                                                                                  SIXTH DIVISION
                                                                                  May 13, 2011




No. 1-09-3202


THE PEOPLE OF THE STATE OF ILLINOIS,                   )       Appeal from the
                                                       )       Circuit Court of
                Plaintiff-Appellee,                    )       Cook County.
                                                       )
       v.                                              )       No. 07 CR 2653
                                                       )
DIEGO SANTIAGO,                                        )       The Honorable
                                                       )       John J. Fleming,
                Defendant-Appellant.                   )       Judge Presiding.


       PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.
       Justice McBride concurred in the judgment and opinion.
       Justice Robert E. Gordon specially concurred, with opinion.

                                             OPINION

       Defendant Diego Santiago seeks plain error review of two issues following his conviction

of first degree murder after a jury trial. He first contends the State violated the evidentiary rule

that bars the introduction of prior consistent statements when it introduced two prior statements

inconsistent with the defendant's accomplices' trial testimony, a claim he admits was recently

addressed and rejected by this court. The defendant next argues the State's references to the

accomplices' guilty pleas improperly suggested to the jury that the guilty pleas were evidence of

the defendant's guilt. The references to the guilty pleas were made in the course of the State's

direct examination of the accomplices after each denied his prior identification of the defendant
No. 1-09-3202

as the shooter in the murder. We reject the defendant's underlying contention that the record

demonstrates evidentiary errors occurred during his trial to support claims of plain error. We

affirm.

                                          BACKGROUND

          The defendant, identified at trial as a member of the Maniac Latin Disciple (MLD) gang,

was charged in the shooting death of Epifanio Santos, Jr., a member of the rival Spanish Cobra

(SC) gang, that occurred during a street fight at the intersection of Armitage and Tripp in

Chicago on December 28, 2006. The defendant and codefendants Emelio Rivera, Miguel

Adorno, Alexandro Flores, and Martin Logan were indicted for first degree murder and

conspiracy to commit first degree murder. The defendant was also charged with unlawful use of

a weapon by a felon.

          Two days after the shooting, Adorno admitted in a videotaped statement to police that he

was a member of the MLDs and that he participated in the street fight with the SCs that resulted

in Santos' death. On May 20, 2008, Adorno pleaded guilty to conspiracy to commit first degree

murder. Adorno provided substantially the same information in his videotaped interview and at

his guilty plea hearing. At the plea hearing, Adorno testified under oath that his videotaped

statement to the police was a true and accurate depiction of what occurred. Adorno stated that

the defendant shot Santos in the head. Earlier on the day of the shooting, there had been a fight

between the MLDs and the SCs. A group of MLDs then convened at the defendant's house,

where the defendant received a telephone call from his girlfriend Lisa, who was the mother of

Santos' child. The defendant and Santos were well acquainted and had fought periodically over


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No. 1-09-3202

several months. Adorno overheard the defendant tell Lisa: "stop putting my name in shit, bitch,

'cuz you're going to see what's going to happen to him." According to Adorno, the defendant

retrieved a gun at his home before everyone departed the defendant's house to look for SCs. The

MLDs came across Santos and a fellow SC, Rene Otero, and a fight ensued. Adorno struck

Santos, and Logan punched him, knocking him to the ground. The defendant then approached

and said "I got this," and shot Santos in the head with an automatic weapon. The men fled the

scene. The defendant asked Adorno to get rid of the weapon.

       Logan was arrested the day after the shooting. He too gave a videotaped interview

naming the defendant as the shooter. Logan pleaded guilty to conspiracy to commit murder on

August 18, 2008. Like Adorno, he acknowledged, under oath, the accuracy of his interview

statements at his plea hearing. The information Logan provided in his police interview and at his

guilty plea was essentially the same that Adorno provided.

       The defendant's case proceeded to trial in August 2009. Before testimony was heard, the

court granted the State's motion to admit evidence of gang crimes. The State called Adorno and

Logan in its case in chief.

       At trial, Adorno claimed to be unable to recall a significant portion of his videotaped

interview with police detectives and his admissions at his guilty plea hearing. He testified he was

a member of the MLDs, but the defendant was not. According to Adorno's testimony, the

codefendants convened in the defendant's backyard prior to the shooting and another MLD

named Casper was given a gun so he could "prove himself." Adorno claimed it was Casper that

was present at the fight, not the defendant, and that Casper was the only person with a gun at the


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No. 1-09-3202

fight. Adorno stated that while he did not see the actual shooting take place, the shooter was not

the defendant. Adorno claimed he told the detectives that Casper had committed the shooting.

He claimed to have pleaded guilty only to get out of Cook County jail.

