                                                                         Digitally signed by
                                                                         Reporter of Decisions
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                                Appellate Court                          Date: 2017.09.25
                                                                         13:29:37 -05'00'




                    People v. Brown, 2017 IL App (1st) 142197



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



District & No.     First District, Fifth Division
                   Docket No. 1-14-2197


Filed              June 23, 2017
Rehearing denied   July 28, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 12-CR-7098; the
Review             Hon. Maura Slattery-Boyle, Judge, presiding.



Judgment           Affirmed; mittimus corrected.


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

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Eric Leafblad, and Janet C. Mahoney, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              JUSTICE LAMPKIN delivered the judgment of the court, with
                   opinion.
                   Justice Reyes concurred in the judgment and opinion.
                   Justice Hall specially concurred, with opinion.
                                            OPINION

¶1        Defendant Daniel Brown was found guilty by a jury of first degree murder, with a finding
     that he personally discharged the firearm that caused the victim’s death. Defendant was
     sentenced to prison terms of 45 years for murder and 45 years for personally discharging the
     firearm that caused the death, to be served consecutively.
¶2        On appeal, he contends (1) the trial court committed reversible error during voir dire by
     failing to inquire when a juror indicated a lack of understanding concerning a fundamental
     principle about the burden of proof; (2) the trial court erred when it admitted a surveillance
     recording without adequate foundation and permitted a detective to offer impermissible lay
     opinion identification testimony concerning the recording and defense counsel was
     ineffective by failing to object to this evidence; (3) the trial court erred by admitting
     irrelevant and highly prejudicial DNA evidence, the State’s closing argument concerning the
     DNA evidence was misleading, and defense counsel was ineffective for failing to object to
     the DNA evidence; (4) the statutory firearm sentencing enhancement is unconstitutionally
     vague and the trial court imposed an arbitrary and excessive sentence; and (5) the mittimus
     should be corrected to reflect one murder conviction and a 90-year prison sentence.
¶3        We find that the trial court’s erroneous voir dire inquiry of one venire member
     concerning a Zehr principle and admission of a law enforcement officer’s lay opinion
     identification testimony were not so serious as to deny defendant a fair trial. We also find
     that the trial court did not abuse its discretion by admitting the surveillance recording and
     DNA evidence. Furthermore, the statutory firearm sentencing enhancement is not
     unconstitutionally vague, and defendant’s sentence was not arbitrary or excessive.
¶4        For the reasons that follow, we affirm the judgment of the circuit court and order the
     mittimus corrected to reflect one conviction of murder and a 90-year term of imprisonment.

¶5                                       I. BACKGROUND
¶6       This case arose from the fatal shooting of Eddie Coleman on East 79th Street in Chicago
     at about 10:38 p.m. on March 6, 2012. Eyewitnesses identified defendant Daniel Brown as
     the shooter, and he was charged by indictment with first degree murder. A jury trial was held
     in April and May 2014.
¶7       The State’s evidence showed that on the date of the offense the victim was visiting his
     aunts, Mayblelene and Kathleen Coleman, who both lived on the 3000 block of East 79th
     Street. At about 10 p.m., the victim and his girlfriend, Taheerah Abdullah, walked half of a
     block to a store. They went inside, and the victim spoke to some men from the neighborhood,
     including defendant. Abdullah had known defendant for about a week and had seen him a
     couple of times. Abdullah heard defendant repeatedly state, “[W]hatever is gonna happen,
     man, is gonna happen.” The victim and defendant went outside into the parking lot.
     Eventually, Abdullah followed them. Defendant and the victim talked and their demeanor
     was “kind of hostile.” Abdullah stood apart from them and did not hear everything they said.
     Abdullah was concerned and telephoned the home of the victim’s aunt, Mayblelene.
     Abdullah spoke with Mayblelene’s daughter, Natasha Coleman, who then walked to the
     store.



                                               -2-
¶8         Abdullah exchanged words with a woman who was with defendant, and the woman spat
       on Abdullah. Natasha arrived at the scene and spoke with Abdullah. Eventually, the victim
       joined them. They left the parking lot and headed toward Mayblelene’s house. They spoke to
       police officers in the area about the parking lot incident, and the officers told them to go
       home and telephone the police to report the matter. Natasha walked toward her mother’s
       house, followed by Abdullah and then the victim. When Natasha and Abdullah arrived at the
       house, the victim was no longer with them. Natasha and Abdullah went inside. Abdullah
       called the police and reported the parking lot incident, and Natasha sat at the dining room
       table.
¶9         Abdullah testified that when she returned to the porch to look for the victim, she heard a
       gunshot and saw the victim running down the street with defendant running behind him.
       Defendant’s arm was outstretched and pointed toward the victim. Abdullah heard another
       gunshot followed by the victim yelling, “Ouch.” Abdullah ran inside the house because she
       feared defendant would come after her. She heard about three more gunshots. When the
       gunshots ceased, Abdullah went outside and saw the victim lying motionless on the ground.
       His aunt, Kathleen Coleman, was with him.
¶ 10       An ambulance arrived and transported the victim to the hospital. He died from multiple
       gunshot wounds. He had been shot three times, once in the left side of the back, once in the
       upper right chest, and once in the left arm, with no evidence of close-range firing. At the time
       of his death, he had alcohol, cocaine, and benzoylecgonine, a breakdown of cocaine, in his
       system. He was 43 years old, 6 feet tall, and weighed 200 pounds.
¶ 11       Kathleen Coleman testified that she went outside around 10 p.m. to look for the victim
       because she had agreed to give him a ride home. She drove her car around the block and
       parked in front of her house. She exited her car and saw the victim running through a
       gangway with defendant chasing him. Kathleen testified that the area was well lit, and she
       could see defendant’s face even though he wore a purple hoodie over his head. Kathleen
       testified she had known defendant for a couple of years due to his previous relationship with
       a girl in the area. Kathleen observed defendant shoot the victim in the back. The victim
       screamed, “Ouch,” ran a short distance, and collapsed in the middle of the street. Defendant
       was running so close behind the victim that defendant had to jump over him. Defendant then
       turned around and shot the victim in the shoulder area. Kathleen called out, “Who is that?” so
       defendant would not suspect that she had recognized him. Defendant looked at her, pointed
       the gun into the air, and shot the light pole. Defendant ran off through a gangway. Kathleen
       found the victim between two cars. He was unresponsive, and Kathleen did not see a gun in
       his possession.
¶ 12       Natasha testified that she heard the first gunshot while she was inside her mother’s house.
       Natasha saw Abdullah come toward her, crying. Natasha ran to the front door and onto the
       porch. She saw the victim being chased by defendant. She knew defendant because they had
       gone to school together. The victim did not have anything in his hands, but defendant held a
       gun in the hand of his extended arm. Natasha heard another gunshot and saw the victim fall
       to the ground. Defendant jumped over him and fired another gunshot toward the ground
       where the victim had fallen. Natasha heard Kathleen speak and then saw defendant fire a
       gunshot into the air. Natasha heard the gunshot hit a light pole near defendant. Defendant
       then ran away through a gangway.


