                                  Illinois Official Reports

                                          Appellate Court



                             People v. Sangster, 2014 IL App (1st) 113457




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


District & No.               First District, Third Division
                             Docket No. 1-11-3457


Filed                        March 31, 2014
Rehearing denied             April 28, 2014


Held                         Defendant’s convictions for first degree murder and attempted first
(Note: This syllabus         degree murder in a gang-related shooting were upheld where
constitutes no part of the   defendant’s recorded telephone conversation from jail involving
opinion of the court but     witness tampering was properly admitted in evidence based on the
has been prepared by the     silent witness theory, there was no error in the admission of two
Reporter of Decisions        witnesses’ prior inconsistent statements as substantive evidence and
for the convenience of       for impeachment, identification testimony was properly admitted for
the reader.)                 impeachment, the jury was fairly instructed by the trial court’s
                             sua sponte amendment of an instruction that applied to the theories
                             raised by the parties, and the prosecutor’s closing arguments did not
                             violate any of the trial court’s rulings or reference excluded evidence.




Decision Under               Appeal from the Circuit Court of Cook County, No. 08-CR-22734
Review                       (02); the Hon. Timothy Joseph Joyce, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Joan F. Frazier, and Joseph Alexander, Assistant State’s Attorneys, of
                              counsel), for the People.




     Panel                    PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                              with opinion.
                              Justices Neville and Mason concurred in the judgment and opinion.




                                               OPINION

¶1          A jury convicted defendant Antoine Sangster of first degree murder for the shooting death
       of Frank Meeks and attempted first degree murder for the shooting of Christopher Davis. He
       received consecutive 40- and 21-year prison sentences.
¶2          Sangster raises a number of challenges for our consideration. He contends the trial court
       erred by admitting an audio recording of a telephone call placed from the Cook County jail and
       attributed to defendant relating to an attempt at witness tampering. Sangster further contends
       the trial court should not have admitted evidence that Christopher Davis identified defendant
       as the shooter while speaking with Robbie Horton and allowed the State to introduce numerous
       inadmissible hearsay statements through Robbie Horton’s grand jury testimony and
       Psallareous Baskin’s signed statement. Next, Sangster contends the court improperly
       introduced a new theory of guilt, which defendant had no opportunity to defend against, by
       sua sponte amending the jury instruction on the elements of first degree murder to include
       transferred intent after the parties concluded their closing arguments. Lastly, defendant
       challenges the propriety of the State’s closing argument, claiming the prosecutor improperly
       commented on excluded evidence and made arguments not based on the evidence.
¶3          We affirm. We find no abuse of discretion in the trial court’s decision to admit defendant’s
       recorded jail telephone conversation, finding a proper foundation for the call was laid under the
       silent witness theory. We find no reversible error in the trial court’s admission of Robbie
       Horton’s and Psallareous Baskin’s prior inconsistent statements as substantive evidence and
       for impeachment purposes. Additionally, Christopher Davis’s identification of defendant as
       the shooter was properly admitted for impeachment purposes and to show the effect on Horton
       and his course of conduct. We also find nothing improper in the trial court’s decision to amend
       the jury instruction. Doing so fairly instructed the jury of the law applicable to the theories
       raised by the State and defense. In addition, the amendment accurately reflected the applicable
       law and evidence at trial. Bearing in mind that the law grants a prosecutor wide latitude during
       closing and rebuttal arguments, we find that the prosecutor’s complained-of remarks did not


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       deprive Sangster of his right to a fair trial. The prosecutor did not violate the trial court’s ruling
       and did not reference excluded evidence; further, we find the prosecutor’s comments regarding
       the truthfulness of gang members to be based on the evidence.

¶4                                          BACKGROUND
¶5         Shooting victim Christopher Davis testified at trial under subpoena. Davis said that on June
       1, 2006, he and Frank Meeks were standing on Springfield Avenue when shots hit both of
       them. Meeks died of his wounds. Davis also acknowledged the presence at the scene of
       LaVonte Davis. (To avoid confusion, Christopher Davis will be referred to as “Davis” and
       LaVonte Davis as “LaVonte.”) But Davis testified to little else. He denied ever belonging to
       the Four Corner Hustlers street gang, holding a rank within the gang, or going by the street
       name “C-Gutta.” Davis also denied telling Robbie Horton that he had enough time to turn
       around and see defendant Antoine Sangster, also known as Bozo, shooting at him.
¶6         Before Robbie Horton testified, Sangster’s counsel objected to the State’s use of Horton’s
       handwritten statement and grand jury testimony.
¶7         In the handwritten statement, which disclaimed any promises or threats to entice its
       preparation, Horton identified the shooter as Sangster and acknowledged that Sangster and
       Davis were feuding over drug territory.
¶8         In his grand jury testimony, Horton testified that he held the rank of five-star universal
       chief with the Four Corner Hustlers street gang. Again, he acknowledged a conflict over drug
       territory and that Sangster was “going after” Davis. Horton told the grand jury that following
       Davis’s release from the hospital after recovering from the shooting, Horton spoke with Davis,
       and Davis said he “had enough time to turn around and look to see who was coming and which
       way they was coming from, and he recognized [defendant]” was shooting at him. Horton
       further testified that he had a conversation with Sangster and asked Sangster about the
       shooting. Horton testified Sangster responded “yeah, but that wasn’t for [Meeks].” Horton
       asked what Sangster meant. Sangster said he was “trying to get [Davis],” adding Davis was
       “lucky again.”
¶9         Sangster’s counsel informed the court that Horton told him that he would contradict both
       his handwritten statement and grand jury testimony, disputing both that Davis told Horton the
       shooter was Sangster and that Sangster told Horton he fired the shots. Counsel argued the State
       should not be allowed to impeach Horton with either his handwritten statement or grand jury
       testimony because “he would not be doing any affirmative damage to the State’s case by
       merely denying that he had conversations with either [defendant] or Chris Davis.” Counsel
       further argued Horton had no personal knowledge of the shooting and that the State could not
       use the evidence to “prove that [defendant] shot Chris Davis or Frank Meeks.”
¶ 10       The State argued for use of Horton’s statements to impeach Davis and agreed not to argue
       that the statements constituted substantive evidence. Concerning Horton’s conversation with
       Sangster, the State argued it came in substantively under section 115-10.1 of the Code of
       Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2010)).
¶ 11       The court, after noting that Horton’s handwritten statement might be inadmissible under
       section 115-10.1(c) because of the “potentially problematic hearsay,” admitted the grand jury
       testimony substantively because, as it was given under oath, the personal knowledge



                                                     -3-
       requirement did not apply. The court agreed to limit the use of Horton’s handwritten statement
       with an instruction.
¶ 12       Robbie Horton testified he, Davis, and Meeks were members of the Four Corner Hustlers
       street gang in 2006, but disavowed attaining any rank within the gang. Horton said his street
       name was “Wally,” Davis’s was “C-Gutta,” Meeks’s was “Spook,” and Sangster’s was
       “Bozo.” Horton claimed ignorance of any dispute between Davis and Sangster and further
       claimed Sangster never admitted to him that he was the shooter.
¶ 13       The court instructed the jury as follows:
                    “Before we proceed I do want to give you an instruction. Evidence has been
               presented, ladies and gentlemen, that Christopher Davis told Robbie Horton that Bozo
               shot him. That testimony is not to be used by you to prove that Bozo shot Christopher
               Davis, it is admitted only for the purpose of explaining why Robbie Horton spoke to
               Antoine Sangster concerning the shooting of Christopher Davis. Whether you believe
               this evidence and the weight you decide to give it, if any, is entirely up to you.”
¶ 14       Sangster’s counsel objected to this limiting instruction.
¶ 15       Assistant State’s Attorney (ASA) Margaret Ogarek testified she memorialized her
       interview with Horton in the handwritten statement, which Horton reviewed before signing.
       Horton told her Davis and Sangster were feuding over drug territory and that Davis identified
       Sangster as the shooter. ASA Ogarek said Horton gave his statement freely with no promises
       or threats being made, including promises or threats concerning an unrelated pending criminal
       matter against Horton.
¶ 16       ASA Mary Innes testified she presented Horton to the grand jury and he appeared to be
       cooperative. She too said no promises or threats were made to entice his testimony and Horton
       never indicated that anyone forced or threatened him to give testimony. Before the grand jury,
       Horton admitted to membership in the Four Corner Hustlers street gang and provided street
       names. Horton told the grand jury that Davis, also a member of the street gang, argued with
       Sangster over drug territory. Horton described the conversation with Davis in which Davis
       identified Sangster as the shooter and the conversation in which Sangster admitted shooting
       Meeks while trying to shoot Davis.
¶ 17       The State called Psallareous Baskin, a Four Corner Hustlers street gang member working
       for Sangster. Baskin said Sangster went by the street name “Bozo” and he knew Davis by the
       name “C-Gutta.” Although he did not know anything about Sangster’s control of drug
       territory, he knew about the shooting, despite not being there.
¶ 18       Baskin testified he was forced and threatened into giving a handwritten statement, which
       the State introduced. In it, Baskin acknowledged (i) Sangster and Davis were fighting over
       drug territory; (ii) he was on the block of North Springfield on June 1, 2006; (iii) he had spoken
       with Sangster that day; (iv) Sangster told him and LaVonte that when they saw Davis, they
       should contact him; (v) he did not do so on seeing Davis because he did not want to be
       responsible for anyone’s death; and (vi) 15 minutes later, he saw Sangster near a vacant lot
       shooting at Davis and Meeks.
¶ 19       ASA Barbara Dawkins testified she memorialized an interview with Baskin on April 9,
       2008, in a handwritten statement. She testified Baskin gave his statement voluntarily, without
       promises or threats, and Baskin read the statement before signing it. In his statement, Baskin
       identified Sangster as either a four- or five-star universal rank in the Four Corner Hustlers


