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                                 Appellate Court                        Date: 2017.07.13
                                                                        09:02:47 -05'00'




                   People v. Henderson, 2017 IL App (1st) 142259



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



District & No.      First District, Fifth Division
                    Docket No. 1-14-2259



Filed               March 31, 2017
Rehearing denied    May 10, 2017



Decision Under      Appeal from the Circuit Court of Cook County, No.
Review              09-CR-16803(03); the Hon. William G. Lacy, Judge, presiding.



Judgment            Affirmed.


Counsel on          Michael J. Pelletier, Patricia Mysza, and Tonya J. Reedy, of State
Appeal              Appellate Defender’s Office, of Chicago, for appellant.

                    Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                    Michelle Katz, Jon Walters, and Nancy Colletti, Assistant State’s
                    Attorneys, of counsel), for the People.



Panel               PRESIDING JUSTICE GORDON delivered the judgment of the court
                    with opinion.
                    Justices Lampkin and Reyes concurred in the judgment and opinion.
                                                OPINION

¶1         Defendant Ronald Henderson was convicted after a jury trial of the attempted first degree
       murders of Andre Turner and Joe Walker and the first degree murder of Chastity Turner during
       a drive-by shooting on June 24, 2009, and sentenced to a total of 100 years with the Illinois
       Department of Corrections.
¶2         On this appeal, defendant claims (1) that the State failed to prove defendant guilty beyond
       a reasonable doubt, (2) that the trial court erred by allowing testimony by a police officer that
       he issued an investigative alert for defendant’s arrest after a photo array and statement by a
       witness who did not testify at trial, (3) that defendant was denied a fair trial when the State was
       permitted to introduce evidence of allegedly unrelated guns and other allegedly unrelated
       information, (4) that defendant was denied a fair trial by being tried jointly with codefendant
       Kevin Stanley when the evidence against Stanley was allegedly greater, (5) that defendant was
       denied a fair trial by allegedly inaccurate or misleading jury instructions, and (6) that the State
       committed prosecutorial misconduct during its closing arguments.
¶3         For the following reasons, we affirm defendant’s conviction and sentence.

¶4                                           BACKGROUND
¶5                                         I. Procedural History
¶6         On September 15, 2009, a grand jury indicted defendant and codefendants, Kevin Stanley
       and Davionne Whitfield, for the first degree murder of nine-year-old Chastity Turner, as well
       as for the attempted first degree murders of Chastity’s father Andre Turner and Joe Walker. All
       three were shot in front of Andre Turner’s home on June 29, 2004.
¶7         On October 29, 2012, defendant filed a motion for severance, arguing that both of his
       codefendants might assert a defense antagonistic to him in the joint trial, which would then
       prejudice him and violate his right to confront witnesses if he could not cross-examine his
       codefendants. However, on May 13, 2013, when the motion was heard, the trial court asked
       defendant’s counsel whom defendant wanted to be severed from, and counsel replied only “I
       want to be severed from Mr. Whitefield [sic]” but did not mention Kevin Stanley.
¶8         As a result, the trial court stated that it was granting defendant’s motion and severed
       defendant and Stanley’s trial from Whitfield’s trial. Thus, defendant and Stanley were tried
       together before a single jury, while Whitfield had his own trial.

¶9                                     II. State Witness Testimony
¶ 10       At the trial, which began on March 18, 2014, the State called 15 witnesses: (1) Dr. Lauren
       Woertz, (2) Andre Turner, (3) Julius Davis, (4) Donise Robertson, (5) Tawanda Sterling, (6)
       Joe Walker, (7) Officer Edward Garcia, (8) Officer John Sanders, (9) Officer Nancy DeCook,
       (10) Paul Presnell, (11) Mike Mazurski, (12) Aaron Horn, (13) Detective Timothy O’Brien,
       (14) Detective Michael O’Donnell, and (15) Lakesha Edwards.
¶ 11       Codefendant Kevin Stanley called four witnesses: (1) Darren Keith Paulk, (2) Keyon
       Taylor, (3) Alfonzo Deadwiler, and (4) Sergeant John Nowakowski.
¶ 12       The State’s theory of the case was that defendant was the driver of the van used in the
       drive-by shooting. The evidence showed that a van approached Andre Turner’s home and that


                                                    -2-
       shooters inside the van opened fire, killing Andre’s nine-year-old daughter, Chastity, and also
       hitting Andre Turner and Joe Walker.
¶ 13        No physical evidence linked defendant to the shootings. The evidence against him
       consisted primarily of identifications by three eyewitnesses: (1) Andre Turner; (2) Andre’s
       girlfriend, Tawanda Sterling; and (3) Julius Davis. At the time of the shooting, Andre Turner
       and Tawanda Sterling were in front of Andre’s home,1 with the passenger side of the van
       facing them, while Julius Davis was across the street with the driver’s side of the van facing
       him.
¶ 14        We provide below a detailed description of the evidence at trial because defendant argues
       on appeal that the three witnesses who identified him at trial all had obstructed or distracted
       views, that they did not identify him immediately after the shooting even though they had all
       known him for years, and that they all had a motive to frame him due to their connection to a
       rival gang. Defendant argues that, since their identifications were all weak or tainted, the scales
       were tipped against him by a police officer’s testimony that a nontestifying witness viewed a
       photo array and the officer then immediately issued an alert for defendant’s arrest.
¶ 15        We also provide a description of the evidence against codefendant Kevin Stanley and the
       evidence presented by Stanley, since one of defendant’s claims is that he was denied a fair trial
       by being tried jointly with Stanley.

¶ 16                                       1. Dr. Lauren Woertz
¶ 17       Dr. Lauren Woertz testified that she has been an assistant medical examiner with the Cook
       County medical examiner’s office since 2009 and that she is a forensic pathologist.
¶ 18       Dr. Woertz testified that, on June 25, 2009, a postmortem examination of Chastity Turner
       was performed by Dr. Valerie Arangelovich, who no longer works for the Cook County
       medical examiner’s office. Dr. Woertz reviewed the postmortem examination performed by
       Dr. Arangelovich, since it is common practice for forensic pathologists to review examinations
       by colleagues who have left the medical examiner’s office.
¶ 19       The examination of Chastity’s body revealed that she had a bullet entrance wound on the
       right side of her back. Given the lack of gun powder stippling, Dr. Woertz opined that this
       gunshot wound was not the result of close range firing. A bullet was recovered from the right
       side of Chastity’s neck.
¶ 20       With a reasonable degree of medical and scientific certainty, Dr. Woertz opined that the
       cause of death was a gunshot wound to the back and that the manner of death was a homicide.
       These opinions were consistent with those of Dr. Arangelovich in her postmortem exam of
       Chastity.
¶ 21       Dr. Woertz testified that Dr. Arangelovich noted some bruising on Chastity’s body as well
       as three other healed wounds, none of which were gunshot wounds. Dr. Woertz noted that,
       given the “classic straightforward entrance wound,” she was able to determine that this bullet
       was not a ricochet. The parties stipulated that a proper chain of custody was maintained at all
       times with regard to the sealed envelope containing the lead bullet fragment removed from


           1
             Since both Chastity and her father, Andre, share the same last name, we will refer to them by their
       first names from this point on, to avoid confusion.

                                                       -3-
       Chastity’s body.

¶ 22                                           2. Andre Turner
¶ 23        Andre Turner testified that Chastity was his nine-year-old daughter and that Lakesha
       Edwards was Chastity’s mother. He identified both defendant and Kevin Stanley in the
       courtroom and testified that he had known defendant for 10 or 11 years and had known Stanley
       almost all of his life.
¶ 24        Andre testified that, in June 2009, he was the leader of a set of the Gangster Disciples (GD)
       gang on the block of 7400 South Stewart Avenue, which was also where he lived. Andre knew
       a man named Gargamel, who was defendant’s brother and the leader of the same set of GDs
       that occupied the 7500 block of South Normal Street, which was a short distance from Andre’s
       block. Andre also knew Davionne Whitfield, otherwise known as Gucci, who was affiliated
       with the Normal Street block of GDs. At some point before June 2009, defendant and
       Whitfield were friendly with Andre and the Stewart Avenue block of GDs. However, by June
       2009, they were no longer friendly with each other.
¶ 25        A few weeks prior to the shooting, Andre met with Gargamel, defendant’s brother, to
       discuss a territorial proposition regarding the drug business between each other’s blocks.
       Andre testified that he declined Gargamel’s offer and afterwards Gargamel appeared to be
       upset.
¶ 26        Andre also testified that, in the few weeks before the shooting, there were several fights
       and shootings between his faction and Gargamel’s faction, which revolved around disputes
       between the young members of each faction. Andre testified that he was present for some of
       these fights and shootings and that at one point he had won a fight between himself and
       defendant.
¶ 27        On June 24, 2009, at 6:45 p.m., there was a sizeable group of both adults and children
       outside Andre’s home on South Stewart Avenue, including his girlfriend, Tawanda Sterling.
       Andre and Chastity were in the process of washing their three dogs. Andre was standing in his
       driveway in front of his house and facing the street when he received a phone call from
       Deannosha Sharkey2 and then observed a van that he had never observed before driving on his
       street. Andre is colorblind, so he could not provide the accurate color of the van, but he
       observed it was moving toward himself, southbound, at a high rate of speed. When the van
       pulled up to where Andre was standing, the passenger’s side was facing him, and the passenger
       side sliding door was already open. In addition, the front passenger side window was down.
¶ 28        Andre testified that, as the van approached, he was able to observe the front of the van and
       identified defendant as the driver. He also identified codefendant Kevin Stanley as the person
       in the front passenger seat who was hanging a little out of the open window and who began
       shooting at him. Andre believed that he heard over 10 shots fired, not all of which sounded the
       same. Andre witnessed only Kevin Stanley shooting and observed that Stanley was using a
       rifle with a wooden stock.


           2
            Deannosha Sharkey is the nontestifying witness who is the subject of defendant’s hearsay claim on
       appeal. As we will describe later, Detective Michael O’Donnell testified at trial that he conducted a
       photo array with Sharkey, who also provided a statement, and that after the photo array and statement,
       he issued an investigative alert for defendant’s arrest.

                                                     -4-
¶ 29       Andre testified that, after the shooting started, he began grabbing the children and throwing
       them over a nearby fence. Andre had his back toward the van while he was in the process of
       placing the children behind the fence. While he was placing the children over the fence, he was
       struck by a bullet in his left bicep. He tried to jump over the fence but was unsuccessful, so he
       ran toward the van. The van sped off southbound when Andre came within 15 feet of it. As the
       van sped off, Andre observed Davionne Whitfield closing the passenger side sliding door.
¶ 30       Andre testified that, shortly after the van fled, a friend named Tim pulled up in front of his
       house. Andre’s arm was gushing blood from a gunshot wound, so Andre asked Tim to drive
       him to the hospital. Tim transported Andre to St. Bernard’s Hospital. However, Andre testified
       that he later woke up at Stroger Hospital in the intensive care unit (ICU) at some point during
       the night on June 24, 2009. Chicago police officers visited Andre in the ICU and notified him
       that Chastity had died. Andre believed from the officers’ tone of voice that they were blaming
       him for Chastity’s death and that they were not on his side. As a result, Andre refused to
       cooperate with the officers.
¶ 31       In the days and weeks following the shooting, Detectives Michael O’Donnell and Timothy
       O’Brien became involved in the murder investigation. Andre testified that his feelings toward
       the investigation changed after these detectives became involved because they were asking
       questions about the individuals who did the shooting rather than focusing on him. The
       detectives also were present at Chastity’s funeral, which made a good impression on Andre.
¶ 32       Andre testified that, after he met with an assistant State’s Attorney (ASA), he decided to
       cooperate with the investigation. On August 7, 2009, Andre was contacted by the detectives
       and travelled to the Area 1 Violent Crimes Office in order to view a lineup of suspects. During
       the first lineup, Andre identified Kevin Stanley as the shooter in the front passenger seat of the
       van. That same night, Andre met with an ASA and provided a typewritten statement. About 10
       days later, Andre visited a courthouse and provided sworn testimony in front of a grand jury.
¶ 33       Andre testified that, on August 28, 2009, the detectives contacted him again, and he
       returned to the Area 1 Violent Crimes Office to view another lineup. Andre identified
       defendant as the driver of the van. Andre testified that he never identified defendant as a
       shooter and did not ever observe a gun in defendant’s hands.
¶ 34       Upon cross-examination by counsel for Kevin Stanley, Andre testified that, around the
       time of the shooting, Andre was selling crack cocaine and using marijuana. However, Andre
       could not recall if he had used marijuana on the day of the shooting. Andre also testified that,
       when he received the phone call from Deannosha Sharkey, prior to the van pulling up, his back
       was facing the street.
¶ 35       Upon cross-examination by counsel for defendant, Andre again testified that he was not
       facing the street when he received the phone call from Deannosha Sharkey. When Andre
       received the call, he heard Julius Davis scream, “put you head up on that van,” which means
       pay attention. After that statement, Andre was facing the street, and the shooting started.
       Andre’s view of the van’s driver was not obstructed by any glare from the sunlight.
       Defendant’s counsel asked Andre about the statement he provided to an ASA on August 7,
       2009, in which Andre stated that shots were fired before he could turn around and face the
       street. Andre testified that he did, in fact, state this in his statement to the ASA.
¶ 36       Upon redirect examination by the State, Andre testified that the sun was not in his eyes
       when he identified defendant as the driver. He also told the ASA in his statement on August 7,


                                                   -5-
       2009, that he identified defendant as the driver.

