                                      2019 IL App (1st) 142736
                                           No. 1-14-2736
                                       Order filed June 6, 2019
                                                                                         Fourth Division
______________________________________________________________________________

                                               IN THE
                                 APPELLATE COURT OF ILLINOIS
                                         FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,                              )   Appeal from the
                                                                  )   Circuit Court of
          Plaintiff-Appellee,                                     )   Cook County
                                                                  )
     v.                                                           )   No. 10 CR 6894
                                                                  )
DENNIS JAIMES,                                                    )   Honorable
                                                                  )   Domenica A. Stephenson,
          Defendant-Appellant.                                    )   Judge presiding.



          JUSTICE BURKE delivered the judgment of the court, with opinion.
          Presiding Justice McBride concurred in the judgment and opinion.
          Justice Gordon dissented, with opinion.

                                             OPINION

¶1        Following a jury trial, defendant, Dennis Jaimes, was convicted of first degree murder but

acquitted of aggravated discharge of a firearm. The jury also found that the State failed to prove

that defendant personally discharged a firearm that caused death. The trial court subsequently

sentenced him to 30 years’ imprisonment. On appeal, defendant contends that (1) when the jury

submitted multiple notes during its deliberations, in which he asserts the jury asked whether it

could find him guilty under a theory of accountability despite not being instructed on that theory

of guilt, the trial court erred by not rejecting the jury’s consideration of the theory and (2) he was
No. 1-14-2736

denied a fair trial when the court allowed the State to introduce into evidence several statements

made by nontestifying co-offenders under the coconspirator exception to the hearsay rule. For

the reasons that follow, we affirm.

¶2                                     I. BACKGROUND

¶3     On the night of January 19, 2010, William Diaz and Daniel Rodriguez were standing on a

street corner when someone dressed in all black walked toward them and shot a firearm in their

direction multiple times. Rodriguez was uninjured, but Diaz died from a gunshot wound. After

defendant was identified as the shooter, he was indicted with 36 counts of first degree murder of

Diaz, 3 counts of attempted murder of Rodriguez, and 1 count of aggravated discharge of a

firearm in the direction of Rodriguez. In several of the counts of first degree murder, the State

alleged that defendant personally discharged the firearm that caused Diaz’s death.

¶4     Prior to trial, the State filed a motion, which it subsequently amended, seeking to

introduce into evidence several incriminating statements made by defendant’s alleged

coconspirators, including statements made before the shooting of Diaz and statements made in

the immediate aftermath of the shooting. For most of the statements, the State sought to admit

them as statements made by coconspirators in furtherance of a conspiracy, and for others, the

State sought to admit them as tacit admissions by defendant, who allegedly was present when the

statements were made. Defendant responded to the motion, objecting to the admission of the

various statements, in part because he was not involved in any conspiracy and the statements

allegedly made in his presence did not qualify as tacit admissions. But regardless, according to

defendant, he argued that the trial court should hold a pretrial hearing with witness testimony to

determine whether the statements should be admissible. The trial court rejected defendant’s

request for a hearing, and based on the State’s proffer of evidence contained in its motion, it
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allowed most of statements to be introduced at trial under the coconspirator exception to the

hearsay rule but also allowed certain statements made allegedly in defendant’s presence to be

admitted as tacit admissions.

¶5      The case proceeded to trial, where the State pursued only three of the counts against

defendant. One count was for first degree murder in that defendant intentionally or knowingly

shot and killed Diaz, and another count was for first degree murder in that defendant shot and

killed Diaz knowing that such an act created a strong probability of death or great bodily harm to

Diaz. For both counts, the State alleged that, during the commission of the offenses, defendant

personally discharged the firearm that proximately caused Diaz’s death. The final count was for

aggravated discharge of a firearm in that defendant knowingly or intentionally discharged a

firearm in the direction of Rodriguez.

¶6                              A. Opening Statements and Trial

¶7      In the State’s opening statement, it informed the jury that its evidence would show

defendant armed himself on the night in question looking to shoot a rival gang member and did

so when he fired his weapon at Diaz and Rodriguez, which resulted in Diaz’s death.

¶8      The evidence at trial showed that, during January 2010, there was an ongoing feud

between the Two-Six and Latin Kings gangs. On January 19, 2010, members of the Two-Six

gang were at Luis Aguado’s house, including Victor Perez, Gilberto Fuentes, Ruben Maldonado,

Eric Jaro, Carlos Ruiz, Cesar Azteca, defendant, and possibly another person nicknamed

“Creeper.” The State introduced much of what occurred while the group was at Aguado’s house

through the substantive admission of the grand jury testimony of Aguado, Perez, and Fuentes,

who all testified at trial.


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¶9     While the group was hanging out, some of them, in particular Aguado and Maldonado,

began discussing shooting and killing a member of the Latin Kings. Maldonado remarked that

the group had to start retaliating more against the gang. The group discussed using Azteca’s

vehicle, and defendant stated that, if they were serious about the plan, he could obtain a firearm.

The group’s plan was to drive around the territory of the Latin Kings and search for individuals

who were bald and wearing baggy clothes with the gang’s colors. Although many in the group

were eager to participate, only Jaro, defendant, Ruiz, and Maldonado went, although Creeper

may have also joined them. Ruiz volunteered to be the driver, and as defendant and Maldonado

were walking to Azteca’s minivan, Aguado heard them discussing which one wanted to be the

shooter.

¶ 10   Later that night, at around 9 p.m., Diaz and Rodriguez, both members of the Latin Kings,

were standing near the corner of 27th Street and Christiana Avenue in Chicago. At the time,

according to Rodriguez, who testified at trial, they were concerned about retaliation from another

gang. It was dark, and while they were outside waiting for their friend, Carlos Andrade,

Rodriguez observed an individual dressed in all black walking toward them. Although Rodriguez

could tell the person was male, he could not immediately determine the person’s race. When that

person was about seven feet away, Rodriguez turned his head away and heard multiple gunshots.

Rodriguez looked back toward the person, who he identified at trial as defendant, and saw

defendant shooting in his and Diaz’s direction. Once the shooting stopped, Rodriguez noticed

Diaz was bleeding and called 911. Rodriguez was uninjured, but Diaz ultimately died as a result

of a single gunshot wound.

¶ 11   The police arrived shortly afterward. A responding officer told Rodriguez to leave the

area, which Rodriguez did without mentioning anything about the shooting. During the police’s

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search of the area, they did not recover any shell casings, indicating that a revolver had been

used. The police also reviewed the 911 calls of the shooting and located Rodriguez’s number. An

officer called Rodriguez, but he told the officer that he did not know anything about the shooting

and only called because he saw someone had been shot. Later during the investigation, a

detective contacted Rodriguez, and they met, but Rodriguez again asserted he did not know

anything about the shooting.

¶ 12   The majority of what occurred after the shooting concerning members of the Two-Six

gang came in through the substantive admission of the grand jury testimony of Aguado, Perez,

and Fuentes.

¶ 13   According to Aguado’s grand jury testimony, the night of the shooting, Jaro returned to

Aguado’s house with the keys to Azteca’s vehicle. Aguado and Azteca both entered Azteca’s

vehicle, where Jaro told Aguado that defendant was “a crazy a***” and “snapped.” Aguado

interpreted Jaro’s comments to mean that defendant did the shooting. Also in the vehicle,

Aguado heard Maldonado telling Azteca not to worry about any evidence of the shooting being

in his vehicle because the shooter had jumped out of the vehicle, ran through a gangway and then

fired the shots. At one point, according to Aguado, Maldonado told Azteca that “I caught a flake

on the next block,” meaning a Latin King had been shot. Maldonado cautioned the occupants of

the vehicle to be careful and perhaps stay inside because the Latin Kings were probably going to

retaliate. Later that night while the group was driving around in Azteca’s vehicle, defendant

received a phone call and learned that the person who had been shot was dead and that he was a

“chief” in the Latin Kings. In response, defendant smiled, laughed, and displayed a Two-Six

gang sign. Aguado asked defendant who shot the Latin King, and defendant responded by again

displaying a Two-Six gang sign.

