                       Illinois Official Reports

                               Appellate Court



                  People v. Trotter, 2015 IL App (1st) 131096



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CLARENCE TROTTER, Defendant-Appellant.



District & No.    First District, Fourth Division
                  Docket No. 1-13-1096



Filed             June 30, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-3851; the
Review            Hon. James B. Linn, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Brian A. McNeil, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Peter Fischer, and Kathleen Warnick, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE COBBS delivered the judgment of the court, with opinion.
                  Presiding Justice Fitzgerald Smith and Justice Howse concurred in the
                  judgment and opinion.
                                                OPINION

¶1       Following a jury trial, defendant Clarence Trotter was convicted of murder pursuant to
     section 9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 2006)),
     and sentenced to natural life in prison. On appeal, defendant contends that the trial court erred
     in finding that he made a knowing and voluntary waiver of his right to counsel. Additionally,
     he argues that the prosecutors in this case improperly inflamed the passions of the jury by
     eliciting irrelevant testimony about the victim and her fiancé, previewing this testimony in
     opening statement, and relying on it in closing argument.

¶2                                         BACKGROUND
¶3       On September 20, 1981, Marilyn Dods was found dead in her studio apartment.
     Developments in DNA testing linked defendant, who was already serving a life sentence based
     on a previous murder conviction, to the murder. Defendant was formally charged with Dods’
     murder on January 8, 2007. Assistant Public Defender Joseph Kennelly was appointed to
     represent defendant. 1 During the first court date on March 1, 2007, after consulting with
     defendant, defense counsel informed the court that defendant wanted to motion to demand trial
     although counsel was not adequately prepared to represent defendant at trial. The court told
     defendant that “your lawyer is telling me one thing and you’re telling me something else, it
     puts me in a bit of a conflict because I can only hear from one voice. Either your lawyer is
     representing you or you are going to be representing yourself.” The court further explained that
     defendant was facing a serious case and that his attorneys did not have all of the information
     they needed to proceed to trial. Defendant informed the court that in the past he had litigated
     motions while a speedy trial demand was pending. He then agreed to be represented by counsel
     and asked the court to be sent back to the Illinois Department of Corrections rather than the
     Cook County jail because he was going pro se on other cases. He told the court “I do law,” and
     “I know my rights. I’m cool. Trust me.”
¶4       On March 22, 2007, both parties tendered discovery. Defendant asked for a copy of all
     discovery documents. The court informed defendant that because he was not representing
     himself pro se his attorney would show him the documents. On April 25, 2007, the State
     tendered its “Notice of Intent to Seek Death.” On July 18, 2007, defense counsel filed two
     motions on defendant’s behalf; one to dismiss for failure to commence the prosecution and
     another challenging the constitutionality of Illinois’s death penalty statute. Defense counsel
     told the court that defendant wanted to demand trial but that he needed time to view a video of
     defendant’s recorded statement. The court then told defendant that his counsel “is trying very
     hard to defend you properly and really thinks he ought to see what the evidence is before he
     starts answering ready for trial.” Defendant said he understood but wanted to file a motion for
     discovery. The court informed defendant that he would only hear from “one voice” speaking
     on behalf of his defense. The court instructed defense counsel to redact discovery documents
     and let defendant view them.


         1
          Kennelly retired from the public defender’s office and joined the capital trial assistance unit of
     the State Appellate Defender’s office during his representation of defendant, but continued to
     represent defendant along with Stephen Richards from the same unit.

                                                    -2-
¶5       Defendant continued to be represented by counsel, who filed and argued various motions
     on behalf of defendant from October 24, 2007 through May 24, 2010.2 During a May 24, 2010,
     status hearing the State informed the court that it had received a motion for a speedy trial from
     defendant, and the case was continued for defendant’s presence in court. On May 27, 2010, the
     court again informed defendant that he could not file his own motions while being represented
     by counsel. Defendant withdrew his demand for trial, and the court told defendant,”[y]ou have
     lawyers and if you start filing your own motions, I can’t hear from both [of you] at the same
     time. You’re going to end up representing yourself. You can’t keep doing that.”
¶6       On November 29, 2010, the court set the trial for April 4, 2011. During a status hearing on
     January 21, 2011, the court stated that the Illinois legislature had passed legislation abolishing
     capital punishment, and that the legislation was awaiting the Governor’s signature. On April 4,
     the court announced that the death penalty was no longer a possible sentence and the State
     Appellate Defender capital litigation unit withdrew. Assistant Appellate Defender Jack
     Rimland continued to represent defendant, but subsequently withdrew for personal reasons.
     The court reappointed Assistant Public Defender Patrick White to represent defendant.
     Defendant then renewed his motion for a speedy trial. The court asked defendant if he wanted
     to represent himself, and defendant stated that “I have never said, Mr. Linn, that I move to
     represent myself. I said I move to–for a speedy trial. That is my right.” The court told
     defendant that his new counsel needed time to get acquainted with his case.
¶7       On five separate court dates, defendant continued to demand trial although he was
     represented by counsel. On April 18, 2012, defendant again attempted to file pro se motions
     and demanded his speedy trial motion be heard because over 180 days had passed since he
     demanded trial. Defendant told the court, “I’m not asking that [counsel] represent me. I can
     represent myself.” The court stated that it was unsure that defendant was capable of
     representing himself. Defendant stated, “[t]hat may be true. We about to find out.”
¶8       On May 3, 2012, the court, after giving defendant a chance to consult with his attorneys,
     asked defendant if he wanted to represent himself. Defendant responded, “I want you to hear
     my motion. *** If I have to represent myself for you to hear my motion, yes.” The court
     questioned defendant about his ability to represent himself, and defendant stated that he had
     represented himself before. When the court asked defendant what he wanted to do, defendant
     said, “I want you to hear my motion.” The court responded, “[t]hat means that you’re
     representing yourself.” When the court told defendant that going pro se would mean no
     attorney would be helping him, defendant said, “[y]ou can always appoint stand-by counsel.”
     After numerous requests to have defendant articulate whether he wanted to proceed pro se, the
     court stated:
                 “Now it is my turn. I will infer from everything that is being said and from
             everything that [defendant] said before, he wants to be pro se. He wants to assert his
             rights under the Speedy Trial Act. You will be allowed to represent yourself. I don’t
             think it’s a good idea, but that is your idea.”
¶9       The court again explained to defendant that he was wrong that he could assert his right to a
     speedy trial when represented by counsel. Defense counsel then stated that he found a case that

