opinion testimony.

Defendant relies on three cases: People v. Henderson, People v. Crump, and People v. Munoz.

Henderson is readily distinguishable. The interrogating detective in Henderson extensively

commented on a video of the defendant's interrogation as it was played for the jury, noting the

defendant's body language, vague responses, and profuse sweating. People v. Henderson, 394 Ill.

App. 3d 747, 750-51 (2009). The appellate court held that this testimony was improper opinion

testimony, stating, "An investigator's testimony should be presented only to communicate what

was said during an interrogation." Id. at 753. The detective's State-led play-by-play analysis of

the defendant's "indicators of deception" amounted to the detective's present opinion of the

defendant's confession. In contrast, the testimony here—"his statement to me was reliable"—was


                                                27
1-10-0580

brief, not a present opinion, and not elicited by the State.

¶ 83   In People v. Munoz, 398 Ill. App. 3d 455, 465-66 (2010), the interrogating detective

repeatedly testified that he told the defendant that he did not believe him and "he did not believe

that 'the defendant ever told [him] the truth.' " The appellate court held that the last statement

invaded the province of the jury and was an impermissible comment on the ultimate issue of the

defendant's credibility. Id. at 488. In People v. Crump, 319 Ill. App. 3d 538 (2001), the

prosecution asked an investigating officer, " 'Through the course of your investigation, Officer,

did you have reason to believe that the defendant in this case committed this offense?' " Id. at

540. The officer replied, "Yes, I did." Id. The appellate court held that this constituted improper

lay opinion testimony, noting that a police officer is an authority figure, "whose testimony may

be prejudicial if the officer informs the jurors that they should believe a portion of the

prosecution's case." Id. at 542, 544. The court added that opinion testimony by a lay witness is

"especially improper and prejudicial when it goes to the ultimate question of fact that is to be

decided by the jury." Id. at 542 (citing People v. McClellan, 216 Ill. App. 3d 1007 (1991)).

¶ 84   The State distinguishes Munoz and Crump on a single ground: those cases failed to

recognize the distinction the Hanson court drew between present and past opinions. See Hanson,

238 Ill. 2d at 101 (neither detective nor defendant's sister testified to their present opinion of

defendant's guilt, but to defendant's sister's impression soon after the offense). On the contrary,

we believe the Munoz decision, issued less than six months before Hanson, anticipated the

distinction drawn by the Hanson court. The detective in Munoz repeatedly testified that he told

the defendant that he did not believe him. Munoz, 398 Ill. App. 3d at 465, 486-87. The Munoz


                                                  28
1-10-0580

court found that these statements could be excused on the basis that they were part of a sequential

account of the detective's interview process. Id. at 488. To borrow the Hanson court's language,

they showed his opinion "at the time the statement was made." Hanson, 238 Ill. 2d at 101. But

the detective also stated that, at the time of trial, "he simply did not believe that the defendant

ever told *** the truth." Munoz, 398 Ill. App. 3d at 488. This court held that this testimony was

not a "sequential account of the interview process," but rather invaded the province of the jury by

telling them who to believe. Id. To borrow once again from Hanson, it was improper present

opinion testimony. Hanson, 238 Ill. 2d at 101. Thus, although it uses slightly different language,

Munoz drew nearly the same line as the Hanson court: present opinion testimony is improper;

previous opinion testimony is permissible.

¶ 85   This leaves only Crump. The officer there answered affirmatively when the prosecution

asked, " 'Through the course of your investigation, Officer, did you have reason to believe that

the defendant in this case committed this offense?' " Crump, 319 Ill. App. 3d at 540. Like this

case, the comment in Crump was brief, given by an authority figure, and concerned the officer's

past belief, though unlike this case it was elicited by the State. Id. at 542-43. We note, as the

State does, that Crump predates Hanson. We also agree with the dissent in Crump that the

majority there "misconstrue[d] the testimony at issue as 'opinion testimony.' " Crump, 319 Ill.

App. 3d at 545 (Homer, P. J., dissenting). We are therefore not persuaded that Crump should

determine the outcome here.

¶ 86   Because McHale's only unsolicited comment was brief, not a present opinion of

defendant's guilt, and not elicited by the State in an attempt to prejudice defendant, we hold that


                                                  29
1-10-0580

the trial court did not abuse its discretion in denying defendant's motion for a mistrial.

¶ 87   Even if we agreed with defendant that McHale's single, unsolicited statement constituted

improper opinion testimony, we would find the error harmless beyond a reasonable doubt. The

State never mentioned or relied on McHale's brief testimony in its closing argument. Moreover,

defendant's conviction did not rest solely on McHale's recitation of defendant's confession.

Rather, defendant made similar statements to King, Lockett, and Bakalla, as well as a less

extensive admission to Hines. Even though no physical evidence connected defendant to this

offense, both DNA and fingerprint evidence inculpated codefendant, defendant's best friend, with

whom he was seen almost immediately after the offense.