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¶ 14     According to Perez’s grand jury testimony, the day after the shooting, he saw Maldonado

on the street, and they walked together to the residence of a friend, Andrew Linares, who was in

the process of moving. Maldonado told Perez that they had “smoked a King” the previous night,

which Perez interpreted as killing a member of the Latin Kings. They arrived at Andrew’s

residence, where they joined Andrew and Andrew’s brother, Jorge Linares. 1 There, Maldonado

told Perez in more detail what happened. Maldonado said the group found a Latin King near the

intersection of 27th Street and Christiana Avenue, defendant jumped out of the vehicle, and

shortly thereafter, Maldonado heard multiple gunshots. Defendant came running back to the

vehicle, and they sped away.

¶ 15     According to Fuentes’s grand jury testimony, on the day after the shooting, he went to

Aguado’s house, where Aguado told him that the group had killed a Latin King. Fuentes

“guess[ed]” that defendant had been the shooter. The next day, Fuentes was with Aguado and

Jaro, when Jaro told Fuentes about the shooting, specifically that defendant was the shooter. The

day after Fuentes saw Jaro, Fuentes saw Maldonado, who was bragging about killing a Latin

King. Maldonado said that the group had parked a block away, ran through a gangway, and shot

a Latin King, though he did not say who had been the shooter. At trial, during cross-examination,

Fuentes testified that, on January 21, 2010, a fellow member of the Two-Six gang, “Poncho,”

was shot and killed, and on that same date, Fuentes himself was shot at by members of the Latin

Kings.

¶ 16     On February 2, 2010, the police executed an unrelated search warrant on Andrew’s

residence, found a handgun and drugs, and arrested him. Andrew, who testified at trial, admitted

to the police that he was a member of the Two-Six gang and that the contraband they found was

         1
          Andrew Linares will be referred to as Andrew, and Jorge Linares will be referred to as Jorge.
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No. 1-14-2736

his. Because of his gang affiliation, an officer asked if he had heard anything about “a shooting.”

Andrew, who believed he would help his own case by giving the police information, told the

officer that an “affiliate member” told him about a shooting that occurred around January 20.

Andrew informed the police that, around that date, he was moving out of an apartment with the

help of Jorge, when Perez and Maldonado came over. Maldonado told Andrew that he was

driving around with defendant in the territory of the Latin Kings the previous night. Maldonado

said he observed two males on the street corner on Christiana Avenue, he and defendant exited

the vehicle, and “there were shots fired.” However, Andrew acknowledged at trial that he told

the police about defendant’s involvement during a second interview, not the initial one. Andrew

also told the police that, a couple days after he moved, he was walking down the street with

Ruiz, who became paranoid when a vehicle passed them. Ruiz explained to Andrew that “they

had kicked off the war between the Latin Kings and the Two-Six” gangs, and Ruiz “thought they

were coming back to retaliate.” Andrew ultimately received probation based on the charges filed

against him.

¶ 17   After the police spoke to Andrew, they questioned Jorge in an attempt to corroborate

Andrew’s claims, and Jorge provided similar information. As a result, the police believed that

defendant, Maldonado, Jaro, and Ruiz were involved in the shooting death of Diaz. The police

subsequently brought Maldonado, Aguado, Fuentes, and Perez to the police station for

questioning. Although the police recorded Maldonado’s interview, they did not record the

interviews of Aguado, Fuentes, or Perez. Because their stories generally were consistent with one

another, the police thought they were telling the truth. Later that same day, the police brought

defendant to the police station for questioning, but he was eventually released.



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No. 1-14-2736

¶ 18   After Aguado, Fuentes, and Perez had been interviewed by the police, they testified

before a grand jury. Some days later, the police interviewed Andrade, and based on that

interview, they needed to interview Rodriguez again, who at the time was on special gang

probation. On February 24, 2010, Rodriguez, who had recently been arrested for reckless

conduct, was in police custody. The police interviewed Rodriguez in connection with the

shooting of Diaz, during which he identified defendant in a photo array as the shooter. The police

subsequently arrested defendant, and Rodriguez identified him again in a lineup as the shooter.

¶ 19   As previously mentioned, the majority of the evidence concerning the planning and

execution of the shooting of Diaz was introduced through the substantive admission of the grand

jury testimony of Aguado, Perez, and Fuentes. At various points in the trial, they each denied

making certain statements to the grand jury or could not remember making certain statements.

Additionally, all three testified that the police threatened to charge them with murder if they did

not cooperate. The police officers and assistant state’s attorneys who testified for the State at trial

all denied the allegations made by Aguado, Perez, and Fuentes.

¶ 20   In defendant’s case, Cook County probation officer Mark Dovin testified that, while

Rodriguez was on probation, he reported to Dovin multiple times in January and February 2010

as a condition of his probation. At all times, Rodriguez denied knowing anything about a

shooting or the gang conflict between the Two-Six and Latin Kings gangs.

¶ 21   Jorge also testified that, at some time in January 2010, he was helping his brother move

when Maldonado and Perez arrived. Although Jorge did not hear all of the ensuing conversation

between Andrew, Maldonado, and Perez, he heard Maldonado mention something about a

shooting near 27th Street and Christiana Avenue, but Maldonado never mentioned who the

shooter was. Jorge also confirmed that he gave a statement to an assistant state’s attorney in early
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February 2010, wherein he indicated that Maldonado mentioned to Perez and Andrew that he

(Maldonado) had taken care of business the night of the shooting.

¶ 22                                   B. Jury Instructions

¶ 23   During the jury instructions conference, the parties agreed to several instructions. One

informed the jury that defendant had been charged with first degree murder and aggravated

discharge of a firearm. Another told the jury the State had alleged that, during the commission of

the first degree murder, defendant personally discharged the firearm that caused Diaz’s death.

Other instructions provided the jury with the elements necessary to prove first degree murder, the

elements necessary to prove defendant personally discharged the firearm that caused Diaz’s

death, and the elements necessary to prove aggravated discharge of a firearm. Another

instruction informed the jury that, if it found defendant not guilty of first degree murder, it

should not consider the allegation that defendant personally discharged the firearm that caused

Diaz’s death. Conversely, this instruction informed the jury that, if it found defendant guilty of

first degree murder, it should consider whether the State had proven beyond a reasonable doubt

that defendant personally discharged the firearm that caused Diaz’s death.

¶ 24   Defendant, however, requested a non-Illinois pattern jury instruction that would have

informed the jury that he was not charged under a theory of guilt by accountability or conspiracy

and directed the jury to limit its consideration of the case solely to whether the evidence at trial

proved he directly committed the offenses. The requested instruction also would have informed

the jury that, if it concluded that someone else might have directly committed the offenses with

defendant’s help in some manner, then it must find him not guilty. The State objected to the

instruction, arguing that it did not help explain the issues of the case and would confuse the jury.



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The trial court rejected the requested instruction, finding that the other instructions adequately

covered the issues of the case.

¶ 25                                   C. Closing Arguments

¶ 26   In the State’s closing argument, it contended that the evidence showed defendant shot and

killed Diaz and shot at Rodriguez. In defendant’s closing argument, he contended that, for

various reasons, Rodriguez could not be believed as a witness. And beyond Rodriguez’s

testimony, defendant posited that the other evidence connecting him to the shooting could be

explained away by various reasons, including witnesses trying to protect themselves or police

coercion. Lastly, defendant highlighted the evidence indicating that Maldonado was the shooter.