        2
          On October 16, 2009, Kennelly withdrew based on the State Appellate Defender’s policy in
     capital litigation cases. The court then appointed Jack Rimland from the State Appellate Defender to
     join Richards in representing defendant.

                                                  -3-
       would help explain the concept that “the defendant [is] bound by actions of his attorney unless
       the defendant clearly asserts his right to discharge.” Defendant continued to ask the court to
       hear his motions, and the court allowed defendant to argue the merits of his motions. The court
       denied defendant’s pro se motion to suppress evidence and informed defendant that “if you
       want them to represent you, I will not hear any other motions from you.” Defendant then
       argued the merits of his speedy trial motion, in which he stated:
                   “All these times I was asserting right to speedy trial, you repeatedly each and every
               court date–repeatedly told me that I had to waive my right to counsel to enforce my
               right to a speedy trial. Okay. And I repeatedly told you I was not invoking–or waiving
               my right to counsel, that I want speedy trial.”
¶ 10        The court denied the motion because defendant had been represented by counsel who was
       preparing the case for trial; however, the court noted that defendant was now pro se and could
       demand trial if he wanted. Defendant demanded trial and asked the court for stand-by counsel
       to assist him in his investigation. The court denied the request, noting that defendant was
       “trying to be manipulative,” but that it would arrange for subpoenas for his witnesses.
¶ 11        On May 10, 2012, the court asked defendant if he “still [wanted] to be pro se on this case.”
       Defendant responded, “I never felt that I was representing myself. You know, you told me that
       you got rid of the lawyer, but since I’m representing myself I’m okay.” The court offered to
       appoint counsel, but informed defendant that he would not be able to file motions or demand
       trial. Defendant responded, “I’m good. I’m good, Judge.” The following exchange occurred:
                   “THE COURT: What do you prefer?
                   DEFENDANT: I’m good. Just like we doing.
                   THE COURT: You want to represent yourself?
                   DEFENDANT: I’m good.
                   THE COURT: So you’re waiving your right to a lawyer? You’re good with that,
               that’s what you’re telling me.
                   DEFENDANT: You already waived it for me.
                   THE COURT: No. I didn’t waive it for you. I’m trying to–come on. Talk straight to
               me. I’m just trying to establish and make very clear what your right is. You have a right
               to a lawyer. If you can’t afford one, one will be appointed for you. I have Public
               Defender’s [sic] here available to help you and you are welcome to have their services.
               If you want to not take their services, you don’t have to accept the right to a lawyer
               even though you’re entitled to a free lawyer and you can represent yourself. That’s your
               choice.
                   DEFENDANT: We good. We okay, Your Honor. I’m okay.
                   THE COURT: I’m going to take that to mean that this is how you want to do it, that
               you want to represent yourself.
                   DEFENDANT: I’m good.
                   THE COURT: Okay. I’m going to accept that as–In fact, he’s here by himself and
               he says he’s good with it.
                   ASSISTANT STATE’S ATTORNEY: Your Honor, the People would respectfully
               ask that the Court pursuant to Supreme Court Rule 401 further admonish the defendant
               as to the nature of the charge and the possible penalties.