                                                  -3-
¶ 13       Mayblelene testified that she was in her home just before 10:38 p.m. when she heard
       three gunshots. She heard another gunshot that sounded like it hit something iron. Abdullah
       ran past her to the door to see what had happened. Then Abdullah ran back past Mayblelene.
       Mayblelene went to the front door where Natasha was already standing and looking outside.
       Mayblelene saw defendant, whom she had seen several times per week in the neighborhood,
       run toward her house and then through a gangway with a gun in his hand. She did not see
       anyone else on the street with a gun and did not see anyone else run from the scene.
       Mayblelene had a phone in her hand and telephoned 911.
¶ 14       Detective Donald Hill and Detective John Otto arrived at the scene around 11:30 p.m.
       and learned that Natasha and Kathleen had witnessed the shooting. Detective Hill spoke to
       both women separately and each stated that the shooter’s nickname was “Nu-Nu.” Natasha
       and Kathleen were immediately transported to the police station in separate vehicles and
       were kept separate while they were at the police station.
¶ 15       Meanwhile, Mayblelene’s niece Dominique Coleman had arrived at Mayblelene’s house.
       Mayblelene told her that “Nu-Nu,” with whom Dominique had gone to school, had shot the
       victim. Dominique told Officer Kevin Fry and Officer Robert Lobianco that “Nu-Nu” had
       shot the victim. Dominique also showed the officers a photo of “Nu-Nu” on her cell phone.
       The police obtained defendant’s photograph from a police department computer, and
       Dominique identified that photograph as the person Mayblelene had said was the shooter.
       Officer Fry relayed information about the identification to Detective Hill and Detective Otto.
¶ 16       Detective William Meister and Detective Patrick Ford interviewed Kathleen and Natasha
       at the police station. Natasha was visibly upset, stated that the shooter was a person she knew
       as “Nu-Nu,” and gave a physical description of him. Kathleen, also visibly upset, similarly
       identified the shooter as someone she knew as “Nu-Nu.” When Detective Hill informed
       Detective Meister that defendant had been identified as “Nu-Nu,” Detective Meister created a
       photo array that included a photo of defendant. Natasha and Kathleen separately viewed the
       photo array and identified the photo of defendant as “Nu-Nu,” the man who shot the victim.
¶ 17       Detective Hill testified that he spoke with Abdullah at the scene of the shooting and
       learned about the verbal altercation that had occurred at the nearby store. Detective Hill and
       Detective Otto went to the store in the early morning hours of March 7, 2012. They had a
       photo of defendant, who had been identified as the shooter. Detective Hill spoke with the
       store manager and viewed the store’s surveillance footage of the time frame shortly before
       the 10:38 p.m. shooting. Detective Hill viewed footage of the parking lot area outside the
       store and the area directly outside the store entrance. In the parking lot footage, Detective
       Hill saw defendant and the victim talk to each other. The victim wore a black and gray
       jacket, and defendant wore a black jacket over a purple hoodie. In the store entrance footage,
       Detective Hill saw defendant exit the store. Defendant’s face, jacket, and hoodie were
       visible. Detective Hill identified the State’s CD exhibit of the surveillance footage that a
       police evidence technician had downloaded from the store’s surveillance equipment. The CD
       was published to the jury without objection.
¶ 18       The jury viewed the parking lot footage first. The date and time displayed in a corner of
       that footage indicated it was recorded on March 6, 2012, from about 10:17 p.m. to 10:21 p.m.
       Several people appeared in the parking lot area, and Detective Hill identified the victim and
       defendant when they initially appeared on the right side of the screen and described what
       they wore. Detective Hill continued to narrate that the victim and defendant initially walked

                                                  -4-
       with and talked to only each other, but they were quickly joined by other people. The victim
       and defendant walked toward the right side of the screen and out of the view of the camera
       but eventually returned within the camera’s view, still engaged in conversation. They walked
       across the parking lot, and the victim held his hands in an open manner. Then the victim and
       defendant moved away from each other, and the victim stood among a group of people.
       Defendant walked toward the group that included the victim but then walked toward the right
       side of screen and out of the camera’s view. Eventually, the victim walked toward the left
       side of the screen and off camera. Defendant reemerged on the right side of screen and
       walked off camera in the direction taken by the victim. Then defendant reappeared on the left
       side of the screen and walked back toward the store entrance.
¶ 19       The jury viewed the footage of the store entrance recorded at about 10:13 p.m. Detective
       Hill identified defendant as he exited the store wearing a black hat and a black jacket over a
       purple hoodie. Detective Hill also testified that Abdullah appeared in the parking lot footage
       but Natasha did not. Furthermore, the recording did not show any fight between either the
       victim and defendant or Abdullah and the woman who allegedly spat on her.
¶ 20       On March 21, 2012, Officer Ryan Sheahan observed defendant exit a residence. Sheahan
       exited his car and walked up to defendant, who fled. Sheahan alerted other officers that he
       was in pursuit. The officers found defendant under the back steps of a residence about
       one-half of a mile from where Officer Sheahan had first encountered him. Defendant was
       placed in custody.
¶ 21       Eyewitnesses Abdullah, Kathleen, Natasha, and Mayblelene separately viewed a physical
       lineup. Abdullah, Kathleen, and Natasha identified defendant in the lineup as the person who
       shot the victim. Mayblelene identified defendant as the person she saw running from the
       scene with a gun.
¶ 22       Police recovered from the crime scene one fired bullet in the street, a second fired bullet
       on the sidewalk, and two fired cartridge casings. The bullets were .40/10 millimeter bullets,
       and both were fired from the same firearm. The fired cartridge casings were .40 caliber and
       both were fired from the same firearm. The police firearms identification expert could not
       determine if the fired bullets and fired cartridge casings were from the same gun. The police
       also recovered a purple tag that read “Akoo” in gold writing, a watch and the back to the
       watch, and a black clothes button.
¶ 23       Forensic DNA expert Ruben Ramos conducted polymerase chain reaction/short tandem
       repeat analysis of the DNA on a buccal swab collected from defendant, a blood standard
       from the victim, and the swabs collected from the watch, watch back, and button. Material
       collected from the button was insufficient to test. The DNA collected from the watch and
       watch back was a low-level sample. It was a mixture of human DNA profiles that were
       incomplete but could be separated into one minor and one major profile.
¶ 24       Ramos stated that the victim could be excluded as a contributor to both the minor and
       major profiles. Concerning the major profile, Ramos was able to attempt to identify only 9 of
       the 13 loci on the DNA molecule that form the basis for comparison and obtained results at
       only 6 loci plus the location that indicates the sex of the person. He explained that because he
       could compare only the 6 loci test results from the major profile to defendant’s profile,
       Ramos could not state whether defendant’s DNA matched the major profile found on the
       watch and watch back. Ramos could state only whether defendant could be excluded as a
       contributor to the major profile. Ramos determined that defendant could not be excluded as a

                                                  -5-
       contributor to the major profile, which meant defendant was included as a contributor.
       Ramos calculated a frequency estimating the chance a random person would be included as a
       contributor to that major profile as 1 in 670,000 blacks, 1 in 580,000 whites, or 1 in 6.1
       million Hispanics.
¶ 25        After the state rested, the trial court denied defendant’s motion for a directed finding.
       Defendant then rested, and the jury heard closing arguments. The jury found defendant guilty
       of first degree murder, with a finding that he personally discharged a firearm that
       proximately caused the victim’s death. The trial court denied defendant’s motion for a new
       trial and sentenced him to 45 years in prison for the murder and an additional 45-year term
       for the firearm enhancement. Thereafter, the trial court denied defendant’s motion to
       reconsider the sentence.

¶ 26                                          II. ANALYSIS
¶ 27        On appeal, defendant argues (1) the trial court committed reversible error during voir dire
       by failing to inquire when a venire member who became a juror indicated a lack of
       understanding concerning a principle about the burden of proof; (2) the trial court erred when
       it admitted the store surveillance recording without an adequate foundation and permitted
       Detective Hill to testify about the content of the recording and identify the victim and
       defendant, and defense counsel was ineffective by failing to object to this evidence; (3) the
       trial court erred by admitting irrelevant and highly prejudicial DNA evidence, the State’s
       closing argument concerning that evidence was misleading, and defense counsel was
       ineffective for failing to object to the DNA evidence; (4) the statutory firearm sentencing
       enhancement is unconstitutionally vague and the trial court imposed an arbitrary and
       excessive sentence; and (5) the mittimus should be corrected to reflect one conviction for
       murder and a sentence of 90 years’ imprisonment.