       Logan's trial testimony was substantially similar to Adorno's. He was unable to recall

much of his statement to police detectives or his testimony at his guilty plea hearing. He testified

that the defendant was not present at the fight and was not the shooter. He claimed that after he

was arrested, the arresting officers stopped the police vehicle on the way to the police station to

tell Logan what to say in the police interview that would follow once they arrived at the station.

He testified the arresting officers threatened to charge him with the shooting but told him they

would let him go if he said the defendant was the shooter. Logan testified he rejected repeating,

at the defendant's trial, the story given to him by the police because he was charged in the

shooting despite police promises to the contrary.

       The State also called MLD member Carlos Garcia, who identified the defendant as a

member of the MLDs and admitted participating in the fight with the SCs that resulted in Santos'

death. Garcia testified he observed the defendant arrive at the fight with a gun and walk toward

Santos, who was on the ground. He heard shooting, but did not see the actual shots fired. Garcia

fled the scene in a car with Flores and Rivera. After they fled, Flores realized he had left his coat

with his identification at the scene of the shooting. The three drove back to the scene where they

were arrested.

       SC member Rene Otero testified that he and Santos were smoking marijuana at the

intersection of Armitage and Tripp on December 28, 2006, when they were assaulted by a group


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No. 1-09-3202

of men. Otero and Santos fought back. During the fight, Otero saw Santos fall to the ground and

then heard two gunshots. He did not see the shooting, but testified he saw the defendant armed

with a gun during the fight. Otero did not know the defendant previously but identified him as

the shooter from a photograph displayed at the police station.

       Detective James Gilger testified he saw Santos' body on the sidewalk when he arrived at

the scene of the shooting. Evidence technicians recovered two bullet fragments and a shell

casing. Officer Vincent Stinar testified he was one of the officers that arrested Logan the day

after the shooting. He testified he took Logan directly to the police station without making a

stop. He denied telling Logan what to say in his videotaped interview.

       The jury found the defendant guilty of first degree murder, which he committed by

personally discharging a firearm that caused Santos' death. The defendant was sentenced to 30

years for the murder to be followed by an additional 25 years for discharging the weapon in the

course of committing murder. This timely appeal followed.

                                             ANALYSIS

       The defendant acknowledges the issues he raises were not preserved in the proceedings

below. Plain error review is warranted when the evidence is closely balanced or the unpreserved

errors deprived the defendant of fundamental fairness. People v. Herron, 215 Ill. 2d 167, 178-79,

830 N.E.2d 467 (2005). The defendant makes no claim that the evidence is closely balanced, a

claim we would find foreclosed by the substantial evidence introduced at his trial.1 We review


       1
           In the "Point[s] and Authorities" of his main brief, the defendant cites a single case for

his claim of plain error, People v. Johnson, 208 Ill. 2d 53, 63-64, 803 N.E.2d 405 (2008), a case

                                                   5
No. 1-09-3202

the alleged errors under the second-prong of plain error only. "In the second instance, the

defendant must prove there was plain error and that error was so serious that it affected the

fairness of the defendant's trial and challenged the integrity of the judicial process." Herron, 215

Ill. 2d at 187 (citing People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995)).

       The State counters that the issues raised by the defendant fail to demonstrate trial error,

which dooms the defendant's claims of plain errors. As to the first issue, the State points out that

this court recently ruled the evidentiary rule against the admission of prior consistent statements

does not apply to multiple prior inconsistent statements. Thus, no error occurred in the

introduction of the videotaped interviews and the admissions at the guilty plea hearings. As to

the second issue, the State responds that the multiple references to each codefendant's guilty plea

were properly introduced to challenge each witness's claim of failed memory and to rebut each


that reversed on prong-two of plain error. In support of his plain error claim, the defendant

asserts "the State's evidence of guilt could not be said to be overwhelming." We reject this

assertion as sufficient to warrant "review of Santiago's claims *** under both prongs of the plain

error rule" as he contends in his reply brief. See People v. Nieves, 192 Ill.2d 487, 502-03, 737

N.E.2d 150 (2000) (Plain error claim is forfeited when the defendant "neither argues that the

evidence was closely balanced nor explains why the error is so severe that it must be remedied to

preserve the integrity of the judicial process.") (Emphasis added.); People v. Carrero, 345 Ill.

App. 3d 1, 12 n.3, 801 N.E.2d 1084 (2003) ("There is a real question whether the defendant's

claim that the evidence against him was 'not overwhelming' is equivalent to the 'factually close'

standard" under prong-one of plain error.).

                                                 6
No. 1-09-3202

witness's trial claim of police intimidation and coercion. The State contends the properly

admitted evidence did not compel the jury to find the defendant guilty simply because each

codefendant pleaded guilty. Nor did the State suggest, much less argue, that the guilt of each

codefendant was direct evidence of the defendant's guilt.

       It is fundamental that if no error occurred there can be no plain error.