                                                   -4-
       street gang. In addition, Baskin stated, “[LaVonte] told him he was going to call [Sangster] to
       tell him that [Davis] was across the street.”
¶ 20        LaVonte testified at trial that he had been arrested on a warrant the day before his trial
       testimony for his failure to appear in court on the previous trial date. LaVonte testified he was
       charged with murder and attempted murder as Sangster’s codefendant, and pled guilty to a
       reduced charge of aggravated battery, receiving a two-year sentence. During questioning,
       LaVonte stated, “I don’t even want to talk–I ain’t got nothing to say” and “Y’all can’t make me
       say nothing.” The trial court warned LaVonte that his refusal to answer questions could lead to
       a finding of contempt of court.
¶ 21        LaVonte testified he was not on Springfield Avenue that day, not a member of a gang, and
       not familiar with the Four Corner Hustlers street gang. When counsel asked him to identify
       Sangster, LaVonte claimed he did not know Sangster and did not see “Bozo” in the courtroom.
       LaVonte testified he had never heard of Meeks or Davis until he was arrested and did not know
       their street names. He denied telling the police that before the shooting occurred, he called
       Sangster to notify him Davis was on the block. He claimed the police forced him to make those
       statements. LaVonte also claimed he was not placed under oath at his plea hearing. When
       asked to identify a photograph of Sangster, People’s Exhibit 27, LaVonte said he could not
       identify the person depicted or pronounce the name (Sangster) on the photograph. Eventually,
       however, he identified Sangster’s photograph. LaVonte also identified a photograph of Keith
       Ferguson, People’s Exhibit 28. LaVonte claimed he did not identify either Sangster’s or
       Ferguson’s photograph during his plea hearing.
¶ 22        During his trial testimony, LaVonte repeatedly denied the following statements at his plea
       hearing, which, he claimed, he was forced to make: (i) identifying photographs of Sangster and
       Keith Ferguson; (ii) establishing Meeks’s street name to be “Spook” and Davis’s to be
       “Gutta”; and (iii) acknowledging that Sangster and Davis were fighting over drug territory.
       LaVonte also denied admitting that he “chirp[ed],” meaning he called Sangster when he saw
       Davis on the block, and 5 to 10 minutes later, Sangster showed up with Keith Ferguson.
       LaVonte, at his plea hearing, said Sangster and Ferguson came from a vacant lot, shot at Davis,
       and ran back toward the lot after the shooting. A few days later, LaVonte said he spoke with
       Sangster, who admitted shooting Meeks, though he was trying to shoot Davis.
¶ 23        When LaVonte denied Sangster’s admission to shooting Davis, the State, turning to his
       plea hearing asked:
                   “[STATE]: Page 18. Were you asked these questions, did you give these answers. I
               want to talk to you now about a couple of days later, did you have a chance to talk to
               some people about what you saw on June 1, 2006?
                   Answer: Yes, sir.
                   Did you ask that question, did you give that answer?
                                                    ***
                   [DAVIS]: No, sir.
                   [STATE]: Whose house were you at paraphrasing?
                   Answer: My cousin, Devonte Washington.
                   [STATE]: Who else was there?
                   Answer: Diamond and spelling Pascalarious, P-a-s-c-a-l-a-r-i-u-s, Baskin.”


                                                   -5-
       (Defense counsel objected. During the sidebar, defense counsel argued the State was going
       into a conversation with Diamond and Baskin which contained hearsay and was irrelevant. The
       trial court interpreted the testimony.)
                    “THE COURT: Question, again on page 17, court’s interpreting it as testimony by
                [LaVonte] at the preliminary hearing that he had a conversation with Diamond and
                Baskin. He told them to make a phone call. And he told them basically a conversation
                he, [LaVonte], had with Antoine Sangster.
                    The question then [goes] on to ask what the conversation, what was the
                conversation after the shooting you had with Antoine Sangster, that’s the extent of the
                conversation. So, in fact, he had this conversation, there’s other people frankly is
                irrelevant because it didn’t reveal as what (inaudible) him which may or may not be
                hearsay so objection will be sustained.”
       The court instructed the State to move on to Sangster’s admission to LaVonte.
¶ 24        When questioning resumed, the State confronted LaVonte with his plea hearing testimony,
       but he still denied the conversation with Sangster in which Sangster, (1) said he attended
       Meeks’s funeral and placed flowers, and (2) admitted he was trying to shoot Davis when he
       shot Meeks.
¶ 25        Chicago police detective Ernest Cato testified he investigated the shooting, interviewed
       Horton and Baskin, and was present when the ASAs memorialized their statements. Cato
       testified he did not make any threats or promises to either witness to entice his statement.
¶ 26        The parties stipulated that investigator Kim Taylor, working for Sangster, interviewed
       Baskin at his home on May 12, 2010. During the interview, Baskin told Taylor he had been
       taken to Area Four detective headquarters and was there for five hours. Taylor would testify
       that Baskin claimed his statement written by the police was a “lie.”
¶ 27        The State sought to introduce a recorded telephone call allegedly made by Sangster from
       Cook County jail to an unidentified female. At the admissibility hearing, Kathleen Urbanczyk,
       an employee of the Cook County department of corrections in the criminal intelligence unit,
       testified that “as a matter of course” calls made by inmates at the Cook County jail are recorded
       and the recordings are maintained for five years. She testified that when inmates enter the jail,
       they are registered into the jail’s telephone system. The system has a voice recognition
       component and, before an inmate can place a phone call, he or she must give their personal
       identification number (PIN) and state their name. If the inmate’s voice matches the previously
       recorded voice, the system activates. But, she explained, if the voice associated with the PIN is
       not recognized, the phone call cannot be placed. Urbanczyk reviewed a phone call made by
       Sangster on August 3, 2011, at 8:19 p.m., listening to the call on the jail’s system. She copied it
       to a disc and listened to the disc. She testified that the disc was a true and accurate copy of the
       original phone call recording.
¶ 28        The trial court, having heard arguments and reviewing case law, held the audio recording
       to be relevant and admissible. The court stated:
                    “I do agree with the State’s analysis that if it can be established as [defendant]
                making that call, a call by a defendant in a criminal case making efforts to ensure that a
                witness, a potential witness against him does not come to court is indicative of
                consciousness of guilt and it will be relevant for that purpose.”