                                                   -4-
                    DEFENDANT: I already know the nature of the charges and I understand Supreme
               Court Rule 401. It’s not necessary.
                    THE COURT: What’s the nature of the charge?
                    DEFENDANT: The nature of the charge is murder, first degree murder and it
               carries a natural life sentence. Okay, I understand my rights.
                    THE COURT: All right. I think we’ve been having this conversation for a few
               years, Clarence Trotter and I and I think he does understand.”
¶ 12        At an August 24, 2012, status hearing, the State told the court that when they met with
       defendant earlier in the month to discuss the trial, he stated that he had been forced to go pro se
       and had not actually waived his right to counsel. The court asked defendant if he wanted a
       lawyer, and defendant stated that he wanted “several things,” including the trial file. The court
       told defendant that he had “all the discovery that you are entitled to by law.” The court also told
       defendant that his trial was scheduled for September 5, 2012, and that he could appoint
       counsel, but the trial date may change as a result. Defendant stated:
                    “Now you saying that, okay, I could have a lawyer if *** I don’t want to go pro se,
               if I don’t want to go to trial on the 5th. But if I want to go to trial on the 5th, I got to go
               pro se, but I got to go pro se without proper preparation.”
¶ 13        The trial court responded that defendant informed the court that he wanted to go pro se,
       noting that “we’ve had a long conversation about that” and that it respected his request. The
       trial court said it would keep the trial date and would only change if defendant wanted a
       lawyer. Defendant stated that, “All I’m saying is if you make me go pro se–” The court
       interrupted defendant and said, “No, no, no, I’m not making you go pro se ***. Don’t say I’m
       forcing you to be pro se. That is absolutely not happening.” The court then stated that, “If you
       want a lawyer, you can have a lawyer. Nobody is forcing you to go pro se. *** When you had
       a lawyer, then you’re demanding trial. That’s being manipulative, and you know that. You’re
       experienced in this.” When the court asked defendant if he wanted to “stay pro se,” defendant
       responded, “Here we go. I’m not even going to answer.” On September 4, 2012, defendant
       informed the court that he was not ready for trial. His case proceeded to a jury trial on October,
       22, 2012. The following evidence was adduced at trial.
¶ 14        During its opening statement, the State explained that in 1981 Marilyn Dods moved to
       Chicago to live and work at a bank. Her apartment was located at 525 West Arlington. Dods’
       fiancé, Richard Stevens, followed her to Chicago to “start their lives together.” The State
       further commented, “They met–he was from the West Coast. She was from the East Coast. She
       moves here, he comes, and they are going to be together.”
¶ 15        Christopher Dods, Dods’ brother, testified that Dods was a recent graduate of Georgetown
       University and moved to Chicago to start a new job. He stated that he spoke with his sister
       every week and that there was no indication that she was having problems in her life. He also
       stated that she was “extraordinarily excited about her new life and really looked forward to
       enjoying her career that she worked so hard to create.”
¶ 16        Stevens testified that he met Dods in 1979 while studying abroad in Amsterdam. Although
       they were “chronically underfunded college students,” they saw each other as frequently as
       they could. When Dods got a job in Chicago, he moved there from Portland, Oregon, to be with
       her. They “spent almost all of [their] time together,” but “felt it was appropriate” to maintain
       separate apartments. The couple spent the evening of September 19, 1981, together. The


                                                      -5-
       following morning, Dods planned to attend church, but Stevens returned to his apartment to
       organize things. Stevens noted that Dods’ faith was “quite deeply held. More so than mine.”
       The two planned to meet after Dods attended church; however, she never arrived. When she
       did not show, Stevens tried calling her but there was no answer. He then went to her apartment,
       which had been ransacked. He called her name, but there was no answer. He went to the
       bathroom and found Dods submerged in the bathtub with “her television on her face.” He
       moved to see if she was alive, but realized she was dead. There was a knife on the bathroom
       floor.
¶ 17       Chicago police detective Thomas Keane testified that in the late afternoon of September
       20, 1981, he and his partner Thomas Sappanos arrived at Dods’ apartment. The apartment
       appeared to be ransacked, and a knife was found on the bathroom floor. Keane later learned
       that the knife was originally left on the bed but that Stevens, afraid that the perpetrator was still
       in the apartment, carried the knife to the bathroom with him. Dods was found lying face up in
       the bathtub, which was filled with water. Her head was submerged, and a small portable
       television was resting on her abdomen. A blue and white bandana and a sock with a string
       attached were tied around her neck, which appeared to have been a gag. Dods was wearing a
       house robe that was down around her back. She was also wearing a bra that was torn between
       the cups, exposing her breasts. The white slip she was wearing was pulled up around her waist
       and her lower extremities were exposed. When Dods was removed from the bathtub, Keane
       observed that her wrists were bound and tied with clothesline.
¶ 18       Dr. Lauren Moser Woertz, an assistant medical examiner for Cook County, testified that
       she reviewed the original autopsy report on Dods.3 The report revealed that Dods had been
       clothed in the same manner as Detective Keane described, and that a brown plastic cord had
       been wrapped around her wrists four times and tightly knotted. She sustained a recent
       laceration of the labia minors and a contusion at the rectal/anal junction which were not
       consistent with consensual sexual intercourse. Dods also sustained a scalp injury consistent
       with blunt force trauma. Her lungs were filled with water and blood, and frothy foam was
       coming from her nose and mouth. The autopsy report also noted hemorrhaging to her eyes and
       “blueing” of her skin that was consistent with strangulation. Dr. Woertz concluded that she
       agreed with the original medical examiner that the primary cause of death was asphyxia due to
       drowning.
¶ 19       Marian Caporusso, an expert in forensic microscopy and serology, testified that on
       September 21, 1981, she received evidence from the case, including vaginal, oral, and rectal
       swabs of Dods and a pair of men’s boxer shorts collected from the living room floor of Dods’
       apartment. The swab tested positive for semen; however, testing at the time could not identify
       who left the semen. Caporusso sealed this evidence and preserved it for future analysis.
¶ 20       Mary Margaret Greer-Ritzheimer testified that she performed DNA testing on the swab
       and semen stains from the shorts in 2000. She identified two full profiles on the swab: Dods’
       and one unknown male’s. She obtained a full male profile from the shorts; the results were
       “consistent” with the male profile from the swab and did not match Stevens’ DNA. She also
       obtained partial male profiles from other parts of the shorts, which were consistent with the
       unknown male profile, but not with Stevens’.