                                   Prior Inconsistent Statements

       The defendant contends the State violated the common law evidentiary rule against

repetition of a prior consistent statement by admitting more than one prior inconsistent statement

to challenge Adorno's and Logan's trial testimony that the defendant had no involvement with the

death of Santos. He argues admission of both the codefendants' police statements, as well as

their plea hearing testimony, was cumulative and they "unduly bolstered" each other.

       We first observe that the defendant fails to provide us with a single case that holds that

the evidentiary rulings he asserts before us, taken as error, "affected the fairness of the

defendant's trial and challenged the integrity of the judicial process." Herron, 215 Ill. 2d at 187.

In this context of a plain error claim, we note the defendant's agreement with the State that this

issue concerns the admissibility of evidence, subject to review for an abuse of discretion. See

People v. Adkins, 239 Ill. 2d 1, 23, 940 N.E.2d 11 (2010) ("The admissibility of evidence at trial

is a matter within the sound discretion of the trial court and that court's decision will not be

overturned absent a clear abuse of that discretion."). The defendant further concedes that

separately, the videotaped statement and the guilty plea testimony were admissible under section

115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2006)).


                                                  7
No. 1-09-3202

Section 115-10.1 renders a recanting witness's prior inconsistent statements substantively

admissible if the witness is subject to cross-examination and meets certain other requirements,

which the defendant does not dispute were established here. People v. Hastings, 161 Ill. App. 3d

714, 719, 515 N.E.2d 260 (1987). Finally, the defendant acknowledges that this court resolved

the issue of the admissibility of multiple prior inconsistent statements against the position he

takes before us in People v. Johnson, 385 Ill. App. 3d 585, 898 N.E.2d 658 (2008).

       In Johnson, the victim gave a written statement and testified before the grand jury that the

defendant shot him. He recanted his identification of the defendant at trial. Johnson, 385 Ill.

App. 3d at 588. On review of his conviction, the defendant argued both prior statements should

not have been admitted at trial because the prior statements were consistent with each other and

therefore subject to the rule against admission of prior consistent statements. Id. at 608. Though

not entirely clear, it appears the Johnson defendant argued that the State should have introduced

only one or the other. Id. We disagreed. "The defense is absolutely right that there is a

long-established evidentiary rule against admission of a prior consistent statement ***.

[Citations.] However, at issue here are prior inconsistent statements, or statements inconsistent

with the witness's trial testimony." (Emphasis in original.) Id. We found the admission of

multiple inconsistent statements is not subject to the rule against the admission of prior

consistent statements even though the prior statements, inconsistent with the trial testimony, are

consistent with each other. "The rule against admission of consistent statements exists because

they needlessly bolster the witness's trial testimony. [Citations.] Obviously, inconsistent

statements cannot bolster a witness's trial testimony. Thus, application of the rule makes no


                                                 8
No. 1-09-3202

sense here." Id. We rejected the same claim in People v. Maldonado, 398 Ill. App. 3d 401, 423,

922 N.E.2d 1211 (2010). "We agree [with Johnson] and hold that the introduction of more than

one statement that is inconsistent with a witness's trial testimony, whether or not such statements

are consistent with each other, is proper." Maldonado, 398 Ill. App. 3d at 423. The defendant's

claim that the trial court erred in its evidentiary ruling allowing multiple inconsistent statements

cannot stand in light of Johnson and Maldonado.

       The defendant nonetheless contends that it is fundamentally unfair not to limit the

number of prior inconsistent statements that may be introduced as we permitted in Johnson and

Maldonado. He does not explain, however, the nature of the unfairness claim to support limiting

the number of prior inconsistent statements that are offered to challenge the credibility of a

witness. We are certain that if the defendant had available to him multiple prior inconsistent

statements of a prosecution witness, he would seek to introduce each and every one and would do

so properly. Of course, at some point, the trial judge may be asked, by way of a motion in limine,

to exercise discretion to limit the number of such statements that may be introduced. See People

v. Owen, 299 Ill. App. 3d 818, 822, 701 N.E.2d 1174 (1998) (“Motions in limine are designed to

call to the attention of a trial court, in advance of trial, some evidence which, because of its

potentially prejudicial nature, cannot be discussed in the jury's presence until the court has

determined it is admissible.”). No such motion was filed in this case.

       The defendant further contends that a distinction, for fundamental fairness purposes,

should be drawn between prior inconsistent statements introduced for impeachment purposes and

such statements introduced substantively as the statements were here. He asserts Johnson was


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No. 1-09-3202

"ill-reasoned and should not be followed." According to the defendant, Johnson "failed to

appreciate that when a prior inconsistent statement is admitted as substantive evidence rather

than impeachment evidence, that prior inconsistent statement has the same evidentiary value as a

witness's trial testimony." It is certainly true that substantive evidence, in the form of prior

inconsistent statements that satisfy section 115-10.1, may be considered by the trier of fact no

differently than direct testimony by a witness. The question left unaddressed by the defendant is

why such prior inconsistent statements, admissible as substantive evidence even in multiple

forms, should not be considered by the trier of fact in determining the defendant's guilt or

innocence.