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       The trial court prohibited the parties from offering any evidence regarding the voice
       recognition component of placing a call from the jail and held that Urbanczyk could not testify
       to “anything regarding voice recognition, software, or voice analysis or anything like that as a
       condition [precedent] to any inmate being able to make such a call.”
¶ 29       The trial court acknowledged Sangster’s argument that someone else could have used his
       PIN to place the call, but noted that the individual who placed the call identified himself
       “without hesitation or qualification as Boz.” The court found it significant that the individual
       who initiated the call was attempting to contact witnesses who were scheduled to testify
       against Sangster and he knew of the pending court date and the scheduling for jury selection.
       The trial court found a “sufficient quantum of evidence” that Sangster placed the call and made
       the statements in the recording.
¶ 30       At trial, Urbanczyk’s testimony was substantially the same as her testimony at the
       admissibility hearing, except she did not testify regarding the voice recognition component of
       the jail telephone system. The telephone call was published to the jury.
¶ 31       At the beginning of the telephone call, the caller is identified as “Antoine Sangster.” The
       caller instructs the unidentified female to “get another phone” so that she can call someone for
       him. He provided her with a number for “Wally,” the street name of Robbie Horton. When the
       unidentified female was unable to reach Wally, the caller instructed her to call “Lil Mark” and
       relay a message. When she was unable to reach Lil Mark, the female suggested calling “D.V.”
       The call to D.V. went to voicemail, but D.V. immediately called back and the unidentified
       female told D.V. that “Boz” wanted to speak with him. The caller asked D.V. if the State’s
       Attorney had contacted him about the case. D.V. replied that the only person who came to
       speak with him was Kim (the investigator working for Sangster). The caller instructed the
       unidentified female to tell D.V. to tell “Vonte,” (also known as LaVonte), not to appear in
       court after the first day because once they picked the jury, they could not stop the trial. At the
       end of the conversation, the caller asked where D.V. had seen “Vonte” and then asked, “On
       Springfield or something?”
¶ 32       The parties stipulated that Carolyn Brown would testify that she transcribed the
       proceedings involving LaVonte’s guilty plea. The parties further stipulated to questions and
       answers contained in the transcript.
¶ 33       Sangster did not present any evidence on his own behalf.
¶ 34       During closing arguments, the State discussed LaVonte’s plea agreement, arguing:
                    “[LaVonte] talked about a couple days later he was at his cousin Devon
                Washington’s house, who was referred to as D.D., and he talked about Bozo telling him
                that Bozo went to Frank Meeks’s funeral and planted flowers and how Bozo told him
                he was trying to shoot for Chris Davis.”
       (The recorded telephone call referred to “D.V.,” but the State discusses “D.D.”) The State then
       turned to the recorded telephone call and argued that after Sangster was unable to reach
       Horton, he asked the woman to call “D.D., LaVonte Davis’ cousin,” who they were eventually
       able to get on the phone. The State also argued that according to Baskin’s handwritten
       statement, “[Baskin] was across the street when LaVonte chirped [defendant]. LaVonte told
       him C-Gutta is out here. I’m going to tell Bozo.”
¶ 35       During its rebuttal argument, the State discussed the concept of transferred intent. After
       discussing the telephone call, the State replayed an excerpt for the jury and argued Sangster’s


                                                   -7-
       statement that a witness should not appear in court evidenced consciousness of guilt. The State
       also informed the jury it would receive an instruction on using prior inconsistent statements as
       substantive evidence “because the legislature has recognized that gang members come into
       court and lie.” The State then told the jurors they could consider Baskin’s statement, Horton’s
       grand jury testimony, and LaVonte’s plea hearing testimony as substantive evidence. The State
       further argued that Davis’s prior inconsistent statement was introduced “to show you what he
       said at another time and what he said was Bozo shot me.” The court sustained defense
       counsel’s objection to this last argument.
¶ 36        Following closing arguments, the court sua sponte modified the first degree murder
       instruction to include transferred intent, overruling the defense objection.
¶ 37        Also over defense objections, the court allowed the State to provide the jury with a
       redacted version of Horton’s statement, which revealed that before the shooting LaVonte told
       Horton he was going to call Bozo to tell him C-Gutta was across the street, and that Horton left
       the gang after his brother was killed in a gang shooting. In addition, it included a photograph
       that Horton identified as D.V.
¶ 38        During the first day of deliberations, the jury sent three notes. First, the jury requested a
       transcript of the recorded jail call. The court responded that while no transcript was available,
       they would be provided equipment to listen to the recorded call. Two hours later, the jury sent
       its second note asking:
                    “What happens when for certain we know with 100 percent accuracy that we will
                not come to a unanimous decision by a large margin? Meaning there are people
                staunchly unwilling to change their vote on both sides. We know this will not come to
                any other conclusion.”
       The court told the jury to continue deliberations. After three hours of deliberations, the jury
       informed the court that one juror was ill. Deliberations ended for the day, and the day the
       deliberations resumed, the jury found Sangster guilty on both counts.
¶ 39        Sangster’s motion for a new trial was denied and he was sentenced to 61 years’
       imprisonment.

¶ 40                                          ANALYSIS
¶ 41      Sangster asks this court to reverse his conviction and remand for a new trial, claiming
       numerous errors denied him a fair trial. We address each in turn.

¶ 42                          Sangster’s Claims of Error: Preliminary Question
¶ 43       Regarding all of Sangster’s claims of error, the State argues that the evidence was
       “overwhelming” against him, focusing on three eyewitnesses, including the victim, who
       identified Sangster as the shooter, Sangster admitting to the shooting on at least two different
       occasions, and the evidence of witness tampering, which suggests a consciousness of guilt.
       Sangster counters that the State’s version of the trial evidence does not acknowledge “many
       infirmities in the case.” As support for this position, Sangster contends the jury notes show the
       jury’s struggle with the sufficiency of the evidence and, therefore, undermines the State’s
       contention that the evidence was “overwhelming.” He also argues: (i) no one identified him as
       the shooter at trial; (ii) all the witnesses denied seeing the shooter or having information about
       the shooter; (iii) no physical evidence placed him at the crime scene; and (iv) every witness

                                                   -8-
       who had previously implicated him recanted his prior statement, claiming it was the product of
       police coercion. Moreover, Sangster attaches significance to the fact that the State’s witnesses
       faced criminal charges themselves at the time they gave their statements and, thus, were
       potentially motivated to provide false statements to reap a potential benefit for their cases.
       Sangster further argues the physical evidence conflicted with the accounts of the shooting
       contained in the prior inconsistent statements the police introduced, namely, that although no
       witness ever stated the shooter crossed the street before shooting the victims, shell casings
       recovered at the scene were on the same side of the street and in close proximity to where the
       victims were standing when they were shot.
¶ 44       Whether the evidence was closely balanced only becomes an issue should we choose to
       address any of Sangster’s claims of error under the plain error doctrine. Before reaching plain
       error, however, we must determine whether error occurred. We turn our attention to each of
       defendant’s claims of error.

¶ 45                          Foundation for the Recorded Jail Telephone Call
¶ 46        Sangster contends the State did not lay a proper foundation before introducing the audio
       recording of a telephone call from jail instructing LaVonte not to testify at his trial. The State
       counters that it furnished a proper foundation under the silent witness theory and the business
       records exception to the hearsay rule.
¶ 47        The decision of whether evidence should be admitted belongs to the sound discretion of the
       trial court and, on review, we will not reverse that decision absent an abuse of discretion.
       People v. Illgen, 145 Ill. 2d 353, 364 (1991). An abuse of discretion occurs when the ruling is
       arbitrary or fanciful or where no reasonable person would adopt the trial court’s view. Id.
¶ 48        In Illinois, a sound recording, which is otherwise competent, material, and relevant, is
       admissible into evidence if a proper foundation is laid establishing authenticity and reliability
       of the recording. People v. Melchor, 136 Ill. App. 3d 708, 711 (1985). Under the silent witness
       theory, a recording may be admitted without the testimony of a witness with personal
       knowledge of what the recording portrays as long as there is sufficient proof of the reliability
       of the process that produced the recording. People v. Vaden, 336 Ill. App. 3d 893, 898 (2003).
¶ 49        Sangster argues the State failed to lay a proper foundation for the admission of the recorded
       telephone call because no witness testified to the capability of the devices used for recording,
       the competency of the operators, the proper operation of the recording devices, or the
       preservation of the recording.
¶ 50        We reject Sangster’s argument, and agree with the trial court that the ability of Sangster to
       make the call and its recording provides sufficient evidence the system was working properly.
       Through the department of correction employee’s testimony, the State presented sufficient
       proof of the reliability of the process that produced the telephone recording. Urbanczyk
       testified she was trained to use the system by the actual supplier of the system and that the only
       way the jail telephone system could be activated was by the caller entering his PIN and saying
       his or her name.
¶ 51        We note that neither at trial nor before us did Sangster make a colorable claim that the
       recording was other than authentic or accurate. See People v. Dennis, 2011 IL App (5th)
       090346, ¶ 28. Where a defendant does not present any actual evidence of tampering,
       substitution, or contamination, the State need only establish a probability that those things did


                                                   -9-
       not occur. Id. Any deficiencies go to the weight, rather than the admissibility, of the evidence.
       Id.
¶ 52       The trial court found the caller’s identification as “Boz,” the discussion of the facts of
       Sangster’s case, and the caller’s attempts to contact known witnesses, sufficient evidence that
       Sangster made the call. Based on the evidence presented, we cannot say the trial court’s
       admission of the recorded telephone call under the silent witness theory constituted an abuse of
       discretion and, therefore, there is no error.
¶ 53       The State further contends the audio recording of the telephone call was properly admitted
       as a business record under section 115-5(a) of the Code. 725 ILCS 5/115-5(a) (West 2010).
       Having found no error in the trial court’s admission of the recording under the silent witness
       theory, we decline the State’s invitation to address this alternate argument.

