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                                Appellate Court                             Date: 2017.07.18
                                                                            15:17:49 -05'00'




                    People v. Irwin, 2017 IL App (1st) 150054



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



District & No.     First District, Second Division
                   Docket No. 1-15-0054



Filed              May 2, 2017
Rehearing denied   May 25, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 12-C4-40256(02);
Review             the Hon. Gregory Robert Ginex, Judge, presiding.



Judgment           Affirmed.


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

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Eric Leafblad, Miles J. Keleher, and Jesse B. Guth, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              JUSTICE MASON delivered the judgment of the court, with opinion.
                   Justice Pierce concurred in the judgment and opinion.
                   Presiding Justice Hyman dissented in part, with opinion.
                                              OPINION

¶1       On March 4, 2012, around 7:30 p.m., police officers in Maywood responded to a radio call
     of “shots fired.” On their way to the location specified in the call, the officers saw a vehicle
     traveling at high speed run through a red light and head past them in the opposite direction. The
     officers pursued the car with lights and siren activated, but the car did not stop until blocked by
     another responding police vehicle. After all four occupants exited the car, one of the officers
     discovered a handgun on the floor in the front passenger seat where defendant Kristopher Irwin
     had been sitting. Irwin was tried and convicted of aggravated unlawful use of a weapon
     (AUUW) based on his failure to possess a valid Firearm Owner’s Identification (FOID) card.
     720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010). Irwin was sentenced to three years’
     imprisonment.
¶2       Irwin raises several issues on appeal relating to the admission of evidence during his trial.
     Finding no error warranting a new trial, we affirm.

¶3                                            BACKGROUND
¶4       Maywood police officer Joseph Escamilla was on patrol in a marked police car on the
     evening of March 4, 2012. Around 7:30 p.m., he received a “shots fired” call over his police
     radio. Escamilla’s partner, Officer Danielle Deering, accompanied him, and they drove
     southbound on 17th Avenue toward the Eisenhower expressway. As they approached the
     bridge across the expressway, they saw a four-door Dodge sedan, travelling at a high rate of
     speed, make a left turn as it went through a red light and head northbound past them on 17th
     Avenue. Escamilla activated his vehicle’s lights and siren, made a U-turn, and followed. The
     driver did not stop or slow down, but as he tried to make a right turn onto Van Buren Street, the
     driver was cut off by Officer Aaron Peppers’ police car. Peppers was responding to
     Escamilla’s radio call regarding the fleeing vehicle. Peppers immediately exited his vehicle
     and shouted commands to the occupants of the Dodge to put their hands up and keep them
     visible.
¶5       Escamilla parked behind the Dodge. He approached on the driver’s side and instructed
     Deering to approach the passenger side. Escamilla acted as the business officer, i.e., the officer
     who questions the driver during a traffic stop, and Deering acted as the guard officer, whose
     job it is to ensure the safety of the officers and occupants of the vehicle. Peppers observed from
     in front of the Dodge.
¶6       Escamilla illuminated the inside of the Dodge with his car’s spotlight and his own
     flashlight. He could see there were four occupants but could not determine their race or gender.
     As he approached the driver’s door, Escamilla saw through the rear window that the person in
     the front passenger seat (later identified as Irwin) made a “sudden movement.” Escamilla was
     about five feet away and described Irwin’s movement as “his body just drop[ped] very
     quickly” a few inches as he bent down at the waist and then came back up. The movement only
     took a second or two. Neither Deering nor Peppers noticed Irwin’s movement, nor did they see
     any of the other occupants move after the Dodge was stopped.
¶7       The car had two bucket seats divided by a console in the front and a bench seat in the rear.
     Escamilla asked the driver for his license, but the driver did not have one, so Escamilla ordered
     him out of the car and had him stand in front of Peppers’ vehicle. Escamilla then directed Irwin