¶ 27                                   D. Jury Deliberations

¶ 28   During the jury’s deliberations, the jury sent out two notes. The first asked: “Can we find

guilty of first degree but not guilty of discharging and aggravated?” The second asked: “Please

define what is intended as an ‘act’ in first degree murder.” The trial court considered the first

question first. Both parties discussed the note and were unclear exactly what the jury meant. The

court attempted to interpret the question and construed it as asking “can they find him not guilty

of personally discharging a firearm—if they can find him not guilty of discharging a firearm and

not guilty of aggravated discharge of a firearm, that answer would be yes.” One of defendant’s

attorneys cautioned about “speculat[ing]” as to the jury’s question and suggested asking the jury

to clarify its question. An assistant state’s attorney agreed that asking the jury to clarify its

question was appropriate but suggested different wording from defendant’s attorney. Another of

defendant’s attorneys suggested that the trial court refer the jury to specific instructions and if it

still had a question, to be more specific. In response, the court noted that the jury’s question was

one of law, which it was “supposed to answer,” if possible, and simply referring the jury back to
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the original instructions may not answer the question. The parties then agreed that the court

should have the jury clarify its question. The court proposed responding to the jury with: “Please

clarify your question,” and asked if either party had an objection. Neither party objected, and the

court instructed the jury accordingly.

¶ 29   After answering the jury’s first question, the trial court considered the second question.

The court noted that Illinois Pattern Jury Instructions, Criminal, No. 4.01 (approved July 18,

2014) (hereinafter IPI Criminal), which defined “act” as including “a failure or omission to take

action,” was inapplicable based on the facts of the case, to which both parties agreed. The court

further determined that the question was one of fact and asked for the parties’ input. One of

defendant’s attorneys highlighted the non-Illinois pattern jury instruction it had unsuccessfully

proposed during the instructions conference related to guilt by accountability. In response, the

court noted that the instruction did not “have any case law cited,” so it could not be said that the

instruction accurately stated the law. The court asserted that it would not give the instruction

“even in light of [the jury’s] question.” The court then proposed the following language: “You

have received the evidence and the instructions. Please continue to deliberate.” The court asked

if there was any objection, and neither party objected. The court instructed the jury accordingly.

¶ 30   Immediately after the trial court responded to the jury’s second note, the jury sent out a

third note, which asked: “Are each of the three charges independent of each other? If not, which

charges must be in tandem?” After reading the question, the court remarked that the question

“was even more confusing” and noted that the jury could not even consider the personal

discharge allegation until it first found defendant guilty of first degree murder. In response, an

assistant state’s attorney observed that an already provided instruction informed the jury of that,

but “apparently [the jury was] not following or understanding it.” One of defendant’s attorneys

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asserted that she did not understand how the jury could view the charges or the personal

discharge allegation as “in tandem considering the evidence that [it] received is only one

person.” Another of defendant’s attorneys suggested pointing the jury to People’s instruction No.

23, or IPI Criminal No. 28.04, which instructed the jury to only consider the personal discharge

allegation if it first found defendant guilty of first degree murder. Conversely, that instruction

directed the jury not to consider the personal discharge allegation if it found defendant not guilty

of first degree murder.

¶ 31   In response, the trial court noted that it could not direct the jury to just one instruction to

sufficiently answer its question and that it was “not supposed to highlight any one instruction

over another.” Another one of defendant’s attorneys suggested simply instructing the jury to

“refer to your jury instructions.” The State proposed: “[R]efer back to the jury instructions. The

answer is in the jury instructions.” One of defendant’s attorneys indicated that they would “agree

with that” response. The court then proposed the following language: “You have received all of

the evidence and the instructions. Please continue to deliberate.” The court asked if there was

any objection, and neither party objected. The court instructed the jury accordingly.

¶ 32                                E. Verdict and Sentencing

¶ 33   Less than 30 minutes after the trial court responded to the third note, the jury found

defendant guilty of first degree murder but found that the State failed to prove that he personally

discharged the firearm that caused Diaz’s death. The jury also acquitted defendant of aggravated

discharge of a firearm. Defendant filed a motion for new trial, and while he argued in part that

the jury’s verdicts were inconsistent, he raised no argument related to the trial court’s responses

to the jury notes. Also in the motion, defendant argued that the court improperly allowed the

State to introduce the statements by his coconspirators because, even if defendant had been
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involved in a conspiracy with the declarants, the statements were not made during or in

furtherance of the conspiracy. The court denied his motion and sentenced him to 30 years’

imprisonment.

¶ 34   Defendant subsequently appealed.

¶ 35                                      II. ANALYSIS

¶ 36                               A. Responses to Jury Notes

¶ 37   Defendant first contends that the trial court’s responses to the jury notes were erroneous.

Defendant argues that, based on the notes, the jury was asking whether it could find him guilty

based on a theory of accountability, despite the State never prosecuting him based on such a

theory. According to defendant, instead of asking the jury to clarify its first note and then

instructing the jury to continue deliberating in response to the second and third notes, the court

should have made clear to the jury that it could not find him guilty of first degree murder if it

found that the State failed to prove he was the shooter.

¶ 38   Initially, defendant concedes that he did not include this contention of error in a posttrial

motion, and we separately note that he never objected to the trial court’s proposed responses to

the jury. Together, these two failures mean that he has forfeited the claim of error for review. See

People v. Thompson, 238 Ill. 2d 598, 611 (2010) (“To preserve a claim for review, a defendant

must both object at trial and include the alleged error in a written posttrial motion.”). But

defendant argues that, under Illinois Supreme Court Rule 451(c) (eff. Apr. 8, 2013), “substantial

defects” in jury instructions “are not waived by failure to make timely objections thereto if the

interests of justice require.” When a defendant invokes review under Rule 451(c), we utilize the

plain-error doctrine to review the claim of error. People v. Durr, 215 Ill. 2d 283, 296-97 (2005).

Under the plain-error doctrine, we may review an unpreserved claim of error when there was a
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clear or obvious error and either (1) the evidence was so closely balanced that the error itself

threatened to tip the scales of justice against the defendant, regardless of the gravity of the error,

or (2) the error was so serious that it resulted in an unfair trial to the defendant and challenged

the integrity of the judicial process, regardless of the closeness of the evidence. People v. Sebby,

2017 IL 119445, ¶ 48.

¶ 39   The State, however, asserts that plain-error review is inapplicable because defendant

affirmatively acquiesced to the trial court’s responses to the jury notes. Under the invited-error

doctrine, “a party cannot complain of error that it brought about or participated in.” People v.

Hughes, 2015 IL 117242, ¶ 33. Specific to this case, “[w]hen a defendant acquiesces in the trial

court’s answer to a question from the jury, the defendant cannot later complain that the trial

court’s answer was” erroneous. People v. Averett, 237 Ill. 2d 1, 23-24 (2010). Two recent cases,

People v. Lawrence, 2018 IL App (1st) 161267, and People v. Boston, 2018 IL App (1st)

140369, both from this division of the first district, guide our analysis.

¶ 40   In Lawrence, 2018 IL App (1st) 161267, ¶ 17, the jury sent out a note with two questions,

one indicating that it was deadlocked and asking what to do next as well as a question about

obtaining transcripts of the testimony of two witnesses. After the trial court discussed the note

with the parties, it stated that it would inform the jury to continue deliberating with respect to the

first question. Id. ¶ 18. The defendant’s attorney agreed with the trial court, stating “ ‘[r]ight,’ ”

but suggested multiple responses with respect to the jury’s second question, some of which the

court incorporated. Id. Shortly after the court responded to the jury, it returned a guilty verdict.

