                                          2019 IL App (1st) 161575
                                                                                   FIRST DISTRICT
                                                                                   SECOND DIVISION
                                                                                   May 28, 2019

                                                No. 1-16-1575

     PEOPLE OF THE STATE OF ILLINOIS,                            )         Appeal from the
                                                                 )         Circuit Court of
                                    Plaintiff-Appellee,          )         Cook County, Illinois.
                                                                 )
     v.                                                          )         No. 14 CR 06853-02
                                                                 )
     COURTNEY EALY,                                              )         Honorable
                                                                 )         Vincent Gaughan,
                                    Defendant-Appellant.         )         Judge Presiding.

            PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Lavin and Pucinski concurred in the judgment and opinion.

                                                  OPINION

¶1          Defendant, Courtney Ealy, and his codefendant, Clint Massey, were convicted of murder

     in the shooting death of Javan Boyd. The State’s evidence showed that Boyd, a taxi driver, was

     waiting for his fare when Ealy and Massey, as shown on security camera video, approached the

     taxi and shot Boyd. On appeal, Ealy argues that (i) the evidence was insufficient to convict him

     of murder, (ii) the State’s improper comments deprived him of a fair trial, (iii) his right to a

     speedy trial was violated, and (iv) his 38-year sentence was excessive. We affirm.

¶2                                           I. BACKGROUND

¶3          On the night of February 21, 2014, defendants attended a party at 39th Street and

     Wentworth, in the Wentworth Gardens housing project. Ealy wore a Burberry shirt and white

     pants, and Massey wore a tiger-striped jogging suit. Also attending the party were Kaprice Johns,

     Jasmine Brown, Germontay Carpenter, T’Keyah Herbert, and Jerome Anderson.
     No. 1-16-1575


¶4           Defendants left the party with Herbert in Herbert’s van. 1 After they left, Johns, who

     remained at the party, got into an argument with a group of women known as “Pretty in Pink”

     because Johns disliked the song that was being played. As they argued, someone fired a gun into

     the air multiple times. Johns did not see who fired the shots, but she guessed that the shooter

     wanted to stop the argument because it was too loud. The gunshots did not hit anyone.

¶5           After the altercation, Johns left the party with Brown, Carpenter, and Anderson. They left

     in Johns’s car, with Anderson driving. Carpenter made a phone call to either Ealy or Massey,

     who were still with Herbert in her van, and told them about the altercation at the party. Carpenter

     put the call on speakerphone, and Brown could hear Ealy’s voice, which she recognized, on the

     other end.

¶6           Anderson drove to Wendy’s, where they met up with a red car and Herbert’s van. Ealy

     and Massey exited the van and got into the red car, along with a man named D-Rose. (A fourth

     man, unidentified at trial, was the driver.) The three vehicles drove back toward Wentworth

     Gardens in a convoy: first the red car, then Herbert’s van, then Johns’s car. According to Johns,

     they intended to “see who shot at [them]” and “deal with the matter.”

¶7           Meanwhile, Latoya Adams was visiting her mother in Wentworth Gardens. Around 3

     a.m. on the morning of February 22, she called for a taxi to go to a friend’s house. Javan Boyd

     was dispatched to the call.

¶8           As the three-vehicle convoy approached 38th Street and Princeton, they passed Boyd

     sitting in his parked car, waiting to pick up Adams. The three vehicles all made a U-turn and




             1
              At trial, Herbert admitted attending the party, but she denied seeing defendants at the party or
     knowing anything about the shooting. She was impeached with a signed statement she made to Assistant
     State’s Attorney Patrick Waller on March 4, 2014, which was admitted as substantive evidence. See 725
     ILCS 5/115-10.1 (West 2014).
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       came to a stop. Ealy, Massey, and D-Rose disembarked from the red car and approached Boyd’s

       car from the passenger side.