                                                  -2-
       out of the car and had him stand with his hands on the hood of the Dodge. Escamilla directed
       the individual sitting in the rear passenger side seat to get out next and also had him place his
       hands on the hood of the car. About 10 seconds passed between the time Irwin got out of the
       car and the person sitting in the rear passenger side seat exited. When the fourth occupant
       sitting in the rear driver’s side seat (Irwin’s co-defendant Derrick Craddock) got out of the car,
       he pushed Escamilla and tried to flee.
¶8          By this time, Officer George Adamidis had arrived on the scene. Escamilla grabbed
       Craddock by the waist and felt a blunt object in his waistband. With Deering’s assistance,
       Craddock was handcuffed, and Adamidis recovered a 9mm Beretta handgun from his
       waistband.
¶9          Once all the occupants were out of the Dodge, Deering did an inventory search and
       removed from the floor of the front passenger seat area a black 9mm BPI handgun. The gun
       was over an inch thick. Neither Escamilla nor Deering had seen the gun in the car as they were
       standing on opposite sides of the car before directing the occupants out, and neither had seen
       Irwin with a gun. The gun was in plain view and would have been inches from Irwin’s feet
       while he was in the car. About three minutes passed between the time Irwin exited the car and
       Deering found the gun.
¶ 10        Deering was not watching the rear passengers during the entire encounter, but it would
       have been difficult for a person sitting in the rear passenger seat to reach between the front
       seats to deposit a gun on the floor without being noticed. There was space under the front seats,
       but Deering did not remember how that area appeared. Deering could not see the feet of the
       rear passengers until the door opened.
¶ 11        Adamidis took the gun from Deering and cleared it of ammunition. It was fully loaded with
       one bullet in the chamber. The gun was never tested for fingerprints, and a trace of its serial
       number did not reveal Irwin as the owner. Irwin was arrested and later charged with AUUW.
¶ 12        Craddock ultimately pled guilty. Before trial, Irwin’s counsel filed several motions
       in limine to exclude testimony. The trial court ruled that (i) the police witnesses could testify
       they knew Irwin but not about any other arrests or encounters, (ii) the officers could testify that
       they pulled over the Dodge while responding to a “shots fired” call over the police radio but
       not elaborate further, and (iii) the State could not comment on Irwin’s silence after his arrest.
       Irwin’s counsel made a standing objection to testimony concerning the “shots fired” radio call.
       The State asked for a few minutes so that it could advise its witnesses of the court’s rulings and
       the parameters of their testimony.
¶ 13        At trial, the officers recounted the events described above. The State referenced the “shots
       fired” call in its opening statement, and Escamilla, Deering, and Peppers all testified that they
       responded to a “shots fired” call but did not provide any further details. Irwin’s counsel
       objected to the prosecutor’s and witnesses’ references to “shots fired.” The State made no
       mention of a “shots fired” call in closing or rebuttal argument, instead referring to it once as an
       “emergency call.”
¶ 14        State’s Exhibit 2 was a photograph of Irwin taken on the night he was arrested. The exhibit
       consists of a black and white photocopy of two photographs of Irwin, laid out next to each
       other. One photograph is a frontal shot of Irwin’s head and shoulders; the photograph next to it
       is a profile shot of Irwin’s head and shoulders. In the photos, Irwin had longer curly hair and
       was wearing a dark T-shirt. Based on the record, we can conclude that Irwin’s hair was shorter


                                                    -3-
       at trial and he was wearing a shirt and tie. No number or other identifying information is on the
       photos.
¶ 15        The State first used Exhibit 2 with Escamilla. Irwin’s counsel objected. Out of the presence
       of the jury, counsel argued that Irwin was not contesting that he was the man who had been
       sitting in the front passenger seat of the Dodge and that since identification was not at issue,
       admission of the “mug shot” would be irrelevant and prejudicial. The State argued that the
       exhibit was relevant to the police’s recognition of Irwin, and since Irwin looked different at
       trial, the “jury is entitled to see who the officers removed from the vehicle.” Irwin’s counsel
       responded that the State’s reason for submitting this photo was “they think he looks more like
       a thug in this picture than he does now.” The trial court ruled that Exhibit 2 was not a mug shot
       and allowed the State to use it over Irwin’s objection.
¶ 16        At one point in Adamidis’s testimony, the prosecutor asked how he recognized Irwin, to
       which Adamidis replied, “multiple street encounters.” As this response violated the court’s
       order in limine, the court sustained Irwin’s objection, struck the testimony, and instructed the
       jury to disregard it. Irwin’s counsel later moved for a mistrial based on this testimony. The trial
       court denied the motion.
¶ 17        The prosecutor then asked Adamidis if he recognized Irwin from the traffic stop, and
       Adamidis replied that he did. The prosecutor further queried “but the defendant didn’t look like
       he does now, does he?” Irwin’s objection was overruled. Adamidis identified Exhibit 2 as a
       photograph of Irwin as he looked at the time of the traffic stop.
¶ 18        Although the State did not originally seek to publish Exhibit 2 to the jury, it later did so
       and, again over defense counsel’s objection, the exhibit was admitted into evidence and sent
       back to the jury room.
¶ 19        During Deering’s cross-examination, she was asked about the police report of the incident
       and testified that she did not prepare it but read it in preparation for her testimony. She also
       prepared to testify by meeting with the prosecutors, while Escamilla and other police officers
       were present. On redirect, the prosecutor asked Deering about the preparation of her testimony
       and then asked “didn’t I tell you I only wanted you to tell the truth?” Irwin’s objection to this
       question was overruled. Deering agreed that the prosecutor had given her those instructions.
¶ 20        Irwin’s counsel also asked that the State be prevented from arguing during closing that the
       Dodge was “fleeing,” but the trial court denied the request, finding that it was a reasonable
       inference from the evidence. The court also denied Irwin’s request for a jury instruction on the
       “shots fired” call, which would have informed the jury of the limited purpose for which the
       testimony was admitted and that it could not be considered for the truth of the assertion that
       shots were, in fact, fired.
¶ 21        Before closing arguments, the trial court instructed the jury that the arguments were not
       evidence. The State argued that the officers saw the Dodge “fleeing” the vicinity of “an
       emergency call that they were responding to.” There was no other mention of the “shots fired”
       call in the State’s opening or rebuttal closing argument.
¶ 22        Irwin’s counsel argued that there was no evidence linking Irwin to the gun; it was not
       registered to him and no fingerprints were recovered. Counsel noted that Irwin had not been
       nervous or sweaty when he got out of the car as would be expected if he knew a gun was on the
       floor by his seat. In rebuttal, the State argued that Irwin had no reason to be nervous because he
       believed the police would not find the gun and went on: “what does he do when he gets out? He