       We take from the defendant's otherwise unexplained assertion that some sort of "asked

and answered" objection should have been made on the part of the defendant, which should

preclude multiple and cumulative prior statements consistent with each other, though they are

inconsistent with the testimony at trial. Once again, we question why such a claim warrants

review under our plain error jurisprudence. A second-prong plain error claim is limited to the

type of error that could not be cured "by sustaining [an] objection or instructing the jury to

disregard *** the error." People v. Carlson, 79 Ill. 2d 564, 577, 404 N.E.2d 233 (1980). A

second-prong plain error is not demonstrated when the underlying error is no more than a claim

that too much of proper evidence was introduced. See People v. Harvey, 366 Ill. App. 3d 910,

922, 853 N.E.2d 25 (2006) ("The prior inconsistent statements were [properly] admitted to

impeach the witnesses' credibility at trial (see 735 ILCS 5/2-1102 (West 2002)), and to assert the

truth of the matter of the contents that were submitted (see 725 ILCS 5/115-10.1 (West 2002)).").


                                                  10
No. 1-09-3202



          Under existing case law, no error occurred in the admission of the videotaped statements

and the statements at the guilty plea hearings of the two codefendants. Even if the circuit court

may be persuaded to limit the number of prior inconsistent statements in the course of ruling on a

motion in limine, the claimed error before us can in no manner be seen as depriving the

defendant of fundamental fairness at his trial for purposes of a second-prong plain error claim.

                                       Evidence of Guilty Pleas

          The defendant next contends the State's multiple references to each codefendant's guilty

plea improperly suggested to the jury that the defendant was likewise guilty. The defendant's

contention boils down to a claim that because the jury was repeatedly told that the accomplices

pleaded guilty, the accomplices' guilty pleas might be relied upon by the jury to infer the

defendant's guilt as well. For this argument, the defendant relies on a well-established rule of

law: "A co-defendant's or accomplice's confession or admission is generally inadmissible as

evidence of another defendant's guilt." People v. Sullivan, 72 Ill. 2d 36, 42, 377 N.E.2d 17

(1978).

          Sullivan, however, is from a different evidentiary world than the case before us. In

Sullivan, the prosecutor in opening statements told the jurors that they would hear from two

witnesses that had pleaded guilty to the armed robbery of a liquor store in the town of Meredosia

that the defendant was also charged with committing. Sullivan, 72 Ill. 2d at 39. The cashier of

the liquor store testified two men committed the robbery, gave a clothing description of each, and

stated that the robbers got away in her car. Id. at 38. When the two prisoners were called to


                                                  11
No. 1-09-3202

testify, the first invoked his fifth amendment right to remain silent and answered no questions.

Id. at 39. The second prisoner "testified that he and [the first prisoner] were serving time in

Menard for an armed robbery involving a liquor store in Meredosia." Id. at 39-40. The prisoner

testified he was with the defendant on the day of the armed robbery in the prisoner's car, which

they drove to Meredosia. "Upon being asked if anyone else was in the car, [this second prisoner]

stated he did not wish to testify further." Id. at 40. No further testimony was elicited from this

second prisoner. During closing argument, the prosecutor made the following remarks, without

objection from defense counsel.

                       " 'Now, if you think [defendant] was innocent, why was he

                with those two guys that are in prison now who pled guilty to

                armed robbery?

                                                ***

                       Now, common sense will tell you, reason will tell you that

                [defendant is] just as guilty as the other two, because he was in

                there. He had the money.' " Id.

       Not surprisingly, our supreme court affirmed the appellate court's decision granting the

defendant a new trial: "[W]e find the prosecutor's disclosure of the alleged accomplices' guilty

pleas (during opening statements and upon direct examination of [prisoner two]), and his reliance

on such during closing argument (in urging the jury to find defendant guilty), constituted a single

continuous error [that] deprived defendant of a fair and impartial trial." Id. at 41-42. Sullivan's

rule, against the use of guilty pleas of others to prove the guilt of the defendant, is not remotely


                                                  12
No. 1-09-3202

applicable to the circumstances in this case.

       In Sullivan, our supreme court discussed a case far more similar to the case at hand. "In

People v. Baker (1959), 16 Ill. 2d 364, 372-73, an accomplice who fully disclosed to the jury his

involvement in the crime for which the defendant was being tried was also permitted to testify

that he had confessed to the crime. The court held that, in light of the accomplice's full factual

disclosure, the further disclosure that he had confessed to the crime was not unduly prejudicial to

the defendant." Sullivan, 72 Ill. 2d at 43. The instant case falls within the holding of Baker and

is similar to People v. Edwards, 309 Ill. App. 3d 447, 454, 722 N.E.2d 258 (1999).