           3
            Dr. Richard Stein, who performed the original autopsy, was deceased at the time of trial.

                                                      -6-
¶ 21       Debora Depczynski, group supervisor of the Illinois State Police biology DNA section,
       testified that in September 2005 she became aware of an association between evidence
       collected in Dods’ case and defendant through a computer database which contained DNA
       samples. She then transferred the association notification form to Detective Stuart Talin at the
       Chicago police department.
¶ 22       Chicago police detective Robert Clemens testified that he learned of defendant’s
       association with Dods’ murder on October 25, 2005. He investigated the case, and on October
       14, 2006, obtained a search warrant for a buccal swab from defendant. He performed the swab
       and sent it to the Illinois State Police crime lab for analysis.
¶ 23       Ryan Paulsen tested defendant’s buccal swab, obtained a profile from it, and tested this
       against the complete profile from the vaginal swab and the shorts. Defendant’s DNA profile
       matched the male DNA profile identified on the vaginal swab. The full male DNA profile
       taken from the semen found on the boxer shorts also matched defendant. As to the partial DNA
       profile found on other parts of the shorts, defendant could not be excluded. Although there
       were different frequencies for the evidence, the male DNA profiles from both the semen stains
       and the vaginal swabs were consistent with the same donor.
¶ 24       Defendant called his sole witness John Onstwedder, a latent fingerprint expert.
       Onstwedder testified that he recovered three latent prints in the victim’s apartment. The prints
       did not match defendant’s fingerprints or any other individual. He also stated that it was
       possible for someone to be somewhere without leaving fingerprints.
¶ 25       Both sides then presented closing arguments. The State highlighted that Dods had “just got
       into the area of Chicago, she came with her fiancé[;] *** they’re in a new apartment, they’re
       starting a new life together.” In his closing statement, defendant stated that any evidence of
       sexual intercourse in this case may have been consensual because “jungle fever was running
       wild” in the early ’80s.
¶ 26       In rebuttal, the State responded, “Jungle fever was running rampant? Clarence Trotter,
       that’s the kind of man he is that he’s going to mock the brutal rape and murder that he
       committed against a beautiful young woman who had come to this city to start a new life.” He
       also stated that when Stevens left Dods’ apartment, he was “thinking that in a couple of hours
       his college love, the woman that he was building a new life with her in Chicago, was going to
       be coming to his apartment to spend the rest of the day together doing the sort of things that
       he’s told you they’d been doing. Fixing up their apartments, enjoying the city, doing the things
       that people in their early 20s do [when] they’re starting out together,” but “instead of finding
       the woman that he was building a new life with, you saw what he found. He found the lifeless
       body of a beautiful young woman whose life was abruptly ended by this man.”
¶ 27       After discussing DNA, the prosecutor said:
                    “When Richard Stevens helped Marilyn move into her new home and they started
                building their life together, little did they realize that the things they were using to build
                their life together, the ordinary everyday life things were going to be used to end
                Marilyn’s life. That the pieces of clothing that she brought with her to Chicago, that her
                own bathtub in her home, that her television set were going to be used by him to end
                that life.”
¶ 28       The prosecutor concluded his closing statement with:



                                                      -7-
                    “Ladies and gentlemen, you have the power now. He had the power on September
               20, 1981 when he caught Marilyn home alone in her apartment. You now have the
               power. You hold in your hands the sword of justice and it looks an awful lot like this.
               It’s in the shape of a pen, and that’s the opinion you’re going to use when you go back
               into that jury room and sign guilty verdict forms holding this defendant responsible for
               what he did to Marilyn Dods.”
¶ 29       The jury convicted defendant of murder. The court asked defendant if he wanted a posttrial
       attorney, and he said that he did. The court then reappointed Assistant Public Defender White,
       who filed a motion for a new trial on defendant’s behalf. Defendant also filed a pro se motion
       for a new trial, in which he alleged ineffective assistance of counsel because “trial counsel
       failed to protect the defendant’s right to assistance of counsel,” although he “never indicated in
       any way that he did not want counsel’s representation.” White sought to withdraw based on
       defendant’s allegation of ineffective assistance of counsel. The court denied counsel’s request
       to withdraw but allowed consideration of defendant’s pro se claims in the form of a Krankel
       hearing. During the hearing, defendant said he had never waived his right to counsel. The court
       denied defendant’s motion and disagreed that he had never asked to represent himself.
       Following a hearing in aggravation and mitigation, the court then sentenced defendant to life in
       prison, noting that this was his second murder conviction.