¶ 54                                      Inconsistent Statements
¶ 55       Sangster argues the trial court erred in admitting evidence that Davis identified Sangster as
       the shooter while speaking with Robbie Horton. Sangster maintains that Horton’s prior
       inconsistent statements regarding the identification were inadmissible under section 115-10.1
       of the Code because Horton lacked personal knowledge, and his statements of the shooting
       contained double hearsay. 725 ILCS 5/115-10.1 (West 2010). Sangster further argues that the
       State should not have been allowed to impeach Davis and Horton on their assertion they did
       not speak after the shooting because their testimony did not affirmatively harm the State’s
       case. Lastly, Sangster argues Davis’s identification should be deemed inadmissible to explain
       Horton’s later actions under the course of conduct hearsay exception.

¶ 56               Robbie Horton’s Handwritten Statement and Grand Jury Testimony
¶ 57       Horton’s handwritten statement and grand jury testimony contradicted his trial testimony.
       The State introduced them as prior inconsistent statements. The State used Horton’s
       handwritten statement to impeach his and Davis’s trial testimony. Horton’s grand jury
       testimony was admitted as substantive evidence under section 115-10.1 of the Code. 725 ILCS
       5/115-10.1 (West 2010).
¶ 58       Horton, in both his signed statement and grand jury testimony, claimed he spoke with
       Davis after the shooting and that Davis identified Sangster as the person who shot Meeks and
       him. At trial, both Horton and Davis denied they spoke with each other after the shooting.
¶ 59       Whether a prior statement is inconsistent under section 115-10.1 of the Code and,
       therefore, admissible as substantive evidence, falls within the sound discretion of the trial court
       and the decision will be reversed on appeal only if it constitutes an abuse of discretion. People
       v. Harvey, 366 Ill. App. 3d 910, 922 (2006); People v. Flores, 128 Ill. 2d 66, 87-88 (1989). An
       abuse of discretion occurs when the trial court’s ruling is arbitrary, fanciful, or unreasonable or
       when no reasonable person would take the same view. Illgen, 145 Ill. 2d at 364.
¶ 60       Generally, hearsay refers to “an out of court statement *** offered to establish the truth of
       the matter asserted.” (Internal quotation marks omitted.) People v. Gonzalez, 379 Ill. App. 3d
       941, 954 (2008). As an exception, the prior inconsistent statements of a testifying witness may
       be admitted to impeach the witness’ credibility. People v. McCarter, 385 Ill. App. 3d 919, 932
       (2008). Additionally, section 115-10.1(c) of the Code provides that a prior inconsistent


                                                   - 10 -
       statement may be offered not just for purposes of impeachment, but as substantive evidence, if
       the witness is subject to cross-examination and the statement:
                    “(1) was made under oath at a trial, hearing, or other proceeding, or
                    (2) narrates, describes, or explains an event or condition of which the witness had
                personal knowledge, and
                         (A) the statement is proved to have been written or signed by the witness[.]”
                    725 ILCS 5/115-10.1(c) (West 2010).
       To satisfy the exception’s “personal knowledge” requirement, “ ‘ “the witness whose prior
       inconsistent statement is being offered into evidence must actually have seen the events which
       are the subject of that statement.” [Citations.]’ ” McCarter, 385 Ill. App. 3d at 930 (quoting
       People v. Cooper, 188 Ill. App. 3d 971, 973 (1989)). Accordingly, “ ‘[e]xcluded from this
       definition are statements made to the witness by a third party, where the witness has no
       firsthand knowledge of the event that is the subject of the statements made by the third party.’ ”
       McCarter, 385 Ill. App. 3d at 930 (quoting People v. Morgason, 311 Ill. App. 3d 1005, 1011
       (2000)). The witness must have observed the events he is speaking of, rather than have heard
       about them afterwards. Morgason, 311 Ill. App. 3d at 1011.
¶ 61        When a prior inconsistent statement meets the basic requirements of reliability under
       section 115-10.1 of the Code, either party in a criminal case may introduce the prior
       inconsistent statement as substantive evidence. See People v. Santiago, 409 Ill. App. 3d 927,
       932-33 (2011). Section 115-10.1 seeks to advance the legislature’s goal of “prevent[ing] a
       ‘turncoat witness’ from merely denying an earlier statement when that statement was made
       under circumstances indicating it was likely to be true.” People v. Thomas, 354 Ill. App. 3d
       868, 882 (2004). Thus, under section 115-10.1, testimony under oath in a prior proceeding or a
       statement concerning a matter within the witness’s personal knowledge proved to have been
       written or signed by the witness can be used as substantive evidence. Therefore, Baskin’s
       statement to the police and LaVonte’s testimony at his plea hearing–both to the effect that they
       personally witnessed Sangster shoot Meeks and Davis–were properly considered by the jury as
       substantive evidence.
¶ 62        If a prior inconsistent statement is not admissible as substantive evidence, that statement
       can only be used for impeachment when the testimony of that witness does “affirmative
       damage” to the party’s case. People v. Cruz, 162 Ill. 2d 314, 361 (1994) (citing People v.
       Bradford, 106 Ill. 2d 492, 500 (1985)). “It is only when the witness’ testimony is more
       damaging than his [or her] complete failure to testify would have been that impeachment is
       useful.” People v. Sims, 285 Ill. App. 3d 598, 610 (1996) (citing People v. Weaver, 92 Ill. 2d at
       545, 563-64 (1982)). Accordingly, the issue is whether Horton’s and Davis’s testimony at trial
       damaged, rather than failed to support, the State’s case, such that their inconsistent statements
       were properly admitted to impeach. See Sims, 285 Ill. App. 3d at 610.
¶ 63        Sangster contends Horton lacked personal knowledge of the shooting and simply
       recounted information provided to him by Davis. Sangster argues Horton’s statement
       contained an additional level of inadmissible hearsay–Davis’s out-of-court identification of
       Sangster to Horton–which falls outside of a hearsay exception. Sangster further argues that
       because neither Horton nor Davis affirmatively damaged the State’s case when they denied
       speaking with each other after the shooting, their prior inconsistent statements should not have
       been admitted for impeachment purposes.


                                                   - 11 -
¶ 64        The State contends Horton’s handwritten statement was never admitted as substantive
       evidence, but for a proper reason–“solely for its impeaching effect upon the credibility of the
       witness.” And, LaVonte and Horton “attempted to positively aid” Sangster by disavowing
       their prior statements and testifying that they were the result of coercion.
¶ 65        The State concedes any claim of error regarding the impeachment of Horton was
       preserved, but argues Sangster forfeited his claim of error as it related to the impeachment of
       Davis because Sangster failed to object at trial or include the issue in a posttrial motion.
       Sangster argues the error should be considered under the first prong of the plain error doctrine
       because the evidence was closely balanced. Alternatively, Sangster asks us to review the issue
       as one of ineffective assistance of counsel.
¶ 66        We note that the rule of waiver is a limitation on the parties, not the court. See People v.
       Williams, 188 Ill. 2d 293, 301 (1999). Because Sangster’s claim of error rests on his right to a
       fair trial, we will not apply the waiver rules, and instead, we choose to address the merits. We
       first determine whether any reversible error occurred. If we find error, we then will consider
       whether the error is sufficiently grave to be plain error as Sangster contends or ineffective
       assistance of counsel.
¶ 67        The State argues this case more closely resembles the facts in People v. Donegan, 2012 IL
       App (1st) 102325, a decision written by Justice Patrick Quinn, in which this court found
       affirmative damage and, thus, allowed the witnesses’ prior inconsistent statements. Sangster,
       on the other hand, argues the facts are more similar to People v. McCarter, 385 Ill. App. 3d 919
       (2008), a decision written by Justice Joseph Gordon, in which this court found no affirmative
       damage and disallowed impeachment with the prior inconsistent statements. Sangster argues
       the witnesses’ failure to incriminate him in the present case did not “affirmatively hurt” the
       State or help Sangster because neither witness exculpated him and none of their trial testimony
       was inconsistent with the State’s charges.
¶ 68        We need not address McCarter and Donegan. No “affirmative damage” analysis is
       necessary because, even if we were to find the trial court erred in allowing the State to impeach
       Horton and Davis with Horton’s statement and grand jury testimony regarding his
       conversation with Davis, the evidence against Sangster that could be considered substantively
       by the jury was so overwhelming, the error, if any, was harmless. An error is harmless “ ‘where
       there is no reasonable probability that the jury would have acquitted the defendant absent the’
       error.” (Emphasis in original.) In re E.H., 224 Ill. 2d 172, 180 (2006) (quoting People v. Nevitt,
       135 Ill. 2d 423, 447 (1990)). Baskin’s statement to the police identifying Sangster as the
       shooter and LaVonte’s plea hearing testimony doing the same, coupled with Sangster’s
       admissions to Horton and LaVonte that he meant to kill Davis, not Meeks, provide powerful
       evidence in support of the jury’s verdict. Further, evidence regarding Sangster’s motive to kill
       Davis, as well as his attempt to prevent a witness from testifying, are strong circumstantial
       evidence of his guilt.
¶ 69        While Sangster takes issue with allowing the State to introduce the lead-in to Horton’s
       question to Sangster (“they are saying you killed Spook”) as double hearsay, Sangster does not
       contend that his admission to both Horton and LaVonte that he was trying to hit Davis, when
       he shot Meeks, should have been barred. Sangster also concedes that the State could properly
       have asked a question along the lines of “When you asked Sangster about Meeks’s death, what
       did he say?” (i.e. eliminating the double hearsay lead-in) and, thus, the jury was going to hear


