                                  2015 IL App (1st) 122325

                                                                        THIRD DIVISION
                                                                         March 18, 2015
                                            Modified on Denial of Rehearing May 6, 2015


                                         No. 1-12-2325




                                        IN THE
                             APPELLATE COURT OF ILLINOIS
                               FIRST JUDICIAL DISTRICT


THE PEOPLE OF THE STATE OF ,                )       Appeal from the
ILLINOIS                                    )       Circuit Court of
                                            )       Cook County.
Plaintiff-Appellee,                         )
                                            )       No. 09 CR 762
       v.                                   )
                                            )
WILLIAM BALFOUR,                            )       The Honorable
                                            )       Charles P. Burns
Defendant-Appellant.                        )       Judge, presiding.
                                            )


       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.

                                           OPINION

¶1     After trial by a Cook County jury, defendant William Balfour was convicted of the first-

degree murder of three members of his wife's family, along with charges related to the

commission of these murders, including home invasion, aggravated kidnapping, residential

burglary and possession of a stolen motor vehicle. He was sentenced to three consecutive terms
No. 1-12-2325


of natural life in prison for the murders and consecutive terms of 60 years, 50 years and 10 years

in prison for the related convictions.

¶2     Defendant appeals, claiming, in the main, that there was insufficient evidence to convict

him of these charges beyond a reasonable doubt while particularly emphasizing his position that

the evidence did not conclusively establish that he killed the youngest victim, his wife's seven-

year-old son whose body was found days after the home invasion, in a sport's utility vehicle

(SUV) stolen from the child's slain uncle. The vehicle had been abandoned in the vicinity of the

west-side apartment where defendant was taken into custody on the day of the murders.

Defendant also avers that the search of his person was done without warrant and without

probable cause, thus requiring the trial court to have barred any related evidence. Defendant also

claims that the trial was unfair in that the state exaggerated negative forensic evidence as

incriminating. Finally, defendant claims that his sister-in-law's testimony about his unsavory

character was irrelevant and prejudicial.

¶ 3                                      I. BACKGROUND

¶4     Defendant was married to Julia Hudson, who had a seven-year-old child, Julian King,

from an earlier relationship. At the time of the tragic incidents that are at the center of this

appeal, Julia lived in her mother's house at 70th and Yale on Chicago's south side. She had been,

by then, separated from defendant for eight months, during which time they were nonetheless in

frequent contact and intermittently intimate. Her brother, Jason Hudson, then 29, and her

mother, Darnell Donerson, lived with Julia and her son in the family home. Her sister Jennifer

Hudson, who was an elementary school classmate of defendant, had moved out of the home

some years earlier to pursue a professional artistic career which would prove to be quite

successful.



                                                   2
No. 1-12-2325


¶ 5    Early on October 24, 2008, just prior to stopping by his wife's home, defendant, who had

been "up all night" according to his counsel, asked a friend for help fixing his car's power

steering, which was not working. The friend was unable to help at that time, but he used the

meeting to buy a "dime bag" of crack cocaine from defendant, who was a dealer of the drug.

While they were together, defendant told his customer that he was "dirty" (holding drugs) and

that he had a gun on him. Defendant then changed from a hoody sweatshirt into a jacket and

went to his wife's home, where he peered into her bedroom window as she was dressing before

going to work. She allowed him in the house to talk while she continued to get ready for work.

She noted that he smelled of alcohol. Around this time, they had been arguing about the fact that

she was seeing somebody during the time of their separation. Defendant was known by many to

be very agitated about this recent development, despite the fact that he was intimately involved

with several other women during the same period of time.

¶6     When Julia left the home, she locked the front door, leaving the three occupants by

themselves. As she pulled away from the curb, defendant told her, "I saw your momma this

morning." Defendant then lingered in his car near the home for a period of time before later

going to a service station to buy power steering fluid for his ailing automobile. Shortly after

Julia got to work, she saw a letter informing her about a wage garnishment owing to defendant's

failure to pay a car loan in both of their names. This led to a cell phone call and argument.

Evidence at trial also revealed that defendant, in the midst of numerous arguments with his wife,

had repeatedly threatened to first kill her family and then her if she did not resume their marital

relationship. Defendant also told people outside the family that he meant to do harm to his wife

and/or members of her family, particularly her brother Jason, who was also a cocaine dealer and

the object of considerable scorn from defendant, who openly mocked him because of his weight



                                                  3
No. 1-12-2325


(nearly 500 pounds at autopsy). Defendant admitted stealing Jason's gun and was seen in

possession of it only days before the murders.