¶ 88   In light of this evidence, McHale's comment would not have changed the outcome at trial.

This is especially true given that McHale's testimony that defendant's confession was reliable was

not a great revelation to the jury. The State's case, from opening statement through closing

argument, relied on the multiple confessions as its centerpiece. It was clear that the position of

the State's Attorney's office was that the confessions were reliable and truthful. The State urged

the jury to find McHale's testimony and, in turn, defendant's confession reliable. McHale's single

sentence simply made explicit what the State repeatedly contended. Former Assistant State's

Attorney McHale's past belief in the reliability of defendant's confession was therefore no

surprise to the jury. While we do not wish to minimize the potential danger of improper opinion

testimony, the testimony in this case was not improper, and the potential danger given the

evidence and the State's arguments was slight. Thus, any error would have been harmless beyond

a reasonable doubt.


                                                 30
1-10-0580

                              ¶ 89 II. Video Depicting Body Removal

¶ 90     Defendant argues that the trial court erred in admitting a video depicting removal of

several Brown's Chicken employees' bodies from the walk-in freezer. To resolve this issue, we

must provide some additional facts.

¶ 91     The defense theory at trial was that defendant's statements to Lockett, Bakalla, King,

McHale, and Hines were false, and codefendant Juan Luna acted not with defendant, but with

another, unknown partner. In pertinent part, defendant argued that several bloody shoe prints left

on the east freezer floor must have been left by codefendant's unknown accomplice. Defendant

presented Charles Principe, who recovered, photographed, and preserved shoe print impressions

at the scene. Principe was never told about bloody shoe prints in the east freezer. He testified

that he would have photographed those prints had they been brought to his attention.

¶ 92     The State argued that the shoe prints belonged to Detective Jacobsen, who helped remove

the bodies. Jacobsen testified that, on January 9, 1993, he removed all seven bodies from the

freezer and cooler. Prior to entering the freezer, he placed plastic grocery bags over his shoes to

protect them and to avoid leaving shoe prints. Jacobsen further testified that, despite his efforts,

his shoes and the plastic bags became "saturated with blood." According to Jacobsen, his shoes

then began leaving prints because "there was so much blood it was actually adhering to the sole

of my shoe, and it would actually leave the shoe impression in blood as I was walking because it

was formed up inside my shoes." He stated that he was the only officer inside the freezer and

identified the shoe prints in the freezer as his. Jacobsen threw out his blood-soaked shoes that

night.


                                                 31
1-10-0580

¶ 93   Jacobsen conceded on cross-examination that he did not recall telling anyone that he had

contaminated the crime scene and did not include this fact in a police report. He later admitted

that he never told anyone that the shoe prints were his until the week of trial. He stated that it

was inevitable that he would leave shoe prints. He again asserted that the shoe prints in the

photographs were his and he was the only officer inside the freezer. He further stated that, while

shoe prints may be recovered and compared, that was not done here.

¶ 94   Following cross-examination, the prosecution complained that defendant had "created the

impression that the removal of the bodies is not documented, but it is in fact documented by

approximately a two-minute video." The prosecution argued that, because defendant opened the

door, it should be allowed to publish the video to the jury on redirect examination. Defendant

objected that the video was graphic and its prejudicial effect outweighed its probative value. The

trial court agreed with the State that "there was an impression on outstanding cross-examination

that there was no documentation of this." The State played the video for the jury during

Jacobsen's redirect examination. The video was later allowed into the jury room during

deliberations.

¶ 95   Defendant contends on appeal that the trial court abused its discretion in admitting the

video. Specifically, he argues the video was gruesome and irrelevant, its prejudicial effect

outweighed its probative value, and its introduction deprived him of his rights to due process and

to a fair and impartial jury trial. The State responds that the trial court properly exercised its

discretion, because the video was relevant and rebutted defendant's implication on cross-

examination that Jacobsen's claim that he left bloody footprints was undocumented and untrue.


                                                  32
1-10-0580

Alternatively, the State argues that any error was harmless.

¶ 96    The parties agree that we should review the trial court's decision for an abuse of

discretion. See People v. Scott, 148 Ill. 2d 479, 546-47 (1992) (citing People v. Lefler, 38 Ill. 2d

216, 221 (1967)) (whether a photograph of the deceased should be admitted falls within a trial

court's discretion).

¶ 97    Defendant first argues the video was irrelevant. Evidence is relevant if it has any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable than it would be without the evidence. People v. Lewis, 165 Ill. 2d 305,

329 (1995). Even gruesome or disturbing photographs may be admitted into evidence if they are

"relevant to establish any fact [at] issue." People v. Lucas, 132 Ill. 2d 399, 439 (1989); People v.