       In Edwards, a codefendant pleaded guilty to the same crime the defendant was charged

with committing. Edwards, 309 Ill. App. 3d at 451. When called at the defendant's trial,

however, the codefendant testified he did not remember the events surrounding the crime. Id.

He was asked whether he remembered pleading guilty at a hearing where he testified that the

defendant had been his accomplice. Id. He recalled pleading guilty, but could not recall

testifying that the defendant participated in the crime. Id. As in this case, the trial court did not

issue any limiting instruction regarding the accomplice's testimony. Id. The jury found the

defendant guilty and he contended on appeal that it was error for the jury to have heard testimony

from his codefendant's guilty plea hearing, relying on the general rule from Sullivan quoted by

the defendant in the case at bar. We rejected the defendant's claim of serious error because "the

prosecutor did not argue the defendant was guilty because [the codefendant] pleaded guilty."

Edwards, 309 Ill. App. 3d at 453. We held "the State was allowed to impeach its own witness,

[the codefendant], with the fact that he had pleaded guilty after he testified herein that he did not


                                                  13
No. 1-09-3202

recall the events surrounding the [crime]." Id. at 454. We also made clear that the testimony

from the codefendant's guilty plea hearing "was admissible as substantive evidence." Id. at 451.

Consequently, "No error, plain or otherwise, occurred***." Id. at 453.

       Similar to the court's finding in Edwards, the defendant here concedes "that the

prosecutor never explicitly argued to the jury to consider the co-defendants' guilty pleas as

evidence of defendant's guilt." He argues, however, that the number of times (purportedly 15)

the prosecution used the phrase "pled guilty," or variations thereof, constituted an "implicit

suggestion" that the guilty pleas were evidence of the defendant's guilt.

       We recount some of the prosecution's statements that the defendant cites in support of

this argument. The State examined Adorno on direct:

                        "THE STATE: And on May 20th of 2008 you pled guilty to

                an amended charge of conspiracy to commit first degree murder; is

                that true?

                                                 ***

                        THE STATE: No one threatened you or promised you

                anything to get you to ple[a]d guilty; isn't that true?

                                                 ***

                        THE STATE: And during the hearing before Judge

                Fleming when you pled guilty the Judge put you under oath; isn't

                that right?

                                                 ***


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No. 1-09-3202

                         THE STATE: I then asked you about a phone conversation

                that you had the night of the murder with defendant Diego Santiago

                at your plea hearing; isn't that true?"

      Logan's examination followed.

                         "THE STATE: And you pled guilty for your involvement in

                that person, Epifanio Santos, Jr.'s death, correct?

                         LOGAN: Yes.

                         THE STATE: You punched Epi and knocked him to the

                ground just before he was murdered; isn't that true?

                         LOGAN: Yeah, I did hit him.

                         THE STATE: And he went to the ground; isn't that true?

                         LOGAN: Yes.

                         THE STATE: And then this defendant, Diego Santiago,

                walked up and shot him in the head; isn't that true?

                         LOGAN: No, sir."

      In closing argument, the prosecution stated:

                "[C]razy, untreated bipolar guys don't get to plead guilty to cases

                and sent away to the penitentiary for 15 years unless they can make

                a knowing, intelligent waiver of their rights to trial and they

                understand the proceedings, and that's what happened to Martin

                Logan.


                                                   15
No. 1-09-3202

                       So don't let his little game coming up here and acting all

                crazy, he didn't know what was going on[, to] fool you ***. Come

                on, really? They are going to take a 5 and 15-year stretch

                respectively in the Illinois Department of Corrections because they

                didn't like the Cook County Jail?"

       Nothing in the excerpts from the trial transcript quoted by the defendant in his brief, a

sample of which we set out above, approaches, much less crosses, the line our supreme court

drew in Sullivan. The State never argued, or even suggested, that Logan's or Adorno's guilt was

evidence of the defendant's guilt. We also observe that Adorno's and Logan's pleas of guilty to

conspiracy to commit murder added little to the substantial evidence that proved the defendant

caused the death of Santos, including the substantive evidence in the form of prior inconsistent

statements Adorno and Logan each gave directly implicating the defendant.

       Nor is the defendant's complaint about the prosecution's references to the length of the

sentences received by Adorno and Logan a Sullivan-type error. The State's purpose in identifying

those sentences was clearly to emphasize the doubtful explanations offered by Adorno and Logan

for their willingness to plead guilty. Nor does the mention of the sentences imposed on Adorno

and Logan prejudice the defendant by suggesting the potential sentence he faced if found guilty.