¶7     Sometime around 9 a.m., a bullet was fired through the front door of the Hudson home.

Inside the home, Julia's mother was shot in the back. She walked farther into the house and was

shot again, this time in the chest, landing on the living room floor. In a nearby bedroom, Jason

was shot to death, apparently while still asleep. School was closed for some reason on this fall

Friday and young Julian was somewhere in the house, padding around in two T-shirts, shorts and

shower shoes. Jason's SUV was parked near the home. Around 10 a.m., defendant, dressed

again in the hoody, appeared at Abdullah Smith's residence in the same neighborhood.

According to Smith, defendant asked, "can you bust a move with me?" Smith declined as he was

watching his children. This exchange was witnessed by a mutual friend, Michael Hurst, who

said defendant asked Smith for assistance with his car.

¶8     About four hours later, Julia returned home, having just received a text message from

defendant in which he said he wanted to "get down" with her that night. As Julia approached the

front door, she saw the bullet hole, but noted that the door was still locked. She then unlocked

the door, walked into the home and saw her mother's dead body on the floor. She ran screaming

from the home and enlisted a young neighbor to go in the house to check on her mother, brother

and son. The neighbor came out with the news that the young boy was nowhere to be found and

that the other two were dead. Julia then called 911 and police descended upon South Yale Street

where they soon confirmed that Julian was missing, along with Jason's white SUV.

¶9     When asked if there was anybody who might want to harm her family, Julia immediately

gave Chicago police department (CPD) officers Bryk and Casey the name of her estranged

husband, who had made the aforementioned threats within the prior "week or two." Detective



                                                 4
No. 1-12-2325


Nolan was given certain information, including defendant's cell phone number, the name of his

girlfriend and her address, during the initial investigation. Detective Szudarski was told by a

neighbor that he was aware of defendant stalking Julia at or near the house on occasion while

also aware that defendant had "made comments that [he] was going to kill everyone in the

house." Still other investigating police officers interviewed neighbors who reported hearing

gunshots that came from the direction of the Hudson home shortly after 9 a.m. which did not

alarm them because it was a relatively common occurrence in the Englewood neighborhood.

¶ 10   During the initial hour of investigation, defendant called Julia, who was then standing

with police outside her home, and said that he had been told about the shootings by a young

female friend from the neighborhood. He said he was "up north" but was coming right over.

Instead, he stayed on the west side at his girlfriend's house. Police would later learn that he spent

some of this time trying to get somebody to move his car, which was stranded on the south side,

to the west side and trying to create alibis for his whereabouts earlier in the day.

¶ 11   While attempting to identify and locate the perpetrator of the apparent double homicide,

CPD also had officers from its special victims unit on the scene, owing to Julian's absence from

the family home. CPD Sergeant Washburn determined that defendant's cell carrier was Sprint.

He then contacted that provider and asked them to use cell tower data in an effort to locate

defendant, after they had issued an Amber Alert. The information provided by Sprint was

consistent with "triangulation" that identified a cell tower at 18th and Kedzie, just blocks from

the provided address of 1925 South Spaulding.

¶ 12   Later that afternoon, more than a dozen police officers converged on defendant's

girlfriend's residence and took him and his girlfriend, Shonta Cathey, into custody for

questioning. Defendant attempted to flee and briefly resisted arrest. When taken into custody by



                                                  5
No. 1-12-2325


Detective Sanchez, defendant was found to be in possession of his cell phone, some keys and a

Chicago Transit Authority (CTA) pass. Defendant and his girlfriend were taken into Area 1 for

questioning. Defendant was interviewed on several occasions over a couple hours in which he

freely gave his version of his activities for the day. He said he went directly from Diane Grant's

home to his wife's residence, neglecting to mention that he took time out to sell some crack. He

claimed that in the immediate aftermath of seeing his wife, his car broke down and he went to

get power steering fluid. He then claimed to have parked the car around 8:30 near Robeson High

School, located several blocks from the Hudson home, and then took the CTA to Cathey's home,

using his CTA pass. Evidence at trial would prove much of those claims false. He told police

that he got to her home around 10 and that he had been there all day. That was disputed in at

least two ways by Cathey. He tried to persuade police that the murders happened because Jason

ran a "drug house," while telling police that Jason had enemies, that he had been shot and that the

house had been burglarized while defendant was incarcerated a few months earlier. He was

instructed to give police the shirt and pants he was wearing and defendant made a point to tell the

detectives that he had been wearing those clothes "all day," a statement proved false by

testimony and surveillance video at trial.