                                                    -4-
       doesn’t, he’s not under arrest. He doesn’t alert the officer *** for her own safety that there’s a
       gun on that floor board, not mine. He doesn’t say anything about that gun.” Irwin’s objection to
       this argument was sustained.
¶ 23       Irwin was convicted of aggravated unlawful use of a weapon. In his posttrial motion, Irwin
       argued that (i) the “shots fired” testimony was hearsay that violated his rights under the
       Confrontation Clause, (ii) admission of the photographs taken of him the night he was arrested
       was error, (iii) the State impermissibly vouched for the credibility of Deering and commented
       on Irwin’s silence after arrest, and (iv) Adamidis violated the in limine order by referring to his
       “street encounters” with Irwin. Irwin’s posttrial motion was denied and he timely appealed.

¶ 24                                             ANALYSIS
¶ 25        At oral argument, the State conceded that two errors were committed during Irwin’s trial:
       first, the State conceded that the trial court should have given the jury a limiting instruction
       regarding the “shots fired” testimony; second, the State admitted that the photographs of Irwin
       should not have been sent to the jury room, although it contends the photographs were properly
       admitted into evidence. The State maintains, however, that neither of these errors, nor any of
       the other issues raised by Irwin, warrant a new trial.
¶ 26        As to those errors the State has conceded or that we find occurred, the State bears the
       burden to show that they are harmless beyond a reasonable doubt. In re Brandon P., 2014 IL
       116653, ¶ 50 (“Confrontation clause violations are subject to harmless error review.”); see also
       People v. Jacobs, 2016 IL App (1st) 133881, ¶¶ 77-78 (improper admission of evidence
       subject to harmless error review); People v. Campbell, 2012 IL App (1st) 101249, ¶¶ 32-33
       (reviewing trial court’s failure to give limiting instruction for harmless error).
                “When determining whether an error is harmless, a reviewing court may ‘(1) focus on
                the error to determine whether it might have contributed to the conviction; (2) examine
                the other properly admitted evidence to determine whether it overwhelmingly supports
                the conviction; or (3) determine whether the improperly admitted evidence is merely
                cumulative or duplicates properly admitted evidence.’ ” In re Brandon P., 2014 IL
                116653, ¶ 50 (quoting In re Rolandis G., 232 Ill. 2d 13, 43 (2008)).
¶ 27        All but one of the errors raised by Irwin on appeal concern the trial court’s rulings on the
       admission of evidence. A trial court’s evidentiary rulings are discretionary, and therefore, such
       rulings will not be overturned absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89
       (2001) (Illinois courts apply abuse of discretion standard when reviewing trial court’s decision
       admitting hearsay). An evidentiary ruling constitutes an abuse of discretion when it is
       arbitrary, fanciful, or unreasonable. People v. Hanson, 238 Ill. 2d 74, 101 (2010); Caffey, 205
       Ill. 2d at 89. A court may exercise its discretion and exclude evidence, even if it is relevant, if
       the danger of unfair prejudice substantially outweighs its probative value. Hanson, 238 Ill. 2d
       at 102; Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 28        Irwin first argues that the “shots fired” radio call—used in the State’s opening statement
       and in officer testimony—was inadmissible hearsay and violated his right to confront his
       accusers. Both the federal and state constitutions guarantee the right of confrontation. U.S.
       Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Because the declarant is not available for
       cross-examination, hearsay evidence—an out-of-court statement offered to prove the truth of
       the matter asserted—can violate a defendant’s right to confront the witnesses against him.
       People v. Peoples, 377 Ill. App. 3d 978, 983 (2007); People v. Jura, 352 Ill. App. 3d 1080,