¶ 37                                          3. Julius Davis
¶ 38       Julius Davis testified that he recalled being on the 7400 block of South Stewart Avenue
       around 7 p.m. on June 24, 2009. At the time, Davis was standing on the southbound corner
       which was down the block and across the street from Andre’s house. Davis observed many
       people in front of Andre’s home when he also observed a van heading down South Stewart
       Avenue toward Andre’s home. When he observed the van pulling up, he yelled “on that van,”
       which meant to pay attention to it. Davis observed that the van stopped in front of Andre’s
       home and that the occupants of the van began to shoot in the direction of the residence. Davis
       testified that he had known defendant for six or seven years, and he identified defendant as the
       driver of the van. As the van drove away from Andre’s house, defendant shot at Davis from the
       driver’s side. Davis observed that defendant had a gun, but Davis was unable to provide a
       description of the gun. Davis observed the van drive southbound and then make a westbound
       turn in the direction of Normal Street.
¶ 39       Davis testified that, during the evening of July 4, 2009, he met Detectives O’Brien and
       O’Donnell at the Area 1 Violent Crimes Office in order to view a photo array, from which he
       identified defendant. On August 28, 2009, Davis returned to Area 1 to view a physical lineup.
¶ 40       Upon cross-examination by counsel for defendant, Davis testified that the corner on which
       he stood was halfway down the block from Andre’s house, on the opposite side of the street.
       He was standing by a liquor store on the corner and was drinking alcohol, but he did not state
       the type of alcohol. Even though Stewart Avenue allows parking on either side, Davis testified
       that there were probably not many vehicles parked at the time “because there don’t be that
       many cars out there like that.” He observed the van coming down the street and stopping in
       front of Andre’s house. When the shots started, Davis took cover behind a nearby tree. Davis
       heard bullets ricochet off the tree which he was using for cover, and he tried to duck under
       some bushes in an attempt to escape from the bullets. Davis testified that the van drove past
       him at the same time he was moving away from the bullets. The van was not moving fast, but
       the whole incident lasted only a few seconds.

¶ 41                                        4. Donise Robertson
¶ 42        Donise Robertson testified that, on June 24, 2009, she resided on South Stewart Avenue,
       on the opposite side of the street from Andre’s home. Robertson had babysat two of Andre’s
       children on June 24, 2009, and at around 5:45 p.m., Robertson and the children departed her
       home and walked across the street to Andre’s home. Thirteen or fourteen people were present
       at that time.
¶ 43        Robertson testified that she and others went to purchase snow cones for the children.
       Chastity was outside preparing to wash Andre’s dogs. Andre and Chastity were near the front
       fence and in the driveway, which was close to the sidewalk in front of the house. After
       returning, Robertson remained at Andre’s home where she sat at the top of the porch with other
       people to watch the children playing in the front yard.
¶ 44        Robertson testified that she was still sitting on the porch at 6:50 p.m., when gunshots drew
       her attention to a teal-green van traveling southbound on Stewart Avenue toward her at
       Andre’s house, with the passenger side of the van facing her. Robertson first observed the van


                                                   -6-
       when it was near the garbage receptacles next door to Andre’s home. She was not able to
       observe the driver but was able to identify Kevin Stanley as the shooter in the front passenger
       seat. She observed Stanley hanging out of the front passenger window as he was shooting.
       Robertson testified that she had known Stanley for four or five years at this point and that she
       had a clear, unobstructed view of Stanley during the shooting.
¶ 45       Robertson testified that she observed another individual, Davionne Whitfield, shooting
       from the right-side passenger sliding door of the van. She identified him as “Gucci Man.”
       Robertson’s eldest son was friends with Whitfield, and she recognized him as someone who
       had come in and out of her home during the past two or three years.
¶ 46       Robertson testified that, when the shooting began, she dropped to the floor of the porch and
       thus was unable to observe what happened to the van after the shooting started. Following the
       shooting, Robertson took the two children she was babysitting back to her house across the
       street. After a couple of minutes, the police arrived. She went back to the scene after the police
       asked to talk to her. Robertson informed the first responding officers that she knew who did it
       and provided them with the nicknames of the shooters—“Kevo” for Kevin Stanley and
       “Gucci” for Davionne Whitfield.
¶ 47       Robertson testified that, at around 8:30 p.m. that same night, she went to the Area 1 Violent
       Crimes Office, where she met with Detective Timothy O’Brien. Robertson received a set of
       photographs to review and identified Whitfield from the first photo array. Approximately three
       hours later, Robertson met with another detective, Detective Brian Lutzow, and viewed a
       second photo array, from which she identified Kevin Stanley as the shooter in the front
       passenger seat. About an hour after that, Robertson viewed a physical lineup and identified
       Whitfield as the shooter in the back of the van.
¶ 48       Robertson testified that, on June 26, 2009, she met with an ASA and a detective, and gave
       a handwritten statement. On July 9, 2009, Robertson appeared before a grand jury. On August
       7, 2009, Robertson returned to Area 1 to view another physical lineup, from which she
       identified Kevin Stanley as the other shooter.

¶ 49                                       5. Tawanda Sterling
¶ 50           Tawanda Sterling testified that, on June 24, 2009, she was living with Andre Turner
       and his mother on South Stewart Avenue and was in a relationship with Andre. Sterling was at
       Andre’s home at 6:50 p.m. on June 24, and there were many people, both on the porch and in
       the front yard. Around 6:50 p.m., Sterling was at the bottom of the porch and observed Andre
       and his daughter washing their three dogs in the driveway, near the sidewalk.
¶ 51       While sitting on the bottom step of the porch, Sterling’s attention was drawn to the van
       when Julius Davis shouted “on that van,” which meant to pay attention to the van. The
       passenger side of the van was facing the house. Sterling turned around and looked at that van,
       which had already stopped in front of the house. Then shots began firing from the van. The
       van’s passenger side sliding door was open, allowing Sterling to identify Davionne Whitfield
       kneeling and shooting. Sterling was unable to obtain a clear view of the person shooting from
       the front passenger seat, but she was able to observe the driver, whom she identified as
       defendant. Sterling had known defendant for a couple of years at this point. Sterling then
       attempted to corral the children, but Andre was already in the process of doing that, so she ran
       into the house through the front door.


                                                   -7-
¶ 52        Sterling testified that, later that same evening, she went to the Area 1 Violent Crimes
       Office in order to talk to some detectives. At around 1 a.m., she viewed a physical lineup, from
       which she identified Gerald Lauderdale and Davionne Whitfield. However, Sterling identified
       Lauderdale only because he hangs around with Whitfield, and she made the detective aware of
       her mistake after she viewed the lineup.
¶ 53        Sterling testified that, on June 26, 2009, she gave a handwritten statement to an ASA. On
       July 9, 2009, she testified before a grand jury. On August 28, 2009, she returned to Area 1 in
       order to view another lineup. From this lineup, Sterling identified defendant as the driver of the
       van.
¶ 54        Upon cross-examination by counsel for defendant, Sterling was shown the statement she
       had provided to the ASA on the night of June 24, 2009, and Sterling recognized her signature
       on every page. Counsel for defendant noted that, in the statement, Sterling stated that “she
       noticed the driver of the van had a gun, but did not recognize who he was.” Counsel for
       defendant and counsel for the State agreed to stipulate that this was indeed in the statement.
       However, when asked if she had in fact stated this, Sterling testified that she did not. Next,
       Sterling was asked if she had mentioned defendant’s name during her grand jury testimony.
       Counsel for each side agreed to stipulate that she did not, but Sterling testified that she
       remembered mentioning his name.
¶ 55        Returning to the events of the shooting, Sterling testified that it was a hot day, and while
       sitting outside, she was drinking from a pint of Amsterdam Vodka, but added that it “wasn’t
       enough to get me super drunk.”
¶ 56        Upon redirect examination by the State, Sterling testified that, right after the shooting, she
       travelled to the hospital to be with Andre. At Stroger Hospital, Sterling provided a statement to
       detectives and an ASA while Andre was lying in a bed next to her. She stated that she observed
       the driver and thought he had a gun. Sterling then testified that, before the grand jury on July 9,
       2009, she was never asked about defendant and had not identified defendant at that point.
¶ 57        Upon recross-examination by counsel for defendant, Sterling testified that the first time she
       mentioned defendant’s name to the police was when she visited the police station in August.

¶ 58                                          6. Joe Walker
¶ 59       Joe Walker testified that, on June 24, 2009, he had known Andre Turner for almost 20
       years. Walker was at Andre’s home on June 24, 2009, at 6:50 p.m., when many people were
       also present. Walker recalled facing the house and conversing with Andre in the driveway,
       near the sidewalk, with Andre facing South Stewart Avenue. Andre received a phone call and,
       approximately at that moment, Walker heard gunshots coming from behind him. Walker was
       shot in his back and fell in the driveway, where he remained until the paramedics arrived to
       take him to Stroger Hospital. Since he remained on the ground after he was shot, he was unable
       to identify anybody in the van.

¶ 60                                   7. Officer Edward Garcia
¶ 61      Officer Edward Garcia testified that he is a Chicago police officer stationed in the
       Englewood neighborhood. During the evening of June 24, 2009, he was patrolling the
       Englewood area with his partner, Officer Torres. At 7:20 p.m., Garcia received information
       over his radio concerning a green van believed to be involved in a shooting earlier that day.


                                                    -8-
       Garcia and his partner found a van matching the radio description in an alley off of South
       Parnell Street, approximately three blocks from the crime scene. The van was parked on the
       grass in the alley with its doors open and the engine still running. Garcia observed a man
       named Christopher Cannon walking away from the van, approximately 50 or 60 feet from the
       van. Garcia did not observe Cannon or anyone else inside the van. While Garcia and his partner
       secured the van, another police vehicle transported Cannon to Area 1 around 7:30 p.m.

¶ 62                                     8. Officer John Sanders
¶ 63       Officer John Sanders testified that he was a Chicago police officer assigned to the
       Englewood police district. On June 24, 2009, at 10:40 p.m., Sanders was on patrol in the area
       of the 7400 block of Normal Street with his partner, Derrick Patterson, when Sanders noticed
       multiple people enter a dark colored van at a quick pace and drive off. Sanders was aware of
       the shooting that had occurred a few hours before.
¶ 64       When the van disobeyed a stop sign, Sanders pulled the van over. As he approached the
       stopped van, Sanders observed four individuals in the van, including Gerald Lauderdale, who
       was a known associate of Davionne Whitfield. Sanders observed a bag in the van and what he
       believed to be a handle of a weapon protruding from it.
¶ 65       Sanders testified that he detained all of the individuals in the van. Lauderdale was
       transported to Area 1 Violent Crimes Office. A rifle was recovered from the bag that Sanders
       had observed in the van.

¶ 66                                    9. Officer Nancy DeCook
¶ 67       Officer Nancy DeCook testified that she is a Chicago police officer and forensic
       investigator. On June 24, 2009, around 7 p.m., she received an assignment at South Stewart
       Avenue with her partner, John Miller.
¶ 68       On the scene, DeCook observed fired cartridge cases from a .22-caliber rifle in the street in
       front of Andre Turner’s home. She also found two spent .40-caliber cartridges, one at the top
       landing of the porch and one on top of the steps.
¶ 69       DeCook testified that she recovered two weapons from the scene. First, she recovered a
       Smith & Wesson .38-caliber revolver from within the barbecue grill under the back porch.
       Second, she recovered a .40-caliber Kel-Tec semiautomatic weapon from the top of the roof.
       The firearms and casings were identified, photographed, and inventoried. From the time the
       evidence was recovered, it was in the sole possession of the Chicago police department.
¶ 70       DeCook testified that she was then directed to Stroger Hospital to photograph and collect
       evidence from Joe Walker, Andre Turner, and Ricardo Foster.3 DeCook performed a gunshot
       residue test on all three men and also collected Walker’s clothing.
¶ 71       Upon cross-examination by counsel for Kevin Stanley, DeCook testified that gunshot
       residue may be washed off one’s hands. DeCook did not know whether or not any of the three
       men had washed their hands or if the hospital had disinfected their hands prior to her


           3
            Ricardo Foster was one of the men whom eyewitness Donise Robertson identified as the apparent
       targets of the drive-by shooting. However, Foster did not testify at trial, and the trial did not involve
       charges concerning him.

                                                       -9-
       administration of the gunshot residue test.

¶ 72                                          10. Paul Presnell
¶ 73       Paul Presnell testified that he is a forensic investigator for the Chicago police department
       and was on duty on June 24, 2009, when he received an assignment to perform a gunshot
       residue test on Davionne Whitfield at Area 1 Detective Division. Presnell arrived at Area 1 at
       10:25 p.m. and performed the test. In addition, Presnell collected Whitfield’s shirt to inventory
       as evidence.

¶ 74                                       11. Mike Mazurski
¶ 75       Mike Mazurski testified that he was an evidence technician with the Chicago police
       department and that he was on duty at 9:46 a.m. on June 25, 2009, when he received an
       assignment to recover a tote bag containing a handgun and ammunition. The bag was
       recovered on top of a barbecue grill in the backyard of Andre’s residence on South Stewart
       Avenue. After photographing the tote bag as it appeared at the scene, Mazurski transported the
       tote bag back to his office. At his office, Mazurski removed all the items and photographed
       them individually. Afterwards, he inventoried each item.