¶9            Both Johns and Herbert witnessed the shooting. According to Johns, Ealy and Massey

       were standing next to each other, with D-Rose behind them. Ealy and Massey spoke to Boyd,

       and then Johns saw “a light flash from the gun” and Boyd “jumping” as if he was getting shot. At

       trial, Johns said she did not see the actual gun, but in a prior statement to detectives, Johns

       identified Ealy as the shooter. After the shooting, D-Rose ran back to Johns’s car and got inside,

       saying “sh**” and “he’s dead.” Ealy and Massey ran back to one of the other vehicles, and all

       three vehicles drove away. As they left, Johns could see Boyd “slumped over” in his car.

¶ 10          Herbert saw Ealy and Massey open Boyd’s passenger-side door and then saw Massey

       firing a gun into the car. She heard four or five gunshots, after which Ealy and Massey returned

       to the red car and drove away.

¶ 11          The shooting was captured on surveillance cameras belonging to the Chicago Housing

       Authority, which owns the Wentworth Gardens housing project. The video footage was played

       for the jury. In the videos, three vehicles drove past Boyd’s taxi and then came driving back the

       other way. The convoy leader, a red car, stopped next to Boyd’s taxi and two men got out, one

       wearing a striped track suit (Massey) and the other wearing a brown shirt and white pants (Ealy).

       They approached Boyd’s car from the front passenger side and appeared to be talking to him.

       Boyd’s taxi started backing up, but hit a vehicle parked a couple of feet behind him. (At this

       point, D-Rose got out of the red car and ran back toward Johns’s car.) There was a bright flash of

       light near Ealy’s hand; Boyd’s car surged forward and hit another parked car in front. Ealy and

       Massey ran forward to look in the front passenger window. Ealy returned to the red car, Massey

       followed him a few moments later, and the three vehicles drove away.



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¶ 12          Adams came outside to pick up her taxi and found Boyd hanging out of the driver’s side

       of his car. She asked him if he was okay. He did not respond. Someone else had already called

       the police, so Adams called the taxi company to inform them that their driver had been shot. She

       then remained at the scene and cooperated with police when they arrived.

¶ 13          After leaving the scene of the shooting, Johns dropped Anderson off at his house and then

       drove to the Shell gas station at 55th Street. Ealy was waiting there. He entered Johns’s car, told

       her that he dropped his iPhone at the scene, and asked her to help him retrieve it. Brown said that

       it was stupid to go back, but Johns agreed to do it. On the way there, Ealy spoke about the

       shooting. He said that he asked the victim if he was “from over here” and specified the part of

       Wentworth Gardens where the party had been. The victim said he was. Ealy also said “man

       down,” which Johns understood to mean the victim was dead.

¶ 14          By the time Johns returned to the scene of the crime, police had already cordoned off the

       area. Johns parked the car and approached on foot. She told officer Chris Martin that she had

       dropped her phone nearby and asked whether she could retrieve it. Martin refused, explaining

       that it was a crime scene.

¶ 15          Johns returned to her car and drove closer to the crime scene. While in the car, she spoke

       with Sergeant Arthur Young. She gave him a fake name (“Brianna Johns”) and also a fake story,

       telling him that she was driving in the area when she heard several gunshots and saw a man with

       braided hair and a dark sweater near the victim’s car; she got scared and dropped her phone near

       the victim’s car. Johns then gave Young the phone number. Although Johns did not have Ealy’s

       number memorized, Ealy told her the number as she was speaking to Young. At trial, Johns

       recalled that the number began with “773-803.”




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¶ 16          Officers did, in fact, find an iPhone in the middle of the street near the victim’s vehicle.

       Pursuant to a search warrant, detectives conducted data extraction on the phone, which revealed

       that its number was 773-809-****. The phone was also swabbed for DNA; testing revealed a

       mixture of at least three DNA profiles that were not suitable for comparison.