                                                    -5-
       1085 (2004) (“The fundamental reason for excluding hearsay is the lack of an opportunity to
       cross-examine the declarant.”).
¶ 29        Generally, hearsay evidence is inadmissible. Ill. R. Evid. 802 (eff. Jan. 1, 2011). An
       exception exists when the evidence is “offered for the limited purpose of showing the course of
       a police investigation where such testimony is necessary to fully explain the State’s case to the
       trier of fact.” People v. Williams, 181 Ill. 2d 297, 313 (1998) (admitting contents of 911 tape to
       show officer acting in the course of his official duties); Jura, 352 Ill. App. 3d at 1085.
       Specifically, police officers can testify to the statements of others when such evidence is not
       offered to prove the truth of the matter asserted but for the officer to explain investigative steps.
       People v. Rush, 401 Ill. App. 3d 1, 15 (2010). Because such testimony referencing statements
       of others can impinge on the right of confrontation and is subject to abuse, it should be
       admitted sparingly and only when necessary. See People v. Cameron, 189 Ill. App. 3d 998,
       1004 (1989) (“ ‘The need for the evidence is slight, the likelihood of misuse great.’ ” (quoting
       McCormick on Evidence § 249, at 734 (Edward W. Cleary ed., 3d ed. 1984))). Further, such
       evidence when admitted should be accompanied by an instruction to the jury describing the
       limited purpose for its admission. Williams, 181 Ill. 2d at 313-14.
¶ 30        The trial court certainly could have, in the exercise of its discretion, determined that
       reference to an “emergency call” would have adequately informed the jury why the police gave
       chase to the Dodge. Without being told that the call message was “shots fired,” the jury could
       readily have concluded that the emergency was of a serious nature, given Peppers’ conduct in
       cutting off the Dodge and immediately ordering the vehicle’s occupants to put up their hands.
¶ 31        The existence of discretion—here, whether or not to admit evidence—necessarily means
       that not only one correct answer exists. For if that were true, the ruling would not be
       discretionary. See People v. Witherspoon, 379 Ill. App. 3d 298, 310 (2008) (upholding a trial
       court’s finding under abuse of discretion standard of review does not necessarily mean an
       opposite finding would be an abuse of discretion). And our role on review is not to substitute
       our judgment for that of the trial court. People v. Cookson, 335 Ill. App. 3d 786, 793 (2002);
       see also People v. Braddy, 2015 IL App (5th) 130354, ¶ 32. So even if we believe that advising
       the jury of an “emergency call” would have sufficed, we must still decide whether the trial
       court abused its discretion in determining that references to “shots fired” were admissible.
¶ 32        Here, a reasonable trial judge could have concluded that the fact that police were
       responding to a call of “shots fired” was necessary to inform the jury of the reason why
       Escamilla and Deering, instead of proceeding to the location to which they were directed by
       the radio call, decided to pursue a vehicle they saw run a red light. Without the context of the
       call, the jury would be left to wonder why officers decided to divert from responding to the
       scene. Further, if the driver’s only offenses were speeding and running a red light, the reason
       Escamilla called for backup would have been unexplained and Peppers’ use of his vehicle to
       block the Dodge would have appeared extreme. Upon eventually curbing the vehicle, the
       officers’ conduct in directing all of its occupants to raise their hands and get out of the car is
       inexplicable unless a jury understands the nature of the radio assignment to which police were
       responding. Finally, the call of “shots fired” did not relate to or tend to prove the offense with
       which Irwin was charged. Therefore, we find no abuse of discretion in the court’s decision to
       permit this testimony in the first instance.
¶ 33        That said, it was unnecessary for three officers to repeat the contents of the radio call. Once
       the jury understood from Escamilla’s testimony the nature of the call, no more needed to be

                                                     -6-
       said to explain the officers’ actions. But repetition of the “shots fired” testimony does not
       render this otherwise admissible evidence reversible error, particularly where the record
       reveals that, other than to state the reason for their actions, the officers did not dwell on the
       radio call. Further, as noted, the call of “shots fired” did not relate to the essence of the gun
       possession charge against Irwin. Cf. Jura, 352 Ill. App. 3d at 1088 (testimony regarding
       contents of radio call “directly impact[ed] the very essence of the dispute”). Finally, the State
       did not refer to the “shots fired” call in closing or rebuttal, stating only that officers responded
       to an “emergency call,” and the State did not suggest or imply that the vehicle in which Irwin
       was riding was the source of the shots fired.
¶ 34       Irwin argues that this case is like Jura, where three officers testified to the substance of a
       “ ‘person with a gun’ ” radio call. Id. at 1083-84. The radio call also described the offender as
       a white male with a teardrop tattoo on his cheek, details that the officers were permitted to
       relay in their testimony. Id. When the officers reached the specified location, they saw Jura and
       several other men. Id. The officers testified that Jura “ ‘match[ed] the description’ ” of the
       offender and that they observed Jura throw a gun into a garbage can. Id. Jura testified and
       denied committing the offense. Id. at 1082. Reversing Jura’s conviction, we found that the
       testimony about the radio call, which “directly impact[ed] the very essence of the dispute:
       whether the defendant was the man who possessed the gun,” was not harmless because it was
       testified to by several witnesses, contained substantive information used to prove Jura guilty,
       and was exploited by the State in closing argument by emphasizing to the jury that Jura
       “matched the description.” Id. at 1088, 1090.
¶ 35       In Jura, the central question was who owned the gun the officers found in the alley. The
       officers testified they saw Jura holding the gun, but Jura denied this. The State was able to use
       the 911 caller (who was never produced or cross-examined) to bolster the credibility of the
       police witnesses. In this context, we determined the content of the radio call (particularly the
       offender’s physical description) was vital to the outcome, and any error in admitting it was,
       therefore, not harmless. Id. at 1091.
¶ 36       Here, the “shots fired” testimony could not bolster the credibility of Officers Escamilla and
       Deering. There is no dispute that two guns were found that night: one in Craddock’s waistband
       and one on the front passenger floor near where Irwin sat. And the jury was repeatedly
       instructed that evidence regarding the weapon recovered from Craddock was not to be
       considered against Irwin. Moreover, the jury heard that Irwin’s gun was fully loaded with a
       bullet in the chamber, and there would thus be no basis for the jury to assume that Irwin was the
       person who fired the shots leading to the call.
¶ 37       While the State concedes and we agree that the trial court should have given a limiting
       instruction to the jury, the failure to do so does not warrant reversal. See People v.
       Pistonbarger, 142 Ill. 2d 353, 377 (1990) (“Although it is not mandated in every case, *** it is
       constitutionally permissible for a reviewing court to determine that given the facts of the
       individual case, the result would have been the same had the defect in the [jury] instructions
       not been present.”); People v. Austin, 133 Ill. 2d 118, 124 (1989) (“[A]ny error in giving or
       refusing instructions will not justify a reversal when the evidence in support of the conviction
       is so clear and convincing that the jury’s verdict would not have been different.”).
¶ 38       There was ample evidence to sustain Irwin’s conviction. It is undisputed that Irwin sat in
       the passenger seat of the Dodge and that the fully loaded gun was recovered inches away from
       where his feet would have been. No occupant of the vehicle, other than Irwin, was observed