                                                   - 12 -
       Sangster’s response in any event. In the absence of any evidence of prejudice, we decline to
       reverse on this issue.
¶ 70       Finding the error, if any, to be harmless, we need not address Sangster’s ineffective
       assistance of counsel claim.

¶ 71                  Davis’s Out-of-Court Identification of Sangster as the Shooter
¶ 72        Sangster contends the trial court erred in allowing Davis’s statement identifying him as the
       shooter to Horton to be admitted under the course of conduct hearsay exception because it
       included more detail than was necessary. Sangster argues the erroneous admission of Davis’s
       identification was extremely prejudicial, especially because the State argued during rebuttal
       that the jury could consider Davis’s identification as substantive evidence.
¶ 73        Over defense counsel’s objection, the trial court allowed the State to introduce testimony
       from Horton concerning his prior statements that he spoke with Davis after the shooting and
       that Davis identified Sangster as the shooter. The trial court ruled that the statement was
       “admissible not for the truth of the matter asserted but simply to show Horton’s state of mind
       with respect to why he would have a conversation with [defendant.]” The State offered
       evidence that Horton provided a signed statement and testified before the grand jury, and
       during both consistently stated that Davis told Horton that Sangster shot him (Davis) and
       Meeks. The State called two ASAs who confirmed the substance of Horton’s prior inconsistent
       statement and grand jury testimony and introduced the transcript of Horton’s grand jury
       testimony.
¶ 74        Sangster argues the State need not have offered evidence to explain why Horton spoke with
       Sangster about the shooting. Sangster contends that because Horton’s trial testimony
       established that he belonged to a gang with Sangster, Davis, and Meeks, and that in addition to
       their gang affiliation, he was friends with Sangster, there was no need for the State to explain to
       the jury why Horton spoke with Sangster after the shooting. Sangster further contends that
       even if relevant, the cumulative effect of the State’s evidence went beyond explaining
       Horton’s course of conduct in speaking with Sangster. According to Sangster, the State only
       needed to elicit that Horton spoke with Davis, without disclosing the content of that
       conversation, and then had a conversation with Sangster about the shooting.
¶ 75        The State contends that without the conversation between Davis and Horton, Sangster’s
       admission to Horton would have “seemed purely coincidental.” The State contends the
       substance of the conversation between Davis and Horton was necessary to explain why Horton
       spoke with Sangster and why Sangster admitted to him that he committed the shooting. The
       State’s position is that Davis’s out-of-court identification of Sangster does not constitute
       inadmissible double hearsay as Sangster suggests, but was admitted to show its effect on
       Horton and explain Horton’s course of conduct. The State further argues the trial court’s
       limiting instruction emphasized the evidence’s limited admissibility.
¶ 76        “ ‘Hearsay evidence is an out-of-court statement offered to prove the truth of the matter
       asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an
       exception to the hearsay rule.’ ” People v. Caffey, 205 Ill. 2d 52, 88 (2001) (quoting People v.
       Olinger, 176 Ill. 2d 326, 357 (1997)). Statements that are offered to show their effect on the
       listener or to explain the listener’s subsequent course of conduct are not hearsay. People v.
       Carroll, 322 Ill. App. 3d 221, 223 (2001).


                                                   - 13 -
¶ 77       The State cities People v. Robinson, 391 Ill. App. 3d 822 (2d Dist. 2009), and People v.
       Gonzalez, 379 Ill. App. 3d 941 (1st Dist. 2008), in support of its position. Both cases involved
       interactions between the defendant and the police, a distinction Sangster finds significant, but
       we do not.
¶ 78       The trial court did not abuse its discretion in admitting the substance of Davis’s
       out-of-court identification of Sangster as the shooter to explain Horton’s course of conduct.
       Moreover, even if we assume, arguendo, that the trial court improperly admitted Davis’s
       statement, the trial court’s limiting instruction cured any prejudice. We can presume the jury
       followed the court’s limiting instruction and considered Davis’s statement only to explain the
       effect it had on Horton in pursuing a conversation with Sangster about the shooting. See
       People v. Taylor, 166 Ill. 2d 414, 438 (1995) (“The jury is presumed to follow the instructions
       that the court gives it.”).
¶ 79       Sangster further contends the State improperly impeached Davis and Horton with Davis’s
       identification of Sangster. Sangster argues the evidence was improper because it was not
       presented for a limited purpose where the State elicited the contents of the conversation four
       separate times and told the jury, during closing arguments, that it could consider the
       impeachment evidence as substantive evidence.
¶ 80       We find no error in the trial court’s admission of Davis’s identification of Sangster as the
       shooter. As discussed above, Horton’s statements, which included Davis’s identification of
       Sangster as the shooter, were properly admitted to impeach both Horton and Davis. Although
       the State suggested during rebuttal argument that Davis’s statement was substantive evidence,
       the trial court sustained defense counsel’s objection and provided the jury with a limiting
       instruction explaining that the statement was to be used only to explain why Horton chose to
       speak with Sangster.
¶ 81       Finding Davis’s statement was properly used as impeachment evidence, there was no
       reason for defense counsel to object. See People v. Holmes, 397 Ill. App. 3d 737, 745 (2010)
       (“It is axiomatic that a defense counsel will not be deemed ineffective for failing to make a
       futile objection.” (citing People v. Lawton, 212 Ill. 2d 285, 303 (2004)). Therefore, Sangster
       has failed to establish a claim of ineffective assistance on these grounds.

¶ 82          Inadmissible Hearsay: Horton’s Grand Jury Testimony and Baskin’s Statement
¶ 83       At trial, the State impeached Horton with his grand jury testimony and admitted his
       testimony as substantive evidence because it was sworn testimony. The State impeached
       Baskin with his handwritten statement and informed the jury that the statement constituted
       substantive evidence because he signed it and it detailed events about which Baskin had
       personal knowledge. Sangster contends Horton’s grand jury testimony and Baskin’s statement
       contain numerous inadmissible hearsay statements, and the improper admission of the hearsay
       statements prejudiced him because it presented the jury with anonymous identifications of
       Sangster as the shooter, added credibility to the State’s argument that Sangster was the
       individual who placed the recorded jail call, and corroborated LaVonte’s recanted account of
       the shooting.
¶ 84       Sangster acknowledges his counsel failed to object to each piece of the inadmissible
       hearsay at trial, but asks this court to reverse his conviction and remand for a new trial,
       claiming the admission of the statements constitutes plain error and ineffectiveness of counsel.