¶ 17          A latent fingerprint impression recovered from Boyd’s passenger side window was

       identified as belonging to Ealy. Inside Boyd’s car, the police recovered three 9mm fired cartridge

       casings and two 9-millimeter fired bullets; additionally, the medical examiner recovered two

       more 9-millimeter bullets from Boyd’s chest. Kellen Hunter, a firearms examiner for the Illinois

       State Police, determined that the bullets were all fired from a single gun, and the cartridge

       casings were all fired from a single gun. He was unable to determine whether the bullets and

       cartridges were fired from the same gun, since it is impossible to match a fired bullet to a fired

       cartridge casing. He also could not determine what kind of gun they were fired from, since both

       9-millimeter revolvers and 9-millimeter semi-automatic weapons exist.

¶ 18          Ealy moved to sever his trial from Massey’s. Massey did not move for severance. After a

       hearing, the motion was denied. Ealy and Massey were tried together before a jury. For both

       defendants, the State sought a conviction for first degree murder and a 15-year sentence

       enhancement for being “armed with a firearm” during the commission of the offense. The jury

       was instructed concerning accountability as to both the murder and the firearm allegation.

       Specifically, for the firearm allegation, the jury was instructed to determine whether “the

       defendant, Courtney Ealy, or one for whose conduct he is legally responsible was armed with a

       firearm.”




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¶ 19          The jury found both defendants guilty of first degree murder, but it found that the firearm

       allegation was proven only as to Massey. Following a sentencing hearing, the trial court

       sentenced Ealy to 38 years’ imprisonment.

¶ 20                                             II. ANALYSIS

¶ 21          Ealy argues that (i) the evidence was insufficient to convict him of first degree murder,

       (ii) his right to a fair trial was violated by improper prosecutorial comments during opening and

       closing arguments, (iii) his right to a speedy trial was violated, and (iv) his 38-year sentence was

       excessive. We consider these arguments in turn.

¶ 22                                     A. Sufficiency of the Evidence

¶ 23          Ealy’s first contention is that the evidence was insufficient to convict him of first degree

       murder. Specifically, he argues that the State failed to prove the requisite intent necessary to hold

       him accountable for Massey’s actions. The State disagrees and additionally argues that we need

       not limit our review to evidence of accountability, since the evidence was also sufficient to prove

       Ealy guilty directly.

¶ 24          It is well settled that a general verdict of guilty will not be invalidated on evidentiary

       grounds as long as sufficient evidence exists to support any grounds for conviction submitted to

       the jury. Griffin v. United States, 502 U.S. 46, 49-50 (1991). When reviewing the sufficiency of

       the evidence, it is not our function to retry the defendant. People v. Beauchamp, 241 Ill. 2d 1, 8

       (2011). Rather, we must determine “ ‘whether, after viewing the evidence in the light most

       favorable to the prosecution, any rational trier of fact could have found the essential elements of

       the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Jackson, 232 Ill. 2d

       246, 280 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).




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¶ 25           Initially, the State points out that it did not seek to convict Ealy solely on a theory of

       accountability. Rather, since the evidence was in conflict as to which defendant was the shooter,

       the State argued that “[i]t doesn’t matter who shot that gun that killed Javan Boyd, because ***

       [t]he law of accountability tells you that it is as if each of them had their finger on the trigger and

       pulled it.” Ealy nevertheless argues that the jury’s verdict—finding him guilty of murder but also

       finding that the firearm allegation was not proven—necessarily means that the jury found him

       guilty on a theory of accountability. We disagree. In fact, the jury’s findings are irreconcilable

       regardless of the theory of guilt adopted. If the jury believed that Ealy was the shooter, then the

       jury should have found the firearm enhancement proven as to him. If, on the other hand, the jury

       believed Massey was the shooter, then the jury must have found Ealy to be accountable for