¶ 28                                             A. Voir Dire
¶ 29       Defendant contends the trial court committed reversible error by failing to conduct an
       adequate voir dire of venire member L.L., who indicated she did not understand a
       fundamental principle of the right to a fair trial before an impartial jury but nevertheless was
       deemed qualified to serve on the jury. Specifically, L.L. indicated during voir dire that she
       did not understand the principle that the presumption of innocence stays with the defendant
       throughout the trial and is not overcome unless the State proves the charges against the
       defendant beyond a reasonable doubt. Defendant argues the judge failed to conduct any
       further inquiry concerning L.L.’s understanding and acceptance of this fundamental
       principle. Defendant also argues the judge conducted “a wholly inadequate voir dire of L.L.”
       and then erroneously concluded that L.L. merely meant she had trouble understanding
       English and her answers to general questions, which the judge had posed to all the venire
       members, demonstrated that L.L. did not struggle to comprehend English. Defendant asserts
       that the trial judge’s failure to inquire into L.L.’s understanding of the fundamental principle
       and failure to adequately inquire into L.L.’s comprehension of English deprived defendant of
       his right to a fair trial before an impartial jury.
¶ 30       Defendant has forfeited review of this issue by failing to both timely object and include
       this issue in his motion for a new trial. People v. Denson, 2014 IL 116231, ¶ 11. However, he
       asks us to review this issue under the plain error doctrine, arguing that the error was so

                                                  -6-
       serious that it affected the fairness of his trial and challenged the integrity of the judicial
       process.
¶ 31       We may review claims of error under the plain error rule, which is a narrow and limited
       exception to forfeiture. People v. Hiller, 237 Ill. 2d 539, 545 (2010); Ill. S. Ct. R. 615(a). To
       obtain relief under this rule, a defendant must show that a clear or obvious error occurred. Id.
       The defendant bears the burden of persuading the court that either (1) the evidence at the
       hearing was so closely balanced (regardless of the seriousness of the error) as to severely
       threaten to tip the scales of justice against the defendant or (2) the error was so serious
       (regardless of the closeness of the evidence) as to deny the defendant a fair trial and
       challenge the integrity of the judicial process. People v. Herron, 215 Ill. 2d 167, 187 (2005).
       In order to determine whether the plain error doctrine should be applied, we must first
       determine whether any error occurred. Id.
¶ 32       In People v. Rinehart, 2012 IL 111719, our supreme court discussed the right to an
       impartial jury encompassed within the constitutional right to a jury trial.
                “The trial court is primarily responsible for initiating and conducting voir dire ***.
                Because there is no precise test for determining which questions will filter out partial
                jurors [citation], the manner and scope of the examination rests within the discretion
                of the trial court, and we review such decisions for an abuse of discretion. An abuse
                of discretion occurs when the conduct of the trial court thwarts the purpose of voir
                dire examination—namely, the selection of a jury free from bias or prejudice.
                [Citation.]; People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993) (‘[t]he purpose of voir
                dire is to ascertain sufficient information about prospective jurors’ beliefs and
                opinions so as to allow removal of those members of the venire whose minds are so
                closed by bias and prejudice that they cannot apply the law as instructed in
                accordance with their oath’); see also People v. Clark, 278 Ill. App. 3d 996, 1003
                (1996) (‘The purpose of voir dire is to enable the trial court to select an impartial jury
                and to ensure that the attorneys have an informed and intelligent basis on which to
                exercise peremptory challenges.’). Stated differently, a trial court does not abuse its
                discretion during voir dire if the questions create ‘a reasonable assurance that any
                prejudice or bias would be discovered.’ People v. Dow, 240 Ill. App. 3d 392, 397
                (1992).” Rinehart, 2012 IL 111719, ¶ 16.
¶ 33       Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires the trial court to ask
       prospective jurors if they understand and accept that (1) a defendant is presumed innocent,
       (2) the State must prove the defendant guilty beyond a reasonable doubt before he can be
       convicted, (3) the defendant is not required to offer any evidence in his own behalf, and (4) if
       a defendant does not testify on his own behalf, it cannot be held against him. “The court’s
       method of inquiry shall provide each juror an opportunity to respond to specific questions
       concerning the principles set out in [Rule 431(b)].” Id. The trial court’s questioning of the
       venire concerning these four principles, which are commonly referred to as the Zehr
       principles, is intended to ensure compliance with People v. Zehr, 103 Ill. 2d 472, 477 (1984),
       which sought to end the practice where the judge made a broad statement of the applicable
       law followed by a general question concerning the juror’s willingness to follow the law. Ill.
       S. Ct. R. 431, Committee Comments.
¶ 34       According to the record, the trial court questioned the venire concerning the first Zehr
       principle and no one raised a hand to indicate a lack of understanding or lack of agreement

                                                    -7-
       with the first principle. When the court asked if anyone in the venire did not understand and
       accept the second principle that the presumption of innocence stays with the defendant
       throughout the trial and is not overcome unless, from all the evidence, the juror believes the
       State proved defendant’s guilt beyond a reasonable doubt, juror L.L. raised her hand. The
       following occurred:
                   “THE COURT: Ms. [L.L.]?
                   [L.L.]: I don’t understand.
                   THE COURT: I’ll get to that in a second. Other than Ms. [L.L.], is there anyone
               that does not understand and accept that principle? Please raise your hand at this time.
               The second [Zehr] question has been asked; no one has raised their hand.”
¶ 35        The trial court continued to question the venire concerning the third and fourth Zehr
       principles and no one raised a hand to indicate a lack of understanding or acceptance. Then
       the judge questioned five venire members before questioning L.L.
¶ 36        The judge asked L.L. a series of questions about her age, employment, education,
       residence, marital status, and whether she, a family member or close friend had been a victim
       of a crime, involved in a criminal case, or a party to a lawsuit. The judge asked L.L. if she
       knew any lawyers, judges, or police officers; whether she ever visited anyone who was
       detained or incarcerated; and how she generally received her news information. L.L.’s
       responses were in English, brief, and generally one-word answers. Furthermore, L.L.
       responded affirmatively when the judge asked whether she would weigh the credibility of
       witness testimony without regard to the witness’s occupation and would listen to all the
       evidence and apply the law as instructed by the court in a fair and impartial manner.
¶ 37        Thereafter, the judge questioned eight more venire members. In chambers, the judge
       granted the State’s request to strike a venire member for cause. Then the judge stated:
                   “One preliminary matter. Ms. [L.L.] While beginning questioning she raised her
               hand indicating—she stated that she had trouble understanding English. The Court
               placed the same questions to her as every other juror, she answered appropriately. She
               did not indicate at any time struggling with anything, so the Court will not strike her
               for cause.”
       Defense counsel did not voice any concern or disagreement with the judge’s characterization
       of why L.L. stated “I don’t understand” and did not suggest that the court follow up with any
       questions to L.L. about her understanding of the Zehr principles or ask that she be excused
       for cause. Defense counsel accepted L.L. as a juror despite having the opportunity to use a
       peremptory challenge to strike her.
¶ 38        The State argues the trial court complied with Rule 431(b) by asking the venire members
       if they understood and accepted the four Zehr principles, and the trial court had no reason to
       question L.L. further because the record supports a conclusion that when L.L. said, “I don’t
       understand,” she was referring to or claiming some difficulty in understanding English.
¶ 39        We find that an error occurred because the trial court failed to comply with Rule 431(b).
       However, we find no abuse of discretion in the trial court’s conclusion that the voir dire of
       L.L. demonstrated she did not struggle to understand English and thus was competent to
       serve as a juror. After L.L. indicated a failure to understand when questioned about the
       second Zehr principle, the trial judge said she “would get to that in a second,” but never
       asked L.L. any further questions about her understanding of the question or the second Zehr