                                                  - 14 -
¶ 85       Sangster characterizes as double hearsay Horton’s grand jury testimony that he told
       Sangster “they are saying you killed Spook,” citing People v. Radovick, 275 Ill. App. 3d 809
       (1995) (even if statement is admitted substantively under section 115-10.1 of Code, that
       section does not abrogate other rules of evidence, including ban on double hearsay). Sangster
       acknowledges to the extent that it was inconsistent with his trial testimony, Horton’s grand jury
       testimony was substantively admissible under section 115-10.1, but “only so far as it did not
       contain evidence which was inadmissible for other reasons.” Sangster considers the
       unattributed identification of him as the shooter contained in Horton’s statement (“they are
       saying you killed Spook”) to be classic hearsay–the statement was offered to prove the truth of
       the matter asserted, that Sangster shot Meeks, and as such, was inadmissible. Relying on
       Radovick, Sangster argues the trial court should have redacted the portions of Horton’s grand
       jury testimony which contained the inadmissible double hearsay.
¶ 86       The State contends Sangster failed to preserve the complained-of issues for appellate
       review because he did not object at trial or include the issues in a posttrial motion. People v.
       Enoch, 122 Ill. 2d 176 (1988). That aside, the State maintains the complained-of statements
       were properly admitted because they were not being offered for the truth of the matter asserted.
       The State contends the statement contained in Horton’s grand jury testimony (“they are saying
       you killed Spook”) was admissible to show the effect it had on Horton and his course of
       conduct.
¶ 87       Horton testified at trial that he did not have a conversation in which Sangster admitted to
       him that he shot Meeks and Davis. The State impeached Horton with his grand jury testimony.
       ASA Innes testified she presented Horton to the grand jury and that he testified, “I asked
       [defendant] about Spook being killed. I told him, you know, they are saying you killed Spook
       and he said yeah, but that wasn’t for Spook.” The State contends the statement places the
       conversation between Horton and Sangster in context and explains why Horton initiated the
       conversation.
¶ 88       The trial court properly admitted the statement for the purpose of providing context for the
       conversation between Horton and Sangster and explaining why Horton initiated the
       conversation with Sangster. It was not offered for the truth of the matter asserted. We find no
       abuse of discretion by the trial court in admitting the statement.
¶ 89       Next, Sangster contends the trial court erred by allowing the jury to consider the
       unredacted portion of Horton’s handwritten statement in which he discussed leaving the gang
       after a gang-related slaying of his brother. Sangster argues Horton’s explanation for why he
       left the gang was inadmissible under section 115-10.1 because the State never questioned
       Horton at trial about the reasons he left the gang and, therefore, the statement was irrelevant.
       Sangster argues the evidence prejudiced him because it informed the jury of a shooting in
       which the Four Corner Hustlers street gang was involved and portrayed the gang as a violent
       organization, which painted him in a negative light.
¶ 90       The State responds that the statement was properly admitted because it provided context
       for Horton’s statements that despite leaving the gang, he was familiar with the members of the
       gang. Sangster contends the portion of Horton’s statement regarding how his brother was
       killed was not impeaching and should have been redacted as irrelevant and prejudicial.
¶ 91       We find nothing unreasonable about the trial court’s decision not to redact the statement.
       Moreover, even if we were to find the evidence irrelevant and, therefore, its admission to be in
       error, the error would be harmless because there is no reasonable probability that the verdict

                                                  - 15 -
        would have been different had the evidence been redacted. See People v. Cortes, 181 Ill. 2d
        249, 285 (1998) (“If the error is unlikely to have influenced the jury, admission will not
        warrant reversal.”).
¶ 92        Sangster further contends the photograph of LaVonte was improperly admitted because the
        State never questioned Horton about D.V. Sangster admits, however, that Horton
        acknowledged that five photographs were appended to his handwritten statement, on which he
        had written the street names of the individuals depicted. Also, Sangster ignores the evidence
        that Sangster spoke with D.V. from jail, instructing him to tell LaVonte not to appear in court.
¶ 93        Generally, if photographs are relevant to prove facts at issue, they are admissible. Brooke
        Inns, Inc. v. S&R Hi-Fi & TV, 249 Ill. App. 3d 1064, 1087 (1993). The decision to admit
        photographs into evidence is left to the sound discretion of the trial court and will not be
        disturbed on appeal absent an abuse of that discretion. Id. Sufficient evidence exists here to
        support the admission of the photograph, but even if we were to find the photograph irrelevant
        and immaterial, its admission was harmless because the photograph cannot be considered vital
        to defendant’s conviction. See Smith v. Baker’s Feed & Grain, Inc., 213 Ill. App. 3d 950, 953
        (1991) (finding error in admitting photograph did not mislead jury on any issue in dispute).
¶ 94        Lastly on this issue, Sangster contends Baskin’s statement that LaVonte told him that he
        planned to call Sangster to alert him to Davis’s location was inadmissible hearsay. When
        Baskin denied witnessing the shooting during his trial testimony, the State impeached him with
        his handwritten statement in which he provided a first-hand account of the shooting. Baskin
        stated, “Vonte told him he was going to call Bozo … to tell him that C-Gutta was across the
        street.”
¶ 95        Sangster contends Baskin’s statement was erroneously introduced as substantive evidence
        under section 115-10.1 of the Code because it constituted double hearsay. 725 ILCS
        5/115-10.1 (West 2010). Sangster argues LaVonte’s out-of-court statement to Baskin was
        offered for the truth of the matter asserted–that LaVonte called Sangster to notify him of
        Davis’s location before the shooting. Sangster argues the introduction of Baskin’s statement
        prejudiced him because it corroborated LaVonte’s recanted claim that he contacted Sangster
        before the shooting and bolstered the credibility of LaVonte’s recanted account.
¶ 96        The State contends that under section 115-10.1 of the Code Baskin’s statement was
        properly admitted as substantive evidence. 725 ILCS 5/115-10.1 (West 2010). Baskin’s prior
        statement was inconsistent with his trial testimony, he was subjected to cross-examination, and
        the statement is based on his personal knowledge.
¶ 97        We find the trial court properly acted within its discretion in admitting Baskin’s statement
        concerning what LaVonte told him to impeach his trial testimony. At trial, Baskin testified he
        was not present when the shooting occurred and did not witness it. His earlier statement that
        LaVonte told him that he was going to call Sangster contradicts his trial testimony that he was
        not present. We find no error.

¶ 98                                         Jury Instruction
¶ 99        Sangster contends the trial court erred by amending the jury instruction to include the
        concept of transferred intent.
¶ 100       Following the parties’ closing arguments, the trial court sua sponte amended Illinois
        Pattern Jury Instructions, Criminal, No. 7.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th


                                                   - 16 -
        No. 7.02) to include the language “or another” to encompass the concept of transferred intent.
        The instruction read:
                     “To sustain a charge of first degree murder, the State must prove the following
                 propositions: First that the defendant, or one for whose conduct he is legally
                 responsible, performed the acts which caused the death of Frank Meeks; and second
                 that when the defendant, or one for whose conduct he is legally responsible did do, he
                 intended to kill or do great bodily harm to Frank Meeks or another, or he knew that his
                 acts created a strong probability of death or great bodily harm to Frank Meeks or
                 another.” (Emphases added.)
¶ 101        Sangster contends he was denied a fair trial. “The trial court’s decision to broaden the
        scope of the first-degree murder count introduced a new theory of guilt,” maintains Sangster,
        and the new theory was introduced after defense counsel’s closing argument and, therefore,
        counsel had no chance to defend against it. The State counters that the new instruction
        correctly stated the law and was appropriate based on the evidence at trial. We agree with the
        State.
¶ 102        During closing argument, defense counsel argued the State presented different theories of
        guilt, “I mean under the best case scenario for the prosecutors, if you *** pick and choose parts
        of the testimony from whatever happened in the Grand Jury or handwritten and ignore other
        parts, it was an accident.” Counsel further argued, “You’d have to pick and choose but even
        under the best case scenario, it was an accident because there is no motive [for] him to shoot
        and kill Frank Meeks.” The State first mentioned the concept of transferred intent during its
        rebuttal argument, responding that Meeks’s death was not an accident. The State argues that
        “[h]ad defendant not suggested that he could not be convicted if Meeks was killed accidentally,
        the People would not have had to discuss transferred intent, and the trial court would not have
        had to amend the jury instruction.”
¶ 103        Relying on People v. Millsap, 189 Ill. 2d 155 (2000), Sangster argues “the question is not
        whether the instruction was an accurate statement of the law, but whether the instruction
        submitted a new theory to the jury after the case has been sent to the jury, or here, after the
        close of evidence.”
¶ 104        In Millsap, the defendant was charged with robbery and home invasion. Millsap, 189 Ill. 2d
        at 159. The State did not pursue an accountability theory, nor did it request that the jury be
        instructed on accountability. Millsap, 189 Ill. 2d at 159. The jury sent the judge a note during
        deliberations asking, “ ‘[i]s the accomplice just as guilty [as] the offender who causes an injury
        in a home invasion?’ ” Millsap, 189 Ill. 2d at 159. In response, the trial judge proposed
        instructing the jurors on accountability; the defendant objected. Millsap, 189 Ill. 2d at 159. The
        trial court gave the instruction reasoning that the evidence supported it. Millsap, 189 Ill. 2d at
        159. The jury found the defendant guilty on both charges. Millsap, 189 Ill. 2d at 160. The
        defendant appealed, arguing the court erred in instructing the jury on a new theory after the
        jury had begun deliberations. Millsap, 189 Ill. 2d at 160. The appellate court affirmed, holding
        that an accountability instruction was appropriate on the facts, and that a trial court has a duty
        to answer jurors’ questions when the jurors request clarification on a point of law. Millsap, 189
        Ill. 2d at 160. The defendant appealed to the supreme court, arguing the trial court’s instruction
        on a new theory deprived him of his right to a fair trial. The defendant argued that the timing of
        the court’s instruction prevented him from addressing the accountability issue during closing
        arguments. Millsap, 189 Ill. 2d at 161. The supreme court noted that the jury instructions