                                                    -7-
       moving after the Dodge was stopped. On the other hand, Escamilla, who was unimpeached,
       observed Irwin bending down in a movement that could reasonably have been interpreted as an
       effort to remove the gun from his person, and the gun’s location in the vehicle was consistent
       with that inference. No other occupant of the vehicle was observed reaching over or around the
       front seat (in the case of the backseat passengers) or the console (in the case of the driver). That
       leaves Irwin’s suggestion to the jury that the backseat passenger could have dropped the gun
       and pushed it under the seat with his feet in the minute or so after the Dodge was stopped so
       that it came to rest in the front passenger seat area. While we suppose that such a scenario,
       although not supported by the evidence, is within the realm of possibility, it does not cause us
       to question the strength of the State’s case.
¶ 39       Irwin emphasizes that the gun was not tested for fingerprints and that its serial number did
       not reveal him as the owner. But while the presence of fingerprint or ownership evidence
       would have rendered the State’s case irrefutable, its absence does not, in our view, render the
       evidence of Irwin’s guilt less than overwhelming.
¶ 40       And even if the jury assumed the truth of the assertion that, in fact, shots had been fired,
       this does not make more likely Irwin’s possession of the weapon found in the front passenger
       seat area. Consequently, we conclude that the trial court’s failure to give a limiting instruction
       did not contribute to Irwin’s AUUW conviction, and therefore, we find this instructional error
       harmless beyond a reasonable doubt.
¶ 41       Irwin next argues that he was deprived of a fair trial when the State was allowed to admit
       into evidence and send to the jury the two photographs of him taken on the night of his arrest.
       Irwin argues that the photographs were “mug shots” and were irrelevant and prejudicial as
       there was no issue regarding either the fact that he was present on March 4, 2012, or the
       officers’ ability to identify him in court.
¶ 42       The State contends that Exhibit 2 was not a “mug shot” because it “does not indicate or
       imply prior criminal activity” by Irwin. There was no legend on the photograph indicating a
       prior arrest, and all of the officers who testified regarding the photograph indicated that it was
       taken at the time of Irwin’s arrest for this crime.
¶ 43       While the State may be technically correct that Exhibit 2 was not a “mug shot” of Irwin
       because it was generated contemporaneously with his arrest, we nevertheless believe the jury
       would have treated the exhibit as such. Courts have noted that “a person of even subnormal
       intelligence would know that the front and side profile snapshots were all ‘mug shots.’ ”
       People v. Woodruff, 62 Ill. App. 3d 949, 954 (1978). We cannot think of another circumstance
       where a person’s front and profile photographs are presented together. This arrangement is
       “common knowledge to the public from their exposure to the same in the news media,
       television, and *** on the walls of the vast majority of police stations and post offices
       throughout the United States.” People v. Wheeler, 71 Ill. App. 3d 91, 97 (1979).
¶ 44       But introducing a defendant’s photograph, even one taken in the police station, is not
       inherently prejudicial. The reason mug shots are generally excluded from evidence is because
       they imply that the defendant has been previously arrested. See People v. Nelson, 193 Ill. 2d
       216, 224 (2000); People v. Arman, 131 Ill. 2d 115, 123 (1989). For example, a jury’s
       awareness that a witness or victim identified the defendant from a mug shot already in law
       enforcement’s possession, while admissible, clearly indicates possible involvement by the
       defendant in other criminal activity. On that rationale, we generally exclude use of such
       evidence, except in limited circumstances, because we do not want jurors to convict a