Id. ¶ 19. On appeal, the defendant contended that the trial court coerced his guilty verdict by

instructing the deadlocked jury to continue deliberating. Id. ¶ 49. This court, however, found

that, because his attorney agreed with the trial court’s response to the first question, he had

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acquiesced to the manner in which the court proceeded. Id. ¶ 53. And therefore, the defendant

could not complain about the trial court’s decision on appeal and could not invoke plain-error

review, which concerned procedural defaults, not instances of affirmative acquiescence. Id.

¶¶ 53-54.

¶ 41   In Boston, 2018 IL App (1st) 140369, ¶ 47, the jury sent out a note asking if self-defense

was a mitigating factor because the “ ‘[d]efinition of mitigating factor [was] unclear on sheet.’ ”

During the ensuing conversation about the note, the defendant’s attorney suggested a course of

action that was different from what the trial court ultimately took and also agreed with the

court’s response, which had been initially suggested by the State, that the jury had already

received the necessary instructions. Id. ¶ 110. There is no indication that the court explicitly

asked if there was any objection to its response, and no indication that the defendant’s attorney

stated there was no objection to the response. See id. Ultimately, the jury returned a guilty

verdict. Id. ¶ 48. On appeal, the defendant contended that the trial court’s failure to clarify the

issue for the jury was plain error. Id. ¶ 108. This court found that, because defense counsel

“appear[ed] to have both suggested additional instructions and accepted the State’s position that

the jury had received the necessary instructions,” there had been no “clear invited error.”

(Emphases in original.) Id. ¶ 111. Consequently, the invited-error doctrine did not apply, and the

defendant could invoke plain-error review. Id.

¶ 42   The present case blends elements of both Lawrence and Boston. Like Lawrence, the

defense in this case indicated its agreement with the trial court’s responses to the jury when it

failed to object after being directly prompted by the court to raise an objection if it disagreed. See

Lawrence, 2018 IL App (1st) 161267, ¶ 18. Conversely, like Boston, the defense in this case also

suggested different responses than what the trial court ultimately chose but did not protest the

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court’s actual responses to the jury. See Boston, 2018 IL App (1st) 140369, ¶ 110. But more like

Boston than Lawrence, the defense in this case did not clearly invite the error and did not truly

acquiesce. According to Black’s Law Dictionary (10th ed. 2014), “acquiesce” means to “accept

tacitly or passively.” This is plainly what occurred in Lawrence, 2018 IL App (1st) 161267, ¶ 18,

where the defense simply remarked “ ‘[r]ight’ ” in response to the trial court’s proposed response

to the jury’s first question without any apparent suggestion to the alternative. But in the present

case, although the defense did ultimately agree with the trial court’s responses, it was not

passive, as the defense actively suggested responses the trial court could take that were different

from the one it actually took. Consequently, like Boston, defendant did not clearly invite the

error, and he may invoke plain-error review.

¶ 43   With plain-error review applicable, we note that the defendant has the burden to show

that an error constitutes plain error, and our first step is to determine whether a clear or obvious

error occurred. Sebby, 2017 IL 119445, ¶¶ 49-51. We now turn to the merits of defendant’s

contention.

¶ 44   During deliberations, if the jury poses a question to the trial court, it is “entitled” to have

its question answered. People v. Reid, 136 Ill. 2d 27, 39 (1990). And generally, the “court must

provide instruction when the jury has posed an explicit question or asked for clarification on a

point of law arising from facts showing doubt or confusion.” Averett, 237 Ill. 2d at 24. “When a

jury makes explicit its difficulties, the court should resolve them with specificity and accuracy.”

People v. Childs, 159 Ill. 2d 217, 229 (1994). But when the jury’s question “is unclear, it is the

court’s duty to seek clarification of it.” Id. The court has discretion to refuse to answer a jury’s

question under certain circumstances, such as



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       “when the jury instructions are readily understandable and sufficiently explain the

       relevant law, when additional instructions would serve no useful purpose or may

       potentially mislead the jury, when the jury’s request involves a question of fact, or when

       giving an answer would cause the trial court to express an opinion likely directing a

       verdict one way or the other.” Averett, 237 Ill. 2d at 24.

¶ 45   Because the trial court has discretion in deciding whether to answer the jury questions

(id.), we review its decision for an abuse of discretion (Boston, 2018 IL App (1st) 140369,

¶ 112). An abuse of discretion occurs only when the court’s decision was arbitrary or

unreasonable to the degree that no reasonable person would adopt the same view. People v.

McDonald, 2016 IL 118882, ¶ 32. Though defendant asserts our review on this issue is de novo,

that standard of review applies only when the issue on appeal is whether the court accurately

conveyed the law to the jury in response to a question. See Boston, 2018 IL App (1st) 140369,

¶ 112. In this case, however, the issue on appeal is whether the court properly utilized its

discretion in refusing to answer the jury’s notes beyond instructing the jury to clarify and then

continue deliberating.

¶ 46   In arguing that the trial court erred in its responses to the jury, defendant points us to

People v. Peoples, 2015 IL App (1st) 121717. In that case, the defendant was charged with first

degree murder, including an allegation that he personally discharged a firearm that caused death,

and attempted first degree murder, including an allegation that he personally discharged a

firearm. Id. ¶¶ 8, 44. The evidence at trial generally showed the defendant was a passenger in a

van that was involved in a shootout on a street with other people, which resulted in the death of

one person. Id. ¶¶ 10-31. While some of the witnesses identified the defendant as the shooter,

others did not, and there was at least one witness who testified that another person had shot a

                                               - 17 ­
No. 1-14-2736

firearm from the van. Id. The State never tendered a jury instruction on guilt by accountability,

and in closing argument, it argued that defendant was the individual who personally shot and

killed the victim. Id. ¶¶ 44, 46.

¶ 47    During the jury’s deliberations, it sent out a series of notes, asking about the difference

between first degree murder and the personal discharge allegation as well as if it could find the

defendant guilty if he was part of a group who meant to kill someone. Id. ¶ 48. The trial court

responded to the first question by telling the jury the answer was contained in the instructions

and responded to the second question by telling the jury to determine the facts of the case and

apply the law to those facts. Id. ¶¶ 48, 50. Still, the jury sent out another note, asking: “ ‘Can

someone be guilty of first degree murder [and] not pull the trigger? We are struggling with the

concept of a guilty verdict but not having enough evidence that shows or proves [the defendant]

was the shooter.’ ” Id. ¶ 52. After the parties discussed the response, the court answered the jury

in the affirmative over the defense’s objection. Id. ¶ 53. Five minutes later, the jury found the

defendant guilty of first degree murder and attempted first degree murder. Id. ¶ 55. While the

jury found that, during the commission of the attempted first degree murder, the defendant

personally discharged the firearm, it found that the State failed to prove that, during the

commission of the first degree murder, he personally discharged the firearm causing death. Id.

¶ 48    On appeal, the defendant argued the trial court erred when responding in the affirmative

to the jury’s question about whether it could find him guilty of first degree murder yet find that

he did not personally discharge the firearm that caused death. Id. ¶¶ 91-93. This court found that

the jury had essentially asked whether the defendant could be found guilty under a theory of

accountability, and the court’s response of “yes” was incorrect because the State never pursued

the theory at trial. Id. ¶ 94. This court determined that, instead of responding with “yes,” the trial

                                                - 18 ­
No. 1-14-2736

court should have responded with “ ‘no.’ ” Id. And by informing the jury that it could find the

defendant guilty based on a theory of accountability, the trial court committed reversible error by

injecting a new theory of guilt into the defendant’s trial. Id. ¶¶ 94, 97.