                                                    - 17 -
        should be settled before closing arguments, so that the attorneys can tailor their arguments
        accordingly. In reversing, the supreme court pointed to the trial court having instructed the jury
        on accountability after the jury had begun its deliberations, thereby entirely depriving the
        defendant’s attorney of an opportunity to defend against that theory. Millsap, 189 Ill. 2d at
        164-65.
¶ 105        The State distinguishes Millsap, arguing that unlike the jury in Millsap, which received the
        amended jury instruction mid-deliberations, the jury here received the challenged instruction
        after the close of evidence. The State argues it is significant that the trial court gave the
        instruction on transferred intent only after Sangster contended in his closing argument that he
        could not be found guilty of murder if the killing was an accident and the State responded in
        rebuttal with the concept of transferred intent.
¶ 106        Sangster argues this distinction is of no significance. He contends it makes no difference
        whether the new, broader theory of guilt was introduced mid-deliberations, as in Millsap, or
        after the close of evidence, as in his case, because either way, Sangster had no chance to adjust
        his theory of defense.
¶ 107        While jury instructions must be settled before closing arguments (see 735 ILCS
        5/2-1107(c) (West 2010); Ill. S. Ct. R. 451(c) (eff. July 1, 2006)), the State contends that the
        trial court’s decision to amend the instruction to include the theory of transferred intent is
        supported by section 2-1107(c) of the Code:
                 “If as a result of the arguments to the jury the court determines that additional
                 instructions are desirable, the court may after a further conference with counsel
                 approve additional instructions.” 735 ILCS 5/2-1107(c) (West 2010).
        The State further argues the trial court had authority to amend the instructions under Illinois
        Supreme Court Rule 451(f) (eff. Apr. 8, 2013), which states, “[n]othing in the rule is intended
        to restrict the court’s authority to give any appropriate instruction during the course of the
        trial.”
¶ 108        Alternatively, the State suggests that the jury instruction on transferred intent did not
        introduce a new theory of guilt, that is, the elements of IPI Criminal 4th No. 7.02 did not
        change by adding the “or another” language. The State cites People v. Leach, 2011 IL App
        (1st) 090339, ¶ 7, as support for its position that because the amended instruction contained the
        same elements as the original instruction, the trial court’s decision to amend the instruction
        was proper and Millsap is inapposite.
¶ 109        In Leach, the trial court withdrew the original jury instruction for aggravated discharge of a
        firearm after the jury had already begun deliberating and gave the jury a new instruction for
        aggravated discharge of a firearm in response to the jury question, “ ‘Does the Aggravated
        Discharge charge only apply to shooting in the direction of Anthony White?’ ” Leach, 2011 IL
        App (1st) 090339, ¶ 17. The new instruction removed the name of the alleged victim and
        replaced it with “another person.” Leach, 2011 IL App (1st) 090339, ¶ 19. The only difference
        between the two instructions was that the first one contained the alleged victim’s name and the
        second one did not. Leach, 2011 IL App (1st) 090339, ¶ 24. This court held the victim’s name
        was not a necessary element of the offense of aggravated discharge of a firearm. Leach, 2011
        IL App (1st) 090339, ¶ 24. The second instruction contained the same two elements for
        aggravated discharge of a firearm as the first instruction and, therefore, this court found the
        second instruction did not introduce a new theory of liability. Leach, 2011 IL App (1st)
        090339, ¶ 24.

                                                    - 18 -
¶ 110       Sangster argues Leach is inapposite. He contends that throughout the whole trial, all of the
        attorneys involved proceeded with the understanding that Sangster was charged with an intent
        to shoot and kill Frank Meeks. He contends the victim’s name was an essential element of the
        offense. Sangster finds it significant that only during rebuttal argument did the State bring up
        the doctrine of transferred intent. Because of the timing of the instruction, Sangster was
        precluded from defending against the new theory of guilt. He argues the court’s actions
        constitute reversible error, warranting a new trial.
¶ 111       As an initial matter, we note that Sangster has forfeited review of this claim because he
        failed to include the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 185-86
        (1988). Sangster asks us to review the error under the plain error doctrine. Before undergoing a
        plain error analysis, we must first determine whether error occurred. We hold it did not.
¶ 112       The trial court’s decision to amend the jury instruction was proper. By amending IPI
        Criminal 4th No. 7.02 to include the language “or another,” the trial court did not introduce a
        new theory of guilt as Sangster suggests. Unlike the defendant in Millsap, here Sangster was
        not deprived of an opportunity to defend against the theory of transferred intent because the
        elements the State needed to prove to establish Sangster’s guilt did not change with the
        addition of “or another.” As we held in Leach, “whether the trial court’s instruction constituted
        a new theory of liability depends on whether the elements in the new *** instruction differed
        from the elements in the [amended] one.” Leach, 2011 IL App (1st) 090339, ¶ 19. After the
        amendment, the State still had to prove that Sangster, or one whose conduct he was legally
        responsible for, performed the acts which caused death, he intended to kill or do great bodily
        harm, and he knew that his acts would cause death or created a strong probability of death or
        great bodily harm. 720 ILCS 5/9-1 (West 2006). The only difference in the instruction, just as
        in Leach, was the name of the victim. The amended instruction contained the same elements as
        the original instruction and, therefore, the trial court’s decision to amend the instruction to
        reflect the evidence as it was presented was not an abuse of discretion.
¶ 113       Moreover, the trial court’s amendment of the jury instruction was a direct response to
        defense counsel’s argument that Sangster could not be held liable for the shooting because he
        did not intend to kill Meeks, but rather intended to kill Davis. The trial court properly
        instructed the jury on the doctrine of transferred intent after defense counsel opened the door to
        the concept. The State did not raise the doctrine in its opening statement or closing argument,
        addressing it for the first time in its rebuttal to defense counsel’s closing argument. It was only
        after defense counsel suggested that the shooting could not lead to culpability for Sangster
        because “even under the best case scenario, it was an accident because there was no motive
        [for] him to shoot and kill Frank Meeks,” that the State responded that Meeks’s death was not
        an accident and discussed the concept of transferred intent. Subsequently, the court amended
        the jury instruction to include the language “or another” to encompass the concept. The court’s
        decision was proper because “when defense counsel provokes a response, the defendant cannot
        complain that the prosecutor’s reply denied him a fair trial.” People v. Hudson, 157 Ill. 2d 401,
        445 (1993). The amendment to the jury instruction would not have occurred had defense
        counsel never suggested the jury should acquit Sangster if it found Meeks was killed
        accidentally.
¶ 114       The trial court had authority to amend the instruction under Illinois Supreme Court Rule
        451(f), which provides, “[n]othing in the rule is intended to restrict the court’s authority to give
        any appropriate instruction during the course of the trial.” Ill. S. Ct. R. 451(f) (eff. Apr. 8,

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        2013). The trial court properly instructed the jury on the applicable legal rules based on the
        evidence presented at trial and the parties’ theories based on that evidence.
¶ 115       The trial court’s decision to sua sponte amend the jury instruction was not an abuse of
        discretion. The instructions, as given, fully and fairly informed the jury on the applicable law.
        Having found no error, we need not address the doctrine of plain error.