       Massey’s actions and, therefore, should have found the firearm allegation proven under a theory

       of accountability. See People v. Rodriguez, 229 Ill. 2d 285, 293-94 (2008) (15-year sentence

       enhancement for being “armed with a firearm” applies to unarmed defendant who aids and abets

       armed defendant). 2

¶ 26           But this inconsistency—whether the product of juror lenity, compromise, or some other

       unknowable reason—cannot be used to attack Ealy’s conviction. Our supreme court has made

       clear that “defendants in Illinois can no longer challenge convictions on the sole basis that they

       are legally inconsistent with acquittals on other charges.” People v. Jones, 207 Ill. 2d 122, 133-

       34 (2003); see also People v. Reed, 396 Ill. App. 3d 636, 648 (2009) (defendant cannot challenge

       conviction based on an inconsistent answer to a special interrogatory); People v. Jackson, 372 Ill.

       App. 3d 605, 612 (2007) (courts will not use a jury’s response to a sentence enhancement inquiry


               2
                By contrast, the 20- and 25-year firearm enhancements apply only to defendants who “personally
       discharged” a firearm and, therefore, cannot be found on a theory of accountability. Rodriguez, 229 Ill. 2d
       at 294-95. According to the State, because it was unclear whether Ealy or Massey (or both) shot Boyd, it
       chose not to seek the 20- and 25-year enhancements for defendants.
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       No. 1-16-1575


       for any purpose other than sentence enhancement). “[E]ven with legally inconsistent findings,

       sufficiency-of-the-evidence review is a sufficient safeguard against jury irrationality.” Reed, 396

       Ill. App. 3d at 648.

¶ 27          Here, the evidence was sufficient to convict Ealy of first degree murder either as a

       principal or an accomplice. As noted, there was conflicting evidence at trial as to who shot Boyd:

       Johns testified that she did not see the murder weapon, but she acknowledged that she identified

       Ealy as the shooter to police. On the other hand, Herbert identified Massey as the shooter in her

       written statement to ASA Waller. It was the jury’s responsibility to assess the credibility of

       witnesses, determine the weight to give their testimony, and resolve conflicts or inconsistencies

       in the evidence. Jackson, 232 Ill. 2d at 280-81. The jury could reasonably have believed Johns’s

       identification of Ealy and found him guilty based on his own conduct.

¶ 28          Ealy argues that Johns’s identification was uncorroborated by any trial testimony. But

       “recanted prior inconsistent statements can be sufficient to support a conviction, even without

       corroborating evidence.” People v. Cox, 377 Ill. App. 3d 690, 700 (2007) (citing People v.

       Thomas, 354 Ill. App. 3d 868, 880 (2004); People v. Craig, 334 Ill. App. 3d 426, 439 (2002);

       People v. Curtis, 296 Ill. App. 3d 991, 999 (1998)). Ealy also argues that Johns was not a

       credible witness because (i) she lied to police when trying to retrieve Ealy’s phone from the

       scene of the crime and (ii) she made her statement to police while in custody on unrelated

       charges. Ealy is, in effect, inviting us to substitute our judgment regarding Johns’s credibility for

       that of the jury, which we will not do. See Jackson, 232 Ill. 2d at 280-81.

¶ 29          Ealy next argues that the CHA surveillance video demonstrates conclusively that he was

       not the shooter. We disagree. The video is of insufficient quality to determine which defendant is

       holding the gun at any given time, but, notably, a bright light resembling a muzzle flash can be



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       No. 1-16-1575


       seen coming from Ealy’s hand immediately before Boyd’s car lurches forward. Nor do we find it

       significant that Ealy returned to the red car before Massey, since the shooting could have been

       over by that point or, as the State argues, Ealy could have given the gun to Massey who

       continued firing into the taxi. Accordingly, the evidence was sufficient for a reasonable jury to

       conclude that Ealy shot Boyd.