¶ 76                                           12. Aaron Horn
¶ 77       Aaron Horn testified that he was a forensic scientist with the Illinois State Police,
       specializing in the area of firearms. Horn examined (1) a Serrifile Incorporated Model Terrier
       One .32-caliber Smith & Wesson revolver, (2) a Smith & Wesson Model 10-5 revolver, (3) a
       Ruger 10/22 semiautomatic rifle, and (4) a Kel-Tec Model P40 semiautomatic pistol. Horn
       determined that all four firearms were functional.
¶ 78       Horn testified as follows about the difference between a revolver and a semiautomatic
       firearm. Revolver cartridges must be manually removed after being discharged. In contrast, a
       semiautomatic firearm automatically ejects spent cartridges out of the weapon after being
       discharged. Semiautomatic rifles and pistols work in the same fashion. Though the ejection
       port on a semiautomatic firearm is supposed to eject the spent cartridge in one direction, Horn
       testified that, due to numerous variables, there was no reliable way to determine if the cartridge
       ejects in the same direction every time. Shooter position, type of ammunition used, and the
       surface the cartridge hits all affect where the spent cartridge ultimately lands.
¶ 79       Horn testified that he examined a fired bullet from the medical examiner’s office and
       determined that the bullet was a .22 caliber and that this bullet could not have been fired from
       any of the four firearms which he had previously examined.
¶ 80       Horn testified that he determined that all five .22-caliber long rifle casings recovered from
       South Stewart Avenue were fired from the same firearm. These five .22-caliber long rifle
       casings could not have been fired from any of the four firearms which he previously examined.
       Seven other .22-caliber long rifle cartridges were also fired from the same weapon as the
       previous five .22-caliber cartridges. None of the 12 total .22-caliber cartridges were fired from
       any of the four firearms examined. Another cartridge casing recovered was a .223 caliber,
       which could not have been fired from any of the four firearms examined.
¶ 81       Horn testified that two .40-caliber cartridge casings found on the front porch of Andre’s
       home were fired from the same firearm and only the Kel-Tec Model P40 could have fired these

                                                     - 10 -
       cartridges. After further examination, he determined that the two .40-caliber cartridges found
       at the scene were fired from the Kel-Tec.
¶ 82        Horn testified that a carbine is a generalized term for a short-barrel rifle, though there is no
       specific length requirement. The two .40-caliber cartridges came from the Kel-Tec, but it is
       possible for the .22-caliber long rifle or .223-caliber cases to have been fired from a carbine
       type rifle. The .22-caliber cartridge casings could also have been fired from a semiautomatic
       pistol as well as a revolver designed to fire that caliber. It was possible that the bullet he
       received from the medical examiner’s office could have been fired from a revolver.
¶ 83        Horn testified that bullets typically cannot be compared to casings as “any markings
       transferred from the casing to the bullet would be obliterated by the time it travels down the
       barrel.” However, bullets can be compared to firearms. Horn opined that, based upon the
       number of shell casings he examined, there was a minimum of two firearms in this incident and
       a maximum of three.

¶ 84                                  13. Detective Timothy O’Brien
¶ 85       Detective Timothy O’Brien testified that he was a homicide detective with the Chicago
       police department and was assigned to the Area 1 Detective Division on June 24, 2009, which
       is the police district where the incident occurred. During the 10 years that he worked as a
       detective in Area 1, he had personally investigated nearly 1000 murders and shootings. In the
       course of his investigations, O’Brien worked with other detectives assigned to the area, as well
       as beat officers and witnesses.
¶ 86       O’Brien testified that he was familiar with the street gangs in the Englewood area. Based
       on his investigations in Area 1, O’Brien testified that, in June 2009, the Gangster Disciples
       street gang had control of the 74th Street and Stewart Avenue block and the 75th Street and
       Normal Street block. However, on June 24, 2009, the Gangster Disciples from these two
       blocks were not a unified group due to an internal gang conflict.
¶ 87       O’Brien testified that he was on duty at 7:10 p.m. on June 24, 2009, and was assigned to the
       shooting on South Stewart Avenue with his partner, Michael O’Donnell. While en route to the
       scene, he received information that three males had been shot and transported to Stroger
       Hospital and that one young girl had also been shot and transferred to Comer Children’s
       Hospital.
¶ 88       O’Brien testified that, when he arrived at the scene, there was already a heavy police
       presence and the area was cordoned off from the public with red and yellow crime scene tape.
       There were two Chicago police department pod security cameras, one at each end of the 7400
       block of South Stewart Avenue, and he obtained footage of the pod cameras’ recordings.
       Unfortunately, those recordings were not useful in providing footage of the shooting.
¶ 89       O’Brien testified that he inspected the scene and observed numerous areas of biological
       and physical evidence. At 8:15 p.m., O’Brien received information from a detective who had
       been canvassing possible witnesses regarding a potential offender, which he relayed to tactical
       officer Tom Gorman. After speaking with Gorman, O’Brien learned that the name of the
       potential offender was Davionne Whitfield.
¶ 90       While on the scene, O’Brien was notified that a van had been recovered at 75th Street and
       Parnell Street. When O’Brien went to the area, he observed a teal-colored van in the alley with
       its engine still running. It was obvious that a key was not used to start the van because the


                                                    - 11 -
       column was removed. O’Brien observed “the passenger sliding door was open and there was
       numerous expended shell cartridge casing evidence inside the vehicle.”
¶ 91       O’Brien testified that, at around 9 p.m. that same evening, he met with Donise Robertson at
       Area 1 Detective Division in order to show her a photo array. A photograph of Whitfield was
       included in the six-photograph array. From the array, Robertson identified Whitfield as one of
       the shooters. O’Brien testified that this photo array was lost after it was placed into a file.
¶ 92       O’Brien testified that he learned that Whitfield had been arrested at approximately 9 p.m.
       that night and transported to Area 1 for questioning. O’Brien then questioned Whitfield. At
       approximately 11 p.m. that night, O’Brien requested that forensic investigators administer a
       gunshot residue test to Whitfield’s hands. Since this was around 3½ hours after the shooting,
       O’Brien admitted that he had no idea if Whitfield had washed his hands or changed his clothes
       in the meantime.
¶ 93       In addition to Robertson, O’Brien testified that the following witnesses were brought to
       Area 1 on the night of the shooting: Tawanda Sterling, Dominique Turner, and Christopher
       Cannon. O’Brien questioned Cannon and released him later that night because Cannon
       provided an alibi that was corroborated by his mother. O’Brien stated that Cannon was “not a
       suspect to begin with”; “[h]e was brought in because he was in the vicinity of the vehicle used
       in the shooting was [sic] and he was brought in and then he was subsequently released.”
       Cannon appeared in two lineups but was not identified by any of the witnesses.
¶ 94       Upon cross-examination by counsel for Kevin Stanley, O’Brien testified that during his
       interview with Donise Robertson, she stated that she had observed Stanley carrying a silver
       firearm, which O’Brien included in his report.
¶ 95       Upon cross-examination by counsel for defendant, O’Brien testified that, after all of the
       witness interviews and investigation on the night of the incident, including his interview with
       Tawanda Sterling at Area 1, he did not know the identity of the driver of the van.

¶ 96                                14. Detective Michael O’Donnell
¶ 97       Detective Michael O’Donnell testified that he was a detective for the Chicago police
       department assigned to Area 1. On June 24, 2009, he was assigned to investigate a shooting in
       the 7400 block of South Stewart Avenue with his partner, Detective Timothy O’Brien.
       O’Donnell viewed the crime scene at Andre’s home, as well as the van in the alley off South
       Parnell Street, before returning to Area 1 to interview witnesses. O’Donnell was present for
       O’Brien’s interview of Donise Robertson. O’Donnell was also present when Robertson
       viewed the photo array and identified Davionne Whitfield as one of the shooters inside the van.
¶ 98       O’Donnell testified that at 12:09 a.m. on June 25, 2009, he was made aware of Donise
       Robertson’s identification of Kevin Stanley from a photo array conducted by Detective
       Lutzow. Approximately an hour and a half later, O’Donnell conducted a physical lineup for
       witness Tawanda Sterling, which included both Davionne Whitfield and Gerald Lauderdale.
       Sterling identified both Whitfield and Lauderdale, but shortly afterward she changed her
       identification of Lauderdale, explaining that she had identified him because “he was always
       with Whitfield and she just assumed he had been one of the people in the van.” After Sterling
       viewed the lineup, Robertson viewed it and identified Whitfield but made no mention of
       Lauderdale. O’Donnell testified that, when multiple witnesses are present at the police station
       to view a lineup, the witnesses are kept separate at all times.


                                                 - 12 -
¶ 99        O’Donnell testified that, on June 25, 2009, at 4:30 p.m., he conducted a photo array at Area
        1 with Deannosha Sharkey. Following the photo array, Sharkey offered to provide a
        handwritten statement. After he met with Sharkey, O’Donnell testified that investigative alerts
        were issued for (1) DeShawn Walls, (2) Kevin Stanley, and (3) defendant. Both defense
        attorneys objected to this portion of O’Donnell’s testimony but were overruled.
¶ 100       DeShawn Walls was arrested on June 26, 2009, and subsequently brought to Area 1 where
        O’Donnell interviewed him. After the interview with Walls, O’Donnell contacted Walls’
        girlfriend, Krystal Terry, and another woman with respect to the alibi Walls provided.
        O’Donnell released Walls without charges after Terry traveled to Area 1 for an interview and
        corroborated the alibi.
¶ 101       O’Donnell testified that he interviewed Julius Davis at Area 1 on July 4, 2009. Following
        that interview, Davis viewed a photo array and identified defendant as the driver of the van.
        Davis stated that he observed defendant point a gun and shoot at him as the van fled the scene.
¶ 102       O’Donnell testified that he and O’Brien, along with officers from the gang investigation
        section and fugitive apprehension section, had been visiting known addresses of Kevin Stanley
        in order to locate him. Stanley was arrested on August 7, 2009, and included in a physical
        lineup viewed by Andre Turner and Donise Robertson at Area 1. Andre viewed the lineup first
        and identified Stanley as the shooter in the front passenger seat of the van. After Andre,
        Robertson viewed the lineup and also identified Stanley as the shooter in the front passenger
        seat of the van. O’Donnell testified that, prior to viewing the lineup, Andre and Robertson were
        kept separate until both had fully completed the viewing process.
¶ 103       O’Donnell testified that, on August 28, 2009, he was notified that defendant was arrested.
        O’Donnell then conducted physical lineups that included defendant. At approximately 2:30
        p.m., Julius Davis was the first person to view this lineup. After viewing the lineup, Davis
        identified defendant as the driver of the van who shot at Davis. Counsel for defendant objected
        to this portion of O’Donnell’s testimony, but was overruled.
¶ 104       O’Donnell testified that defendant was allowed to choose his position in the lineup before
        each viewing. When Davis viewed the lineup and made his identification, defendant occupied
        position four. After that first lineup, defendant chose a different position. The next person to
        view the lineup was Andre Turner, at 5:25 p.m., and he also identified defendant as the driver
        of the van. After Andre, Tawanda Sterling viewed the lineup and also identified defendant as
        the driver of the van. Andre and Sterling were kept separate until both of them completed the
        lineup viewing process.
¶ 105       O’Donnell testified that he had asked forensic investigator Kathleen Gauhagen to process
        the van found in the Parnell Street alley and specifically to look for fingerprints. No
        fingerprints were recovered from the van, including the registered owner’s prints. O’Donnell
        testified that, in his experience, the absence of fingerprints indicated that “the vehicle had
        either been wiped down or the occupants of the vehicle had covered their hands to prevent
        leaving fingerprints.”
¶ 106       Upon cross-examination by counsel for Kevin Stanley, O’Donnell testified that no
        fingerprint evidence was found in the van located in the Parnell Street alley, which suggested
        that the van may have been wiped down in order to erase fingerprints. O’Donnell also testified
        that he had spoken to a total of four people when he was verifying the alibi provided by Gerald
        Lauderdale.


                                                   - 13 -
¶ 107       Upon cross-examination by counsel for defendant, O’Donnell testified that the first time he
        had contact with Julius Davis was when Davis was brought to Area 1 by Andre Turner for an
        interview on July 4, 2009. In addition, O’Donnell testified that, on August 28, 2009, Andre and
        Tawanda Sterling arrived at Area 1 together to view lineups that included defendant.
        O’Donnell was aware that Andre and Sterling were in a relationship.

¶ 108                                     15. Lakesha Edwards
¶ 109      Lakesha Edwards testified that Chastity Turner was her youngest child and Andre Turner
        was Chastity’s father. On June 20, 2009, Edwards gave Chastity permission to stay at Andre’s
        house, where she stayed until June 24, 2009. On the morning of June 24, Edwards spoke to
        Chastity and made plans for Chastity to return home. Edwards testified that later that day, her
        uncle, Lavelle Johnson, notified her that Chastity had been shot. When she learned that
        Chastity had been taken to Comers Children’s Hospital, Edwards immediately ran to the
        hospital. Upon her arrival, Edwards was informed that Chastity had died.

¶ 110                               16. Stipulations Introduced by the State
¶ 111        All parties agreed to stipulate that the Secretary of State records showed that, on June 24,
        2009, a certain green 1995 Oldsmobile van was owned by an unrelated individual and that, at
        6:30 a.m. on June 24, this individual reported her van stolen. This green 1995 Oldsmobile van
        was the van which the State argued was used in the shooting.
¶ 112        The parties also stipulated that forensic investigator Donald Fanelli photographed the same
        green 1995 Oldsmobile van and collected eight fired cartridges from inside the van and
        forwarded them to the Illinois State Police Forensic Services for firearms testing. Fanelli also
        photographed a second van, which was the van that Lauderdale was stopped in. The parties
        stipulated that Fanelli recovered the rifle discovered in this second van and that this rifle was
        inventoried and submitted to Forensic Services for firearms testing. A proper chain of custody
        was maintained at all times.
¶ 113        The parties also stipulated that, on July 1, 2009, forensic investigator Kathleen Gauhagen
        processed the 1995 Oldsmobile van,4 specifically looking for any possible fingerprints and
        DNA evidence. Gauhagen found no fingerprints inside the van. DNA swabs were taken from
        various locations inside the van and inventoried with the Chicago police department.
        Gauhagen also recovered a shell casing from the front passenger seat, which was sent to the
        Illinois State Police Forensic Services for firearms testing. A proper chain of custody was
        maintained at all times.
¶ 114        The parties also stipulated that Mary Wong was a forensic scientist employed by the
        Illinois State Police. On June 25, 2009, Wong received a white T-shirt recovered from
        Davionne Whitfield, as well as gunshot residue collection kits administered to Davionne
        Whitfield, Ricardo Foster, Andre Turner, and Joe Walker. Wong analyzed the gunshot residue
        kits and, with a reasonable degree of scientific certainty, opined that the tests indicated that
        four individuals may not have discharged a firearm. A proper chain of custody was maintained
        at all times.