¶ 13   Cathey was taken to an interrogation room where she initially supplied defendant with his

alibi by claiming, at his request, that he had been at her home as early as 10 in the morning, but

she eventually told police that he had actually arrived two hours later. She then spoke of his

behavior in the hours before being arrested, which included changing items of his clothing while

away from her home and his shocking, unsolicited statement that he had killed his mother-in-law

and brother-in-law, while denying any knowledge of anything "bad" happening to his stepson,

Julian, whom defendant said was "outside" at the time of the killings.



                                                 6
No. 1-12-2325


¶ 14    The desperate, citywide search for the missing boy continued. Three days later, a west

side resident, Lynette Williams, called police after seeing a white SUV parked near her home at

13th and Kolin that matched media reports related to the Hudson murders. She first remembered

seeing the car the morning after the murders and her awareness of media reports over the

weekend made her think it might be related. Inside the car, the investigating police could see a

child's hand protruding from a shower curtain that covered his body, which lay dead on the floor

of the car's backseat area. Forensic investigation revealed, among other things, a bullet hole

through the floorboard suggesting an 80-degree angle of entry through the child's head and then

the bottom of the car. Investigators also determined that the driver's seat was less than two feet

from the brake pedal, which was inconsistent with its owner's enormous body habitus, while

being entirely consistent with defendant's considerably smaller (5 feet 7 inches, 150 pounds)

size. Helped by 90 probationary officers from the police academy, police conducted a massive

foot search of the streets, alleys and yards between the vehicle's location and the apartment

where defendant was apprehended, a distance estimated at two miles. Half of the team came

from the vehicle's location while the other half came from the apartment. Each team searched an

arm's-width apart. Just a half-block from the vehicle's location, the search revealed a gun that

was identified by numerous witnesses as Jason Hudson's, whose ballistics matched the bullets

that killed all three victims.

¶ 15    The prosecution's case was built slowly and steadily over many days of trial before a

Cook County jury. The evidence that inculpated defendant included his admissions to Cathey,

along with bountiful circumstantial evidence culled from various witness accounts of threats

made by defendant, cell phone records, defendant's CTA pass and various forensic "trace" results

obtained by investigators. Prosecutors also produced testimony of witnesses who said they were



                                                 7
No. 1-12-2325


contacted by defendant on the date of the murders and asked to provide him with an alibi or

sketchy-sounding assistance of some sort. This circumstantial evidence, which in our view

established the defendant's guilt beyond any reasonable doubt, will be further delineated below

as an aid in understanding our legal analysis.

¶ 16   The State produced the testimony of a handful of witnesses who testified that they had

seen defendant in possession of Jason's Sig Sauer semiautomatic weapon. Others testified of

seeing the same gun in defendant's waistband. Still another friend said defendant had the gun

during a poker party only days before the murders. Cathey also testified that she had seen

defendant with this gun in her apartment on several occasions.

¶ 17   The ballistic evidence was supplied by Caryn Tucker, from the Illinois State Police

Forensic Science Center, who testified that the four fired cartridge cases from the Hudson home

and the three bullets from autopsies were all fired by that same gun, which was marked as an

exhibit and admitted into evidence at trial. Prosecutors produced Robert Berk, a trace analyst

also from the State Police, who found gunshot residue on the vehicle's steering wheel cover

which he opined was consistent with somebody firing a gun in that environment or somebody

who had recently fired a gun and handled the steering wheel cover. Defendant himself was not

tested for gunshot residue in a timely fashion, since he was taken into custody too long after the

shootings, but Berk did examine various items of his clothing that were worn on the date of the

murders, in an effort to find trace particles that might disclose gunshot residue.