¶ 30          Although this is by itself enough to support the verdict (see Griffin, 502 U.S. at 49 (“if

       there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are

       bad” (internal quotation marks omitted))), there also was sufficient evidence to find Ealy guilty

       on a theory of accountability. A person is legally accountable for the criminal conduct of another

       if “either before or during the commission of an offense, and with the intent to promote or

       facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other

       person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2014). To

       establish the requisite intent, the State must prove that the defendant shared the principal’s

       criminal intent or there was a common criminal design. People v. Perez, 189 Ill. 2d 254, 266

       (2000). Where a common criminal design is alleged, “ ‘[e]vidence that a defendant voluntarily

       attached himself to a group bent on illegal acts with knowledge of its design supports an

       inference that he shared the common purpose and will sustain his conviction for an offense

       committed by another.’ ” People v. Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167

       Ill. 2d 307, 338 (1995)).

¶ 31          Here, there was more than sufficient evidence that Ealy joined the convoy returning to

       Wentworth Gardens for the express purpose of avenging the slight to Johns and her friends. The

       group’s common criminal design was to “see who shot at [them]” and “deal with the matter.”




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       Under the circumstances, and particularly in light of what transpired, it is reasonable to infer that

       the group did not intend to “deal with” the perpetrators in a peaceful or lawful manner.

¶ 32          Additionally, it is undisputed that Ealy and Massey confronted Boyd together. Ealy asked

       whether Boyd was from “over here,” to which Boyd replied that he was; then, according to

       Herbert, Massey began shooting Boyd. Ealy made no move to stop the shooting, nor did he

       dissociate himself from the crime after the fact. Rather, he ran back to the red car with Massey,

       and they fled the scene together. Later, when discussing the shooting with Johns, Ealy displayed

       no remorse but instead bragged that it was “man down.” He did not report the shooting but sent

       Johns to speak with police in a failed attempt to retrieve his dropped cell phone. All of these

       facts support an inference that Ealy was acting pursuant to a common criminal design with

       Massey. See Perez, 189 Ill. 2d at 267 (“Proof that the defendant was present during the

       perpetration of the offense, that he fled from the scene, that he maintained a close affiliation with

       his companions after the commission of the crime, and that he failed to report the crime are all

       factors that the trier of fact may consider in determining the defendant’s legal accountability.”).

¶ 33          Ealy argues that even if he shared a common criminal design to retaliate for the incident

       at the Wentworth Gardens party, he could not have planned to kill Boyd, who was not connected

       to that incident. Indeed, at oral argument, counsel emphasized how apparently irrational it was

       that Ealy and Massey would exact revenge for the earlier altercation between two groups of

       women by shooting a man who, as far as they were aware, had not even attended the party. But

       Boyd was only shot after he agreed (in response to Ealy’s query) that he was from “over here,”

       while parked outside a Wentworth Gardens residence. The jury could have concluded that based

       on Boyd’s response, Ealy and Massey believed Boyd was one of the guests at the party and

       decided to “deal with the matter” by shooting him. Moreover, under a common-design theory, a



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       defendant can be found legally accountable for a crime that he did not specifically intend, as long

       as his companion committed the crime in furtherance of the intended act. Fernandez, 2014 IL

       115527, ¶ 21 (citing People v. Kessler, 57 Ill. 2d 493, 497 (1974) (defendant could be held

       accountable for unplanned shootings committed by his initially unarmed companions)). Thus, for

       all the foregoing reasons, we find the evidence was sufficient to convict Ealy of first degree

       murder.

¶ 34                                      B. Prosecutorial Comments

¶ 35          Ealy additionally argues that he was deprived of a fair trial because (i) the prosecutor

       improperly referenced Boyd’s family in opening argument and (ii) the prosecutor referred to

       defendants as “shooters” in closing argument. We apply an abuse of discretion standard in

       reviewing the trial court’s ruling on the propriety of the challenged remarks, and a de novo

       standard in reviewing whether any misconduct was egregious enough to warrant a new trial.

       People v. Cook, 2018 IL App (1st) 142134, ¶¶ 61-62.

¶ 36          During opening statements, the prosecutor stated that Boyd “was working as a cab driver.