           4
            Her stipulation did not note that the van was green or teal.

                                                      - 14 -
¶ 115        The parties also stipulated that Nicholas Richert was a forensic scientist employed by the
        Illinois State Police Division of Forensic Services and qualified as an expert in the field of
        DNA analysis. On October 6, 2010, Richert received DNA swabs taken by Kathleen Gauhagen
        on July 1, 2009. Richert examined the DNA swabs and, with a reasonable degree of scientific
        certainty, opined that no positive associations could be made between the DNA swabs and the
        DNA profiles of defendant and Kevin Stanley. A proper chain of custody was maintained at all
        times.
¶ 116        The parties also stipulated that Detective Brian Lutzow was employed by the Chicago
        police department as a homicide detective assigned to Area 1 Violent Crimes. On June 24,
        2009, he was assigned to the shooting investigation of Chastity Turner. He canvassed
        witnesses at the scene and afterward transported Donise Robertson to Area 1. Lutzow prepared
        a photo array to show to Robertson. A photo of Kevin Stanley was included in the photo array.
        From this photo array, Robertson identified Stanley as one of the shooters.

¶ 117                                  III. Defense Witness Testimony
¶ 118                                        1. Darren Keith Paulk
¶ 119       After the State rested, counsel for Kevin Stanley called Darren Keith Paulk, who testified
        that he is Stanley’s cousin and has known Stanley his entire life. Paulk testified that, on June
        24, 2009, he was celebrating the birthday of Erica Stevenson, a friend, when he received a call
        “from the area saying a little girl got killed.” The birthday party occurred on West 59th Street,
        and Stanley was at the party. Paulk and his cousin, Keyon Taylor, along with a friend named
        Boo, picked up Stanley between 1 p.m. and 2:30 p.m. and brought Stanley to the party. Paulk
        picked up Stanley around 85th Street and Wallace Street, near Simeon High School.
¶ 120       Paulk testified that he was living at the house where the birthday party was held, so he was
        present throughout the entire day. He observed Stanley enter a vehicle and leave the party
        between 5 p.m. and 6:30 p.m., with Alfonzo Deadwiler and a woman named Nicole. Deadwiler
        and Nicole’s children were also in the vehicle.
¶ 121       Paulk testified that he was convicted of delivery of a controlled substance in 2009. In 2012,
        he was convicted of possession of a controlled substance, for which he was incarcerated for
        one year in the Department of Corrections.
¶ 122       Upon cross-examination by the State, Paulk testified that, in January or February 2010, he
        learned that Stanley had been arrested for murder after a family member told him about it, but
        he did not remember which family member. Paulk never knew Chastity. Paulk also was never
        told what day the murder occurred. However, since he recalled hearing about a girl being killed
        in the Englewood area, he linked that to the day of the birthday party.
¶ 123       Paulk testified that he did not attempt to contact the authorities in 2010 to relay the
        information that Stanley was with him on June 24, 2009. However, he provided this
        information to the police on August 8, 2011. He was not contacted by the police prior to
        August 8, 2011, regarding Stanley’s involvement in the shooting. During his meeting with a
        State investigator on August 8, Paulk stated that he did not remember the exact date in
        question. Paulk told the investigator that he observed Stanley at the birthday party up until 5
        p.m. Paulk next spoke to a defense investigator on December 20, 2013, and stated that he
        observed Stanley at the party until 6:45 p.m. Paulk testified that he was not sure of the time, but
        believed his observation of Stanley at the party fell between 5 p.m. and 6:45 p.m.


                                                    - 15 -
¶ 124       Paulk testified that he had never spoken with Stanley regarding the murder charge or about
        this alibi. Paulk did previously discuss the alibi twice with counsel for Stanley and with other
        witnesses present at the birthday party.

¶ 125                                         2. Keyon Taylor
¶ 126       Next, counsel for Kevin Stanley called Keyon Taylor, who testified that he was a friend of
        Stanley and had known him for 16 years. In June 2009, Taylor was at a barbecue and birthday
        party for Erica Stevenson, who is the mother of Taylor’s two daughters. Taylor’s uncle,
        Herman Payton, told him that evening about the shooting, and he recalled that party
        specifically because it was the same day as the shooting. Taylor testified that he received this
        call sometime in the evening.
¶ 127       Taylor testified that there were many people at the party, including Stanley, whom Taylor
        picked up with Darren Paulk and “Boo.” Taylor picked up Stanley at about 1:30 p.m. near 81st
        Street and Wallace Street and drove to the party. Taylor was at the party throughout the day
        and observed Stanley leave the party with Alfonzo Deadwiler, Deadwiler’s wife Nicole, and
        their kids around 5 p.m. or 5:30 p.m. Stanley did not return to the party after he left.
¶ 128       Taylor testified that, on August 8, 2011, he spoke with a State’s Attorney investigator. He
        was not contacted by the police before August 8. Taylor also testified that he was convicted of
        felony aggravated unlawful use of a weapon in 2008, for which he received probation for two
        years.
¶ 129       Upon cross-examination by the State, Taylor testified that he learned from a friend that
        Stanley was arrested on the day it happened and then later said that he learned of Stanley’s
        arrest a week or two afterwards. Taylor did not learn what Stanley was arrested for until
        investigators spoke with him a few months after Stanley’s arrest. He knew that the murder
        occurred on the day of the birthday party because he remembered being at the party when his
        uncle called him and told him about the murder. Taylor never contacted authorities regarding
        this alibi.

¶ 130                                       3. Alfonzo Deadwiler
¶ 131       Counsel for Kevin Stanley called Alfonzo Deadwiler, who testified that he had known
        Stanley for six years and had met him through Keyon Taylor and Darren Paulk. In June 2009,
        Deadwiler’s mother, Carolyn Lowe, threw a barbecue for Erica Stevenson at her house.
        Stevenson’s birthday was June 24. Deadwiler arrived at the party around 2:30 p.m. or 2:45
        p.m., and Stanley arrived shortly after with Paulk and Taylor, who had driven Stanley to the
        party. Deadwiler was at the party throughout the day, and Stanley never left while Deadwiler
        was there. Deadwiler left the party between 6:30 p.m. and 7 p.m. with his wife, Nicole, their
        children, and Stanley, and they all traveled to Deadwiler’s home in East Chicago, Indiana. The
        drive took approximately 25 to 30 minutes. After they arrived at Deadwiler’s home, Deadwiler
        and Stanley stayed at the house, drinking and watching television. Stanley stayed the night at
        Deadwiler’s home.
¶ 132       Deadwiler testified that he spoke with Stanley’s counsel a couple of months after Stanley
        was incarcerated. Deadwiler also testified that he spoke with an investigator from the State’s
        Attorney’s Office on September 20, 2011.



                                                   - 16 -
¶ 133       Upon cross-examination by the State, Deadwiler testified that, when he spoke with a State
        investigator on September 20, 2011, he did not remember the exact day in question but
        believed the date to have been “the 23rd, 24th, or the 25th.” Deadwiler also testified that he
        was with Stanley on the day he was arrested but dropped him off just before the arrest.
        Deadwiler learned the next morning from his mother that Stanley had been arrested and was
        told that Stanley had been arrested for sitting in front of an abandoned building. Deadwiler did
        not learn that Stanley was arrested for murder until a couple of days afterwards.
¶ 134       Deadwiler testified that he remembered this particular barbecue because he had just moved
        from Wisconsin to East Chicago, Indiana, and he went to his mother’s house only for special
        occasions, and this birthday party was one of them. In August or September 2010, Deadwiler
        learned that Stanley was charged with the murder of Chastity Turner when he spoke with
        Stanley’s lawyer. Deadwiler testified that he had not spoken with Stanley or any other
        witnesses regarding this alibi. Deadwiler never contacted the authorities regarding this alibi.

¶ 135                                  4. Sergeant John Nowakowski
¶ 136       Next, counsel for Kevin Stanley called Sergeant John Nowakowski, who testified that he
        was employed by the Chicago police department and that he met with Andre Turner at Stroger
        Hospital the day after the shooting. Andre told Nowakowski that he knew the occupants of the
        van and had also been told their names.
¶ 137       Upon cross-examination by the State, Nowakowski testified that Andre did not reveal their
        names to him. Nowakowski believed that Andre was still upset with the police at this time.
¶ 138       All parties agreed to stipulate that Kim Taylor worked as an investigator for Whitfield’s
        counsel on December 8, 2010, and that, if Kim Taylor were to testify, she would state that in
        her capacity as an investigator, she spoke with Andre Turner, who told her that the backseat
        passenger was either DeShawn Walls or “Pistol Pete.”

¶ 139                                         IV. Jury Instructions
¶ 140       After all the parties rested, a jury instruction conference was held off the record. Since the
        conference was held off the record, we do not know what the parties or the court discussed
        during it. However, on the next day of trial, the trial court read the results of the conference on
        the record. Since defendant challenges several of the jury instructions on appeal, we provide
        here a detailed description of the trial court’s ruling.
¶ 141       The trial court indicated that counsel for defendant had objected to the circumstantial
        evidence instruction offered by the State on the ground that it was poorly worded and
        confusing. The court read the instruction on the record as follows:
                    “Circumstantial evidence is the proof of facts or circumstances which give rise to a
                reasonable inference of other facts which tend to show the guilt or innocence of the
                defendant. Circumstantial evidence should be considered by you together with all the
                other evidence in the case in arriving at your verdict.”
        This is also verbatim how the pattern jury instruction is worded. Illinois Pattern Jury
        Instructions, Criminal, No. 3.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th). Defense counsel
        did not offer an alternative instruction, and the trial court overruled the defense’s objection.
        The defense also objected to IPI Criminal 4th Nos. 6.07X and 7.02 offered by the State, the



                                                    - 17 -
        instructions for attempted first degree murder and first degree murder, respectively, on the
        ground that they were confusing.
¶ 142       Specifically, counsel objected to the language at the end of the fourth and fifth paragraphs
        of each instruction that stated “you should find the defendant guilty” or “you should find the
        defendant not guilty.” (Emphases added.) IPI Criminal 4th Nos. 6.07X, 7.02. Since there were
        two defendants at trial, the defense argued that the instruction suggested that “if you find for
        one, you could find for the other.” Counsel argued that the phrase “the defendant” in the two
        sentences should be changed to “that defendant” in order to indicate a difference between the
        two defendants. The trial court overruled the objection, stating (1) that the word “that” would
        have to refer back to something and there was nothing for “that” to refer back to and (2) that
        one of the initial instructions was that each defendant should be considered separately by the
        jury.

¶ 143                                      V. Closing Arguments
¶ 144       On appeal, defendant claims that the State engaged in prosecutorial misconduct throughout
        the State’s closing argument. Thus, we describe the parties’ closing arguments, focusing on the
        remarks challenged on appeal.
¶ 145       In its initial closing argument, the State described the gang disputes that occurred in the
        Englewood neighborhood between the two rival factions and how they culminated in the death
        of Chastity Turner. The State’s primary argument concerning defendant focused on the
        eyewitness testimony which corroborated their respective accounts and identified defendant as
        the driver. Julius Davis identified defendant as the driver, which was later corroborated by
        Andre Turner. In addition, Tawanda Sterling identified defendant as the driver. The State
        emphasized that these identifications were significant since all three people knew defendant.
¶ 146       The State also detailed the thoroughness of the police investigation. The State argued that
        the police did everything that they could possibly do regarding the recovered evidence. In
        addition, they recovered several guns and other evidence and investigated persons of interest
        and eliminated them as suspects once they had proper grounds. The State discussed Gerald
        Lauderdale and how he was brought in by the police but not positively identified by any of the
        witnesses. Lauderdale had a gun when he was arrested, and the State opined that “Lauderdale
        had this gun because why? He’s either getting out of town. He’s getting out of town because
        you know what, some bad stuff happened on Stewart that evening. *** Getting out of town, got
        to have something to defend himself because there’s going to be hell to pay.” Counsel for
        defendant objected but was overruled by the trial court.
¶ 147       In his closing argument, counsel for defendant argued that the identifying witnesses were
        unreliable and had a motive to collude in their identifications. Andre Turner was physically
        turned around for part of the time when the van pulled up. He was distracted. His identification
        of defendant “happened in a fleeting second or seconds through the front window of the van”
        and Andre had a problem with defendant. Tawanda Sterling spoke with police on June 24, but
        did not mention defendant’s name. The first time she told authorities that she knew the identity
        of the driver was on August 28 when Andre brought her to the police station. Also, she was
        drinking when the incident occurred, which counsel argued affected her ability to observe.
        Julius Davis made his identification of defendant while hiding behind a tree to protect himself
        from gunfire. Counsel argued that Davis’s judgment was off because he left the cover of the