Garlick, 46 Ill. App. 3d 216, 224 (1977). Specifically, gruesome evidence may be relevant "to

corroborate oral testimony or to show the condition of the crime scene." People v. Richardson,

401 Ill. App. 3d 45, 52 (2010). Irrelevant exhibits introduced solely to inflame the jury, however,

should not be admitted. People v. Rissley, 165 Ill. 2d 364, 405 (1995).

¶ 98    Because the video was offered to rebut impressions defendant created during his cross-

examination, we look first to the content of that cross-examination. See People v. Maldonado,

402 Ill. App. 3d 411, 418 (2010) (to determine relevance, (1) identify the fact that the party seeks

to prove; (2) determine if the fact is "of consequence"; and (3) determine if it " 'tends to make the

existence' of this fact 'more or less probable than it would be without the evidence' "). At trial,

the State broadly defined the issue, arguing that defendant had "created the impression that the

removal of the bodies is not documented." On appeal, defendant narrowly casts the issue,


                                                 33
1-10-0580

claiming that, on cross-examination, "the defense sought only to establish that [Detective

Jacobsen] failed to document the fact that he left the bloody shoe print impressions in the

freezer." Neither claim is wholly accurate. On cross-examination, defendant did not claim that

the entire body-removal process was undocumented, nor did he simply allege that Jacobsen failed

to document his contamination of the scene. Rather, as the State argues on appeal, the claim to

be rebutted was that the shoe prints in the freezer were not Jacobsen's:

               "Q. [Defendant] You're telling the ladies and gentlemen of the jury that as you're

       involved in the body removal process you're paying enough attention to your feet that you

       know that those specific shoe prints in that freezer are from your shoes?

               A. [Jacobsen] They are from my shoes.

               ***

               Q. The truth is those prints in that freezer are not your prints?

               A. They are my shoes."

The issue, therefore, is whether the video was relevant to rebut defendant's claim that the shoe

prints were not Jacobsen's. We hold that it was.

¶ 99   The video shows Jacobsen removing bodies from the blood-soaked floor of a freezer

while wearing plastic bags on his shoes. While this is not definitive proof that the shoe prints

were Jacobsen's, it has a tendency to make the existence of this fact more probable than it would

be without the video. The video was therefore relevant to rebut defendant's claim on cross-

examination that the shoe prints were not Jacobsen's. Accordingly, we reject defendant's first

contention.


                                                 34
1-10-0580

¶ 100 Defendant next contends that, even if video was relevant, its prejudicial effect

outweighed its probative value. See Maldonado, 402 Ill. App. 3d at 418 (courts may exclude

relevant evidence if its prejudicial effect substantially outweighs its probative value). Courts

must weigh an exhibit's prejudicial effect and probative value. Lucas, 132 Ill. 2d at 439. If

evidence has sufficient probative value, it may be admitted despite its gruesome or inflammatory

nature. Lefler, 38 Ill. 2d at 221; People v. Driskel, 224 Ill. App. 3d 304, 314 (1991). Competent

evidence should not be excluded merely because it may arouse feelings of horror or indignation.

Driskel, 224 Ill. App. 3d at 315.

¶ 101 We agree that the video may have been difficult for some jurors to watch. The 2-minute

and 33-second segment is actually several clips edited together, each depicting police officers

removing a different body from the freezer and placing it in a body bag. In the foreground, three

police officers—one inside the freezer, two outside—lift decedents into the bags. Decedents'

arms are extended, either frozen or stiffened by rigor mortis. In some instances, blood and bullet

wounds are visible.

¶ 102 We do not agree, however, that the video had little probative value. The video

corroborated Detective Jacobsen's testimony that the shoe prints in the freezer were his. The

video also undermined defendant's theory that the shoe prints belonged to codefendant's

unknown accomplice. The video shows Jacobsen walking in and out of the freezer, helping to

pass the bodies to his fellow officers. As he testified, the floor was covered in blood, and he was

wearing plastic bags on his shoes. Although it is difficult to determine from the video whether

he was leaving shoe prints, or if other shoe prints existed prior to his entry, the video has


                                                 35
1-10-0580

considerable probative value as to both parties' theories at trial. Nor was the video cumulative of

any other evidence presented at trial. Accordingly, we hold that the trial court did not abuse its

discretion in admitting the video, because the video's prejudicial effect did not substantially

outweigh its probative value.

¶ 103 Even if the video had been erroneously admitted, that error would be harmless beyond a

reasonable doubt. As we explained above, defendant's conviction rested on his statements to

McHale, King, Lockett, and Bakalla, as well as a less extensive admission to Hines. Even

though no physical evidence connected defendant to this offense, both DNA and fingerprint

evidence inculpated codefendant, defendant's best friend, with whom he was seen almost

immediately after the offense. Had the trial court barred admission of the video, the result would

have been the same.

                                       ¶ 104 CONCLUSION

¶ 105 For the foregoing reasons, we affirm defendant's conviction and sentence.

¶ 106 Affirmed.




                                                 36