       And as a cab driver, this job he did to help support his family.” Later in the same argument, the

       prosecutor stated that Boyd was “trying to earn money for his family.” After the State’s

       argument concluded, the experienced trial judge sua sponte called a sidebar and asked:

                       “THE COURT: Is Mr. Boyd’s family any way involved as evidence in this case

              or the commission of this crime?

                       THE STATE: No. No.

                       THE COURT: Then quit mentioning that he has a family. *** Unless it’s

              germane to the trial, you don’t mention the victim’s family.”




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       Defense counsel, who had not previously objected, then objected to the prosecutor’s statements

       “for the record.”

¶ 37           Ealy raised no argument regarding these statements in his posttrial motion. Accordingly,

       the issue is forfeited (People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (to preserve a claim

       for review, defendant must both object at trial and raise the issue in his posttrial motion)), and

       Ealy does not argue plain error. We will therefore honor Ealy’s forfeiture. Moreover, we note

       that the mentions of Boyd’s family were brief, not repeated by either party after the court’s

       admonishment, and the court instructed the jury that arguments do not constitute evidence. See

       People v. Deramus, 2014 IL App (1st) 130995, ¶ 64 (prosecutor’s improper comment did not

       warrant reversal where it was brief, the comment was surrounded by proper argument, and the

       jury was properly instructed that arguments do not constitute evidence).

¶ 38           Ealy next argues that the State erred by referring to him and Massey as “shooters” during

       closing argument. Specifically, the prosecutor stated that after the altercation at the party, Johns

       and her friends “left that party and they went to get their shooters, these two.” Likewise, in

       rebuttal, the prosecutor stated: “You heard that the girls called these two, their shooters, their

       backup to go back, to retaliate, to take care of business.”

¶ 39           This contention of error is also forfeited, since Ealy failed to object or raise the issue in

       his posttrial motion. Thompson, 238 Ill. 2d at 611-12. Ealy acknowledges his forfeiture but

       argues that we may still consider the issue under the plain error doctrine, which allows us to

       review “clear and obvious” unpreserved errors when either (i) the evidence is so closely balanced

       that the error threatened to tip the scales against the defendant, or (ii) the error “is so serious that

       it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

       process.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). It is axiomatic that without error,



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       there can be no plain error. People v. Smith, 372 Ill. App. 3d 179, 181 (2007); see People v.

       Walker, 232 Ill. 2d 113, 124-25 (2009) (initial step in plain error analysis is to determine whether

       error occurred at all).

¶ 40           We find no error in the State’s characterization of Ealy and Massey as “shooters,” since

       the evidence shows that they did, in fact, shoot Boyd. It is well established that prosecutors are

       given wide latitude during closing argument and may comment on the evidence and any

       reasonable inferences arising therefrom, even if those inferences reflect negatively on the

       defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). The prosecutor’s remarks were a fair

       comment on the evidence that after Carpenter called them to “see who shot at [them]” and “deal

       with the matter” (to quote Johns), Ealy and Massey returned to Wentworth Gardens and shot

       Boyd.

¶ 41           Ealy argues that the challenged statements imply that he had a reputation as a shooter or

       was associated with some group in the role of shooter, neither of which is supported by the

       record. Viewing the statements in context, as we must (People v. Ramsey, 239 Ill. 2d 342, 441

       (2010)), we find no such implication; it is apparent that the prosecutor was referencing the

       shooting of Boyd that occurred later that night. Thus, Ealy’s contention of error, plain or

       otherwise, is without merit.

¶ 42                                        C. Right to a Speedy Trial

¶ 43           Ealy next argues that his right to a speedy trial was violated when the court granted the

       State’s pretrial motion to extend the term for an additional 60 days to enable the State to secure

       eyewitnesses for trial. Although Ealy forfeited this issue by failing to include it in his posttrial

       motion, this court has reviewed unpreserved challenges to the extension of the speedy trial term




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       because a speedy trial implicates fundamental constitutional concerns. People v. McKinney, 2011

       IL App (1st) 100317, ¶ 29.