¶ 30                                           ANALYSIS
¶ 31                                    Waiver of Right to Counsel
¶ 32        We first address defendant’s contention that the trial court erred in finding that defendant
       waived his right to counsel where any waiver was neither unequivocal nor voluntary in light of
       defendant’s conflicting statements and accusations that the court had forced him to proceed
       pro se. The State responds that the record in this case reveals that defendant made a knowing
       and voluntary waiver of his right to counsel.
¶ 33        The right to counsel is a fundamental right, guaranteed by both the United States and
       Illinois Constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. A defendant also has
       the right to proceed without counsel when he voluntarily and intelligently elects to do so.
       People v. Baker, 92 Ill. 2d 85, 90 (1982) (citing Faretta v. California, 422 U.S. 806 (1975)). It
       is “well settled” that waiver of counsel must be clear and unequivocal, not ambiguous. People
       v. Baez, 241 Ill. 2d 44, 116 (2011) (citing People v. Burton, 184 Ill. 2d 1, 21 (1998)). In
       determining whether a defendant’s statement is clear and unequivocal, a court must determine
       whether the defendant truly desires to represent himself and has definitively invoked his right
       of self-representation. Id. We must indulge every reasonable presumption against waiver of the
       right to counsel. Id. (citing Brewer v. Williams, 430 U.S. 387, 404 (1977)). “The purpose of
       requiring that a defendant make an unequivocal request to waive counsel is to prevent him
       from (1) appealing the denial of his right to self-representation or the denial of his right to
       counsel, and specifically (2) manipulating or abusing the criminal justice system by vacillating
       between requesting counsel and requesting to proceed pro se.” People v. Gray, 2013 IL App
       (1st) 101064, ¶ 23. The determination of whether there has been an intelligent waiver of the
       right to counsel depends upon the particular facts and circumstances of the case, including the
       conduct of the defendant, his background, and his experience. Id. We review the trial court’s
       determination for abuse of discretion. Id.


                                                    -8-
¶ 34       In this case, we cannot conclude that the trial court abused its discretion. The conduct of
       defendant during pretrial proceedings clearly indicates that defendant unequivocally and
       voluntarily waived his right to counsel. Although defendant was represented by counsel for the
       majority of his pretrial proceedings, the record reveals that defendant submitted a number of
       both oral and written pro se motions demanding, inter alia, a speedy trial. In response, the
       court patiently and repeatedly informed defendant that he was not allowed to file pro se
       motions when represented by counsel; in fact, the court specifically told defendant that he
       could only hear from “one voice,” either him or his counsel, but not both. At that time,
       defendant continued to proceed with counsel.
¶ 35       After attempting to submit pro se motions to the court once again on April 18, 2012,
       defendant informed the court “I’m not asking that [counsel] represent me. I can represent
       myself.” The court gave defendant time to consult with his attorney, and on May 3, 2012, the
       court asked defendant if he wanted to represent himself, to which defendant responded, “I want
       you to hear my motion. *** If I have to represent myself for you to hear my motion, yes.” The
       court then attempted to determine whether defendant could represent himself by asking him
       questions about his past experience, and defendant responded that he has represented himself
       in prior litigation. The court again asked defendant if he wanted to proceed pro se, and
       defendant replied, “I want you to hear my motion.” The court responded, “That means you’re
       representing yourself.” After repeatedly attempting to elicit a direct response from defendant
       regarding whether he wanted to proceed pro se, the court stated:
                    “Now it is my turn. I will infer from everything that is being said and from
                everything that [defendant] said before, he wants to be pro se. He wants to assert his
                rights under the Speedy Trial Act. You will be allowed to represent yourself. I don’t
                think it’s a good idea, but that is your idea.”
       Finding a valid waiver, the court then allowed defendant to argue the merits of his motions,
       which the court promptly denied.
¶ 36       On May 10, 2012, the court asked defendant if he still wanted to proceed pro se, and
       defendant stated that, “I never felt that I was representing myself. *** I’m okay.” The court
       again offered to appoint an attorney to defendant, to which he replied, “I’m good,” before
       accusing the court of waiving his right to counsel for him. When the assistant State’s Attorney
       asked the court to admonish defendant pursuant to Illinois Supreme Court Rule 401 (eff. July
       1, 1984), defendant confirmed that he knew the nature of the charges, which he recited before
       the court, and that he understood his rights.
¶ 37       We find that the above conversations clearly illustrate that defendant “definitively invoked
       his right of self-representation.” Baez, 241 Ill. 2d at 116. Although defendant alleges that his
       statements regarding self-representation were “contradictory and ambiguous,” it is clear from
       the record that the court repeatedly informed defendant that it would not hear his pro se
       motions while he was represented by counsel. In response, defendant stated that he waived his
       right to counsel if it meant the court would hear his motions. Because a defendant has either the
       right to counsel or the right to represent himself, and is thus not entitled to “hybrid
       representation, whereby he would receive the services of counsel and still be permitted to file
       pro se motions” (People v. Handy, 278 Ill. App. 3d 829, 836 (1996)), the trial court did not
       abuse its discretion in finding that defendant waived his right to counsel. Further, it is
       abundantly clear that defendant, who admitted that he had represented himself on previous
       cases and informed the court that he “do[es] law,” was well acquainted with his right to