                                                   - 18 -
        tree to hide behind a bush when a tree provides better cover. Counsel stated that “he’s ducking,
        he’s running, he’s not seeing.”
¶ 148       In its rebuttal closing argument, the State characterized defendant’s argument as
        speculative. The State argued that the defense’s arguments were “not based on any admissible
        evidence, not based on the evidence you heard, and basically not supported by the law.” The
        State argued that the identifying witnesses were all credible. Andre was credible because he
        testified that he was a “drug-dealing gang member” and could not deny that fact in the future
        since it was recorded. Julius Davis was credible because he would likely be labeled as a “gang
        snitch” for providing his testimony and would now have to fear retaliation from Gargamel,
        defendant’s brother. Tawanda Sterling and Donise Robertson were credible because “they
        violated rule number one of the street, they didn’t stop snitching.”
¶ 149       Responding to the defense argument that the identifying witnesses were mistaken, the State
        argued: “All four main witnesses misidentified the same three defendants. What are the
        chances of that?” The State argued that this was impossible.
¶ 150       The State argued that the defense’s tactic regarding the identifying witnesses was to “deny,
        deflect, and offer a disingenuous defense.” The trial court sustained counsel for defendant’s
        objection when the State characterized the defense’s argument as “when everything is against
        you, you just come up with stuff. Collusion.” The State later argued that the theory that this
        was a conspiracy of which Andre was the “puppeteer” was “another big pile of hooey.” The
        State argued that it would have to be Donise Robertson, not Andre, who was at the center of
        any conspiracy because she made identifications to the police at the crime scene while Andre
        was at the hospital:
                     “I mean, picture the scene. It’s ridiculous. Picture the scene. Grandma Donise out
                 there, everyone gather around, get those dogs, get them to stop crying, I’ll be in shock.
                 Gather around. I know we’re all sorry about Chastity. But you know what, Ronald and
                 the boys, they’ve been crowding in on my baby-sitting business and this is a great time
                 for us to set up a conspiracy against them. Now, Tawanda, you run along and you let
                 Andre know this is what we’re gonna do. We’re gonna put Old Ronnie in the van,
                 Kevin in the van, [Whitfield] in the van. This is where they’re gonna be. Run off, let me
                 know, so we all get together. It’s ridiculous. It’s ridiculous.”
¶ 151       The State argued against the reliability of the alibi witnesses provided by Kevin Stanley,
        arguing: “Remember every alibi has a little bit of a lie in it, and this one has a lot of lie.” The
        State stressed that the alibi witnesses were not certain of dates, did not visit Stanley in prison,
        and did not contact authorities to tell them about the alibi. The State also observed that counsel
        for Kevin Stanley did not offer further evidence to corroborate the testimony of the alibi
        witnesses. The State argued that Stanley’s alibi witnesses were not believable: “They have a
        constitutional right to get up there and tell you the biggest bunch of garbage that they can come
        up with, and that’s exactly what they did, ladies and gentlemen.” Later, the State argued:
        “Those alibi witnesses might as well have been Elvis, the Easter Bunny, and Santa Clause [sic]
        for the amount of credibility they had and they want you to rely on that testimony in setting
        them free.” The trial court sustained counsel for defendant’s objection but only as to the word
        “them.”




                                                    - 19 -
¶ 152                                  VI. Jury Verdict and Sentencing
¶ 153       The jury found defendant guilty of all counts, and on May 7, 2014, counsel for defendant
        filed a posttrial motion for a new trial. Defendant argued that the State failed to prove his guilt
        beyond a reasonable doubt and that he was denied due process when the trial court overruled
        objections to several arguments made by the State during its rebuttal closing argument. On July
        9, 2014, the trial court denied the motion.
¶ 154       On July 9, 2014, the trial court sentenced defendant to 50 years for the first degree murder
        of Chastity Turner, 25 years for the attempted first degree murder of Joe Walker, and 25 years
        for the attempted first degree murder of Andre Turner. These sentences were to be served
        consecutively for a total of 100 years.
¶ 155       On July 9, 2014, defendant filed a timely notice of appeal, and this appeal followed.

¶ 156                                              ANALYSIS
¶ 157       On this appeal, defendant claims (1) that the State failed to prove defendant guilty beyond
        a reasonable doubt, (2) that the trial court erred by allowing testimony by a police officer that
        he issued an investigative alert for defendant’s arrest after a photo array and statement by a
        witness who did not testify at trial, (3) that defendant was denied a fair trial when the State was
        permitted to introduce evidence of allegedly unrelated guns and other allegedly unrelated
        information, (4) that defendant was denied a fair trial by being tried jointly with codefendant
        Kevin Stanley when the evidence against Stanley was allegedly greater, (5) that defendant was
        denied a fair trial by allegedly inaccurate or misleading jury instructions, and (6) that the State
        committed prosecutorial misconduct during its closing arguments.
¶ 158       For the following reasons, we affirm defendant’s conviction.

¶ 159                                    I. Sufficiency of the Evidence
¶ 160       First, defendant argues that the State’s evidence was insufficient. Although three
        occurrence eyewitnesses identified defendant as the driver of the van and all three witnesses
        knew defendant prior to the shooting, defendant argues that the State’s evidence was
        insufficient because these witnesses did not identify him until a week or more after the
        shooting, they had limited opportunities to view the driver, and they had a motive to fabricate
        since defendant belonged to a rival gang faction.
¶ 161       When assessing a challenge to the sufficiency of the evidence, a court considers
        “ ‘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 omitted.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson
        v. Virginia, 443 U.S. 307, 319 (1979)). If we find that the evidence meets this standard, we
        must affirm the conviction (People v. Herrett, 137 Ill. 2d 195, 203 (1990)); we will not retry
        the defendant (People v. Beauchamp, 241 Ill. 2d 1, 8 (2011); People v. Wheeler, 226 Ill. 2d 92,
        114 (2007); People v. Smith, 185 Ill. 2d 532, 541 (1999)).
¶ 162       On review, this court must consider all the evidence in the light most favorable to the State
        (Collins, 106 Ill. 2d at 261), and we will not substitute our judgment for that of the trier of fact
        unless the sufficiency of the evidence is so improbable, unsatisfactory, or unreasonable that it
        justifies a reasonable doubt of defendant’s guilt (Wheeler, 226 Ill. 2d at 115; Smith, 185 Ill. 2d
        at 541).

                                                     - 20 -
¶ 163       As we observed, three eyewitnesses identified defendant as the driver of the van during the
        June 24, 2009, shooting. First, Andre Turner testified that he had known defendant for 10 or 11
        years and that, as the van approached, Andre was able to observe the front of the van and could
        identify defendant as its driver. Andre testified that he later viewed a lineup on August 28,
        2009, and identified defendant as the driver. Defense counsel cross-examined Andre about his
        lack of cooperation with the police immediately after the shooting and about his ability to view
        the van’s driver. Andre testified that his view of the driver was not obstructed by any glare
        from sunlight and that he had informed the ASA in his statement on August 7, 2009, that
        defendant was the driver.
¶ 164       Second, Julius Davis testified that he had known defendant for six or seven years and that,
        as the van was driving away from Andre’s house, defendant shot at Davis from the driver’s
        side. Defense counsel also cross-examined Davis about his opportunity to view, and Davis
        admitted that the whole incident lasted a few seconds and that, during the incident, Davis was
        trying to duck behind a tree and then some bushes to avoid being shot.
¶ 165       Third, Tawanda Sterling testified that, although she was unable to obtain a clear view of the
        person shooting from the front passenger seat, she was able to observe the driver, whom she
        identified as defendant. She testified that she had known defendant for a couple of years.
        Defense counsel cross-examined Sterling about the fact that she had provided a statement to
        the ASA on June 24, 2009, and that, in that statement, she had stated that “she noticed the
        driver of the van had a gun, but did not recognize who he was.”
¶ 166       The witnesses’ delay in identification and their ability to view were explored by defense
        counsel on cross-examination, and the jury was able to weigh their answers. A jury’s findings
        are accorded great weight because the jurors observed and heard the witnesses firsthand, and
        thus, the jurors are best equipped to determine the witnesses’ credibility, weigh their
        testimony, draw reasonable inferences from the evidence, and ultimately choose among
        conflicting accounts of events. See Wheeler, 226 Ill. 2d at 114-15; Smith, 185 Ill. 2d at 541-42;
        People v. Williams, 193 Ill. 2d 306, 338 (2000).
¶ 167       Defendant also argues that the witnesses had a motive to lie in their identification of
        defendant since he was a rival gang member. However, the witnesses, who were all targets of
        the drive-by shooting, also had every motive to see the real culprits brought to justice. The
        victims would not want to leave the real culprits on the street free to try again another day. In
        addition, the claimed motive for fabrication was also the motive for the shooting itself. By
        defendant’s logic, the same rivalry which motivated a drive-by shooting would also always
        serve as a motive to fabricate an identification. Lastly, defendant’s membership in a rival gang
        faction was a fact that was presented and weighed by the jury.
¶ 168       As a result, considering the evidence in the light most favorable to the State, as we must,
        we cannot find that the evidence against defendant was insufficient to identify him as the driver
        of the van, as he argues on appeal.

¶ 169                        II. Hearsay Evidence From Detective O’Donnell
¶ 170       Second, defendant argues that the trial court erred by allowing hearsay testimony by a
        police officer that he issued an investigative alert for defendant’s arrest after conducting a
        photo array and receiving a statement from a witness who did not testify at trial.



                                                   - 21 -
¶ 171        Detective Michael O’Donnell testified that, on June 24, 2009, the day of the shooting, he
        viewed both the crime scene and the van and then returned to Area 1, where he was present for
        the interview with Donise Robertson and her identification of Davionne Whitfield from a
        photo array. He testified that, shortly after midnight on June 25, he was informed that
        Robertson had also identified codefendant Kevin Stanley from a photo array. O’Donnell then
        conducted physical lineups from which Tawanda Sterling and Robertson separately identified
        Whitfield. Both Sterling and Robertson testified at trial.
¶ 172        Detective Michael O’Donnell testified that, at 4:30 p.m. on June 25, 2009, he conducted a
        photo array with Deannosha Sharkey and that, after viewing the photo array, Sharkey also
        provided a statement. O’Donnell testified that he then issued an investigative alert for three
        individuals: (1) defendant, (2) DeShawn Walls, and (3) codefendant Kevin Stanley. O’Donnell
        testified that an investigative alert warns an officer that the subject is “considered dangerous”
        and that “they’re wanted in this case for the homicide and that they are to be arrested and
        brought to Area 1 for that purpose.” Sharkey did not testify at trial, and codefendant’s counsel
        objected to this portion of O’Donnell’s testimony. When codefendant’s counsel asked to
        approach the bench, the trial court asked if he wanted the court reporter present, and he replied
        no. As a result, the discussion by the trial court and the attorneys concerning the objection was
        held off the record. Back on the record, defendant’s counsel stated that he joined the objection
        on the “[b]asis of hearsay,” and the trial court stated that their objections were overruled.
¶ 173        On appeal, defendant argues that the admission of O’Donnell’s testimony regarding
        Sharkey was prejudicial since the other three identifications against him were weak and that its
        admission also violated his sixth amendment right to confront the witnesses against him.
        People v. Whitfield, 2014 IL App (1st) 123135, ¶ 25 (“a defendant is guaranteed the right to
        confront witnesses against him by the confrontation clause of both the United States and
        Illinois Constitutions”); U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.
¶ 174        In response, the State argues that this portion of the detective’s testimony was not hearsay
        because it was admitted to show the steps of the officer’s investigation rather than for the truth
        of the matter asserted and that, even if this testimony was hearsay and was admitted in error,
        any alleged error was harmless. In addition, the State argues that, since the testimony was not
        hearsay, the confrontation clause does not apply. Crawford v. Washington, 541 U.S. 36, 59 n.9
        (2004) (“The [Confrontation] Clause also does not bar the use of testimonial statements for
        purposes other than establishing the truth of the matter asserted.”).
¶ 175        Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted.
        People v. Edgecombe, 317 Ill. App. 3d 615, 627 (2000). When hearsay is excluded from
        evidence, it is “primarily because of the lack of an opportunity to cross-examine the declarant.”
        People v. Whitfield, 2014 IL App (1st) 123135, ¶ 25. When hearsay is admitted into evidence
        pursuant to some exception to the rule against hearsay, the value of the statement depends on
        the credibility of the out-of-court declarant. Edgecombe, 317 Ill. App. 3d at 627.
¶ 176        However, an out-of-court statement that is offered for a purpose other than to prove the
        truth of the matter asserted is not hearsay in the first place, and thus it does not implicate the
        confrontation clause. Whitfield, 2014 IL App (1st) 123135, ¶ 25.
¶ 177        When a police officer recounts the steps of his or her investigation for the limited purpose
        of showing only the course of the investigation, that testimony is not hearsay because it is not
        being offered for its truth. Whitfield, 2014 IL App (1st) 123135, ¶ 25. Although courts
        sometimes loosely refer to this type of statement as an “exception” to the rule against hearsay