¶ 44          The Speedy Trial Act provides, in relevant part, that “[e]very person in custody in this

       State for an alleged offense shall be tried by the court having jurisdiction within 120 days from

       the date he or she was taken into custody.” 725 ILCS 5/103-5(a) (West 2014). The trial court

       may continue the case up to an additional 60 days if it determines that “the State has exercised

       without success due diligence to obtain evidence material to the case and that there are

       reasonable grounds to believe that such evidence may be obtained at a later day.” 725 ILCS

       5/103-5(c) (West 2014). The State bears the burden of showing due diligence (People v. Battles,

       311 Ill. App. 3d 991, 997-98 (2000)), and “[t]he test of due diligence is whether the State began

       efforts to locate its witness in sufficient time to secure [his or] her presence before the speedy

       trial term expired” (People v. Exson, 384 Ill. App. 3d 794, 799 (2008)). We review the trial

       court’s decision to grant an extension for an abuse of discretion. People v. Connors, 2017 IL App

       (1st) 162440, ¶ 16.

¶ 45          The record reflects that, starting in July 2015, the State made numerous efforts to locate

       Carpenter, Johns, and Brown to subpoena them as material witnesses. From July through

       December, at least eight unsuccessful attempts were made to locate and serve Carpenter. On

       December 8, on the State’s motion, the trial court declared him a material witness and ordered

       any law enforcement officials who located him to bring him before the court. As for Johns, at

       least 15 unsuccessful attempts were made to locate and serve her during the same time period.

       Investigators also contacted various associates of Johns, made multiple attempts to obtain her

       work address, and sought assistance from the U.S. Marshal Office Great Lakes Regional Fugitive

       Task Force, to no avail. Finally, after several unsuccessful attempts, Brown was served on



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       December 12 and ordered to appear for Ealy’s trial, which was scheduled for December 28.

       Meanwhile, Ealy filed a written speedy trial demand on December 4.

¶ 46          On December 28, Brown appeared in court for trial, but Carpenter and Johns had not yet

       been located. The trial was continued on the State’s motion to January 15, 2016, and the court

       admonished Brown to return on that date. By January 15, Johns had still not been located.

       Carpenter had been located and served, but neither he nor Brown appeared in court. On the

       State’s motion, the court issued rules to show cause against Carpenter and Brown and also issued

       warrants for their arrest. Trial was rescheduled for January 22.

¶ 47          On January 20, the State requested, for the first time, leave to obtain a buccal swab from

       Ealy for DNA testing. Ealy’s counsel objected, pointing out that in the unlikely event that the

       DNA testing results came back before the scheduled trial date, Ealy would not have time to

       review the results without seeking a continuance, thereby breaking his demand for trial. The trial

       court acknowledged that it was “late in the game,” but granted the State’s motion. On January

       22, the State again answered not ready for trial due to lack of witnesses.

¶ 48          Ealy’s speedy trial period was set to expire on February 17. On February 1, the State

       moved for a 60-day extension, citing its continued inability to locate witnesses and detailing its

       unsuccessful efforts to obtain their appearance at trial. Ealy objected, pointing out that the State

       was still testing the DNA evidence, which would not be available to them if the trial was timely

       held. The State denied that its reason for seeking an extension was to obtain more time to process

       the DNA evidence. The court granted the State’s motion, saying, “This is one of the most

       comprehensive searches for witnesses that I have heard.” After the extension was granted, both

       Johns and Brown were taken into custody, and the case proceeded to trial on March 4 (i.e., 15

       days into the 60-day extension) without Carpenter.



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¶ 49          Based on the record, it is abundantly clear that the trial court acted within its discretion in

       finding due diligence by the State and in granting the extension. To attempt to secure witnesses

       for trial, the State engaged in extensive efforts spanning over seven months before the end of the

       speedy trial window, and over four months before Ealy made his speedy trial demand. See

       Exson, 384 Ill. App. 3d at 799.