                                                    -8-
       defendant based on prior conduct outside the scope of the trial. People v. Murdock, 39 Ill. 2d
       553, 562 (1968) (“We agree that the front and profile views of the defendant in the photographs
       might very well suggest to the jury that they were ‘mug’ shots taken for police files and, since
       there was no probative purpose for their admission into evidence, find that the photographs
       were erroneously admitted.”). Here, because all of the witnesses testified that the photos of
       Irwin were taken on the night he was arrested, there would be no basis for the jury to presume
       they were anything else. In other words, although Exhibit 2 became Irwin’s “mug shot”
       because of his arrest, it was not the type of evidence that suggests other criminal activity.
¶ 45        This does not end our analysis. While in the context of this case, the photographs do not
       carry the inherent prejudice of mug shots because they do not imply other criminal activity,
       Irwin is correct that the photos were irrelevant to any issue the jury was called upon to decide.
       Generally, evidence is admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1, 2011). Relevant
       evidence is “evidence having any tendency to make the existence of any fact that is of
       consequence to the determination of the action more probable or less probable than it would be
       without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be excluded
       “if its probative value is substantially outweighed by the danger of unfair prejudice.” Ill. R.
       Evid. 403 (eff. Jan. 1, 2011).
¶ 46        The trial court abused its discretion in admitting the photographs because they did not meet
       the threshold requirement of relevance. The photographs did not make “the existence of any
       fact that is of consequence to the determination of the action more probable or less probable
       than it would be without the evidence.” (Emphasis added.) Ill. R. Evid. 401 (eff. Jan. 1, 2011).
       The fact that Irwin had longer hair and was not as neatly dressed at the time he was arrested
       does not make it any more or less likely that he possessed the weapon found where he was
       sitting. And we agree with Irwin that the only apparent purpose for admitting the photographs
       was to show the jury that the neatly attired young man in court did not appear that way on the
       night he was arrested (which, incidentally, is another thing that jurors generally know).
¶ 47        And even if Irwin’s appearance when he was arrested was relevant, the State needed only
       one front-facing photograph to illustrate the point. We can discern no reason, and the State has
       articulated none, why it was necessary for Irwin’s jury to see both photos. Beyond that, there
       was certainly no reason for the exhibit to be sent to the jury room. Michael H. Graham,
       Graham’s Handbook of Illinois Evidence § 401.8, at 184 (10th ed. 2010) (“It is preferable not
       to permit the mug shots to go to the jury room.”); People v. Burrell, 228 Ill. App. 3d 133, 144
       (1992) (potentially prejudicial evidence must be closely scrutinized, since “evidence present in
       the jury room during deliberations gives the party producing it a distinct advantage”).
¶ 48        Given our finding that the trial court should not have permitted the State to use this exhibit
       because it was irrelevant and arguably prejudicial, and in light of the State’s concession that it
       was error to allow the exhibit to go to the jury room, we must determine whether these errors
       are harmless beyond a reasonable doubt. In the context of this case, we find that they are. See
       Nelson, 193 Ill. 2d at 224 (“When admitted in error, ‘mug shot’ evidence will not warrant a
       reversal when competent evidence establishes the defendant’s guilt beyond a reasonable doubt,
       and it can be concluded that retrial without the challenged evidence would produce no different
       result.”).
¶ 49        As discussed above, the State sustained its burden to prove Irwin guilty beyond a
       reasonable doubt through admissible evidence that, in our view, was overwhelming.
       Moreover, similar to issues relating to the radio call, Irwin’s appearance on the night he was

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       arrested did not go to the essence of the charge against him. In other words, there is nothing in
       Irwin’s appearance in the photographs that would lead a juror, otherwise unpersuaded by the
       State’s evidence, to convict Irwin of possession of the weapon. Therefore, we find the error in
       admitting the photographs and sending them to the jury harmless beyond a reasonable doubt.
¶ 50        Next, Irwin argues that the prosecutor improperly vouched for Deering’s credibility by
       asking Deering on redirect, “didn’t I tell you I only wanted you to tell the truth?” This question
       was in response to cross-examination regarding Deering’s witness preparation meeting with
       the State.
¶ 51        Irwin mischaracterizes the situation; this was not vouching for witness credibility. In fact,
       not a single one of the cases Irwin cites in his briefs is factually analogous to what happened
       here. Asking this question of Deering is not akin to a prosecutor suggesting in closing
       argument that the prosecutors had “ ‘checked *** out’ ” and “ ‘corroborate[d]’ ” the witness’s
       statement with forensic evidence before accepting it (People v. Williams, 2015 IL App (1st)
       122745, ¶ 10) or saying that the prosecutor himself could “ ‘cut through the BS and have a way
       to find out who is telling the truth’ ” (People v. Schaefer, 217 Ill. App. 3d 666, 668 (1991)).
¶ 52        The statements in Williams and Schaefer were improper for two reasons: (i) the statements
       might give the jury the impression that there is “secret” evidence, known only to the State, that
       supports the charge against the defendant or (ii) they might induce the jury to trust the State’s
       judgment over their own evaluation of the evidence. Williams, 2015 IL App (1st) 122745, ¶ 13.
       But here, there was no reference to unknown evidence or any suggestion that the jury should
       trust the prosecutor’s judgment rather than their own evaluation of Deering’s credibility. Even
       if the jury accepted the implied proposition that the prosecutor had instructed Deering to tell
       the truth, it would still have to decide on its own whether Deering followed that instruction.
       Irwin was not deprived of a fair trial by this action.
¶ 53        Irwin argues that he was denied a fair trial when the prosecutor elicited testimony from
       Officer Adamidis that Adamidis recognized Irwin from “multiple street encounters.” The trial
       court sustained Irwin’s objection to this testimony, struck Adamidis’s response, and instructed
       the jury to disregard it.
¶ 54        The testimony violated the trial court’s in limine order, but it did not deprive Irwin of a fair
       trial. A timely, sustained objection and instructing the jury to disregard the testimony can
       correct this type of error. See People v. Hall, 194 Ill. 2d 305, 342 (2000) (State’s question
       regarding defendant’s prior criminal activity improper, but error cured by sustaining objection
       and admonishing jury to disregard). The testimony was not so prejudicial as to be incurable
       and deny Irwin a fair trial.
¶ 55        Irwin also objects to the statement in the prosecutor’s rebuttal quoted above, which was
       made in response to defense counsel’s argument that there was no evidence that Irwin
       appeared nervous or sweaty when he exited the car. Irwin’s objection to this argument was
       immediately sustained. While the standard of review of alleged errors in closing argument is
       uncertain (compare People v. Wheeler, 226 Ill. 2d 92, 121 (2007) (whether statements made by
       prosecutor during closing argument were so egregious as to warrant a new trial is a legal issue
       to which de novo standard of review applies), with People v. Blue, 189 Ill. 2d 99, 128 (2000)
       (trial court’s determination of the propriety of closing argument will not be disturbed absent an
       abuse of discretion)), we have no trouble concluding under either standard that this isolated
       remark played no role in Irwin’s conviction.