                                                  -8-
       principle. Furthermore, the trial judge may have created confusion when she exempted L.L.
       from the question about the second Zehr principle. Specifically, the judge continued
       questioning the venire by stating, “Other than Ms. [L.L.], is there anyone that does not
       understand and accept [the second Zehr] principle?” It would have been possible for L.L. to
       construe her exemption from answering that question as also applying to the questions
       concerning the third and fourth Zehr principles.
¶ 40        Despite the trial court’s error in failing to ascertain whether L.L. understood and agreed
       with the second Zehr principle and possibly the third and fourth Zehr principles, we disagree
       with defendant’s assertion that the trial court’s voir dire of L.L. was “wholly inadequate.”
       L.L.’s answers to the judge’s questions were appropriate, albeit brief, and demonstrated
       L.L.’s comprehension of the English language. L.L. even asked for clarification when she did
       not understand the judge’s question concerning the source of L.L.’s news information.
       Further, the judge’s questions concerning any involvement by L.L. or her family in litigation,
       or whether she knew any lawyers, judges, or police officers created a reasonable assurance
       that any prejudice or bias of L.L. would have been discovered. In addition, L.L. responded
       that she would weigh witness credibility equally regardless of the witness’s occupation, listen
       to all the evidence, and apply the law as instructed by the court and in a fair and impartial
       manner. We find no abuse of discretion concerning the trial judge’s conclusion that the voir
       dire of L.L. demonstrated she did not struggle with English comprehension.
¶ 41        Defendant, who has raised only the second prong of plain error, fails to cite relevant
       authority to support his assertion that L.L.’s “I don’t understand” statement meant she
       admitted a “lack of understanding of one of the essential qualifications of a juror” and thus
       was unqualified to serve as a juror in this case. We conclude that the trial court’s error in
       failing to comply with Rule 431(b) concerning the questioning of L.L. was not so serious as
       to deny defendant a fair trial. In the absence of any evidence of juror L.L.’s bias offered by
       defendant, who carries the burden of proving plain error, we will not presume that L.L. was
       biased against him. People v. Thompson, 238 Ill. 2d 598, 614-15 (2010) (noting that violation
       of Rule 431(b) does not implicate a fundamental right or constitutional protection but
       involves only the failure to comply with a court rule). As discussed above, the trial court’s
       voir dire of L.L. created a reasonable assurance that any bias or prejudice held by L.L. would
       have been discovered. Furthermore, L.L.’s “I don’t understand” statement indicated that she
       did not understand the question posed concerning the second Zehr principle and was not the
       equivalent of a rejection of the second Zehr principle itself. Accordingly, we reject
       defendant’s attempt to invoke the second prong of plain error.
¶ 42        The special concurrence misconstrues the analysis of the majority and the issue raised by
       defendant concerning the trial court’s voir dire of L.L. The special concurrence erroneously
       states the trial court concluded L.L.’s voir dire “demonstrated that she did not understand
       English.” Infra ¶ 91. Also, the special concurrence erroneously contends defendant asserts
       that the trial court failed to comply with Rule 431(b) by failing to inquire into L.L.’s
       understanding and agreement with the second Zehr principle. Defendant, however,
       repeatedly contested such a characterization of his argument on this issue in both his initial
       and reply briefs before this court.
¶ 43        Specifically, defendant expressly argued that the abuse of discretion standard of review
       applied to his issue of “[w]hether the trial judge properly conducted voir dire in order to
       ‘filter out’ unqualified jurors.” Furthermore, in his reply brief, defendant criticized the State

                                                   -9-
       for attempting to analogize his argument to cases that considered whether the trial court’s
       failure to comply with Rule 431(b) was reversible error. Defendant emphasized that “[i]t is
       not the trial court’s recitation of the Zehr principles that is at issue; it is whether L.L.’s
       admitted lack of understanding of one of the essential qualifications of a juror, and the trial
       court’s failure to properly question her about that lack of understanding, resulted in the
       seating of an unqualified juror in [defendant’s] case.” Thereafter, defendant argued the State
       is “wrongly recasting [defendant’s] argument as one based on whether the trial court’s
       recitation of the Zehr principles complied with Rule 431(b),” and again insisted that “the
       issue is not whether the trial court recited the Zehr principles correctly, but whether the
       court’s failure to properly investigate L.L.’s lack of understanding of an essential juror
       qualification, and the seating of an unqualified juror, constitutes reversible error.” Defendant
       clearly is aware that a trial court’s failure to comply with Rule 431(b) does not constitute
       second prong plain error and, thus, expends much effort to dispel any notion that he is raising
       such a claim.
¶ 44        Defendant’s issue that the voir dire of juror L.L. was “wholly inadequate” is intertwined
       with the issue of whether the trial court complied with Rule 431(b) and is raised in the
       context of second-prong plain error review. Accordingly, the majority reviewed de novo the
       trial court’s compliance with Rule 431(b) and reviewed the trial court’s voir dire of L.L. for
       an abuse of discretion.
¶ 45        Alternatively, defendant argues he was denied effective assistance of counsel because
       counsel failed to preserve this error for review. Defendant argues counsel should have either
       requested that the trial judge examine L.L. based on her “I don’t understand” statement or
       otherwise objected to her being seated on the jury.
¶ 46        In order to prove a claim of ineffective assistance of counsel, a defendant must satisfy
       both prongs of the test discussed in Strickland v. Washington, 466 U.S. 668, 687 (1984),
       which requires a showing that counsel’s performance was deficient and that the deficient
       performance prejudiced the defendant. People v. White, 2011 IL 109689, ¶ 132. To satisfy the
       first prong, the defendant must show that counsel’s representation fell below an objective
       standard of reasonableness. Strickland, 466 U.S. at 688. The second prong requires the
       defendant to “show that there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different. A reasonable
       probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
       Failure to establish either counsel’s deficient performance or prejudice resulting to defendant
       precludes a finding of ineffective assistance of counsel. Id. at 697. If a defendant cannot
       establish prejudice, the reviewing court need not determine whether counsel’s performance
       fell below the objective standard of reasonableness. Id.
¶ 47        In reviewing a claim of ineffective assistance of counsel, this court reviews counsel’s
       actions under the totality of the circumstances of the individual case. People v. Shatner, 174
       Ill. 2d 133, 147 (1996). Judicial scrutiny of counsel’s performance is highly deferential, and
       counsel’s trial strategy is given a strong presumption of reasonable professional assistance.
       Strickland, 466 U.S. at 689. To establish deficient performance, defendant must identify
       counsel’s acts or omissions that allegedly are not the result of reasonable professional
       judgment and overcome the strong presumption that counsel’s action or inaction was the
       result of sound trial strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007); Strickland, 466
       U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to

                                                  - 10 -
       eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
       challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
       Strickland, 466 U.S. at 689. Defendant must show that counsel’s errors were so serious and
       his performance was so deficient that he did not function as the counsel guaranteed by the
       sixth amendment. Perry, 224 Ill. 2d at 342.
¶ 48       The decision to exercise an available peremptory challenge is a strategic one and
       generally not subject to scrutiny under Strickland. People v. Metcalfe, 202 Ill. 2d 544, 561-62
       (2002). According to the record, defense counsel challenged potential jurors for cause and
       exercised peremptory challenges. Defendant fails to show that counsel’s decision to accept
       L.L. was not tactical and a matter of jury selection strategy. It is possible counsel considered
       that L.L.’s voir dire responses indicated she would not favor the State in weighing the
       credibility of its many police officer and forensic evidence witnesses. Furthermore, we have
       rejected defendant’s contentions that the voir dire of L.L. was “wholly inadequate” and she
       was not qualified to serve as a juror. Thus, counsel’s decision not to challenge L.L. for cause
       was not objectively unreasonable. In addition, the evidence was more than sufficient to prove
       defendant guilty beyond a reasonable doubt, and there was no evidence that L.L. rejected the
       principle that the State does not overcome defendant’s presumption of innocence unless the
       State proves his guilt beyond a reasonable doubt. We find no merit in defendant’s claim of
       ineffective assistance of counsel.