                                                     - 22 -
        (Edgecombe, 317 Ill. App. 3d at 627), this type of statement is not an exception, but rather it is
        not hearsay in the first place. See Whitfield, 2014 IL App (1st) 123135, ¶ 25.
¶ 178        A police officer may recount the steps taken in the investigation of a crime and may
        describe the events leading up to the defendant’s arrest only “ ‘ “where such testimony is
        necessary and important” ’ ” to the jury’s comprehension of the State’s case. Edgecombe, 317
        Ill. App. 3d at 627 (quoting People v. Warlick, 302 Ill. App. 3d 595, 598-99 (1998), quoting
        People v. Simms, 143 Ill. 2d 154, 174 (1991)); see also Whitfield, 2014 IL App (1st) 123135,
        ¶ 25 (admissible only “where such testimony is necessary to fully explain the State’s case to
        the trier of fact”). The police officer may not testify to information beyond what is necessary to
        explain the officer’s actions. Edgecombe, 317 Ill. App. 3d at 627; People v. Hunley, 313 Ill.
        App. 3d 16, 33 (2000). The State may not use this “limited investigatory procedure” to place
        into evidence the substance of any out-of-court statement that the officer hears during his
        investigation but may elicit only the substance of a conversation to establish the police
        investigative process. Edgecombe, 317 Ill. App. 3d at 627; Hunley, 313 Ill. App. 3d at 33-34.
¶ 179        The admission of such police investigative testimony is usually within the sound discretion
        of the trial court, and a reviewing court will generally not reverse a trial court absent an abuse
        of discretion. Whitfield, 2014 IL App (1st) 123135, ¶ 25; see also People v. Ciborowski, 2016
        IL App (1st) 143352, ¶ 88 (speaking of evidentiary rulings in general). An abuse of discretion
        occurs where the trial court’s decision is arbitrary, fanciful, or unreasonable or where no
        reasonable person would agree with the position adopted by the trial court. Ciborowski, 2016
        IL App (1st) 143352, ¶ 88.
¶ 180        However, defendant argues on appeal that the issue of whether a defendant’s constitutional
        right of confrontation was violated is reviewed de novo, since the issue does not involve
        disputed facts. In support, defendant cites People v. Leach, 2012 IL 111534, ¶ 64, in which our
        supreme court applied a de novo standard of review to the question of whether the admission of
        an autopsy report, without the author’s appearance at trial, violated a defendant’s right of
        confrontation. In Leach, the facts were undisputed. The declarant’s statement, i.e., the report,
        and the attorney’s objections at trial were before the supreme court.5 By contrast, in the case at
        bar, the declarant’s actual statement—namely, the statement by Sharkey—is not before us, nor
        is the discussion by the attorneys concerning their objections. What the parties are arguing
        about on appeal are the possible inferences which the jury might have drawn from O’Donnell’s
        testimony. Thus, in this case, an abuse of discretion standard makes more sense since we, as an
        appellate court, are reviewing a cold record, and we do not even know the explanation of the
        objection offered by defense counsel or the reasons given by the trial court for its ruling.
        However, under either a de novo or abuse of discretion standard, our ultimate conclusion is the
        same, as we explain below.
¶ 181        Even when admission of this type of testimony is in error, the error is subject to harmless
        error analysis. The error does not require reversal under either the rule against hearsay or the
        confrontation clause if the error was harmless beyond a reasonable doubt. People v. Stechly,
        225 Ill. 2d 246, 304 (2007) (citing People v. Patterson, 217 Ill. 2d 407, 427-28 (2005)). “The


            5
            In Leach, defendant filed a motion in limine, and the trial court held a pretrial hearing on the issue.
        The supreme court quoted the parties’ arguments from both their filings and the pretrial hearing. Leach,
        2012 IL 111534, ¶¶ 4-5.

                                                        - 23 -
        test is whether it appears beyond a reasonable doubt that the error at issue did not contribute to
        the verdict obtained.” Stechly, 225 Ill. 2d at 304 (citing Patterson, 217 Ill. 2d at 428).
¶ 182       In the case at bar, the jurors could have reasonably inferred, by a process of elimination,
        that it was Sharkey who had identified defendant. First, of the three eyewitnesses who
        identified defendant at trial, none had identified him by June 25, 2009, when O’Donnell issued
        the investigative alert. Andre Turner testified that he initially refused to cooperate with the
        police and that he did not identify defendant as the driver until August 2009. Julius Davis
        testified that he identified defendant in July 2009, and Tawanda Sterling testified that the first
        time she mentioned defendant’s name to the police was in August 2009. Thus, the jurors knew
        that none of the testifying witnesses had identified defendant before O’Donnell issued his alert
        for defendant on June 25, 2009. Second, Detective O’Brien testified that Whitfield had been
        arrested at 9 p.m. on June 24, 2009, and transported to Area 1 for questioning. However
        O’Brien also testified that, after all the witness interviews and investigations on the night of
        June 24, he still did not know who the driver was. Thus, based on all this information, the jury
        could have reasonably inferred that Sharkey, who was interviewed during the late afternoon on
        June 25, 2009, was the person who provided the identification which led to O’Donnell’s
        subsequent alert for defendant.
¶ 183       However, we still cannot say that the trial court abused its discretion by admitting this
        testimony as a description of the police investigative process. First, O’Donnell was recounting
        the steps that he had taken in the immediate aftermath of the shooting, and this was one of the
        steps. Second, O’Donnell issued an alert for three different individuals; thus Sharkey’s
        statement could have concerned any one of the three and not necessarily defendant. Third,
        Detective O’Brien testified that he was familiar with the street gangs in the Englewood area
        and that, in June 2009, there was an internal gang conflict between the Gangster Disciples from
        two different blocks. O’Brien, who was O’Donnell’s partner, testified that his knowledge was
        based on his 10 years of experience during which he had investigated nearly 1000 murders and
        shootings in Englewood. Thus, the jury could have also reasonably inferred that it was
        O’Brien’s expertise and knowledge which had provided the basis for a motive and made
        defendant a suspect. Third, as a general rule, “[w]here the content of the nontestifying
        witness’s statement is not revealed, the mere fact that the jury could infer” the fact that
        “something the nontestifying witness said caused the police to suspect the defendant” does not
        necessarily mean “that the defendant has the right to cross-examine the nontestifying witness.”
        People v. Alvarez, 344 Ill. App. 3d 179, 188 (2003).
¶ 184       Even if the trial court abused its discretion by admitting O’Donnell’s testimony about
        Sharkey as part of the police investigative process, or even if a de novo standard applies, we
        must find that any error was harmless. The claimed error, with respect to a fourth identification
        received by the police, was harmless in light of the three eyewitness identifications that were
        presented and subjected to cross-examination at trial. As we observed above, “[t]he test is
        whether it appears beyond a reasonable doubt that the error at issue did not contribute to the
        verdict obtained.” Stechly, 225 Ill. 2d at 304 (citing Patterson, 217 Ill. 2d at 428). In light of the
        three eyewitness identifications of defendant, which were all subjected to cross-examination
        and which were uncontradicted at trial, it appears beyond a reasonable doubt that any error
        with respect to an additional fourth identification received by the police did not contribute to
        the verdict obtained. For these reasons, we do find this claim persuasive.



                                                     - 24 -
¶ 185                            III. Admission of Guns and Other Evidence
¶ 186        Third, defendant claims that he was denied a fair trial by the admission of (1) evidence
        showing that the State arrested Christopher Cannon and Gerald Lauderdale and then
        determined that they were not involved in the shooting and (2) evidence of gangs, guns, and
        bad associates.
¶ 187        “A criminal defendant, whether guilty or innocent, is entitled to a fair, orderly, and
        impartial trial conducted according to law.” (Internal quotation marks omitted.) People v. Blue,
        189 Ill. 2d 99, 138 (2000). This right to due process is guaranteed by both the federal and state
        constitutions. Blue, 189 Ill. 2d at 138; U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2.
        Due process requires that a defendant’s guilt may be proved only by legal and competent
        evidence, uninfluenced by the bias or prejudice that can be raised by irrelevant evidence. Blue,
        189 Ill. 2d at 129.
¶ 188        “ ‘Evidence is relevant if it tends to prove a fact in controversy or render a matter in issue
        more or less probable.’ ” People v. Wilcox, 407 Ill. App. 3d 151, 169 (2010) (quoting People v.
        Nelson, 235 Ill. 2d 386, 432 (2009)); Ill. R. Evid. 401 (eff. Jan. 1, 2011). In addition, even
        when evidence is relevant, a trial court may exercise its discretion to exclude it “ ‘if its
        prejudicial effect substantially outweighs its probative value.’ ” Wilcox, 407 Ill. App. 3d at 169
        (quoting People v. Walker, 211 Ill. 2d 317, 337 (2004)); Ill. R. Evid. 403 (eff. Jan. 1, 2011).
        Defendant argues both that evidence was irrelevant (Ill. R. Evid. 401 (eff. Jan. 1, 2011)) and
        that, even if it was relevant, it should have been excluded as prejudicial (Ill. R. Evid. 403 (eff.
        Jan. 1, 2011)).
¶ 189        Defendant argues, first, that the State used evidence concerning the investigation and
        release of Cannon and Lauderdale in order to bolster its case against defendant by showing that
        it had conducted a thorough investigation. Defendant argues that this evidence should have
        been barred as not relevant to the State’s prosecution of defendant. This is a situation where the
        State is confounded if it does not and confounded if it does. If the State had failed to show that
        it had thoroughly investigated Cannon and Lauderdale before excluding them as suspects, then
        the defense would have argued that the State had failed to investigate two viable, alternative
        suspects. See, e.g., Alvarez, 344 Ill. App. 3d at 187 (defendant claimed that he was denied a fair
        trial when he was prevented from showing that the police had investigated other suspects prior
        to his arrest). As a result, we do not find this argument persuasive.
¶ 190        Defendant argues, second, that the State’s introduction of evidence concerning gangs and
        bad associates was both irrelevant and highly prejudicial, and he cites in support People v.
        Decaluwe, 405 Ill. App. 3d 256, 268 (2010), in which this court found that it was error to admit
        evidence where “the State has not advanced a reasonable explanation regarding how the
        [exhibits] were relevant to the crime charged.”
¶ 191        In the case at bar, the State’s theory of the case was that this was a drive-by shooting
        motivated by an internal gang conflict between two warring factions of the same gang. As a
        result, the different gang memberships and associates of both the victims and the accused were
        relevant to proving the State’s case.
¶ 192        Defendant argues, lastly, that the trial court erred by admitting evidence of four guns that
        were shown by the State to be either not involved in the shooting or not connected to
        defendant. The four guns were two guns recovered from victim Andre Turner’s property,
        which was also the crime scene; one gun recovered from a van in which Lauderdale, an initial


                                                     - 25 -
        suspect, was riding; and one gun recovered from a different residence on Andre Turner’s
        block.
¶ 193        The State’s ballistics evidence showed (1) that the bullet recovered during the autopsy
        from Chastity Turner’s body was a .22-caliber bullet; (2) that twelve .22-caliber cartridge
        casings were recovered from the street in front of Andre Turner’s house; (3) that neither the
        bullet nor the casings were fired from the four guns (listed above); and (4) that two .40-caliber
        cartridge casings, found near Andre Turner’s front porch, were fired from the Kel-Tec
        semiautomatic pistol found on top of his roof.
¶ 194        Defendant admits that he waived this issue for appeal by failing to object at trial and asks
        us either to consider the issue under the plain error doctrine (People v. Piatkowski, 225 Ill. 2d
        551, 565 (2007)), or to consider his failure to object as ineffective assistance of his trial counsel
        (Strickland v. Washington, 466 U.S. 668, 686 (1984)).
¶ 195        The plain error doctrine allows a reviewing court to consider an unpreserved error when
        “(1) a clear or obvious error occurred and the evidence is so closely balanced that the error
        alone threatened to tip the scales of justice against the defendant, regardless of the seriousness
        of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected
        the fairness of the defendant’s trial and challenged the integrity of the judicial process,
        regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565.
¶ 196        Under Strickland, to prevail on a claim of ineffective assistance of counsel, a defendant
        must show both (1) that his counsel’s performance was objectively unreasonable under
        prevailing professional norms and (2) that there is a reasonable probability that, but for
        counsel’s unprofessional errors, the result of the proceeding would have been different. In re
        Edgar C., 2014 IL App (1st) 141703, ¶¶ 77-78 (citing People v. Domagala, 2013 IL 113688,
        ¶ 36). See also Strickland, 466 U.S. at 687.
¶ 197        Under either theory, we must determine whether any error occurred. Under the plain error
        doctrine, “the first step” is to determine whether any error occurred at all. Piatkowski, 225 Ill.
        2d at 565. Similarly, to succeed on a claim of ineffective assistance of counsel, defendant must
        show errors by counsel that were so “serious” that counsel cannot be said to have been
        “functioning” as counsel. Strickland, 466 U.S. at 687. Under either theory, defendant must
        show that the admission of this evidence constituted a clear error that counsel should have
        objected to.
¶ 198        In the case at bar, if the State had not presented these four guns in its case-in-chief, and
        defendant had then introduced evidence of the seizure of all these guns from the crime scene or
        from a nearby residence or from another suspect, it would have looked as though the State had
        something to hide. Considering the proximity of these guns to either the crime scene or a
        possible suspect, it was reasonable for the State to try to rule them out as the murder weapon
        both during the unfolding investigation and before the jury. Since we cannot find any error, the
        issue does not implicate either the plain error doctrine or suggest ineffectiveness on the part of
        trial counsel for not objecting.

¶ 199                      IV. Joint Trial with Codefendant Kevin Stanley
¶ 200      Defendant argues that he was denied a fair trial by being tried jointly with codefendant
        Kevin Stanley.