¶ 49    Defendant here argues that, based on the jury’s notes, in particular its first note (“Can we

find [defendant] guilty of first degree but not guilty of discharging and aggravated?”), it was

considering whether it could convict him under a theory of guilt by accountability. Based on

Peoples, defendant posits that the trial court should have made clear to the jury that it could not

find him guilty of first degree murder if it found that the State did not prove he was the shooter.

¶ 50    When the trial court was presented with the jury’s first note, both parties and the court

itself were confused about the exact meaning of the note. Initially, the court attempted to

interpret the question and construed it as asking whether the jury could find defendant guilty of

first degree murder, but also that the State failed to prove the personal discharge allegation. But

as the discussions of the note unfolded, two of defendant’s attorneys indicated they were

confused. One stated, “I’m not clear, your Honor,” while another stated, “[c]an we not speculate

as to what they mean and to ask them to clarify?” The State supported asking the jury for

clarification, and the court itself later stated, “I’m not sure—are you clear on what the question

is?” Ultimately, the parties below unanimously agreed that the jury’s question was unclear, and

accordingly, the court asked the jury to clarify. “If the question asked by the jury is unclear, it is

the court’s duty to seek clarification of it.” Childs, 159 Ill. 2d at 229.

¶ 51    Although it is reasonable, as defendant suggests, to interpret the jury’s first note as asking

whether it could find him guilty of first degree murder, but also that the State failed to prove the

personal discharge allegation, that does not necessarily mean the jury was asking the trial court

whether it could find defendant guilty under a theory of accountability. While possible, the note
                                                 - 19 ­
No. 1-14-2736

does not definitively indicate that the jury was concerned about guilt by accountability, or the

general notion of whether defendant could be convicted based on the actions of someone else.

Another possible interpretation of the note is that the jury was wondering whether it could give

lenience to defendant. See People v. Jones, 207 Ill. 2d 122, 130 (2003) (observing that, where

verdicts seem inconsistent, they “can often be explained as a product of juror lenity”). Given

multiple rational interpretations of the note and unanimous confusion among the parties’

attorneys, we cannot fault the trial court for asking the jury to clarify its note, which is a duty it

has when confronted with an ambiguous question from the jury. See Childs, 159 Ill. 2d at 229.

As trial courts do not possess a degree of clairvoyance to read the minds of juries, we cannot say

this trial court acted unreasonably in responding to the jury’s first note.

¶ 52    But even assuming arguendo that the jury’s note was actually asking whether it could

find defendant guilty of first degree murder without finding he personally discharged the firearm

that caused death, the trial court had no responsibility to respond in the negative to such a

question. In a prosecution for first degree murder when there is an additional allegation that the

defendant personally discharged a firearm that caused death, there is no requirement that the

State must prove the personal discharge allegation in order to obtain a conviction on first degree

murder. See People v. Alexander, 2017 IL App (1st) 142170, ¶¶ 43-44. The personal discharge

allegation is not an element of the offense of first degree murder, even when the victim dies from

a gunshot wound. Id. ¶ 43.

¶ 53    These points of law are further borne out by the jury instructions, which were all based

on Illinois pattern jury instructions. One of the instructions on first degree murder informed the

jury that



                                                - 20 ­
No. 1-14-2736

       “To sustain the charge of first degree murder, the State must prove the following

       propositions:

                       First: That the defendant performed the acts which caused the

                death of William Diaz; and

                       Second: That when the defendant, did so, he intended to kill or do

                great bodily harm to William Diaz; or

                       he knew that his acts would cause death to William Diaz; or

                       he knew that his acts created a strong probability of death or great

                bodily harm to William Diaz.

                If you find from your consideration of all the evidence that each one of

       these propositions has been proved beyond a reasonable doubt, you should find

       the defendant guilty.

                If you find from your consideration of all the evidence that any one of

       these propositions has not been proved beyond a reasonable doubt, you should

       find the defendant not guilty.”

One of the instructions on the personal discharge allegation informed the jury that

       “To sustain the allegation made in connection with the offense of first degree

       murder, the State must prove the following proposition:

                That during the commission of the offense of first degree murder, the

       defendant personally discharged a firearm that proximately caused death to

       another person. A person is considered to have ‘personally discharged a firearm’




                                               - 21 ­
No. 1-14-2736

       when he, while armed with a firearm, knowingly and intentionally fires a firearm

       causing the ammunition projectile to be forcefully expelled from the firearm.

                If you find from your consideration of all the evidence that the above

       proposition has been proved beyond a reasonable doubt, then you should sign the

       verdict form finding the allegation was proven.

                If you find from your consideration of all the evidence that the above

       proposition has not been proved beyond a reasonable doubt, then you should sign

       the verdict form finding the allegation was not proven.”

These two instructions were tied together with a third instruction that explicitly informed the jury

that it was only to consider the personal discharge allegation if it first found defendant guilty of

first degree murder. Conversely, that instruction explicitly precluded the jury from considering

the personal discharge allegation if it found defendant not guilty of first degree murder.

¶ 54   These instructions and the law of Illinois are clear that first degree murder and a personal

discharge allegation contain separate elements, and even when a victim dies from a gunshot

wound, the State does not have to prove that a defendant used a firearm to sustain a conviction

on first degree murder. See id. ¶¶ 41, 43-44. Importantly, a conviction and sentence on murder is

punishment for ending someone’s life, whereas a finding on a personal discharge allegation is

merely an additional penalty based upon the method of ending that person’s life. See id. ¶ 43.

Because we cannot read the jury’s mind, we will never know why it found defendant guilty of

first degree murder but did not find he personally discharged a firearm causing death. But the

mere fact that a jury would find in this manner does not invalidate the murder conviction. As this

court stated in Alexander, while it may be “nonsensical and unfair to allow [a defendant] to be

convicted as the principal shooter in a murder but found not to have personally discharged said
                                               - 22 ­
No. 1-14-2736

firearm,” the law in Illinois allows it. Id. ¶¶ 37-38. For this reason, even if it was clear that the

jury was asking whether it could find defendant guilty of first degree murder but also not find

that he personally discharged the firearm that caused death, the trial court would not have been

required to answer in the negative to the jury’s question.

¶ 55   While defendant primarily takes issue with the trial court’s response to the first note, he

nonetheless argues that its responses to all three were improper. With respect to the jury’s second

note (“Please define what is intended as an “act” in first degree murder?”), the court reasonably

interpreted this question as one of fact, and therefore, when the court responded by directing the

jury to continue deliberating, it committed no error. See Averett, 237 Ill. 2d at 24 (stating the

court has discretion to refuse to answer a jury question “when the jury’s request involves a

question of fact”). With regard to the final note (“Are each of the three charges independent of

each other? If not, which charges must be in tandem?”), the court correctly directed the jury to

continue deliberating with the evidence and instructions already received because those

instructions already informed the jury how the various charges and personal discharge allegation

interacted with one another. See id. (stating the court has discretion to refuse to answer a jury

question “when the jury instructions are readily understandable and sufficiently explain the

relevant law”). As such, we cannot say the trial court acted unreasonably in responding to the

jury’s second and third notes.

¶ 56   Lastly, to the extent defendant argues that, based on the three notes collectively, the trial

court should have realized the jury was asking whether it could convict him under a theory of

guilt by accountability and therefore should have directly informed the jury that it could not

consider such a theory, we also disagree that the court acted unreasonably.