                                                   -9-
       counsel pursuant to Illinois Supreme Court Rule 401, as he accurately and articulately recited
       the nature of the charges against him and his potential penalty. See People v. Johnson, 119 Ill.
       2d 119, 133 (1987) (finding a valid waiver of counsel where the defendant was “no stranger to
       criminal proceedings”). Thus, we find that the trial court did not abuse its discretion in finding
       that defendant executed a valid waiver of counsel.
¶ 38       Nonetheless, defendant cites People v. Burton, 184 Ill. 2d 1 (1998), and People v. Brooks,
       75 Ill. App. 3d 109 (1979), to advance the proposition that defendant’s statements were not
       clear and unequivocal statements necessary to effectuate a waiver of counsel. We find both
       cases unavailing. In Burton, our supreme court held that the defendant’s request to proceed
       pro se at the sentencing stage was not unequivocal where his statement that he would be
       willing to proceed pro se to gain certain access to counsel’s record indicated only a
       “conditional willingness” to represent himself. Burton, 184 Ill. 2d at 25. Similarly, in Brooks,
       this court found that the defendant’s single statement during his preliminary hearing that he did
       not need counsel “ ‘at this present time’ ” was not an unequivocal demand to represent himself,
       but a tool to avoid a continuance. Brooks, 75 Ill. App. 3d at 110. In the instant case, defendant
       contends that his statements to the court show any finding of a valid waiver “would be against
       his wishes and only because it was necessary to preserve his rights.” However, the trial court
       repeatedly asked defendant if he wanted to continue to represent himself even after hearing his
       pro se motions. Defendant responded that he never felt that he was representing himself, yet
       when the court offered to appoint him counsel, defendant stated, “I’m good.” Thus, we cannot
       say that defendant’s waiver of counsel amounted to an incomplete or ambiguous waiver of
       counsel as in Brooks and Burton.

¶ 39                                    Prosecutorial Misconduct
¶ 40        Next, defendant contends that the prosecutors in this case improperly inflamed the passions
       of the jury by eliciting extensive and irrelevant testimony about Dods and her fiancé,
       previewing this testimony in opening statement, and relying on it in closing argument. The
       State responds that defendant forfeited review of this issue when he failed to object to the
       prosecutors’ comments at trial and raise the matter in a posttrial motion; nonetheless, it argues
       that the testimony about the victim and the prosecutors’ comments during opening statement
       and closing argument did not constitute plain error.
¶ 41        Defendant acknowledges that he forfeited review of this claim, but requests this court to
       consider the issue under the closely balanced prong of the plain error analysis. However,
       before we can determine whether the plain error doctrine applies in this case, we must first
       determine whether an error actually occurred. People v. Jackson, 2012 IL App (1st) 092833,
       ¶ 34.
¶ 42        First, defendant contends that the State engaged in “prejudicial misconduct” during its
       opening statement when the prosecutor previewed irrelevant testimony that Dods and Stevens
       moved to Chicago to “start their lives together,” and when it explained that “[t]hey met–he was
       from the West Coast. She was from the East Coast. She moves here, he comes, and they are
       going to be together.” We disagree.
¶ 43        Our supreme court has noted that an opening statement may include a discussion of the
       evidence and matters that may reasonably be inferred from the evidence. People v. Smith, 141
       Ill. 2d 40, 63 (1990). An improper remark during opening statement will be grounds for
       reversal only if the remark “resulted in substantial prejudice to the defendant” in that it was a