¶ 49                                     B. Surveillance Recording
¶ 50       Defendant argues the State failed to lay an adequate foundation for introduction of the
       surveillance recording of the store parking lot where defendant and the victim exchanged
       words prior to the shooting on 79th Street. Further, defendant contends it was improper to
       allow Detective Hill to recount or narrate the contents of the recording as it was played for
       the jury because it constituted inadmissible lay witness identification testimony. Defendant,
       however, did not object to the introduction of the recording or Detective Hill’s testimony
       identifying defendant and the victim in that recording and describing their movements.
       Defendant concedes he has forfeited review of these issues on appeal but asks us to review
       these claims under the second prong of the plain error doctrine because the errors were so
       serious as to deprive him of a fair trial. Alternatively, defendant argues trial counsel was
       ineffective by failing to timely object and preserve these claims for review.
¶ 51       In order to determine whether the plain error doctrine should be applied, we must first
       determine whether any error occurred. People v. Herron, 215 Ill. 2d 167, 187 (2005). We
       review the trial court’s decisions to admit the surveillance recording and Detective Hill’s
       testimony concerning the recording for an abuse of discretion, which occurs when the trial
       court’s ruling is fanciful, unreasonable, or when no reasonable person would adopt the trial
       court’s view. People v. Taylor, 2011 IL 110067, ¶ 27. The forfeiture rule is “particularly
       appropriate” when a defendant claims the State failed to lay a proper foundation. People v.
       Woods, 214 Ill. 2d 455, 470 (2005). In that circumstance, “a defendant’s lack of a timely and
       specific objection deprives the State of the opportunity to correct any deficiency in the
       foundational proof at the trial level.” Id.; People v. Johnson, 2016 IL App (4th) 150004,
       ¶¶ 70-71. Had defendant objected, the State would have had the opportunity to elicit
       additional foundational evidence or testimony.


                                                  - 11 -
¶ 52       First, defendant argues the State failed to lay an adequate foundation for admission of the
       surveillance recording because the State failed to present any evidence that the store’s
       surveillance device was capable of recording and generally reliable, that the operator of the
       device was competent, and that the device was operating properly.
¶ 53       Automatic surveillance recordings present the prototypical situation for application of the
       silent witness theory. Taylor, 2011 IL 110067, ¶ 32. This theory allows the recordings to be
       introduced as substantive evidence as long as a proper foundation is laid; “a witness need not
       testify to the accuracy of the image depicted in the [recording] if the accuracy of the process
       that produced the evidence is established with an adequate foundation.” Id. In determining
       whether an adequate foundation has been laid for a surveillance recording, courts consider
       (1) the device’s capability for recording and general reliability; (2) competency of the
       operator; (3) proper operation of the device; (4) showing the manner in which the recording
       was preserved (chain of custody); (5) identification of the persons, locale, or objects
       depicted; and (6) explanation of any copying or duplication process. Id. ¶ 35. This list of
       factors is not exclusive, and some factors may not be relevant depending on the facts of the
       case. Id. “The dispositive issue in every case is the accuracy and reliability of the process that
       produced the recording.” Id.
¶ 54       We find no error occurred regarding the admission of the surveillance recording.
       Detective Hill testified that he learned from eyewitnesses at the scene of the shooting on 79th
       Street about the encounter between the victim and defendant at the nearby store. Detective
       Hill promptly went to that store with a photograph of defendant to investigate whether any
       automatic surveillance devices recorded images of defendant and the victim. Detective Hill
       spoke with the store manager, who operated the equipment and showed Detective Hill
       surveillance footage of the front door and outside areas of the store taken on March 6, from
       about 10:12 p.m. until 10:30 p.m. After Detective Hill viewed the footage, he called for a
       police evidence technician, who came to the store and downloaded the footage viewed by
       Detective Hill onto a CD. At the trial, Detective Hill testified that the recording played for
       the jury was the same footage Detective Hill had viewed at the store. Furthermore, the parties
       stipulated that the CD contained recorded footage that truly and accurately depicted the scene
       on March 6, 2012, from approximately 10:12 p.m. to 10:30 p.m.; there had been no
       tampering, editing, or deletion of the March 6 recorded footage; and a proper chain of
       custody was maintained at all times.
¶ 55       The evidence showed that Detective Hill promptly sought the surveillance footage after
       the shooting, the store manager retrieved from the store’s surveillance device the recorded
       footage for the particular date and time frame requested by Detective Hill, the manager
       showed Detective Hill the relevant footage, and the recording was downloaded to preserve
       that evidence. Those facts were evidence that the store’s automatic surveillance recording
       device was functional, able to record, and generally operating properly and that the store
       manager knew how to operate the device. See Taylor, 2011 IL 110067, ¶ 39. Based on those
       facts and the parties’ stipulation concerning the surveillance recording, the State provided
       sufficient proof of the reliability of the process that produced the recording and thus laid a
       sufficient foundation for its admission. Accordingly, we reject defendant’s claims of second
       prong plain error and ineffective assistance of counsel concerning the admissibility of the
       surveillance recording.



                                                   - 12 -
¶ 56        Next, defendant argues that Detective Hill’s testimony regarding the contents of the
       surveillance recording was inadmissible lay opinion identification testimony. Specifically,
       defendant argues nothing in the record suggested Detective Hill had any familiarity with
       defendant before or after the shooting, so there was no basis to conclude Detective Hill was
       more likely to correctly identify defendant from the surveillance recording than the jury.
       Defendant contends Detective Hill’s narration of the surveillance recording was not helpful
       to either a clear understanding of his testimony or a determination of a fact in issue.
       Defendant states that “the trial court did not engage in any precautionary procedures to
       screen Detective Hill’s testimony before it was heard by the jury,” and thus a member of the
       police improperly vouched for the State’s case by identifying defendant as being near the
       scene of the shooting and interacting with the victim. Defendant contends this error likely
       affected the way the jury viewed the recording and evaluated the eyewitnesses’ credibility
       and, thus, denied him a fair trial.
¶ 57        The State responds that Detective Hill’s identification testimony was helpful to the jury
       and thus admissible because defendant and the victim appeared in the recording briefly and
       they were dressed in manner similar to numerous other men in the recording. Furthermore,
       they were moving around, the recording was “somewhat grainy,” and the colors of people’s
       clothing were “extremely muted.” The State contends Detective Hill was able to take his time
       viewing the store surveillance footage and was able to identify the exact time frame in which
       defendant and the victim were in that location and the directions they took after their
       encounter. The State asserts Detective Hill’s prior viewings of the recording enabled him to
       identify defendant and the victim in the recording in a more efficient manner than the jury
       would have been able to do. The State contends it would have been an extremely inefficient
       use of the jury’s and the court’s time to view the recording without Detective Hill’s helpful
       identification testimony.
¶ 58        A lay witness may only testify to events of which he has personal knowledge. Ill. R.
       Evid. 602 (eff. Jan. 1, 2011). Such testimony must be “(a) rationally based on the perception
       of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the
       determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
       knowledge within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). Further,
       Illinois Rule of Evidence 704 (eff. Jan. 1, 2011) provides, “[t]estimony in the form of an
       opinion or inference otherwise admissible is not objectionable because it embraces an
       ultimate issue to be decided by the trier of fact.”
¶ 59        Lay witness identification testimony is admissible if “(a) the testimony was rationally
       based on the perception of the witness and (b) the testimony is helpful to a clear
       understanding of the witness’s testimony or a determination of a fact in issue.” People v.
       Thompson, 2016 IL 118667, ¶ 50. Such “testimony is helpful where there is some basis for
       concluding the witness is more likely to correctly identify the defendant from the
       surveillance recording than the jury. A showing of sustained contact, intimate familiarity, or
       special knowledge of the defendant is not required. Rather, the witness must only have had
       contact with the defendant that the jury would not possess to achieve a level of familiarity
       that renders the opinion helpful.” Id.
¶ 60        To determine whether the testimony is helpful, courts view the totality of the
       circumstances and consider “the witness’s general familiarity with the defendant; the
       witnesses’ familiarity with the defendant at the time the recording was made or where the