This case is unlike the case the defendant cites to support his contention -- People v. Arroyo, 339

Ill. App. 3d 137, 150, 790 N.E.2d 943 (2003).

       In Arroyo, we found it was error to inform the jury of the sentence imposed on a

codefendant because such evidence suggested the defendant faced a comparable sentence if


                                                16
No. 1-09-3202

convicted. In Arroyo, the testimony regarding the sentence imposed on a codefendant was

entirely "irrelevant and immaterial to the jury." Arroyo, 339 Ill. App. 3d at 150. As we stated,

the evidence of the sentence Adorno and Logan received was properly used to cast doubt on the

codefendants' testimony that they pleaded guilty merely to get out of Cook County jail. Even if

evidence of the codefendants' sentences constituted error, it was not of the sort that caused the

defendant substantial prejudice. Arroyo, 339 Ill. App. 3d at 152-53 (" 'Even if prosecutorial

comment exceeds the bounds of proper argument, the verdict must not be disturbed unless it can

be said that the remark caused substantial prejudice to the defendant***.' " (quoting People v.

Williams, 192 Ill. 2d 548, 573, 790 N.E.2d 1001 (2000))). Without causing substantial prejudice

to the defendant, the alleged error could not have deprived the defendant of a fundamentally fair

trial that would call into question the integrity of our judicial system. Herron, 215 Ill. 2d at 179.

In light of the substantial evidence implicating the defendant in the murder of Santos, the jury's

verdict was unaffected by its knowledge that Adorno and Logan were given specific prison terms

after pleading guilty to conspiracy to commit murder.

       Finally, the defendant takes issue with Adorno being asked by the prosecution whether

the defendant was present at the time Adorno entered his plea of guilty. Once again, it was

permissible for the State to offer to the jury a plausible explanation for Adorno's contrary claims

at trial -- the defendant's absence at the plea hearing made it easier for Adorno to testify to the

defendant's guilt and, inversely, the defendant's presence at trial made it difficult for Adorno to

repeat that testimony.

       As in Edwards, the record before us is clear that "the prosecutor did not argue the


                                                  17
No. 1-09-3202

defendant was guilty because [the codefendant] pleaded guilty." Edwards, 309 Ill. App. 3d at

453. The trial court did not err in permitting the jury to hear the testimony from, and the

circumstances surrounding, the codefendants' pleas of guilty in connection with Santos' murder.

As in Edwards, "No error, plain or otherwise, occurred ***." Id.

                                         CONCLUSION

       The trial court did not err in admitting Logan's and Adorno's two prior statements that

were inconsistent with the testimony they offered at trial. Nor was it improper for the State to

reference their guilty pleas where the State did not suggest that those pleas were evidence of the

defendant's own guilt. Because no errors occurred, no plain error occurred.

       Affirmed.




                                                18
No. 1-09-3202




1-09-3202 People v. Diego Santiago

       JUSTICE ROBERT E. GORDON, specially concurring:

       I concur in the outcome but I must write separately. Like the majority, I find that reversal

is not required on the particular facts of this case. Unlike the majority, I find that there was error.

However, I affirm because I find that the error does not rise to the level of plain error. People v.

Piatkowski, 225 Ill. 2d 551, 565 (2007) (describing the plain error doctrine).

       In the case at bar, no one testified at trial that they saw defendant commit the shooting of

the victim, and there was no physical evidence linking defendant to the crime. The State’s

primary witnesses against defendant consisted of gang members or convicted felons who either

implicated defendant in their earlier statements or who claimed at trial to have observed

defendant with a gun.

       On this appeal, defendant claims that he was denied a fair trial, because the State referred

numerous times to the fact that his codefendants had already pled guilty for their involvement in

the same crime, thereby suggesting to the jury that defendant was similarly guilty. There is a

world of difference between impeaching witnesses with statements they made during their plea

hearing, and introducing the fact of their actual convictions, particularly when essentially the

same statements were already admitted through videotaped police interviews.

       At trial, during the State’s direct examinations of two alleged accomplices, the State


                                                  19
No. 1-09-3202

referred more than 15 times to the fact that both accomplices had already pled guilty to the same

incident in which defendant stood accused. Then the jury received both the transcripts from the

accomplices’ guilty plea hearings, as well as portions of their videotaped police interviews. In

closing, the State argued that the codefendants’ guilty pleas and sentences were justified. I find

this repetition unnecessary and prejudicial.