                                               - 23 ­
No. 1-14-2736

¶ 57    In Peoples, 2015 IL App (1st) 121717, upon which defendant heavily relies, the jury’s

notes when viewed collectively expressly demonstrated that it was asking whether it could

convict the defendant based upon a theory of guilt by accountability. One of the jury’s notes

asked, “ ‘If defendant was in van [sic] as part of a group who meant to kill someone, do we find

him guilty?’ ” Id. ¶ 50. In the jury’s final note, it asked, “ ‘Can someone be guilty of first degree

murder [and] not pull the trigger? We are struggling with the concept of a guilty verdict but not

having enough evidence that shows or proves [the defendant] was the shooter.’ ” Id. ¶ 52. These

questions expressly indicated that the jury was considering guilt by accountability despite the

State never pursuing the theory at trial. See id. ¶¶ 93-94. And when the trial court responded

affirmatively to the jury rather than in the negative, the court erred by injecting a new theory of

guilt into the defendant’s trial. Id. ¶¶ 93-94, 97.

¶ 58    In the present case, after the trial court asked the jury to clarify its initial note, the jury

responded by asking which charges were in tandem. This question juxtaposed with the jury’s

first and second note simply does not necessarily indicate that the jury was concerned about guilt

by accountability like the jury notes indicated in Peoples. And therefore, unlike Peoples, the trial

court responded appropriately to the jury’s notes and did not inject a new theory of guilt into

defendant’s trial. Accordingly, we find no abuse of discretion by the trial court and, thus, no

plain error. See People v. Coats, 2018 IL 121926, ¶ 32 (absent an error, there can be no plain

error). And because there was no plain error, we need not address defendant’s alternative

argument that his defense counsel was ineffective. See People v. Hensley, 2014 IL App (1st)

120802, ¶ 47 (where there is no plain error, there can be no ineffective assistance of counsel).

¶ 59                            B. Admissibility of Coconspirator Statements



                                                 - 24 ­
No. 1-14-2736

¶ 60   Defendant next contends that his right to a fair trial was violated when several statements

made by nontestifying co-offenders were introduced into evidence under the coconspirator

exception to the hearsay rule. Specifically, defendant challenges some of the statements made by

Jaro, Maldonado, and Ruiz about the shooting in its immediate aftermath and the days following,

which were introduced into evidence through the testimony of Andrew, Aguado, Perez, and

Fuentes, the latter three primarily through the substantive admission of their grand jury

testimony. The challenged statements are (1) Perez’s testimony that Maldonado told him the

group had “smoked a King” followed by Maldonado’s description of how that occurred,

including defendant jumping out of the van, Maldonado hearing multiple gunshots, and

defendant returning to the van; (2) Andrew’s testimony that Maldonado told him that he was

riding with defendant when they observed men on the corner of the street, he and defendant

exited the vehicle, and “there were shots fired”; (3) Andrew’s testimony that Ruiz told him that

the group had “kicked off the war between the Latin Kings and the Two-Six” gangs;

(4) Aguado’s testimony that Jaro told him that defendant snapped, which Aguado interpreted to

mean that defendant was the shooter; and (5) Fuentes’s testimony that Jaro told him about the

shooting, including that defendant was the shooter. Defendant argues that the statements made

by Jaro, Maldonado, and Ruiz, which implicated him in the shooting, were not made in

furtherance of any conspiracy or in an attempt to conceal a conspiracy, but rather were nothing

more than a recitation of past events.

¶ 61   Initially, the State argues that defendant failed to preserve the issue for review as, in the

trial court, he argued the statements were inadmissible because there was no conspiracy, whereas

now, on appeal, he argues the statements were inadmissible because they were not made in

furtherance of a conspiracy. A defendant fails to preserve an issue for review where the argument

                                              - 25 ­
No. 1-14-2736

made in the trial court is “wholly distinct” from the argument made on appeal, which often

occurs when the arguments require different factual bases. Hughes, 2015 IL 117242, ¶¶ 40, 45­

46. But defendant’s arguments about the admissibility of the coconspirator statements are not

wholly distinct nor require different factual bases to resolve. The doctrine of forfeiture exists to

ensure that parties allow the trial court the opportunity to consider any claims of error in the first

instance. See People v. Heider, 231 Ill. 2d 1, 18 (2008). Because defendant raised similar

arguments regarding the admission of the coconspirator statements, “the trial court clearly had an

opportunity to review the same essential claim” that has now been raised on appeal. Id.

Therefore, defendant’s contention of error has been preserved. See id.

¶ 62   Regardless of defendant’s forfeiture, the State argues that the trial court properly allowed

the statements to be admitted into evidence. The State posits that defendant’s involvement in a

conspiracy to shoot Diaz, a member of the Latin Kings, did not end with, and was not isolated to,

that shooting. According to the State, defendant’s shooting of Diaz was part of a broader

conspiracy stemming from the ongoing gang feud between the Latin Kings and Two-Six gangs,

in which members of the Two-Six gang desired to continue harming other members of the Latin

Kings. The State asserts that, because the conspiracy was still ongoing, the statements made by

Jaro, Maldonado, and Ruiz were intended to keep fellow gang members informed about the

continuation of the conspiracy and, thus, in furtherance of the conspiracy.

¶ 63   Under Illinois Rule of Evidence 801(d)(2)(E) (eff. Jan. 1, 2011), a statement is not

considered hearsay if “[t]he statement is offered against a party and is *** a statement by a

coconspirator of a party during the course and in furtherance of the conspiracy.” In other words,

“any declaration by one coconspirator is admissible against all conspirators where the declaration

was made during the pendency of and in furtherance of the conspiracy.” People v. Kliner, 185 Ill.

                                                - 26 ­
No. 1-14-2736

2d 81, 141 (1998). As the State accurately points out, although defendant has framed this

contention of error as one involving an exception to the hearsay rule, a statement made by a

coconspirator of a party during the course and furtherance of a conspiracy is not hearsay at all.

See People v. Leach, 2012 IL 111534, ¶ 80 n.2.

¶ 64   A conspiracy occurs when two or more people agree to commit a criminal act or acts.

Kliner, 185 Ill. 2d at 138-39. To make a prima facie showing of a conspiracy, the State must

show by a preponderance of the evidence that (1) two or more people wanted to commit a crime

or crimes, (2) they engaged in a common plan to commit the crime or crimes, and (3) one or

more of them committed an act or acts in furtherance of the conspiracy. People v. Caraga, 2018

IL App (1st) 170123, ¶ 37; People v. Leak, 398 Ill. App. 3d 798, 825 (2010). While evidence of a

conspiracy may be shown with direct evidence or circumstantial evidence, the conspiracy needs

to be shown with evidence independent of the hearsay statements. People v. Spencer, 2016 IL

App (1st) 151254, ¶ 35. Moreover, the coconspirators need not be charged with conspiracy (id.),

and a coconspirator does not have to even make the statement to another coconspirator for the

statement to be admissible. See People v. Denson, 2013 IL App (2d) 110652, ¶ 20 (rejecting the

defendant’s assertion that, for a statement to be admissible under the coconspirator exception, it

must be made to a coconspirator), aff’d, 2014 IL 116231; People v. Redeaux, 355 Ill. App. 3d

302, 305 (2005) (allowing police officers to testify to statements made by coconspirators). But

the statements cannot be “merely a narrative of past occurrences” that “does not further any

objective of the conspiracy.” Kliner, 185 Ill. 2d at 141. A statement made in furtherance of a

conspiracy includes any “that have the effect of advising, encouraging, aiding or abetting its

perpetration” or relate to concealing the crime or crimes. Id. As the admission of evidence is a

matter that the trial court has considerable discretion over, we review its ruling for an abuse of

                                              - 27 ­
No. 1-14-2736

discretion, which occurs only when its decision was arbitrary or unreasonable to the degree that

no reasonable person would adopt the same view. People v. Jackson, 232 Ill. 2d 246, 265 (2009);

see also Caraga, 2018 IL App (1st) 170123, ¶ 50 (applying abuse of discretion standard to

admissibility of coconspirator statements).