¶ 18   In particular, he examined the red Pelle jacket that defendant wore when he arrived back

at the Cathey residence for the final time that day and found "one unique particle" on the right

cuff that was not consistent with a direct firing in proximity to the jacket but which he opined

was consistent with a "secondary or tertiary" transfer onto the jacket. He also examined the tan



                                                  8
No. 1-12-2325


jacket that defendant was seen wearing when meeting Julia at the home before the murders. He

was only able to identify two of the three necessary "tri-component particles" on the right cuff of

the jacket, so he could not definitively say it was positive for gunshot residue, only that it could

have come from a "secondary or tertiary transfer." Berk's examination of the back waistband of

defendant's pants produced the same result. Finally, Berk examined the interior roof liners from

Jason's SUV. This examination of the front roof liner was negative, but his examination of the

rear roof liner was positive for gunshot residue, which was consistent with a gun being

discharged in the area where Julian's body was found. Notably, several items of clothing that

defendant had been seen in during the day, including the hoody and his black athletic pants, were

never found and were not tested.

¶ 19   The State called a witness from the CTA who produced records of defendant's CTA pass

and determined that it had not been used on the date of this occurrence, despite the fact that

defendant told police that he used the pass to take the CTA from the south side around 9 that

morning en route to Cathey's apartment on the west side.

¶ 20   The State also produced considerable evidence about cell phone activity. This was first

used in an effort to find the missing child in the immediate aftermath of the discovery of the

bodies of his uncle and grandmother on South Yale. Several witnesses testified about the ability

to track the location of the phone based on "pings" between cell phone towers. The jury heard

evidence that two calls were made on October 24, 2008, at 3:30 and 3:32 a.m, using a tower a

couple miles from the Hudson home. Phone calls were later made at 7:28, 8:06 and 8:43 a.m.,

using a tower near the Hudson home. There was no evidence of activity on the phone from that

point until 12:56 p.m. at which point the phone was using a tower located near 20th and Western.




                                                  9
No. 1-12-2325


All later activity was registered to a tower near Christiana and Ogden, close to Cathey's

apartment at 1926 South Spaulding.

¶ 21   Several friends of defendant's testified about phone calls and/or text exchanges in the

afternoon hours that defendant had with friends in which either he asked them for help with his

ailing automobile or for an alibi. If asked, they were to say that he had been "out west all day."

¶ 22   Julia testified that defendant, on numerous occasions, had threatened to first kill her

family and then her if she did not resume their marital relationship. The jury also heard from

several witnesses about other, discrete threats made by defendant. For example, Robin Myers'

wife Jeannie was a coworker of Julia's. He first met defendant at a party the Myers family

hosted for their son's birthday, about two months before the murders. On this occasion, Myers

noticed that defendant had a gun in his waistband. Defendant struck up a conversation with

Myers. In this brief but chilling encounter, defendant complimented Myers' wife whom he felt

was "more caring and nice" than his own wife whom he thought was "cheating on him" with

someone from work. He said that if it proved to be true, "I'm fucking her and him up."

Defendant continued to rail on about Julia's family, complaining about "the mother and the

brother and Jennifer," saying the "fat bitch" (then referring to the mother) did not want him

around and the "fat ass" (meaning the brother) claimed defendant was stealing. At least 10 times

during this brief conversation, defendant made threats against one or more members of the

Hudson family. Defendant had known Myers for all of 10 minutes.

¶ 23   Debra Hampton, a crack cocaine addict and regular customer of defendant's, testified that

she was looking to buy crack on a day in August and defendant told her to meet him at the back

of the Hudson house, which was but a block from her own home. She noticed him crouched




                                                 10
No. 1-12-2325


down near a window, peering into the Hudson home. Her keys made a noise, which irritated

defendant, who admitted that he was watching Julia and her new boyfriend in the home.

¶ 24   Remarkably enough, a 13-year-old neighbor of the Hudsons testified that when she first

met defendant in a local park, he told her that his wife was cheating on him and that he was

going to deal with it. Later, she saw defendant arguing with Julia on the street and overheard

defendant say he would kill Julia and her family if she ever called police.

¶ 25   Across town, William Graham, who lived on the same street as Cathey, saw defendant

around noon on the day of the murders driving a white SUV, which he parked in a vacant lot, up

against a building across from Graham's house, even though there were plenty of spaces down

the block, in front of the home where he knew defendant stayed. He told the jury he found this

odd, because defendant had never driven that vehicle before and defendant had always parked

near where he was staying. He observed defendant get out of the SUV and walk to Cathey's

home, liquor bottle in tow. Graham identified Jason's SUV as the car driven by defendant.