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       material factor in the conviction or the jury might have reached a different verdict had the
       prosecutor not made the remark. People v. Flax, 255 Ill. App. 3d 103, 109 (1993). Moreover,
       absent deliberate misconduct, incidental and uncalculated remarks in opening statement
       cannot form the basis of reversal. People v. Cloutier, 156 Ill. 2d 483, 507 (1993). The
       determination as to the propriety of a prosecutor’s remarks during opening statement is within
       the trial judge’s discretion, and every reasonable presumption must be applied that the trial
       judge properly exercised such discretion. Flax, 255 Ill. App. 3d at 108-09.
¶ 44        We do not find that the prosecutor’s comments during opening statement were improper. A
       review of the State’s opening statement reveals that the prosecutor was merely previewing the
       facts surrounding Dods’ life at the time of her death; which were relayed as Stevens testified
       regarding the circumstances leading to the discovery of Dods’ murder. “Common sense
       dictates that a victim does not live in a vacuum [citations], and evidence of a victim’s ***
       relations is admissible to the extent necessary to properly present the prosecution’s case
       [citation].” Cloutier, 156 Ill. 2d at 508. Accordingly, we believe that the prosecutor’s
       incidental comments during opening statement regarding Dods’ relationship with Stevens
       were reasonable, as they served to introduce his testimony and did not amount to deliberate
       misconduct to inject irrelevant and prejudicial matters into the trial. Id.
¶ 45        Next, defendant contends that the State offered irrelevant background information when it
       elicited testimony from Stevens and Christopher Dods, which “created a vivid picture” of
       Dods’ life.
¶ 46        Evidence is relevant “where the fact or circumstance offered tends to prove or disprove a
       disputed fact or to render the matter at issue more or less probable.” People v. Hall, 192 Ill.
       App. 3d 819, 823-24 (1989). Any circumstances which tend to make the proposition at issue
       more or less probable may be put into evidence. Id. at 823. Relevance can also be established
       by means of inference. People v. Jones, 108 Ill. App. 3d 880, 884-85 (1982). The
       determination of whether evidence is relevant rests in the discretion of the trial court. Hall, 192
       Ill. App. 3d at 824.
¶ 47        Although defendant argues that the only purpose that this “irrelevant” testimony could
       serve was to “prejudice the defendant in the eyes of the jury and arouse in them anger, hate and
       passion,” we find that the testimony elicited by the prosecutor from Stevens and Christopher
       Dods was relevant in the instant case. The testimony of both men provided background for the
       events preceding Dods’ murder. Christopher testified that his sister had just graduated from
       college and moved to Chicago to start a new job, noting that he communicated with her
       frequently. This testimony established that there was nothing to foreshadow Dods’ murder, as
       he believed she was excited about her new life in Chicago. Stevens testified that although Dods
       lived alone, they spent almost all of their time together and that the two planned to meet after
       she attended church, noting that Dods’ faith was “quite deeply held.” This testimony provided
       a chain of events and explained why he left her apartment the morning she was murdered, but
       called her repeatedly when she had not answered her phone before returning to her apartment
       to look for her. Additionally, a review of Stevens’ comment regarding Dods’ faith in context
       reveals an attempt to explain why he elected to return to his apartment the morning of Dods’
       murder in lieu of attending church services with her. Thus, the testimony defendant complains
       of here does not approach the clearly inflammatory testimony elicited in the cases he relies
       upon to support his argument. See People v. Hope, 116 Ill. 2d 265, 276-78 (1986) (finding
       repeated references to victim’s wife and small children improper); see People v. Blue, 189 Ill.

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       2d 99, 131 (2000) (testimony concerning age of victim’s child, fact that family had lived in
       same building together, and length of time victim’s father had been married served no other
       purpose than to inflame jury). Instead, we believe that the details provided in both testimonies
       were relevant to the presentation of the State’s case.
¶ 48        Finally, defendant contends that the prosecutorial misconduct continued in the State’s
       closing argument and rebuttal. Specifically, he contends that the prosecutor improperly
       emphasized the “new life” Dods and Stevens were starting together.
¶ 49        Initially, we note that the parties disagree about the proper standard of review in regard to
       remarks made during closing argument. A review of the case law reveals a conflict among
       Illinois Supreme Court cases. In both People v. Wheeler, 226 Ill. 2d 92, 121 (2007), and People
       v. Sims, 192 Ill. 2d 592, 615 (2000), our supreme court suggests that we review this issue de
       novo, because the prosecutor’s statements are reflected in the transcripts and are therefore
       undisputed, leaving only a legal question. Conversely, in People v. Hudson, 157 Ill. 2d 401,
       441 (1993), our supreme court suggests that the trial court is in a better position to rule on
       objections during closing argument, and the standard is therefore abuse of discretion. We need
       not take a position in this case, as defendant’s claim fails under either standard. See People v.
       Johnson, 385 Ill. App. 3d 585, 603 (2008) (“[W]e do not need to resolve the issue of the
       appropriate standard of review at this time, because our holding in this case would be the same
       under either standard.”).
¶ 50        It is well established that prosecutors are afforded wide latitude in closing argument, and
       improper remarks will not merit reversal unless they result in substantial prejudice to the
       defendant. People v. Kitchen, 159 Ill. 2d 1, 38 (1994) (citing People v. Pittman, 93 Ill. 2d 169,
       176 (1982)). During closing argument, the prosecutor may properly comment on the evidence
       presented or reasonable inferences drawn from that evidence, respond to comments made by
       defense counsel which clearly invite response, and comment on the credibility of witnesses.
       People v. Rader, 178 Ill. App. 3d 453, 466 (1988). In reviewing whether comments made
       during closing argument are proper, the closing argument must be viewed in its entirety, and
       remarks must be viewed in context. Kitchen, 159 Ill. 2d at 38.
¶ 51        In this case, we do not find that the prosecutor engaged in misconduct during closing
       argument when he noted that Dods had just moved to Chicago to start a life with her fiancé.
       Based on our review of the record, we find that the prosecutor merely commented on evidence
       properly presented at trial regarding Dods’ background and the relevant details of her life prior
       to her murder. It is abundantly clear from the record that Dods’ intention in moving to Chicago
       was to start a new job and build a life with her fiancé, who had recently moved from Portland to
       be with her. We do not find that it was improper for the State to reference this fact in its closing
       argument. See Rader, 178 Ill. App. 3d at 466.
¶ 52        Furthermore, we find that the prosecutor’s comments in rebuttal were not improper. After
       defendant concluded his closing argument with the statement that any sexual acts in this case
       may have been consensual as “jungle fever was running wild” in the early 1980s, the State
       responded that defendant was mocking the rape and murder of “a beautiful young woman who
       had come to this city to start a new life.” We find that defendant’s ludicrous statement invited a
       response where the medical examiner testified that Dods’ autopsy indicated clear signs of
       forcible intercourse. See People v. Starnes, 374 Ill. App. 3d 132, 136 (2007).
¶ 53        Additionally, we do not find the State’s comments that Stevens left Dods’ apartment
       “thinking that *** [he would] spend the rest of the day [with her] doing the sort of things that