¶ 116                            Propriety of the State’s Closing Arguments
¶ 117       Lastly, Sangster contends the prosecutor discussed excluded evidence and made
        generalizations about gang members during closing arguments and these comments deprived
        him of his right to a fair trial, particularly when coupled with the trial court’s failure to
        promptly correct the State’s misconduct with either cautionary instructions or admonishments.
¶ 118       As the State observes, and Sangster admits, he waived review of this issue by failing to
        timely object to the portions of the State’s argument he now challenges. See People v. Brown,
        185 Ill. 2d 229, 252 (1998). Again, Sangster urges us to review the issue under plain error. But,
        before plain error can be established, reversible error must be shown.
¶ 119       The prosecution is generally given “wide latitude” in making its closing argument. People
        v. Nicholas, 218 Ill. 2d 104, 121 (2005); People v. Blue, 189 Ill. 2d 99, 127 (2000). In closing,
        the prosecutor may comment on the evidence and any “fair, reasonable inferences” from it,
        even if those inferences reflect negatively on the defendant. Nicholas, 218 Ill. 2d at 121. But,
        the closing argument must serve a purpose other than merely “inflaming the emotions of the
        jury.” Nicholas, 218 Ill. 2d at 121; People v. Tiller, 94 Ill. 2d 303, 321 (1982).
¶ 120       We will not disturb the trial court’s determination of the propriety of the prosecution’s
        closing argument absent a clear abuse of discretion resulting in manifest prejudice to the
        defendant. People v. Cisewski, 118 Ill. 2d 163, 175 (1987). A “prosecutor’s comments in
        closing argument will result in reversible error only when they engender ‘substantial
        prejudice’ against the defendant to the extent that it is impossible to determine whether the
        verdict of the jury was caused by the comments or the evidence.” People v. Macri, 185 Ill. 2d
        1, 62 (1998). In reviewing allegations of prosecutorial misconduct during closing argument,
        the remarks must be viewed in the context of the entire arguments of the prosecution and the
        defense. People v. Wheeler, 226 Ill. 2d 92, 122 (2007).
¶ 121       Sangster contends the prosecutor’s closing argument improperly recounted the substance
        of LaVonte’s prior consistent statement and relied on excluded testimony to bolster the
        reliability of other evidence in light of the trial court’s ruling that the State must not introduce
        evidence that LaVonte shared a consistent account of Sangster’s admission of guilt with other
        individuals.
¶ 122       During LaVonte’s direct examination, he denied he witnessed the shooting and denied
        Sangster told him he shot Meeks while trying to shoot Davis. In confronting LaVonte with his
        plea hearing testimony, the State asked him to confirm the accuracy of his earlier testimony:
                     “Question: I want to talk now about a couple days later [after] speaking with
                 defendant about the [shooting], did you have a chance to talk to some people about
                 what you saw on June 1, 2006?
                     Answer: Yes, Sir.”
        LaVonte denied the truth of that exchange. The prosecutor asked about more testimony:
                     “Question: Whose house were you at paraphrasing?

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                     Answer: My Cousin, Devonte Washington.
                     Question: Who else was there?
                     Answer: Diamond and Psallareous Baskin.”
        Before LaVonte responded, defense counsel objected. The court sustained the objection and
        instructed the State to move on to a different portion of the plea hearing in which LaVonte,
        under oath, discusses defendant’s admission to him.
¶ 123       During closing argument, the prosecutor argued that during LaVonte’s plea hearing, he
                 “talked about a couple days later he was at his cousin Devon Washington’s house, who
                 was referred to as D.D., and he talked about Bozo telling him that Bozo went to Frank
                 Meeks’s funeral and planted flowers and how Bozo told him he was trying to shoot for
                 Chris Davis.”
        While discussing the recorded call Sangster made from jail, the State argued Sangster asked
        the woman to call “D.D., Davis’s cousin.”
¶ 124       Sangster argues the prosecutor’s comments were improper because a prior consistent
        statement cannot be used to bolster the credibility of a witness. Sangster contends the excluded
        evidence concerning what LaVonte told others while at his cousin’s house: (i) constituted an
        inadmissible prior consistent statement the State improperly discussed to strengthen the
        credibility of LaVonte’s recanted testimony implicating Sangster; (ii) presented new evidence
        during closing argument for the jury to consider because that testimony at his plea hearing was
        never admitted at trial; and (iii) violated the trial court’s ruling precluding the prosecutor from
        eliciting any testimony about conversations LaVonte had with other individuals regarding his
        conversation with Sangster.
¶ 125       The State contends the prosecutor’s arguments did not violate the trial court’s ruling and
        did not reference excluded evidence. Before his testimony, LaVonte pled guilty and received
        two years’ imprisonment. At trial, LaVonte was hostile and uncooperative during his
        testimony. The State claims that because of LaVonte’s attempt to affirmatively damage its
        case, the State was required to use his guilty plea hearing to impeach him with his prior
        inconsistent statement. Moreover, had defense counsel believed the State was in violation of
        the trial court’s ruling, an objection should have been made.
¶ 126       Contrary to Sangster’s claims, the prosecutor did not violate the trial court’s ruling.
        Although the prosecutor did state that Davis was at Washington’s house when he talked about
        Sangster’s admission of guilt, he did not mention Baskin or Diamond, or get into the substance
        of Davis’s conversation with those individuals. The prosecutor’s statements properly gave
        context to Davis’s statements regarding Sangster’s admission of guilt. Furthermore, the jury
        was instructed that closing arguments were not evidence. Accordingly, any error that may have
        occurred can be considered cured. See People v. Garcia, 231 Ill. App. 3d 460, 469 (1992) (jury
        instruction that arguments are not evidence tends to cure any prejudice from improper
        remarks). We hold the prosecutor’s comment did not amount to reversible error.
¶ 127       Next, Sangster contends the prosecutor’s statement that “gang members come in to court
        and lie” was improper because it had no basis in the evidence. The State argues the
        prosecutor’s comment regarding the truthfulness and credibility of gang members was based
        on the evidence or, at the very least, a reasonable inference from the evidence.
¶ 128       In rebuttal, the prosecutor, in discussing the credibility of Horton, Baskin, LaVonte, and
        Davis, argued:

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                 “[O]ne of the instructions the judge is going to give you talks about the circumstances
                 and the reason you get this instruction is because the legislature has recognized that
                 gang members come into court and lie. *** That instruction reads: The believability of
                 a witness may be challenged by evidence that on some former occasion he made a
                 statement that was not consistent with his testimony in this case.”
¶ 129        Sangster urges that by claiming the “law acknowledges” such behavior in situations
        involving inconsistent statements by gang members, the prosecutor “compounded the error by
        invoking the integrity of the State’s Attorney’s Office and backing the statement with the
        authority of law itself without any foundation for the argument.”
¶ 130        After reviewing the closing arguments in their entirety and considering the challenged
        remarks in context, we find reasonable the prosecutor’s argument that the gang members were
        untruthful and not credible based on the evidence presented. The witnesses who recanted their
        prior statements all belonged to the Four Corner Hustlers street gang. The State offered
        evidence that Sangster instructed a fellow gang member not to testify at trial. The witnesses
        that gave prior statements implicating Sangster all claimed those statements were forced or
        coerced, even though before trial, when they gave their statements, they affirmed the
        statements were voluntary. We find no error in the prosecutor’s statements.
¶ 131        Moreover, even if we were to find the prosecutor’s statements to be improper, they do not
        reach the level of reversible error. Sangster has failed to show the statements resulted in
        substantial prejudice. Unless it can be shown that the remark resulted in substantial prejudice
        to the defendant, errors in closing arguments are considered harmless. People v. Johnson, 149
        Ill. 2d 118, 145 (1992). The trial court did not abuse its discretion in allowing the prosecutor’s
        closing arguments. Finding no error in the prosecutor’s comments, this court does not have to
        reach either prong of a plain error analysis.

¶ 132                                          CONCLUSION
¶ 133        We hold the trial court properly exercised its discretion in admitting defendant’s recorded
        jail telephone conversation by finding a proper foundation for the call was laid under the silent
        witness theory. We find no reversible error in the trial court’s decision to admit Robbie Horton
        and Psallareous Baskin’s prior inconsistent statements as substantive evidence and for
        impeachment purposes. We hold Christopher Davis’s identification of defendant as the shooter
        was properly admitted for impeachment purposes and to show the effect on Horton and his
        course of conduct. Further, we uphold the trial court’s decision to sua sponte amend the jury
        instruction finding nothing improper about its decision to do so where the amended instruction
        fairly instructed the jury of the law applicable to the theories raised by the State and defense.
        Lastly, we find no error in the prosecutor’s closing argument. The prosecutor did not violate
        the trial court’s ruling and did not reference excluded evidence; further, we find the
        prosecutor’s comments regarding the truthfulness of gang members to be based on the
        evidence. For the foregoing reasons, we affirm the judgment.

¶ 134      Affirmed.




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