                                                   - 13 -
       witness observed the defendant dressed in a manner similar to the individual depicted in the
       recording; whether the defendant was disguised in the recording or changed his/her
       appearance between the time of the recording and trial; and the clarity of the recording and
       extent to which the individual is depicted. However, the absence of any particular factor does
       not render the testimony inadmissible.” Id. ¶ 51. “[T]he extent of a witness’s opportunity to
       observe the defendant goes to the weight of the testimony, not its admissibility.” Id. ¶ 53.
       However, testimony admissible under the foregoing principles “may be excluded if its
       probative value is substantially outweighed by the danger of unfair prejudice.” (Internal
       quotation marks omitted.) Id. ¶ 54.
¶ 61       Courts considering admitting the identification testimony of law enforcement officers
       “should afford the defendant an opportunity to examine the officer outside the presence of
       the jury” and “properly instruct the jury, before the testimony and in the final charge to the
       jury, that it need not give any weight at all to such testimony and also that the jury is not to
       draw any adverse inference from the fact the witness is a law enforcement officer if that fact
       is disclosed.” Id. ¶ 59. These precautionary procedures will safeguard the defendant’s right to
       cross-examine the officer concerning his familiarity with the defendant and any bias or
       prejudice without revealing to the jury the defendant’s criminal record. Id. ¶¶ 57-59.
¶ 62       Here, although Detective Hill was not present at the store when the victim and Abdullah
       encountered defendant and other people, Detective Hill’s testimony included narrating
       portions of the recording in addition to identification testimony. Putting aside for the moment
       Detective Hill’s identification testimony, we find that his perceptions did not need to be
       based on the live event at the store because he was not providing an eyewitness account;
       rather, his testimony was relevant to the scenes depicted in the recording. Consequently, he
       needed to have perceived only the recording, and this testimony merely laid an evidentiary
       foundation for admission of the surveillance recording. See id. ¶¶ 8, 61 (law enforcement
       officer’s testimony describing the actions of “the subject” in the surveillance recording did
       not identify the defendant as the individual depicted in the recording and thus was not lay
       opinion identification testimony).
¶ 63       Detective Hill’s testimony concerning the interactions and movements of particular
       subjects shown in the parking lot footage was helpful to the jury due to a certain lack of
       clarity of the recording. Specifically, Detective Hill’s testimony helped the jury focus on the
       relevant action because numerous people entered and exited the parking lot area, their faces
       were too distant from the camera to be discernible, their outdoor winter clothing somewhat
       concealed their identities, and the color of their clothing was muted. Compare United States
       v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993) (law officer’s testimony identifying the
       defendant as the individual pictured in the bank surveillance photographs was not helpful to
       the jury because the officer had never seen the defendant in person and was familiar with his
       appearance only through other photographs and witnesses’ descriptions), with United States
       v. Begay, 42 F.3d 486, 502 (9th Cir. 1994) (law officer’s testimony narrating portions of a
       video of a protest involving about 200 demonstrators and identifying the defendants’
       movements helped the jury evaluate the recording where an array of events occurred
       simultaneously and the officer spent over 100 hours viewing the recording).
¶ 64       The record, however, does not indicate that Detective Hill had any familiarity with
       defendant beyond the eyewitness descriptions of what the shooter wore, eyewitness
       statements that defendant was the shooter, and a photograph of defendant from police

                                                  - 14 -
       computer files. Nothing in the record indicates how long Detective Hill reviewed the
       recording in order to discern defendant. The record also fails to show that Detective Hill had
       any familiarity with the victim. Consequently, we find the record does not demonstrate a
       basis that might lead one to conclude Detective Hill was more likely to correctly identify
       defendant and the victim in the recording than the jury. Furthermore, Detective Hill provided
       his identification testimony without the trial court first engaging in precautionary procedures
       to safeguard defendant’s right to confrontation. Thompson, 2016 IL 118667, ¶¶ 62, 65 (the
       trial court erred in admitting the identification testimony of law enforcement officers without
       first engaging in precautionary measures). Thus, the admission of Detective Hill’s
       identification testimony was error.
¶ 65        Nevertheless, we conclude that this error does not constitute plain error. Abdullah,
       Kathleen, and Natasha saw defendant chase the victim on 79th Street and shoot him with the
       gun defendant held in the hand of his extended arm, and Mayblelene heard gunshots and saw
       defendant run toward her house and through a gangway holding a gun in his hand. All four
       witnesses testified that they were familiar with defendant prior to the shooting. Detective
       Hill’s identification testimony merely lent some support to Abdullah’s testimony about the
       encounter between defendant and the victim at the store near the scene of the shooting
       approximately 20 minutes before the shooting occurred. Moreover, Detective Hill’s
       identification testimony went only to the identification of defendant at the nearby store; it did
       not extend to the crime itself, which was outside the scope of the surveillance recording. Any
       prejudice from the erroneous admission of Detective Hill’s identification testimony was not
       so severe as to have denied defendant a fair trial.
¶ 66        Alternatively, defendant argues he was denied effective assistance of counsel because
       counsel failed to preserve this error for review. As discussed in supra ¶¶ 46-47, in order to
       establish a claim of ineffective assistance of counsel, defendant must show that counsel’s
       failure to object to the admission of Detective Hill’s identification testimony was objectively
       unreasonable and resulted in prejudice to defendant. The record indicates the admission of
       Detective Hill’s identification testimony from the surveillance recording supported the
       defense strategy to attack the eyewitnesses’ testimony because the recording did not show a
       fight between the victim and defendant, or between Abdullah and the woman who allegedly
       spat on her, and the recording did not show Natasha at the scene of the store. Furthermore,
       defendant cannot establish prejudice resulting from counsel’s decision not to challenge
       Detective Hill’s identification testimony because the State simply could have admitted the
       store parking lot identification testimony through Abdullah, who observed the parking lot
       encounter between defendant and the victim and is shown in the surveillance recording.
¶ 67        We conclude defendant fails to demonstrate a claim of ineffective assistance of counsel
       concerning Detective Hill’s identification testimony.