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       he’s told you they’d been doing” but “instead of finding the woman he was building a new life
       with *** found the lifeless body of a beautiful young woman whose life was abruptly ended by
       [defendant]” were improper. These comments were a reasonable inference of the evidence
       presented in this case, which showed that Stevens, who spent almost all his time with Dods,
       intended to meet with her after she attended church, but instead found his fiancée dead in her
       apartment. Rader, 178 Ill. App. 3d at 466. Further, the State’s comment that “little did they
       realize that the things they were using to build a life together *** were going to be used to end
       Marilyn’s life” was also a reasonable interference based on the condition in which Stevens
       testified that he found Dods; she was murdered in her own apartment, submerged in her own
       bathtub with her television on her body. Id.
¶ 54        Also, we do not find that it was improper for the State to conclude its closing argument
       with comments to the jury that “you now have the power” and that the jurors “hold in [their]
       hands the sword of justice,” urging them to sign a guilty verdict form “holding this defendant
       responsible for what he did to Marilyn Dods.” We acknowledge our supreme court’s holdings
       that prosecutors have wide latitude in closing argument (Kitchen, 159 Ill. 2d at 38) and may
       properly comment unfavorably on the defendant, the violence of the crime, and the benefits of
       the fearless administration of the law. Hope, 116 Ill. 2d at 277-78 (citing People v. Jackson, 84
       Ill. 2d 350, 360 (1981)).
¶ 55        Nonetheless, defendant relies on People v. Littlejohn, 144 Ill. App. 3d 813 (1986), and
       Hope, 116 Ill. 2d 265, to argue that the prosecutor’s improper statements in this case
       necessitate a new trial. We find this reliance misplaced. In Littlejohn, this court found that that
       prosecutor’s comments during closing argument regarding events that the infant victim would
       never experience, such as her first day of school, were made solely to distract the jury from the
       real issues of the case. Littlejohn, 144 Ill. App. 3d at 827. In Hope, the court found that the
       prosecutor’s comments regarding the victim’s family and the elicited testimony from the
       victim’s spouse regarding their children and her identification of family photos were not
       “brought to the jury’s attention incidentally, rather it was presented in a series of statements
       and questions in such a method as to permit the jury to believe it material.” (Emphasis in
       original.) Hope, 116 Ill. 2d at 270, 278. Unlike the comments in Littlejohn and Hope, the
       State’s remarks here served a useful purpose in presenting its case, and were not simply used to
       appeal to the juror’s sympathy and emotions.
¶ 56        As a final note, even if we found that the State’s comments were improper, we
       acknowledge that immediately preceding closing arguments, the trial court cautioned the jury
       that, “Closing arguments are not evidence. It is a chance for the lawyers and the parties to have
       to explain to you why you ought to return the particular verdict that they’ll ask you to return in
       this case.” Additionally, at the close of arguments, the court issued jury instructions which
       stated that “neither opening statements nor closing arguments are evidence, and any statement
       or argument made by the attorneys which is not based on the evidence should be disregarded.”
       Thus, we cannot say that these remarks affected the outcome of the defendant’s trial, as the
       court provided sufficient instructions to preempt consideration of potentially improper
       comments as evidence. See People v. Taylor, 166 Ill. 2d 414, 438 (1995) (“The jury is
       presumed to follow the instructions that the court gives it.”).




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¶ 57                                    CONCLUSION
¶ 58   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 59   Affirmed.




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