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¶ 56        Prosecutors are afforded “wide latitude” in closing argument, and improper argument in
       closing warrants reversal only if the improper remark constituted a “material factor” in the
       conviction. Wheeler, 226 Ill. 2d at 123. We are not convinced that the prosecutor’s remark was
       a material factor: the remark was isolated, it was responsive to defense arguments regarding
       Irwin’s demeanor prior to his arrest, the trial court immediately sustained Irwin’s objection,
       and it properly instructed the jury that closing arguments are not evidence. See People v.
       Moore, 171 Ill. 2d 74, 105-06 (1996) (“[t]he act of sustaining an objection and properly
       admonishing the jury is usually viewed as sufficient to cure any prejudice”); People v.
       Wiggins, 2015 IL App (1st) 133033, ¶ 59. Moreover, because Irwin was not under arrest at the
       time he was directed out of the car, the prosecutor’s argument was not, as Irwin contends, a
       comment on his postarrest silence. Consequently, we conclude that this single remark did not
       deprive Irwin of a fair trial.
¶ 57        Finally, Irwin argues that the cumulative errors committed during his trial denied him a fair
       trial. Ordinarily, a new trial is not warranted where a defendant raises several contentions of
       error, none of which rise to the level of reversible error, because “ ‘[t]he whole can be no
       greater than the sum of its parts.’ ” People v. Sullivan, 366 Ill. App. 3d 770, 786-87 (2006)
       (quoting People v. Albanese, 102 Ill. 2d 54, 82-83 (1984), abrogated on other grounds in
       People v. Gacho, 122 Ill. 2d 221 (1988)). Nevertheless, there may be circumstances where the
       cumulative impact of otherwise harmless errors deprives a defendant of a fair trial and
       mandates reversal. See, e.g., Albanese, 102 Ill. 2d at 83 (citing People v. Killian, 42 Ill. App. 3d
       596, 601 (1976)). However, given the straightforward nature of the evidence, which was
       essentially uncontradicted and which established the presence of a weapon where Irwin was
       sitting, discovered shortly after he exited the vehicle, the errors we have identified in this case,
       even when considered cumulatively, do not rise to this level.

¶ 58      Affirmed.

¶ 59       PRESIDING JUSTICE HYMAN, dissenting in part.
¶ 60       While the majority rightly concludes that the “shots fired” call merited a limiting
       instruction, and that the “mug shot” was irrelevant and should not have been allowed in the
       jury room, I respectfully must part ways at the impact of those errors. The majority believes
       that they were harmless beyond a reasonable doubt. I disagree—the errors, combined with
       others that the trial court tried to cure, collectively rise to the level of cumulative error,
       depriving Irwin of his right to a fair trial. Accordingly, I would overturn Irwin’s conviction and
       remand for a new trial.
¶ 61       Kristopher Irwin’s trial was replete with mistakes:
                   (i) Evidence that should have been admitted only for limited purposes (the “shots
               fired” 911 call) was instead admitted without limiting instructions;
                   (ii) Irrelevant and unduly prejudicial evidence (the “mug shot”) was admitted and
               sent to the jury room for no reason whatsoever;
                   (iii) Even when the trial court did properly limit prejudicial evidence, the State’s
               witness violated a motion in limine by testifying that he recognized Irwin from
               “multiple street encounters”; and