¶ 68                                      C. DNA Evidence
¶ 69       Defendant argues the trial court erred in admitting irrelevant DNA evidence that was
       based on an only six-loci analysis of the major DNA profile found on the low-level sample
       obtained from the watch and watch back recovered from the scene. Defendant argues the
       evidence that his DNA could not be excluded from the major DNA profile was irrelevant
       because the six-loci analysis is far less than what is generally accepted in the scientific
       community for a match or even a partial match and DNA evidence plays “an outsized role in

                                                  - 15 -
       the minds of a jury evaluating a defendant’s case.” Defendant also argues that Ramos’s
       statistical analysis was irrelevant and highly prejudicial because his testimony established
       that it was more likely that an unrelated white male would be a contributor to the major
       profile than a black male such as defendant. Furthermore, defendant contends the State
       erroneously argued to the jury that the DNA affirmatively linked defendant to the crime
       scene when the prosecutor used an analogy to quantify Ramos’s statistical analysis.
¶ 70       Defendant concedes he forfeited review of this issue and asks this court to review it under
       the second prong of the plain error doctrine. Defendant argues the error in this case was
       serious because jurors tend to place undue weight on DNA evidence and the prosecutor’s
       characterization of the DNA evidence was misleading and improperly implied a match to
       defendant even though Ramos’s analysis did not support that argument. Alternatively,
       defendant argues trial counsel was ineffective for failing to object to the admission of the
       DNA evidence on relevancy grounds or meaningfully challenge the reliability of Ramos’s
       testimony and statistical analysis.
¶ 71       In order to determine whether the plain error doctrine should be applied, we must first
       determine whether any error occurred. Herron, 215 Ill. 2d at 187. The decision whether
       evidence is relevant and admissible is within the trial court’s discretion and will not be
       reversed absent a clear abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 456 (2001).
       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 as unduly prejudicial only where “its probative value is substantially outweighed
       by the danger of unfair prejudice.” Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 72       DNA expert Ramos explained to the jury that 13 loci on the DNA molecule are used as a
       basis of comparison between DNA samples and standards, but samples may be degraded due
       to conditions like exposure to the elements and may not yield complete profiles when tested.
       Ramos clearly testified that the major profile obtained from the low-level sample found on
       the watch and watch back was not a complete profile. He also clearly testified that he could
       not state whether defendant’s DNA matched the major profile because Ramos obtained
       results at only 6 loci plus the location that indicates the sex of the person. Ramos testified
       that based on the only 6-loci analysis, he could determine only that defendant could not be
       excluded as a contributor to the major profile, which meant defendant was included in the
       group of potential contributors. Ramos calculated the frequency which estimated the chance
       a random person would be included as a contributor in that major DNA profile and found that
       1 in 670,000 black, 1 in 580,000 white, or 1 in 6.1 million Hispanic unrelated individuals
       could not be excluded as having contributed to that DNA profile.
¶ 73       We find no error when the trial court permitted Ramos to testify about the testing he
       conducted and his conclusions. There is no Illinois authority to support the proposition that
       DNA evidence is excludable as a matter of law based on the evidence being too inconclusive.
       People v. Mitchell, 2011 IL App (1st) 083143, ¶ 35. This is true of DNA evidence
       conclusions based upon only four or six loci. Id.; People v. Smith, 2012 IL App (1st) 102354,
       ¶ 75. Furthermore, DNA probability calculations have long been generally accepted and
       admissible, and any challenge to their reliability usually goes only to the weight to be given
       to the evidence. People v. Pike, 2016 IL App (1st) 122626, ¶ 48.


                                                 - 16 -
¶ 74       The instant case involved a DNA sample containing a mixture interpreted as the DNA of
       two people. The DNA Advisory Board has endorsed two methods for calculating statistical
       ratios in cases of mixed DNA samples: (1) the combined probability of inclusion (or its
       reverse, the combined probability of exclusion) or (2) the likelihood ratio calculation. Id.
       ¶ 55. Ramos’s testimony giving the probability of inclusion/exclusion regarding the mixture
       of DNA profiles on the watch and watch back was relevant where it corroborated the
       eyewitnesses’ identifications that defendant shot the victim. See id. ¶ 71. Natasha, Kathleen,
       and Abdullah identified defendant as the individual who shot the victim, and Mayblelene
       identified defendant as the person she observed run from the scene of the shooting with a gun
       in his hand.
¶ 75       Defendant also asserts the State erroneously argued to the jury that the DNA
       affirmatively linked defendant to the crime scene when the prosecutor attempted to quantify
       Ramos’s statistics with an analogy to the amount of people that could fit in the United Center
       and claimed that because only 1 in 670,000 black males could not be excluded as a
       contributor of the DNA profile collected from the watch and watch back, it was unlikely that
       anyone but defendant could be the shooter.
¶ 76       According to the record, the challenged argument of the prosecutor was as follows:
                    “The DNA. I want to put this in perspective. This is a chance of one in 670,000.
               Not one in fourteen. Not one in ten. One in 670,000. So let’s put this in perspective.
               The United Center can fit and hold about 20,000 people. That’s a big building for
               basketball games, hockey games, it’s huge. Take the size of the United Center and
               multiply that not by one, not by two, but by about 33 sizes of the United Center. Fill
               that enormous space with 670,000 male blacks. You have a chance of picking one out
               of there that cannot be excluded from having their DNA on the watch. One. And
               what’s the chance that that one person is [defendant]? What’s the chance that that one
               person is who Natasha and Kathleen say, ‘I saw him shoot [the victim] in cold
               blood?’ What’s the chance that one person is the same person who [Abdulla] said had
               a confrontation with [the victim]? What’s the chance that one person is the same
               person who [Mayblelene] said, ‘I saw him running from the scene right after the shots
               with what I believe to be [a] gun in his hand?’ What’s the chance that that DNA came
               back that he cannot be excluded? And he had on a purple hoodie and a purple tag was
               left right there on the crime scene.
                    You know [the victim] was out there because that’s where he died. And he
               positively can be excluded. He can be excluded. It’s not his DNA on the watch
               anywhere. Had he not been there, then no exclusion can happen. Had he [defendant]
               not been there, he should have been excluded.”
       At this point, the trial court sustained the defense’s objection and instructed the jurors to
       disregard any misstatement of facts or law by the attorney and to use their own recollection
       of the evidence presented. The prosecutor continued:
                    “The defendant’s DNA cannot be excluded and [the victim] can. What’s the
               chance that it would go with everything the witnesses told you?”
¶ 77       Our review of the record establishes that the State’s argument concerning the DNA
       evidence was neither inaccurate nor misleading. Contrary to defendant’s implied argument,
       the State did not advance an argument that conflated the evidence concerning the probability
       of defendant’s inclusion/exclusion with the probability that defendant was the source of the

                                                 - 17 -
       DNA sample. The prosecutor’s United Center analogy did not advance an argument about
       the probability that defendant in a crowd of 670,000 black males would be the single source
       of the DNA. See id. ¶¶ 61-63 (discussing the prosecutor’s fallacy). The State did not argue
       that out of 670,000 black males, one individual would be a match to the DNA sample. The
       State simply attempted to give the jury a visual image of what 670,000 people would look
       like as they considered the evidence that 1 in 670,000 black males could be included as a
       contributor to the profile found on the watch and watch back.
¶ 78       As defendant’s argument has no merit, we need not address the issue of whether his
       counsel was ineffective for failing to object to Ramos’s testimony and the prosecutor’s
       analogy during closing argument. Furthermore, the record refutes defendant’s assertion that
       defense counsel failed to meaningfully challenge the reliability of the DNA evidence and
       statistical analysis. Defense counsel’s extensive cross-examination of Ramos and closing
       argument emphasized the implications of the 6-loci limitation of the DNA evidence.