                                                     - 26 -
¶ 201        The trial court has broad discretion in deciding whether or not to sever codefendants for
        trial, and as a reviewing court, we will affirm, unless that decision constitutes an abuse of
        discretion. People v. Fleming, 2014 IL App (1st) 113004, ¶ 38. An abuse of discretion occurs
        where the trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable
        person would agree with the position adopted by the trial court. Ciborowski, 2016 IL App (1st)
        143352, ¶ 88.
¶ 202        A defendant does not have a right to be tried separately from his codefendants when
        charged with an offense arising out of a common occurrence. People v. Leak, 398 Ill. App. 3d
        798, 829 (2010) (citing People v. Ruiz, 94 Ill. 2d 245 257 (1982)); People v. Byron, 116 Ill. 2d
        81, 92 (1987) (“There is no automatic right to be tried separately from one’s codefendants.”).
        With severance, the primary questions are whether the defenses of the respective defendants
        are so antagonistic to each other that they could not receive a fair trial without a severance
        (Leak, 398 Ill. App. 3d at 830; Byron, 116 Ill. 2d at 92) and whether the statement of a
        nontestifying codefendant will implicate defendant. People v. James, 348 Ill. App. 3d 498, 507
        (2004) (“severance is necessary when one defendant has made out-of-court admissions that
        implicate a codefendant”); Bruton v. United States, 391 U.S. 123, 137 (1968) (the admission of
        a statement at a joint trial by a nontestifying codefendant that implicates the defendant in the
        crime violates the defendant’s constitutional right of confrontation).
¶ 203        In the case at bar, defendant does not deny—nor could he—that the charges against both
        himself and Stanley arose out of a common occurrence. Not only was there a common
        occurrence, but the jury was also instructed about accountability, and the State argued that
        defendant was accountable for Stanley’s shootings since defendant drove the van from which
        Stanley fired his weapon. Defendant does not argue that Stanley’s defense was antagonistic to
        his own defense, and the State did not introduce statements by Stanley implicating defendant.
¶ 204        In addition, even if there was any error, defendant invited it, as the following facts show.
        On October 29, 2012, defendant filed a motion seeking to be severed from both Whitfield and
        Stanley. However, on May 13, 2013, when defendant’s severance motion was heard, the trial
        court asked:
                     “THE COURT: Who do you want to be severed from?
                     DEFENDANT’S COUNSEL: I want to be severed from Mr. Whitfield.”
        The trial court then asked defendant’s counsel if he wanted to argue his motion, and he replied
        that he did. Defendant’s counsel then spent several pages explaining why his client’s trial
        should be severed from Whitfield’s trial, concluding with: “we believe, your Honor, that the
        trial should be severed from Mr. Whitfield.” Not once did he mention codefendant Kevin
        Stanley.
¶ 205        Whitfield’s counsel then argued that her client should be severed from both Stanley and
        defendant because a joint trial would violate the other defendants’ due process rights. The trial
        court interjected “Not your client,” and Whitfield’s counsel responded “Right.” The ASA
        agreed that it “might be just easier to sever Davionne Whitfield’s case from the other two.” The
        trial court then stated that defendant’s “motion for severance will be granted.”
¶ 206        Whitfield’s counsel then inquired how they were “proceeding from here,” and the trial
        court ruled as follows:
                     “THE COURT: I just severed [defendant] from your client [Whitfield]. That’s all.
                 My intention would be [defendant] at this point unless [Stanley’s counsel] files his own


                                                   - 27 -
                motion, then I will take a look at it. But I don’t think you have grounds to ask for a
                motion for severance based on what you told me. If you want me to rule on your
                motion, your motion for severance is denied.”
        While the “you” in the above paragraph is ambiguous, the “you” seems to refer to Whitfield’s
        counsel and the motion that she made, in essence, on behalf of Stanley for severance.
¶ 207       In any event, defendant’s counsel did not object to the trial court’s ruling to try defendant
        and Stanley together and instead inquired only whether there would be one trial with two
        juries:
                     “ASA: I think in effect then it would be Stanley and [defendant] being tried with
                one jury.
                     THE COURT: One jury, and Mr. Whitfield will have his own jury.
                     DEFENDANT’S COUNSEL: Is it the Court’s desire at this time or maybe you
                don’t know, double jury or—
                     THE COURT: Let’s do it one time. Yeah.”
        Defendant’s counsel again offered no objection to this ruling. As a result, defendant and
        Stanley were tried together in front of a single jury.
¶ 208       A party may not ask the trial court to proceed in one manner and then later contend on
        appeal that this course of action was in error. Ciborowski, 2016 IL App (1st) 143352, ¶ 99;
        People v. Chatman, 2016 IL App (1st) 152395, ¶ 39 n.15; Lozman v. Putnam, 379 Ill. App. 3d
        807, 828-29 (2008) (citing People v. Harvey, 211 Ill. 2d 368, 385 (2004), citing People v.
        Carter, 208 Ill. 2d 309, 319 (2003)). To permit a party to use, as a vehicle for reversal, the
        exact action that it procured in the trial court would offend all notions of fair play and
        encourage duplicity by litigants. Ciborowski, 2016 IL App (1st) 143352, ¶ 99; Lozman, 379 Ill.
        App. 3d at 829 (citing Harvey, 211 Ill. 2d at 385, citing People v. Villarreal, 198 Ill. 2d 209,
        227 (2001)). When a party procures or invites a particular ruling by the trial court, even if the
        ruling was improper, he cannot later contest that same ruling on appeal. Ciborowski, 2016 IL
        App (1st) 143352, ¶ 99 (citing People v. Bush, 214 Ill. 2d 318, 332 (2005)).
¶ 209       This is even more true when the issue before the trial court is subject only to an abuse of
        discretion review. Cf. Ciborowski, 2016 IL App (1st) 143352, ¶ 99. How can this court find
        that the trial court abused its discretion toward a defendant when the court did the very thing
        which the defendant asked for? See People v. Johnson, 2013 IL App (2d) 110535, ¶ 46 (when
        the parties agree to joinder, a reviewing court has “no application of discretion to review for
        abuse”).
¶ 210       In the case at bar, the trial court specifically asked defendant’s counsel who defendant
        wanted to be severed from, and he stated only Whitfield, with no mention of Stanley. The trial
        court then gave defense counsel exactly what he had asked for: severance from Whitfield. The
        doctrine of invited error blocks defendant from raising this issue on appeal, absent ineffective
        assistance of counsel.
¶ 211       On appeal, defendant asks us to review the issue of his joint trial with Stanley under the
        plain error doctrine or as ineffective assistance of counsel. We described the plain error
        doctrine in the prior section, and we will not repeat it here. As we observed above, the first step
        in the plain error doctrine is to determine whether there was any error at all. Piatkowski, 225 Ill.
        2d at 565 (under the plain error doctrine, “the first step” is to determine whether any error
        occurred at all). As we just explained, under the invited error doctrine, we cannot find any.

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¶ 212        As for the Strickland ineffective assistance test, the first prong requires us to determine
        whether counsel’s performance was objectively unreasonable under prevailing professional
        norms. Edgar C., 2014 IL App (1st) 141703, ¶¶ 77-78 (citing Domagala, 2013 IL 113688,
        ¶ 36). See also Strickland, 466 U.S. at 687. “[I]n order to establish deficient performance, the
        defendant must overcome the strong presumption that the challenged action or inaction may
        have been the product of sound trial strategy.” (Internal quotation marks omitted.) People v.
        Manning, 241 Ill. 2d 319, 327 (2011). “Matters of trial strategy are generally immune from
        claims of ineffectiveness of counsel.” (Internal quotation marks omitted.) Manning, 241 Ill. 2d
        at 327.
¶ 213        In the case at bar, defendant’s counsel’s decision to seek severance only from Whitfield
        and to not object to a joint trial with Stanley could have been a matter of trial strategy.
        Defendant does not argue that he and Stanley had antagonistic defenses or that statements by
        Stanley were used against him. Counsel could have reasonably thought that being tried with
        the more culpable Stanley would make his client look less culpable by comparison. In addition,
        the initial identification of Stanley occurred a number of days before the initial identification of
        defendant, which bolstered defendant’s counsel’s argument that the identification of his client
        came too late to be believed.6
¶ 214        Defendant quotes in support Byron, 116 Ill. 2d at 93, which in turn was quoting United
        States v. Sampol, 636 F.2d 621, 647 (D.C. Cir. 1980), which stated:
                      “In such cases when there is a gross disparity in the quantity and venality of the
                 testimony against the respective joint defendants it is fair to inquire ‘whether the jury
                 can reasonably be expected to compartmentalize the evidence as it relates to separate
                 defendants in the light of its volume and limited admissibility.’ [Citations.]” Sampol,
                 636 F.2d at 647.
        The above quote states that “it is fair to inquire,” which is undoubtedly true. Sampol, 636 F.2d
        at 647. However, it still does not support the idea that a trial court must order a severance from
        one codefendant when counsel argues only for severance from a different codefendant—which
        the trial court grants—or the idea that a joint trial can never be part of a counsel’s reasonable
        trial strategy. In addition, in Byron, the Illinois Supreme Court’s primary reason for finding
        that the trial court erred by not granting the defendant’s requested severance is that his
        “ ‘defense was clearly entirely antagonistic to’ ” his codefendant’s defense (Byron, 116 Ill. 2d
        at 92 (quoting People v. Bean, 109 Ill. 2d 80, 96 (1985))), which is not a factor in this case.
¶ 215        For these reasons, we do not find defendant’s severance arguments persuasive.

¶ 216                                        V. Jury Instructions
¶ 217       Defendant also challenges three of the jury instructions given by the trial court.
¶ 218       The trial court’s decision to give, or not give, a particular instruction is within the sound
        discretion of the trial court. People v. Anderson, 2012 IL App (1st) 103288, ¶ 34. Generally, a
        reviewing court will review jury instructions only for an abuse of discretion. People v. Mohr,
        228 Ill. 2d 53, 66 (2008); In re Dionte J., 2013 IL App (1st) 110700, ¶ 64. An abuse of
        discretion occurs where the trial court’s decision is arbitrary, fanciful, or unreasonable, or

            6
             Donise Robertson identified Stanley on June 24, 2009, the night of the shooting, as the shooter in
        the front passenger seat. By contrast, Julius Davis did not identify defendant until July 4, 2009.

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        where no reasonable person would agree with the position adopted by the trial court.
        Ciborowski, 2016 IL App (1st) 143352, ¶ 88.
¶ 219       Although jury instructions are generally reviewed for an abuse of discretion, our standard
        of review is de novo when the question is whether the given instructions accurately explained
        the applicable law to the jury. Anderson, 2012 IL App (1st) 103288, ¶ 34. See also Barth v.
        State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008). De novo consideration means
        that we perform the same analysis a trial court would perform. Condon & Cook, L.L.C. v.
        Mavarakis, 2016 IL App (1st) 151923, ¶ 55.

¶ 220                              1. Circumstantial Evidence Instruction
¶ 221       Defendant claims that the trial court erred by giving IPI Criminal 4th No. 3.02, the
        circumstantial evidence instruction, over his objection. This instruction states:
                    “Circumstantial evidence is the proof of facts or circumstances which give rise to a
                reasonable inference of other facts which tend to show the guilt or innocence of the
                defendant. Circumstantial evidence should be considered by you together with all the
                other evidence in the case in arriving at your verdict.” IPI Criminal 4th No. 3.02.
¶ 222       Defendant argues that the trial court erred by giving this instruction because all the
        evidence against him was direct, namely, the eyewitness identifications of himself and of
        Stanley, for whom the State argued defendant was accountable. However, the State’s evidence
        was more than just identification testimony. For example, the witnesses testified about the
        circumstances leading up to the shooting which thereby provided its motive, namely, the
        internal gang dispute between two factions of the same gang. Also, the circumstances
        concerning the dispute, the nature of the shooting, and the differing but coordinated roles of the
        individuals in the van could permit the jury to reasonably infer defendant’s accountability for
        Stanley’s actions. Thus, we cannot find that the trial court abused its discretion by deciding to
        include this pattern jury instruction.

¶ 223                                      2. Offense Instructions
¶ 224       Defendant claims that the trial court erred by denying his request to provide modified
        versions of two pattern jury instructions. Specifically, he contests the trial court’s decision to
        give, as written, IPI Criminal 4th No. 6.07X, which describes the elements for attempted first
        degree murder and IPI Criminal 4th No. 7.02, which describes the elements for first degree
        murder.
¶ 225       Both instructions include the following sentence:
                     “If you find from your consideration of all the evidence that each one of those
                propositions has been proved beyond a reasonable doubt, you should find the defendant
                guilty.” (Emphasis added.) IPI Criminal 4th Nos. 6.07X, 7.02
        Defendant argues that the trial court should have changed the phrase “the defendant” to “that
        defendant” because otherwise the instruction does not distinguish between defendants and
        thereby allows the jury to “consider[ ] all the evidence”—whether or not it applies to
        defendant—in finding him guilty.
¶ 226       First, Illinois Supreme Court Rule 451 provides that: “Whenever Illinois Pattern Jury
        Instructions, Criminal, contains an instruction applicable in a criminal case *** and the court
        determines that the jury should by instructed on the subject, the IPI Criminal instruction shall

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        be used, unless the court determines that it does not accurately state the law.” (Emphasis
        added.) Ill. S. Ct. R. 451 (eff. Apr. 8, 2013). Neither the instructions nor their committee notes
        provide for modification in the event of a joint trial, and a joint trial is not an uncommon
        occurrence.
¶ 227       Illinois Supreme Court Rule 451’s use of the word “shall” means that the wording of an
        instruction is not optional—unless it does not accurately state the law. See People v.
        Dominguez, 2012 IL 111336, ¶ 17 (“The use of the word ‘shall’ means that it is mandatory
        ***.”); People v. Robinson, 217 Ill. 2d 43, 51 (2005) (“ ‘shall’ means shall,” and thus is
        “obligatory”); People v. Lampitok, 207 Ill. 2d 231, 261 (2001) (“[T]he primary definition of
        ‘shall’ is, ‘[h]as a duty to; more broadly, is required to.’ Black’s Law Dictionary 1379 (7th ed.
        1999).”). See also Berz v. City of Evanston, 2013 IL App (1st) 123763, ¶ 36 (“the use of the
        word ‘shall’ means that it is mandatory” (internal quotation marks omitted)).
¶ 228       Second, when a reviewing court considers a challenge to any one instruction, we do not
        examine the instruction in isolation but rather we examine the instructions “as a whole” in
        order to determine whether, in their entirety, they “fairly, fully and comprehensively apprised
        the jury of the relevant legal principles.” People v. Banks, 237 Ill. 2d 154, 208 (2010). In
        considering this question, we exercise de novo review. As we explained above, although jury
        instructions are generally reviewed for an abuse of discretion, our standard of review is
        de novo when the question is whether the given instructions accurately explained the
        applicable law to the jury. Anderson, 2012 IL App (1st) 103288, ¶ 34.
¶ 229       Here, as defendant observes in his brief to us, the trial court also instructed the jury to give
        separate consideration to each defendant and that any evidence limited to one defendant should
        not be considered as to the other. Thus, when we consider the instructions in their entirety, as
        we must, we cannot find that they failed to accurately explain the applicable law to the jury.
¶ 230       Thus, for these reasons, we do not find defendant’s arguments concerning the jury
        instructions persuasive.