¶ 26   Right around 4 p.m., while he was at his girlfriend's house, defendant placed two calls to

his friend, Quincy Brown, who was then at his mother's house in a south suburb. According to

Brown, defendant routinely referred to his wife as a "fat bitch" who was "cheating on him" and

said that he would "kill her" if he caught her. He was also openly contemptuous of her brother

Jason, whom defendant regularly called "that bitch-ass nigga [sic]." In the first of two phone

conversations, Brown described a panicked-sounding defendant who said he was having steering

problems with his car. Brown gave him some simple advice, but defendant insisted that Brown

meet him at 71st and Vincennes as soon as possible to help out. The call ended, but defendant

called back a minute later and again pleaded with Brown to meet him immediately. Brown told

him he could not get there for an hour. Then, Brown was put on hold for a couple minutes.



                                                11
No. 1-12-2325


When he returned to the call, defendant told Brown that his wife was on the other line and she

was asking why he killed her mother and brother. Brown then asked him why she was blaming

him, "out of all people?" Defendant's response: "Because I got into it with that bitch-ass nigga

[sic]." Continuing the conversation, defendant implored Brown to go to meet a girl named

Brittany on the south side who would have the keys for his car and then asked Brown to bring

the car out to the west side. Brown had the television on at the time of the second phone call and

the news was talking about the murders and the search for defendant. After assuring defendant

he was on his way, Brown hung up the phone, but stayed home. About a half-hour later, Brown

called defendant and told him that he was all over the news. He told defendant he would pick

him up and bring him south so he could check on his family. Brown said he then "boldly" asked

if defendant "did it." Defendant responded, "it's bigger than me," and hung up the phone.

¶ 27    The jury also heard from Cathey, who testified that she had been intimately involved with

defendant for a number of months, during which time he would sleep at her house four or five

nights a week. At first, she was unaware that he was still married, but she later learned that fact

and also that he had at least one other girlfriend. Defendant was at her home the day before the

murders, which happened to be her daughter's birthday. He left early, saying he would be back,

but never returned, claiming he could not get back and that he needed a jack for his car. He said

he was over at 83rd and Ellis. Cathey enlisted some help and went to that block in a vain effort

to help defendant, who would not answer his phone. She made such a nuisance of herself by

repeatedly blowing her horn on the block that police ordered her to leave the area. It was proved

at trial that he spent the night with another woman, Diana Grant, but that he nonetheless twice

tried to call Julia on his cell phone in the middle of the night.




                                                  12
No. 1-12-2325


¶ 28   On the morning of the murders, Cathey and defendant spoke for about 15 minutes and he

said he would be coming by her house later. He showed up around noon, carrying a "bottle of

Hennessey." He soon left, carrying a pair of blue "Timberland" boots. She coincidentally ran

into defendant walking on a sidewalk a couple hours later while she was out shopping and

defendant was still dressed in the same outfit as before: a white hoody, black pants and a pair of

"Air Jordans." He said he was going to "check on" his car. Unbeknownst to her, his car was still

on the south side. An hour later, he came back to her house, but the hoody and sneakers were

gone and his outfit then included a red Pelle jacket and the boots that he was carrying earlier. He

said he had a headache. Cathey thought he looked upset, so she followed him to the bedroom,

where he said if anybody asked, she was to say that he had been there since 10 a.m. He then

blurted out, "they got shot." "Who?," she asked. "Her mother and brother," was his chilling

reply. As she stared at him, "crazy and bug-eyed," defendant told her that he went in the Hudson

house and "the brother rushed him," so defendant shot him, and "the mother was coming down

the stairs calling his name," so he shot her. She then asked about the "little boy" and defendant

said "he was outside" and assured her that she had "nothing to worry about." She then said, "I

hope ain't nothing happen to the little boy," and he repeated that she had nothing to worry about.

Defendant then resumed his position on the bed, seemingly glued to his cell phone.

¶ 29   This conversation took place well before Cathey was aware of any reports of the murders

and that defendant was being sought. Several hours later, police arrived, prompting defendant to

leave her bedroom, phone in hand, "trying to go out the back door." After he briefly attempted

to resist, they were both taken into custody. Cathey testified that she lied to police for a number

of hours before telling them, in sum and substance, what she testified to in court.




                                                 13
No. 1-12-2325


¶ 30    After a three-day deliberation, the jury found defendant guilty of three counts of first-

degree murder, as well as home invasion, aggravated kidnapping, residential burglary, and

possession of a stolen motor vehicle. This timely appeal followed.