       The majority relies on Johnson and Maldonado. Slip op. at 8-9. However, Johnson and

Maldonado are distinguishable, because they involved prior multiple inconsistent statements by a

victim or eyewitness, while the case at bar concerned prior multiple inconsistent statements of

codefendants who pled guilty. The latter implicates the principles articulated by our supreme

court in People v. Stover, 89 Ill. 2d 189 (1982), while the former does not. Stover, 89 Ill. 2d at

195-96. Simply put, guilty pleas create a risk of guilt by association, while statements of victims

and eyewitnesses do not. See People v. Dabbs, 239 Ill. 2d 277, 289 (2010) (“a single evidentiary

issue may be subject to more than one rule. Thus, while a positive rule may allow a certain type

of evidence, a negative rule may prohibit its admission”).

       The majority relies primarily on Sullivan. However, our supreme court subsequently

distinguished and explained its Sullivan holding in People v. Stover, 89 Ill. 2d 189 (1982).

       The majority states that defendant failed to offer a persuasive reason to limit “the number

of prior inconsistent statements that are offered to challenge the credibility of a witness.” Slip

op. at 9. That reason was offered by our supreme court in Stover – namely, the risk of guilt by

association. Stover, 89 Ill. 2d at 195-96 (repeated references to a codefendant’s guilty plea were

improper because “[t]he implication was that defendant’s guilt could be gauged accordingly”).


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        In Stover, the State impeached defendant’s former codefendant, who was also defendant’s

brother, with the codefendant’s guilty plea for the same incident that defendant was being tried

for. Stover, 89 Ill. 2d at 192. Both defendants were charged with resisting arrest, during the

same arrest. Stover, 89 Ill. 2d at 192. At trial, the codefendant testified that he was never

informed, prior to being handcuffed, that he was under arrest. Stover, 89 Ill. 2d at 193. The State

was then permitted to impeach him with his guilty plea to the charge of resisting arrest. Stover,

89 Ill. 2d at 193. The jury then found defendant guilty of the same offense. Stover, 89 Ill. 2d at

193.

        Our supreme court reversed and remanded for a new trial finding that the evidence of the

codefendant’s conviction was improperly admitted. Stover, 89 Ill. 2d at 196. In Stover, our

supreme court explained that the holding in Sullivan did nothing more than “articulate[] the

holding in People v. Montgomery, 47 Ill. 2d 510 (1971).” Stover, 89 Ill. 2d at 195. In

Montgomery, our supreme court adopted Federal Rules of Evidence 609 which permitted

impeachment of the general credibility of a witness by evidence of felony convictions which are

less than 10-years old. Montgomery, 47 Ill. 2d at 516-17, 519. In Stover, the codefendant’s

conviction was for a misdemeanor and therefore inadmissible under the Montgomery rule.

Stover, 89 Ill. 2d at 195.

        In Stover, our supreme court held that the admission of prior inconsistent statements was

not meant to be an end run around the purposes and limits of the Montgomery rule. Stover, 89

Ill. 2d at 195. In other words, even after Sullivan, prior felony convictions are generally

admissible only for the purpose of impeaching general credibility, and under the limits set out by


                                                 21
No. 1-09-3202

our supreme court in Montgomery. Stover, 89 Ill. 2d at 195.

       In the case at bar, the codefendants’ convictions were not admitted for the purpose of

impeaching their general credibility; and it was not necessary to admit their convictions in order

to introduce the prior inconsistent statements from the plea hearings. Cf. Arroyo, 339 Ill. App.

3d at 151-52 (the State could not disclose to the jury that a witness had already been convicted

for being the getaway driver for the same murder that defendant was standing trial for). In its

brief to this court, the State conceded that “defendant is correct that the People did not use the

witness’s convictions as impeachment evidence pursuant to People v. Montgomery, 47 Ill. 2d 510

(1971).”

       The appellate court has previously interpreted Stover exactly the same way we do now.

In People v. Arroyo, 339 Ill. App. 3d 137, 152 (2003), the appellate court stated:

                “In clarifying the Sullivan ruling that an accomplice’s testimony

                can be impeached with that accomplice’s prior conviction of the

                same offense for which the defendant is on trial, our supreme court

                explained that Sullivan ‘merely articulates the holding in ***

                Montgomery” and is limited to the defined standards set forth in

                *** Federal Rule 609. Stover, 89 Ill. 2d at 195. In other words,

                Sullivan does not provide a basis to admit a prior conviction to

                impeach a witness independent of the rule stated in Montgomery.”

                See Stover, 89 Ill. 2d at 195.” Arroyo, 339 Ill. App. 3d at 151.

       As a second and additional reason for reversing in Stover, our supreme court observed


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that “the prosecutor consistently emphasized, in his closing argument, that defendant’s brother

pleaded guilty to the offense in question.” Stover, 89 Ill. 2d at 195. Our supreme court found

that this was improper because “[t]he implication was that defendant’s guilt could be gauged

accordingly.” Stover, 89 Ill. 2d at 195-96. Similarly, in the case at bar, the repetition implied

defendant’s guilt.