¶ 65   First, with regard to the testimony of Aguado, which concerned a statement made by Jaro

that defendant snapped, the State correctly notes that the trial court allowed this statement to be

introduced into evidence as a tacit admission. Under this rule, a statement is not hearsay, and

admissible as evidence, when the statement is “ ‘incriminating in nature’ ” and “ ‘is made in the

presence and hearing of an accused and such statement is not denied, contradicted, or objected to

by him.’ ” People v. Colon, 2018 IL App (1st) 160120, ¶ 17 (quoting People v. Soto, 342 Ill.

App. 3d 1005, 1013 (2003)). In defendant’s reply brief, however, he posits that it was not clear

from the record that he was present when Jaro made the statement. Although defendant

technically responded to the State’s argument, defendant raises the claim that Jaro’s statement

was improperly admitted as a tacit admission for the first time in his reply brief. As claims of

error raised for the first time in a reply brief are considered forfeited (People v. Chatman, 2016

IL App (1st) 152395, ¶ 40), defendant has forfeited any claim concerning the statement being

improperly admitted as a tacit admission. In any event, the record sufficiently supports the notion

that defendant was present when Jaro made the statement such that, forfeiture aside, the trial

court did not abuse its discretion in allowing the statement to be introduced as a tacit admission.

¶ 66   Concerning the remaining challenged statements, when the trial court allowed the State to

introduce them into evidence, the court generally found that they satisfied the three-prong test of

United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), overruled in part on other grounds by

Bourjaily v. United States, 483 U.S. 171 (1987), and there was evidence of a conspiracy

                                               - 28 ­
No. 1-14-2736

independent of the coconspirator statements. 2 In arguing the statements were admissible to the

trial court, the State asserted that the conspiracy was not isolated to the shooting of Diaz but

rather was an incident amid a broader conspiracy of Two-Six gang members desiring to cause

harm to members of the Latin Kings. And, the State argued, the statements made by Jaro, Ruiz,

and Maldonado were in furtherance of this conspiracy because, in part, they advised other gang

members about the status of the conspiracy. Though the court did not state explicitly why the

three-prong test had been met, it was at the very least aware of the State’s reasons in support of

the admissibility of the statements.

¶ 67    Initially, we agree with the State that there was evidence a conspiracy was still ongoing

after the shooting of Diaz. In the State’s proffer to the trial court in support of its motion and at

trial, the State presented evidence that there was a gang feud between the Two-Six and Latin

King gangs and that the shooting of Diaz was prompted by members of the Two-Six gang’s

desire to retaliate against the Latin Kings. The shooting of Diaz was not an isolated act of

violence but rather, based on this evidence, a continuation of prior violence and a likely prelude

to future violence in light of other evidence presented that members of the Two-Six gang were

concerned about retaliation from the Latin Kings. In fact, Fuentes testified on cross-examination

that, on January 21, 2010, two days after the shooting of Diaz, he was shot at by members of the

Latin Kings and a fellow Two-Six gang member was killed by gunfire that day, though it was not

clear at trial whether the Latin Kings were responsible for the fatal shooting. Thus, the State

proved by a preponderance of evidence that the conspiracy did not end with Diaz’s death but


        2
          Although the trial court stated that the State satisfied the three-prong test of Santiago, the State
referred to the three-prong test of Bourjaily in its motion. The three prongs of the Bourjaily test are (1) the
existence of conspiracy, (2) the defendant’s participation in conspiracy, and (3) the statements being made
in furtherance of the conspiracy. See Bourjaily, 483 U.S. at 175. These three prongs are essentially what
is required under Illinois Rule of Evidence 801(d)(2)(E) (eff. Jan. 1, 2011) and Kliner, 185 Ill. 2d at 141.
                                                    - 29 ­
No. 1-14-2736

rather was still ongoing when Maldonado, Jaro, and Ruiz made statements implicating defendant

as the shooter immediately after the shooting and in the following days. See, e.g., Castillo-

Campos v. United States, 987 A.2d 476, 483 (D.C. 2010) (finding ample evidence of the

defendants’ involvement in a broad criminal conspiracy of members of the Vatos Locos gang “to

kill or otherwise ‘get’ ” members of rival gangs). That is not to say that this gang feud could

support a finding that the conspiracy lasted infinitely into the future. But we are satisfied that

these statements were made sufficiently contemporaneous to the shooting such that the trial court

was not unreasonable in finding that, at the time the statements were made, a conspiracy still

existed.

¶ 68   Defendant, however, attempts to liken his case to People v. Parmly, 117 Ill. 2d 386

(1987). In that case, the defendant was among multiple people involved in a planned burglary of

a home that ultimately led to the murder of the homeowner. Id. at 389-90. The day after the

murder, one of the defendant’s coconspirators told another coconspirator, who had stayed outside

the house during the incident, that the defendant had fired the fatal shot. Id. at 390. Our supreme

court found the statement inadmissible as a nonhearsay coconspirator statement because it was

not made in furtherance of a conspiracy, as the burglary and murder had already occurred, and it

was not in attempt to conceal the conspiracy. Id. at 393. The court concluded that, “[a]s a matter

of common sense,” the statement was made to implicate the defendant so that he “would bear the

full brunt of the criminal law.” Id. at 394. In contrast to Parmly, where the conspiracy was

isolated to the burglary and murder, thus clearly over when the coconspirator made his statement,

in the present case, the shooting of Diaz was not an isolated act of violence, but rather an

associated act of violence in a gang conflict. We also note that, while the State ultimately did not

present any gang experts at trial, in its proffer to the trial court in support of its motion, the State

                                                 - 30 ­
No. 1-14-2736

informed the court that gang experts would testify at defendant’s trial about several shooting

incidents between the two gangs in the two months leading up to Diaz’s shooting.

¶ 69   Given our conclusion that the trial court did not unreasonably determine there was the

existence of a conspiracy at the time the challenged statements were made, we also must

determine whether the statements themselves were made in furtherance of the conspiracy. We

find that to be the case. As our supreme court stated in Kliner, 185 Ill. 2d at 141, a statement

made in furtherance of a conspiracy includes any “that have the effect of advising” or

“encouraging” the perpetration of the conspiracy. The statements made by Jaro, Maldonado, and

Ruiz could all have reasonably served a purpose of advising the various gang members who were

not present during the shooting (Perez, Andrew, and Fuentes) about the status of the conspiracy,

i.e., that defendant had killed a Latin King and, as a corollary, to expect retaliation. See, e.g.,

United States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (for statements to be admissible

under the nonhearsay coconspirator statement exception, they “need not be commands, but are

admissible if they *** inform each other as to the progress or status of the conspiracy” (internal

quotation marks omitted)). Furthermore, the statements could all have reasonably served a

purpose of encouraging other gang members to participate in the ongoing conspiracy to harm

members of the Latin Kings. The evidence revealed that Maldonado had bragged about the

shooting and defendant, upon learning that he had shot a chief of the Latin Kings, smiled,

laughed, and flashed the Two-Six gang sign. In this manner, the statements implicating

defendant as the shooter and Maldonado as being involved could be interpreted as boosting their

stature and reputation among the gang members as the ones involved in killing a chief of the

Latin Kings and, thus, encouraging future acts of violence against the Latin Kings. Given these



                                              - 31 ­
No. 1-14-2736

rationales for the statements, we cannot say the trial court was unreasonable in finding them

made in furtherance of the ongoing conspiracy.