¶ 31                                            II. ANALYSIS

¶ 32                    A. Warrantless Search of Defendant's Cell Phone Data

¶ 33    Defendant's first contention relates to the warrantless search of his cell phone data, which

occurred before he was taken into custody at the Cathey residence. Before trial, defendant filed a

motion to suppress evidence alleging that police searched him without a warrant and without

probable cause. Defendant admits, however, that the motion itself did not address the evidence

related to the police efforts to track his cell phone location. He also admits that he did not object

to the evidence at trial or include the issue in his posttrial motion.

¶ 34    In order to address the issue, therefore, defendant argues that his lawyer was ineffective

for failing to properly preserve the issue. To show that counsel was ineffective, a defendant must

demonstrate both that counsel's performance was deficient and that, as a result, the defendant

was prejudiced. People v. Bailey, 232 Ill. 2d 285, 289 (2009) (citing Strickland v. Washington,

466 U.S. 668 (1984)). The failure to satisfy either prong precludes finding that counsel was

ineffective. People v. Colon, 225 Ill. 2d 125, 135 (2007). Thus, the reviewing court is not

required to consider whether trial counsel's performance was deficient before examining whether

the defendant was prejudiced. People v. Perry, 224 Ill. 2d 312, 342 (2007). To show prejudice,

a defendant must demonstrate a reasonable probability exists that but for counsel's error, the

result of proceedings would have been different. People v. Harris, 389 Ill. App. 3d 107, 132

(2009). The State, meanwhile, argues that counsel's failure to argue and/or preserve this issue is




                                                  14
No. 1-12-2325


of no legal moment, because it would not have changed the outcome. This is unquestionably

true.

¶ 35    The defendant generally bears the burden of showing that the search and seizure were

unlawful, but, warrantless searches are per se unreasonable. People v. Hyland, 2012 IL App (1st)

110966, ¶ 22. As a result, if the defendant challenges the warrantless search and shows that he

was doing nothing unusual, the State has the burden of showing the search was legally justified.

People v. Liekis, 2012 IL App (2d) 100774, ¶ 20. Specifically, the State must establish that the

information relied on was based on sufficient facts to establish probable cause. Hyland, 2012 IL

App (1st) 110966, ¶ 22. Furthermore, a police officer has probable cause to search where the

available facts would warrant a person of reasonable caution to believe that evidence of a crime

is present. People v. Litwhiler, 2014 IL App (3d) 120431, ¶ 25. In reviewing a trial court's ruling

on a motion to suppress evidence, we will reverse the trial court's factual findings only if they are

against the manifest weight of the evidence. Id. ¶ 22. We review the court's ultimate legal ruling

de novo. Id.

¶ 36    Our review of the hearing on the motion to suppress reveals that the prosecution

presented sufficient evidence to establish probable cause to justify the search. The initial

investigators on the scene were informed by Julia that defendant had repeatedly threatened to kill

her family. Investigators learned that defendant had been in the residence and on the street in

front of the home an hour or so before shots were heard coming from the home. They also

learned that he was regularly staying with his girlfriend who lived at 1925 South Spaulding. In

the immediate aftermath of the discovery of the two bodies, police were in the midst of a search

for the seven-year-old boy who, along with his uncle's SUV, was missing from the home. All of

these circumstances provided a sufficient basis for establishing probable cause to search



                                                 15
No. 1-12-2325


defendant. See People v. Johnson, 368 Ill. App. 3d 1073, 1082 (2006) (probable cause exists for

an arrest when the totality of the facts and circumstances known to the officer is such that a

reasonably prudent person would believe that the suspect is committing or has committed a

crime). The fact that the police used cell phone technology as an aid in this effort after learning

all of the above information does not in any way provide defendant for a legal basis to contest

the results of the search of his person that was conducted.

¶ 37   Defendant nonetheless contends that after filing his appellant's brief, the United States

Supreme Court held that officers generally must secure a warrant before searching data on a cell

phone. Riley v. California, _ U.S. _, _, 134 S. Ct. 2473, 2485 (2014). We note that in finding

that the search incident to arrest exception did not apply to cell phone data, the Court clarified

that the exigent circumstances exception may still apply, such as when a child abductor may

have information on his cellphone regarding the child's location. Id. at __, 134 S. Ct. at. 2494.