¶ 79                                           D. Sentencing
¶ 80        First, defendant argues that the additional 45-year sentence imposed pursuant to the
       statutory firearm sentencing enhancement should be vacated because the statute is
       unconstitutionally vague where it provides no objective criteria upon which the trial court
       could rely when imposing a sentence and instead encourages an arbitrary and discriminatory
       enforcement of the law. This court has reviewed these very same arguments and determined
       that the 25 years to natural life sentence enhancement is not unconstitutionally vague. People
       v. Sharp, 2015 IL App (1st) 130438; People v. Butler, 2013 IL App (1st) 120923. We
       continue to follow Sharp and Butler and hold that the statutory firearm sentencing
       enhancement is not unconstitutionally vague.
¶ 81        Next, defendant argues the trial court abused its discretion by imposing an excessive
       sentence of 45-years’ imprisonment for murder and an additional consecutive 45-year term
       because he personally discharged the firearm that cause the victim’s death. A trial court
       maintains broad discretion in determining the appropriate sentence for a particular defendant,
       and its decision will not be reversed absent an abuse of discretion. People v. Patterson, 217
       Ill. 2d 407, 448 (2005). If the sentence imposed is within the statutory range, it will not be
       deemed excessive unless it is greatly at variance with the spirit and purpose of the law or is
       manifestly disproportionate to the nature of the offense. People v. Fern, 189 Ill. 2d 48, 54
       (1999).
¶ 82        At sentencing, two members of the victim’s family read victim impact statements, and
       the State presented certified copies of defendant’s prior convictions for aggravated unlawful
       use of a weapon and armed robbery. The prosecutor argued that defendant caused “terror”
       and did not support his child, whose mother worked to pay the bills. The prosecutor asserted
       that defendant could not be rehabilitated and asked for a life sentence. For the defense,
       members of defendant’s family testified that defendant was attending nursing school and had
       difficulty with the departure of his father, who had a drug problem and left when defendant
       was young. Defendant asked for mercy but maintained his innocence.
¶ 83        The trial judge stated that defendant thought of no one but himself, did not consider the
       devastation his actions would inflict on his family and the victim’s family, and had no
       justification for his actions. The judge noted that defendant’s criminal history from juvenile
       to the adult cases had “gotten progressively worse” from drugs, to gun use, to armed robbery,

                                                 - 18 -
       and now murder. When defendant verbally protested, the judge noted that defendant’s actions
       in court showed his lack of accountability, responsibility and respectability, his selfish
       nature, his lack of acknowledgment of his record, and his continued disregard for humanity.
¶ 84       The record clearly indicates the trial court properly considered the retributive and
       rehabilitative factors, seriousness of the offense, likelihood of restoring the defendant to
       useful citizenship, as well as mitigating evidence and testimony. The trial court’s 45-year
       sentence for murder fell within the 20 to 60 year statutory sentencing range for which
       defendant was eligible. 730 ILCS 5/5-4.5-20 (West 2012). Further, the trial court’s
       consecutive 45-year sentence based upon defendant personally discharging the firearm that
       killed the victim also fell within the 25 years to natural life statutory range for which he was
       eligible. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012). We therefore conclude that the trial
       court properly imposed a sentence proportionate to the nature of the offense and that the
       factors considered did not render this sentence arbitrary.
¶ 85       Finally, defendant contends and the State agrees that the mittimus should be corrected to
       reflect a single conviction of murder and a 90-year term of imprisonment. We order the
       mittimus corrected to reflect one conviction of knowing and intentional first degree murder
       pursuant to section 9-1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/9-1(a)(1) (West
       2012)). People v. Cardona, 158 Ill. 2d 403, 411 (1994) (the most serious murder charge is
       upheld and sentence is imposed on that count).

¶ 86                                      III. CONCLUSION
¶ 87       For the foregoing reasons, we affirm the judgment of the trial court and direct the clerk of
       the circuit court to correct the mittimus to reflect one conviction of murder and a 90-year
       term of imprisonment.

¶ 88      Affirmed; mittimus corrected.

¶ 89       JUSTICE HALL specially concurring.
¶ 90       I agree with the majority’s conclusion that the defendant failed to meet his burden of
       showing that the trial court’s noncompliance with Illinois Supreme Court Rule 431(b) (eff.
       July 1, 2012) affected the fairness of his trial and challenged the integrity of the judicial
       process. However, I write separately because I believe the majority both misapprehended the
       relevant issue before our court and the applicable standard of review.
¶ 91       The majority determined that no abuse of discretion resulted from the trial court’s
       conclusion that the voir dire of prospective juror L.L. demonstrated that she did not
       understand English and thus was competent to serve as a juror. The defendant asserts that he
       was denied his due process right to a fair and impartial jury when the trial court failed to
       conduct a Rule 431(b) inquiry into juror L.L.’s lack of understanding of the second Zehr
       principle. Since defendant’s claim of error concerns the interpretation of a supreme court
       rule, the applicable standard of review is de novo, not abuse of discretion. See People v.
       Suarez, 224 Ill. 2d 37, 41-42 (2007); People v. Wrencher, 2011 IL App (4th) 080619,
       ¶¶ 36-37. Moreover, in regard to Rule 431(b), the primary issue on appeal was not whether
       prospective juror L.L. understood English or whether the trial court should have inquired into
       her understanding of the English language. The primary issue was whether the trial court


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       committed plain error under the second prong of plain error review by failing to inquire
       further after L.L. indicated she did not understand the second principle of Rule 431(b), that
       before a defendant can be convicted of a criminal offense, the prosecution must prove him or
       her guilty beyond a reasonable doubt. The prosecution must prove every element of the
       offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970).
¶ 92        The majority does not point to any exchange in the record between L.L. and the trial
       court or defense counsel demonstrating that L.L.’s confusion about such a fundamental legal
       concept as proving a defendant guilty beyond a reasonable doubt was ever resolved or settled
       as required by Rule 431(b). The Rule “requires questioning on whether the potential jurors
       both understand and accept each of the enumerated principles.” People v. Thompson, 238 Ill.
       2d 598, 607 (2010).
¶ 93        The dissenting opinion in Thompson, authored by Justice Burke and joined by Justice
       Freeman, pointed out that the rationale for imposing this duty on trial courts is that only by
       asking these questions can any hidden biases that a potential juror might harbor be uncovered
       and that in the absence of such questions the defendant would be deprived of “ ‘his right to a
       fair and impartial jury.’ ” (Emphasis omitted.) Thompson, 238 Ill. 2d 598, 617 (Burke, J.
       dissenting, joined by Freeman, J.) (quoting People v. Zehr, 103 Ill. 2d 472, 477 (1984)). Like
       the supreme court in Zehr and the dissenting justices in Thompson, I believe it is vital to the
       selection of a fair and impartial jury that a juror who finds that the State has failed to sustain
       its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a
       verdict of not guilty. Zehr, 103 Ill. 2d at 477. I also agree that it is equally important that a
       juror who finds that the State has sustained its burden of proof have no prejudice against
       returning a verdict of guilty. Id. Understanding and acceptance of the second principle in
       Rule 431(b) helps ensure that both of these goals are accomplished.
¶ 94        Since the Thompson decision, the supreme court has rejected the conclusion that a failure
       to ask questions which are not only mandated by this court but which are “vital to the
       selection of a fair and impartial jury” necessarily amounts to plain error. (Internal quotation
       marks omitted.) Thompson, 238 Ill. 2d at 619. While I believe Justice Burke’s dissenting
       opinion in Thompson states the better rule, I am compelled to follow the majority opinion in
       that case.




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