¶ 50          Ealy does not challenge the materiality of Carpenter, Johns, and Brown to the State’s

       case. Nor does Ealy challenge the truthfulness of the State’s representations regarding the efforts

       it took to secure those witnesses. Instead, Ealy argues that (i) there were no “reasonable grounds

       to believe” that Carpenter’s testimony could be obtained and (ii) the State did not show due

       diligence in locating Johns and Brown. Both contentions lack merit. With regard to Carpenter,

       Ealy makes a conclusory statement that it was “not surprising[ ]” that the State could not find

       him, since after being served, he traveled to Atlanta, Georgia. But as the State explained to the

       court on January 22 and again in its motion for extension of time, United States Marshals, the

       FBI, and Atlanta law enforcement were all searching for Carpenter. Under those circumstances,

       it was not an abuse of discretion for the court to find reasonable grounds to believe that

       Carpenter’s testimony could be obtained.

¶ 51          With regard to Johns and Brown, Ealy speculates that the State could easily have secured

       them within the 120-day period, but deliberately delayed to obtain more time to complete its

       DNA testing. This speculation has no basis in the record, since the State’s efforts to find Johns

       and Brown are well documented, and DNA testing was not a significant part of the prosecution’s

       case. Accordingly, the trial court did not abuse its discretion in granting the State’s motion for an

       extension of the speedy trial period.

¶ 52                                               D. Sentence



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¶ 53          Finally, Ealy argues that his 38-year sentence for first degree murder was excessive in

       light of his youth (he was 19 at the time of the shooting) and “the fact that he did not shoot the

       victim.”

¶ 54          Although this court may reduce a defendant’s sentence under Illinois Supreme Court

       Rule 615(b)(4), that power should be exercised “cautiously and sparingly.” (Internal quotation

       marks omitted.) People v. Alexander, 239 Ill. 2d 205, 212 (2010). We review the trial court’s

       sentencing decision for an abuse of discretion (People v. Hauschild, 226 Ill. 2d 63, 90 (2007)),

       keeping in mind that such a decision is entitled to great deference because of the trial court’s

       superior opportunity to observe the defendant and the proceedings. Alexander, 239 Ill. 2d at 212

       (citing People v. Stacey, 193 Ill. 2d 203, 209 (2000); People v. Fern, 189 Ill. 2d 48, 53 (1999)).

¶ 55          Upon reviewing the record, we find no abuse of discretion by the trial court. Ealy’s 38-

       year sentence was squarely in the middle of the 20-to-60-year sentencing range for first degree

       murder (730 ILCS 5/5-4.5-20(a) (West 2016)), and the trial court explicitly stated that it took

       into consideration the appropriate factors in aggravation and mitigation. Ealy is essentially

       inviting us to reweigh the factors in his favor, which we may not do. See Alexander, 239 Ill. 2d

       at 214-15 (appellate court erred by reweighing sentencing factors to give additional weight to

       defendant’s rehabilitative potential). Moreover, as discussed, it was not proven at trial that Ealy

       “did not shoot the victim,” so Ealy’s argument in this regard lacks merit. The trial judge at

       sentencing could reasonably have believed, consistent with the trial evidence and the jury’s

       general verdict of guilty, that Ealy was the one who fatally shot Boyd.

¶ 56                                           III. CONCLUSION

¶ 57          The judgment of the trial court is affirmed, since (i) the evidence was sufficient to convict

       Ealy of first degree murder, (ii) the challenged prosecutorial comments do not require reversal



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       because some were fair comments on the evidence and the remainder were not raised in Ealy’s

       posttrial motion, (iii) the trial court acted within its discretion in granting a 60-day extension of

       the speedy trial period, and (iv) Ealy’s 38-year sentence, in the middle of the 20-to-60-year

       sentencing range, was not excessive.

¶ 58          Affirmed.




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