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                   (iv) The prosecutor went on to improperly comment during closing argument on
                Irwin’s silence.
¶ 62       In concluding that these errors were harmless, the majority relies on the gun’s location on
       the floor of the Dodge (near where Irwin’s feet would have been) and Officer Escamilla’s
       observation that Irwin made a “movement” during the traffic stop that could be construed as
       Irwin dropping the gun. This evidence may have been legally sufficient, in the sense that a
       reasonable trier of fact, viewing this evidence in the light most favorable to the State, could
       conclude Irwin was guilty. People v. Campbell, 146 Ill. 2d 363, 374 (1992). But that is not the
       same thing as saying that this evidence was “overwhelming,” so that the error was harmless
       beyond a reasonable doubt. People v. Patterson, 217 Ill. 2d 407, 434 (2005); see also People v.
       Hogan, 388 Ill. App. 3d 885 (2009) (finding evidence was sufficient to support conviction but
       not overwhelming for harmless error analysis).
¶ 63       That the majority characterizes the evidence as being overwhelming does not hold. No
       witness saw Irwin holding or using the gun. No forensic evidence (such as his fingerprints on
       the gun) was presented. The gun was found on the floor of a car that Irwin did not own and was
       not controlling at the time of the offense. And another of the car’s occupants was found with a
       gun in his waistband, and a third passenger was sitting directly behind Irwin’s seat, with space
       between the car’s floor and the bottom of Irwin’s seat.
¶ 64       Again, the State’s case turns solely on the location of the gun and Officer Escamilla’s
       observation—though the scene was so dark that Escamilla could not make out the race or
       gender of the car’s occupants and the other officers conducting the stop did not see Irwin’s
       “movement.” At best this evidence is thin and inconclusive, not overwhelming.
¶ 65       Compare this case with one like Patterson, where the defendant was the last person seen
       with the victim before the victim’s disappearance, the victim’s body was found with a blanket
       similar to a blanket belonging to the defendant, and (most tellingly) the victim’s DNA was
       found in a blood stain on the defendant’s living room carpet. 217 Ill. 2d at 433-35. The
       evidence in Patterson was circumstantial but nonetheless “overwhelming.” There is no
       compelling forensic evidence inculpating Irwin or evidence pointing to him alone as the culprit
       (as opposed to the three other men in the car). Or a case like People v. Mullins, where three
       police officers, whose testimony was unimpeached, watched Mullins make multiple heroin
       sales during a half-hour period. 242 Ill. 2d 1, 25 (2011). The case against Mullins consisted of
       direct observations of illegal actions; no inferences needed to be drawn (as must be drawn here
       between an ambiguous movement and the gun’s position on the floor, the only basis on which
       the jury could have concluded that Irwin possessed the gun).
¶ 66       Reviewing the trial proceedings as a whole, I am not convinced that Irwin would have been
       convicted regardless of these errors. Id. at 23.
¶ 67       Irwin also raised a number of other claims. While I agree with the majority that the State
       did not improperly vouch for Officer Deering’s credibility, the remaining claims (the “multiple
       street encounters” testimony and the commentary on Irwin’s silence) should not be taken in
       isolation but examined together in the context of their cumulative effect. See People v. Blue,
       189 Ill. 2d 99, 139 (2000) (finding that cumulative errors “created a pervasive pattern of unfair
       prejudice to defendant’s case”).
¶ 68       Before trial, the trial court ruled that police witnesses could not testify that they knew Irwin
       from prior arrests or encounters; yet, when asked how he recognized Irwin, Officer Adamidis
       replied, “multiple street encounters.” The trial court tried to cure this unmistakable violation by

                                                    - 12 -
       sustaining an objection, striking the testimony, and instructing the jury to disregard it. Whether
       this testimony stemmed from a deliberate attempt to violate the in limine ruling or simply poor
       witness preparation, it was impermissible and had the highly prejudicial effect of painting
       Irwin as a criminal, an effect further emphasized by the use of the mug shot.
¶ 69       During closing argument, the State told the jury that Irwin had not mentioned to Officer
       Deering that there was a gun in the car. The trial court sustained Irwin’s objection. I disagree
       that this statement was responsive to defense argument that Irwin wasn’t nervous during the
       traffic stop: the prosecutor could have responded that Irwin did not believe the gun would be
       discovered without going on to chastise him for not alerting Officer Deering to the gun’s
       presence “for her own safety.” The prosecutor did not need to comment on his lack of speech,
       or imply that he failed to inform Officer Deering about the gun because he nefariously wished
       her harm. This error ties in to the use of the “shots fired” call, again embroidering possession of
       a gun into intent to cause bodily harm with that gun.
¶ 70       All four of the errors listed above fall into this pattern of painting Irwin as a hardened,
       dangerous criminal committing serious crimes. When the 911 call and the mug shot are added
       to the “multiple street encounters” and the commentary on silence, it shows a pattern of unfair
       prejudice that, cumulatively, denied Irwin his fundamental right to a fair trial. Again, the
       State’s evidence was purely circumstantial, and at every turn, the State attempted to strengthen
       that evidence by making Irwin appear as dangerous as possible.
¶ 71       When considering the weight of all these errors, what matters most is whether Irwin
       received a fair trial, regardless of the strength of the State’s evidence. See Blue, 189 Ill. 2d at
       139 (though evidence against defendant was “overwhelming,” new trial ordered to “preserve
       the trustworthiness and reputation of the judicial process”).
¶ 72       The net effect of the multiple errors rendered Irwin’s trial fundamentally unfair and
       unreliable; he is entitled to a new trial.




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