¶ 70   Defendant, however, highlights People v. Wilson, 302 Ill. App. 3d 499 (1998), and argues

that bragging about a past crime cannot be considered in furtherance of a conspiracy. In Wilson,

evidence at trial showed that the defendant and his codefendant, members of the Black Souls and

Gangster Disciples gangs, respectively, had set fire to a building owned by a person who owed

the Black Souls money from selling drugs. Id. at 501-04. During the trial, the trial court allowed

the State to introduce statements of the codefendant, who did not testify, to two people, where he

talked about committing the crimes. Id. at 511. This court found the statements inadmissible as

nonhearsay coconspirator statements because the codefendant made them after the crimes had

been committed and they could not be “characterized as an attempt at concealment” but were

simply the codefendant “bragging” about his involvement. Id. But, in Wilson, no evidence had

been presented at trial that the burning of the building was part of a larger conspiracy, and thus,

the codefendant’s bragging about his involvement in the crimes could not reasonably be

interpreted as having the effect of either advising about the status of the conspiracy or

encouraging its perpetration. To the contrary, in this case, the statements of Maldonado, Ruiz,

and Jaro can reasonably be interpreted as advising about the status of the conspiracy or

encouraging the perpetration of the ongoing conspiracy to harm members of the Latin Kings.

¶ 71   Lastly, although not cited by either party, we highlight People v. Donegan, 2012 IL App

(1st) 102325, ¶¶ 5-25, where the evidence at trial revealed that the defendant along with his

codefendant, both members of the Four Corner Hustlers gang, shot and killed a member of the

Gangster Disciples as part of an ongoing conflict between the gangs. During the trial, the trial

court, without an objection from the defense, allowed the State to introduce statements made by

                                              - 32 ­
No. 1-14-2736

the codefendant to another member of the Four Corner Hustlers that described the shooting,

including that the defendant shot into a crowd of Gangster Disciples. Id. ¶¶ 17, 65.

¶ 72   On appeal, the defendant contended that his trial counsel was ineffective by failing to

object to the statements’ introduction on the basis that they did not qualify as nonhearsay

coconspirator statements. Id. ¶ 65. This court found that the statements

       “should not have been admitted under the coconspirator’s exception to the hearsay rule

       because they were made after the crime occurred and therefore were not in furtherance of

       a conspiracy and were not made in an effort to conceal the crime since they were, in fact,

       a recitation of the crime.” Id. ¶ 67.

The court, however, found the statement was admissible as a tacit admission. Id. ¶ 68. Although

the statements at issue here would appear to be similar to those deemed inadmissible in

Donegan, the appellate court in Donegan was not reviewing whether the trial court had abused

its discretion in allowing the statements to be admitted as nonhearsay coconspirator statements, a

standard of review that is “highly deferential” to the trial court. See People v. Peterson, 2017 IL

120331, ¶ 125. Given our standard of review, and because the evidence both in the State’s

proffer to the trial court in support of its motion and at trial showed an ongoing gang conflict, the

statements made by Jaro, Maldonado, and Ruiz can be interpreted as advising about the status of

the conspiracy or encouraging its perpetration. Consequently, we cannot say that the trial court

abused its discretion when it allowed the State to introduce them into evidence as nonhearsay

coconspirator statements.

¶ 73                                    III. CONCLUSION

¶ 74   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 75   Affirmed.
                                               - 33 ­
No. 1-14-2736

¶ 76    JUSTICE GORDON, dissenting:

¶ 77    I must respectfully dissent because it is obvious that the jury was confused and their

questions clearly showed that confusion notwithstanding that the jury instructions given fully

explained the applicable law. The State never claimed the theory of accountability, and in order

to prove that defendant was the shooter, the State was required to prove defendant discharged a

firearm because the victim was killed by a bullet. The “court must provide instruction when the

jury has posed an explicit question or asked for clarification on a point of law arising from facts

showing doubt or confusion.” People v. Averett, 237 Ill. 2d 1, 24 (2010). As the majority sets

forth in its opinion, “[w]hen a jury makes explicit its difficulties, the court should resolve them

with specificity and accuracy.” People v. Childs, 159 Ill. 2d 217, 229 (1994). The trial court did

ask for a clarification, but the jury’s response did not clarify anything and showed only more

confusion. When they found defendant guilty of first degree murder and not guilty of discharging

a firearm under the facts of this case, the confusion became even more apparent. The trial court

had a duty to instruct the jury after their first note, or at least after the jury’s lack of clarification,

that defendant could not be guilty of first degree murder unless he was also guilty of discharging

a firearm under the facts of this case.

¶ 78    I agree that the personal discharge of a firearm is not an academic element of the offense

of first degree murder, but this case is not an academic problem. I further agree that the Illinois

Supreme Court has found under certain circumstances there can be verdicts that appear to be

inconsistent. However, common logic dictates that when there is no theory of accountability

presented by the State, if the jury is confused, they must be properly instructed that, in order to

prove defendant guilty of first degree murder in a shooting case, they are required to prove that

the defendant had discharged a firearm. And if they are still confused, the court must say it again.

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The Illinois pattern jury instructions are useful, but they do not afford all of the answers that are

required in every trial.

¶ 79    Here, the jury said in their notes (1) “Can we find guilty of first degree but not guilty of

discharging and aggravated?” and (2) “Please define what is intended as an ‘act’ in first degree

murder.” The trial court responded to the first note by instructing the jury: “Please clarify your

answer,” and the trial court responded to the second note by telling the jury: “You have received

the evidence and instructions. Please continue to deliberate.” The jury then asked in a third note:

“Are the three charges independent of each other? If not, which charges must be in tandem?”

The trial court again told the jury: “You have received all of the evidence and the instructions.

Please continue to deliberate.” The jury needed to be instructed that defendant could not be

guilty of either crime unless he personally discharged a firearm under the facts of this case.

Simply put, the trial court should have re-read the following two jury instructions:

        “To sustain the charge of first degree murder, the State must prove the following

        propositions:

                           First: That the defendant performed the acts which caused the

                death of William Diaz; and

                           Second: That when the defendant, did so, he intended to kill or do

                great bodily harm to William Diaz; or

                           he knew that his acts would cause death to William Diaz; or

                           he knew that his acts created a strong probability of death or great

                bodily harm to William Diaz.




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                If you find from your consideration of all the evidence that each one of

        these propositions has been proved beyond a reasonable doubt, you should find

        the defendant guilty.

                If you find from your consideration of all the evidence that any one of

        these propositions has not been proved beyond a reasonable doubt, you should

        find the defendant not guilty.

                ***

                To sustain the allegation made in connection with the offense of first

        degree murder, the State must prove the following proposition:

                That during the commission of the offense of first degree murder, the

        defendant personally discharged a firearm that proximately caused death to

        another person. A person is considered to have ‘personally discharged a firearm’

        when he, while armed with a firearm, knowingly and intentionally fires a firearm

        causing the ammunition projectile to be forcefully expelled from the firearm.

                If you find from your consideration of all the evidence that the above

        proposition has been proved beyond a reasonable doubt, then you should sign the

        verdict form finding the allegation was proven.

                If you find from your consideration of all the evidence that the above proposition

        has not been proved beyond a reasonable doubt, then you should sign the verdict form

        finding the allegation was not proven.”

¶ 80    As a result, I must respectfully dissent because the trial court abused its discretion and

defendant should be given a new trial. The confusion of the jury over the instruction resulted in

this defendant not receiving a fair trial.

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