¶ 231                                   VI. Closing Arguments
¶ 232       Lastly, defendant argues that the State committed prosecutorial misconduct during its
        closing arguments.

¶ 233                                      1. Standard of Review
¶ 234       It is not clear whether the appropriate standard of review for this issue is de novo or abuse
        of discretion. We have previously made this same observation in several cases, including
        People v. Sandifer, 2016 IL App (1st) 133397, ¶ 54 (“The standard of review for closing
        arguments is currently unclear.”), People v. Alvidrez, 2014 IL App (1st) 121740, ¶ 26, People
        v. Land, 2011 IL App (1st) 101048, ¶¶ 149-51, and People v. Phillips, 392 Ill. App. 3d 243,
        274-75 (2009). The Second District Appellate Court has agreed with our observation that the
        standard of review for closing remarks is an unsettled issue. People v. Burman, 2013 IL App
        (2d) 110807, ¶ 26; People v. Robinson, 391 Ill. App. 3d 822, 839-40 (2009).
¶ 235       Our supreme court has found: “Whether statements made by a prosecutor at closing
        argument were so egregious that they warrant a new trial is a legal issue this court reviews
        de novo.” People v. Wheeler, 226 Ill. 2d 92, 121 (2007). However, the supreme court in
        Wheeler cited with approval People v. Blue, 189 Ill. 2d 99 (2000), in which the supreme court


                                                     - 31 -
        had previously applied an abuse of discretion standard. Wheeler, 226 Ill. 2d at 121. In Blue and
        numerous other cases, our supreme court had found that the substance and style of closing
        argument is within the trial court’s discretion and will not be reversed absent an abuse of
        discretion. Blue, 189 Ill. 2d at 132 (“we conclude that the trial court abused its discretion” by
        permitting certain prosecutorial remarks in closing); People v. Caffey, 205 Ill. 2d 52, 128
        (2001); People v. Williams, 192 Ill. 2d 548, 583 (2000); People v. Armstrong, 183 Ill. 2d 130,
        145 (1998); People v. Byron, 164 Ill. 2d 279, 295 (1995). Our supreme court has reasoned:
        “Because the trial court is in a better position than a reviewing court to determine the
        prejudicial effect of any remarks, the scope of closing argument is within the trial court’s
        discretion.” People v. Hudson, 157 Ill. 2d 401, 441 (1993). Following Blue and other supreme
        court cases like it, this court had consistently applied an abuse of discretion standard. People v.
        Tolliver, 347 Ill. App. 3d 203, 224 (2004); People v. Abadia, 328 Ill. App. 3d 669, 678 (2001).
¶ 236       Since Wheeler, appellate courts have been divided regarding the appropriate standard of
        review. Alvidrez, 2014 IL App (1st) 121740, ¶ 26 (noting that the issue remains divided). The
        First and Third Divisions of the First District have applied an abuse of discretion standard,
        while the Third and Fourth Districts and the Fifth Division of the First District have applied a
        de novo standard of review. Compare People v. Love, 377 Ill. App. 3d 306, 316 (1st Dist., 1st
        Div. 2007), and People v. Averett, 381 Ill. App. 3d 1001, 1007 (1st Dist., 3d Div. 2008), with
        People v. McCoy, 378 Ill. App. 3d 954, 964 (3d Dist. 2008), People v. Palmer, 382 Ill. App. 3d
        1151, 1160 (4th Dist. 2008), and People v. Ramos, 396 Ill. App. 3d 869, 874 (1st Dist., 5th Div.
        2009). However, we 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. E.g.,
        Sandifer, 2016 IL App (1st) 133397, ¶ 55 (1st Dist., 4th Div.) (declining to choose a standard
        of review and finding that it “need not resolve the appropriate standard of review because”
        under either standard the “holding is identical”).

¶ 237                                      2. Substantial Prejudice
¶ 238       In order to “preserve claimed improper statements during closing argument for review, a
        defendant must object to the offending statements both at trial and in a written posttrial
        motion.” Wheeler, 226 Ill. 2d at 122. A State’s closing will lead to reversal only if the
        prosecutor’s remarks created “substantial prejudice.” Wheeler, 226 Ill. 2d at 123; People v.
        Johnson, 208 Ill. 2d 53, 64 (2003); People v. Easley, 148 Ill. 2d 281, 332 (1992) (“The remarks
        by the prosecutor, while improper, do not amount to substantial prejudice.”). Substantial
        prejudice occurs “if the improper remarks constituted a material factor in a defendant’s
        conviction.” Wheeler, 226 Ill. 2d at 123.
¶ 239       When reviewing claims of prosecutorial misconduct in closing argument, a reviewing
        court will consider the entire closing arguments of both the prosecutor and the defense attorney
        in order to place the remarks in context. Wheeler, 226 Ill. 2d at 123; Johnson, 208 Ill. 2d at 113;
        People v. Tolliver, 347 Ill. App. 3d 203, 224 (2004). A prosecutor has wide latitude during
        closing argument. Wheeler, 226 Ill. 2d at 123; Blue, 189 Ill. 2d at 127. “In closing, the
        prosecutor may comment on the evidence and any fair, reasonable inferences it yields ***.”
        People v. Nicholas, 218 Ill. 2d 104, 121 (2005).
¶ 240       “Statements will not be held improper if they were provoked or invited by the defense
        counsel’s argument.” People v. Glasper, 234 Ill. 2d 173, 204 (2009). For example, in Glasper,
        defendant argued that the prosecutor had “shifted the burden of proof to defendant” when, in

                                                    - 32 -
        response to defendant’s claim of a coerced confession, the prosecutor had argued in rebuttal
        closing: “ ‘Where’s the evidence of that?’ ” Glasper, 234 Ill. 2d at 212. Our supreme court
        found that the comment “did not shift the burden to defendant” but that it merely “pointed out
        that no evidence existed in this case to support defendant’s theory” and that it was “invited by
        defense counsel’s argument.” Glasper, 234 Ill. 2d at 212.

¶ 241                                       3. Parties’ Arguments
¶ 242       Defendant argues that the State engaged in prosecutorial misconduct in closing arguments
        in three specific ways: (1) by asserting that counsel fabricated its argument that identifying
        witnesses had colluded against defendant, (2) by applying evidence to defendant that was
        applicable only to his codefendant in order to “bridge the gap in evidence” and convict
        defendant, and (3) by using arguments that were designed to inflame the passions of the jury in
        order to distract from the issue of whether the identifying witnesses’ testimony was credible.
¶ 243       In response, the State argues that defendant failed to preserve for review most of the
        statements objected to during closing argument by including only two of the objected-to
        comments in his posttrial motion. In addition, the State argues that its comments during closing
        argument either drew proper inferences from the evidence or responded to comments made
        during the defense’s closing arguments.
¶ 244       Defendant concedes that he did not preserve for review all of the comments that he now
        claims constituted prosecutorial misconduct. However, he asks us to review them either
        pursuant to the plain error doctrine or as ineffective assistance of counsel.

¶ 245                                     4. Conspiracy Arguments
¶ 246       The first set of remarks that defendant challenges on appeal concern the prosecutor’s
        response in its rebuttal to the defense’s conspiracy argument. In his closing, defendant argued
        that all three identifying witnesses shared a motive to falsely identify defendant, who belonged
        to a rival gang faction, and that all three identified defendant too late to be believed. In
        response, the State argued that, “when everything is against you, you just come up with stuff.
        Collusion.” Defendant objected, and the trial court sustained the objection. Later, the State
        argued that the defense’s conspiracy argument was a “big pile of hooey” and that it was
        “Grandma Donise” who would have had to be at the center of any alleged conspiracy, not
        Andre Turner, since Donise Robertson was the first person to identify people in the van.
        Defendant did not object to the comments regarding “hooey” and “Grandma Donise.”
¶ 247       On appeal, defendant argues that his conspiracy theory was not a “pile of hooey” because it
        was supported by reasonable inferences drawn from the evidence—essentially, the same
        arguments that the defense made during its closing. Defendant also argues that the prosecutor
        was mistaken in suggesting that Donise Robertson identified defendant when she did not.
¶ 248       We do not find defendant’s arguments persuasive because, first, defense counsel had an
        opportunity to explain to the jury during his closing why defendant’s conspiracy theory was
        based on reasonable inferences drawn from the facts, and thus the jury was not deprived of an
        opportunity to hear and consider both sides of this issue. Second, the prosecutor did, in fact,
        state during the State’s rebuttal that “Grandma Donise never identifies the driver.” Thus, we
        find that these comments did not create substantial prejudice.



                                                   - 33 -
¶ 249                                     5. Conflating Defendants
¶ 250       Next, defendant argues that the prosecutor committed misconduct during the State’s
        rebuttal by mistakenly lumping the defendants together. The prosecutor argued: “All four main
        witnesses misidentified the same three defendants. Let me say that again. All four main
        witnesses misidentified the same three defendants. What are the chances of that?” Although
        the defense did not object to these remarks at the time, defendant argues now that these
        remarks were factually inaccurate, since only three of the main witnesses identified defendant.
        Defendant is correct that only three of the main witnesses identified defendant. However, since
        attacking these three identifications was the main subject of the defense’s closing, we cannot
        find that these remarks created substantial prejudice.
¶ 251       The prosecutor also argued that codefendant Stanley’s alibi witnesses were as credible as a
        belief in “the Easter Bunny” and “they want you to rely on that testimony in setting them free.”
        (Emphases added.) Defendant’s counsel objected, and the trial court ruled: “As to ‘them,’ I’ll
        sustain it.” Counsel also preserved his objection to this remark in his posttrial motion. In light
        of the fact that the State argued that defendant was liable for Stanley’s actions under an
        accountability theory, we cannot find that this remark created substantial prejudice.

¶ 252                                  6. Allegedly Irrelevant Evidence
¶ 253        Defendant argues that the State cited evidence in closing that was irrelevant with respect to
        defendant. First, defendant contests the following remarks made in the State’s initial closing
        argument:
                     “And I want you to think about the investigation in this case. You heard about all
                these guns and you saw all these guns here. You’ve heard about different people that
                were brought in, put in line-ups in relation to evidence. The police in this case did
                everything you would ever ask them to do. They cast a wide net. Who is this? Why did
                [they do] this? Anybody. Let’s find out who it is. Let’s get every gun that’s associated
                with anything, find out if it’s the murder weapon.”
¶ 254        Defendant argues that these remarks were improper because they asked the jurors to focus
        on the thoroughness of the State’s investigation rather than the primary issue, which was the
        credibility of the three identification witnesses. Defendant did not object to these comments at
        trial and thus failed to preserve them as an issue for our review. However, this issue is just a
        recasting of defendant’s earlier argument that this evidence was irrelevant, which we
        addressed earlier and found unpersuasive. Supra ¶ 197.
¶ 255        Defendant also contests the following remarks made by the State in rebuttal:
                     “All the evidence in this case, testimony, physical, scientific, medical, expert
                demonstrative, photographic, paints one picture, ladies and gentlemen, you know what
                it is, that there was a dispute, an intra-gang rival dispute between the defendants and
                others.
                     They stole a van, they surprise attack, they fired on unsuspecting, unarmed
                individuals at that time and innocent people. They drove off, ditched the car, and ran
                into their neighborhood and they’re still trying to run today. That’s the State’s case.
                Okay.”
        Although defendant did not object at trial to these remarks, defendant argues now that all the
        “physical, scientific, medical, expert demonstrative, photographic” evidence in this case was

                                                    - 34 -
        irrelevant with respect to defendant and that the only relevant question for him was whether the
        three identification witnesses were credible. What defendant overlooks is that the other
        evidence was relevant to proving the circumstances of the drive-by shooting—the physical
        evidence of the fired cartridge cases recovered at the scene and in the van, the scientific and
        expert evidence that these cases were fired from at least two different guns, the medical and
        expert evidence that Chastity Tuner died from a gunshot wound that was not fired at close
        range, and the photographic evidence concerning the photo arrays and identifications. Thus,
        we do not find this argument by defendant persuasive.

¶ 256                                     7. Remarks About Gangs
¶ 257       Defendant argues that the State emphasized gang violence in both its opening and closing
        remarks.
¶ 258       How do you prosecute a drive-by shooting by one gang faction against another faction
        without talking about gangs? Defendant argues that the State improperly emphasized gang
        violence in the neighborhood. This is a case where a nine-year-old child was gunned down
        while washing her pet dogs in her own driveway. The emphasis was inherent in the crime
        itself. Thus, we cannot find this argument persuasive.

¶ 259                                         CONCLUSION
¶ 260       On this appeal, defendant claimed (1) that the State failed to prove defendant guilty beyond
        a reasonable doubt, (2) that the trial court erred by allowing hearsay testimony by a police
        officer that he issued an investigative alert for defendant’s arrest after a photo array and
        statement by a witness who did not testify at trial, (3) that defendant was denied a fair trial
        when the State was permitted to introduce evidence of allegedly unrelated guns and other
        allegedly unrelated information, (4) that defendant was denied a fair trial by being tried jointly
        with codefendant Kevin Stanley when the evidence against Stanley was allegedly greater, (5)
        that defendant was denied a fair trial by allegedly inaccurate or misleading jury instructions,
        and (6) that the State committed prosecutorial misconduct in its closing arguments.
¶ 261       For the foregoing reasons, we do not find these arguments persuasive and affirm.

¶ 262      Affirmed.




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