       Under the particular facts and circumstances of Stover, our supreme court held that

“evidence of the witness’ prior guilty plea constituted reversible error, entitling the defendant to a

new trial.” Stover, 89 Ill. 2d at 196.

       However, I do not find that the holding in Stover requires reversal in the case before us,

because the facts and circumstances of this appeal differ in two significant respects from Stover.

       First, in the Stover appeal, our supreme court applied a harmless error analysis (Stover, 89

Ill. 2d at 194), whereas in our case only a plain error analysis applies. Whether a reviewing court

applies plain error or harmless error analysis “depends on whether defendant has forfeited review

of the issue.” People v. Thompson, 238 Ill. 2d 598, 611 (2010). To preserve an alleged error for

review, a “defendant must both specifically object at trial and raise the specific issue again in a

posttrial motion.” People v. Woods, 214 Ill. 2d 455, 470 (2005); People v. Piatkowski, 225 Ill. 2d

551, 564 (2007).

       Whether an error is forfeited or preserved is important because that fact determines which

party in the appeal has the burden of persuasion. In a plain error analysis, “it is the defendant

who bears the burden of persuasion with respect to prejudice.” Woods, 214 Ill. 2d at 470. By

contrast, in a harmless error analysis, the burden is on the State to prove beyond a reasonable


                                                 23
No. 1-09-3202

doubt that no prejudice occurred. People v. McLaurin, 235 Ill. 2d 478, 495 (2009).

       In Stover, our supreme court found that the error was preserved for review and thus

applied a harmless error analysis. Stover, 89 Ill. 2d at 193-94. By contrast, in the case before us,

defendant concedes that plain error review applies, and thus he bears the burden of persuasion.

       Second, I do not find that defendant carried his burden of persuasion under either prong

of the plain error doctrine. Piatkowski, 225 Ill. 2d at 565. Under the plain error doctrine, a

reviewing court may reverse only if: (1) a clear or obvious error occurred and the evidence was

so closely balanced that the error alone threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error; or (2) a clear or obvious error occured and

that error was so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process, regardless of the closeness of the evidence. Piatkowski, 225 Ill.

2d at 565.

       The majority states that “defendant makes no claim that the evidence is closely balanced”

under the first prong (slip op. at 5), whereas the State argues that “defendant makes no argument

that review is warranted under the second prong of plain error.” Obviously, both these

statements cannot be correct, since both the majority and the State agree that defendant is arguing

under at least one of the two prongs of plain error. In his opening appellate brief, defendant did

argue that the State’s evidence was weak and not overwhelming, which I assume is an argument

under the first or “closely balanced” prong of the plain error doctrine. Carrero, 345 Ill. App. 3d

at 13 n.3 (analyzing defendant’s claim under the first or “closely balanced” prong although

defendant had alleged only that the State’s evidence was “ ‘not overwhelming’ ”). Rather than


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No. 1-09-3202

repeating a previously-given analysis, the brief then referred the reader back to a prior three-page

discussion of why the State’s case was weak. Compare with Nieves, 192 Ill. 2d at 503 (review

forfeited where “[d]efendant’s plain error argument consists of a single sentence”). In addition,

in his reply brief, defendant stated unambiguously that “review of [defendant’s claims is

warranted under both prongs of the plain error rule.”

        The majority also states that “defendant cites a single case for his claim of plain error,

People v. Johnson,” a “prong-two” plain error case. Slip op. at 5 n.1. Actually, defendant’s main

brief cited two cases in support of his plain error claim: Sullivan; and Johnson. Also, the

Johnson opinion discussed both “prong-two” and prong-one. First, the Johnson opinion “beg[a]n

with a discussion of basic principles of plain error analysis” covering both prongs, which

defendant cited in his brief. Johnson, 208 Ill. 2d at 63-64. Then the Johnson court affirmed the

reversal of two defendants’ convictions under the second prong (Johnson, 208 Ill. 2d at 85, 87),

and explained why the evidence concerning the third defendant was “not closely balanced” under

the first prong. Johnson, 208 Ill. 2d at 117. In addition, we should not ignore defendant’s reply

brief which cited People v. Herron, 215 Ill. 2d 167 (2005), where our supreme court reversed due

to “error in a close case.” Herron, 215 Ill. 2d at 193.

        For all these reasons, it is clear that defendant was arguing both prongs on this appeal.

        However, I do not find that defendant carried his burden of persuading either (1) that the

evidence was “closely balanced” or (2) that the error was “so serious” that it affected “the

integrity of the judicial process.” Piatkowski, 225 Ill. 2d at 565. The claimed error does not rise

to the level of plain error.


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No. 1-09-3202

      Thus, even though I find error, I concur with the holding of the majority and affirm.




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