Even assuming that Riley presents a basis for future defense attorneys to challenge the search of

cell phone data in circumstances such as those before us, this court has recently declined to hold

defense counsel ineffective for failing to predict the Court's future determination in Riley. People

v. Davis, 2014 IL App (1st) 121040, ¶ 24. We reach the same determination here. Defendant

has not shown his entitlement to relief in this instance.

¶ 38                                   B. Forensic Evidence

¶ 39   Defendant next complains that the trial court improperly allowed the State to

"misrepresent the testimony of its expert witnesses and claim that negative forensic test results

actually were inculpatory." The subject of forensic evidence, or the lack of it, was a consistent

theme during the trial, with defendant's capable counsel seeking to characterize the evidence as

meager or exculpatory, while the State sought to use the evidence to tie defendant to the crimes.



                                                 16
No. 1-12-2325


On appeal, defendant is mostly critical of arguments made by prosecutors about the forensic

evidence during closing argument.

¶ 40   It is axiomatic that prosecutors are given wide latitude during closing argument and are

allowed to make inferences based on the evidence provided at trial. People v. Walker, 262 Ill.

App. 3d 796, 804 (1994). Conversely, it is improper for prosecutors to misrepresent the

evidence presented. People v. Linscott, 142 Ill. 2d 22, 30-31 (1991). Furthermore, reversible

error only occurs in this regard if remarks are attributable to the "deliberate misconduct" of the

prosecutor in a fashion that substantially prejudices defendant. People v. Burman, 2013 IL App

(2d) 110807, ¶¶ 25, 30-31.

¶ 41   The gunshot residue evidence presented at trial did not conclusively establish that

defendant had fired a gun. The testimony of the trace analyst, Robert Berk, however, did

establish that there was gunshot residue on the steering wheel cover of Jason's SUV, which

defendant was seen driving several hours after the shootings on Yale. Furthermore, Berk

testified that two items of defendant's clothing contained "unique particles" that were consistent

with a secondary or tertiary transfer of gunshot residue onto the clothing. In closing argument,

defendant objected when the prosecutor argued that the secondary or tertiary transfer connected

defendant to the crime. In our view, this argument is a reasonable inference from the evidence,

not a misrepresentation.

¶ 42   In a related way, defendant points to the prosecutor's alternative argument that the lack of

DNA and fingerprint evidence could still be considered circumstantial evidence of his

involvement in the killings. Stated in a vacuum, this might not make much sense, but the

evidence at trial indicated that defendant changed his clothes on a couple occasions on the date

of the murders and that some items of clothing were never seen again. He was wearing a hoody



                                                 17
No. 1-12-2325


when observed by the service station camera when he was with his friend who needed to get

change for a $20 bill in order to buy a dime bag of crack. He was seen in a tan suede jacket

when he was at the Yale residence. Finally, he was later observed to have changed his hoody

and his shoes when he was at the Cathey residence. The prosecutor's suggestion that defendant

had plenty of time to get rid of much of the forensic evidence, therefore, is clearly a reasonable

inference from the evidence presented at trial and did not cause any error or prejudice. See

People v. Alvidrez, 2014 IL App (1st) 121740, ¶¶ 29-30 (when the State's evidence was

substantial, even the prosecutor's alleged improper comment did not cause significant prejudice

to the defendant constituting reversible error). The prosecutor was entitled to argue that the

absence of conclusive physical evidence was not inconsistent with defendant's guilt, as defendant

had suggested. The last contested argument relates to the prosecutor's suggestion that "DNA

stands for one thing, do not acquit." In a case in which defendant vigorously argued that the lack

of DNA evidence should be considered as reasonable doubt, this transparently cavalier argument

can hardly be said to be overly prejudicial to defendant's right to a fair trial.

¶ 43                                    C. Testimony of Jennifer Hudson

¶ 44      Defendant vehemently objected to the State's calling of Jennifer Hudson as the first

witness at trial. Each party is generally entitled to present evidence that is relevant to its case.

People v. Wheeler, 226 Ill. 2d 92, 132 (2007). With that said, relevant evidence may be

excluded where its probative value is substantially outweighed by potential prejudice. People v.

Pikes, 2013 IL 115171, ¶ 21. Furthermore, irrelevant evidence is to be excluded. See People v.

Trzeciak, 2014 IL App (1st) 100259-B, ¶ 91. Decisions regarding the admissibility of evidence

will not be reversed absent an abuse of discretion. See People v. Morgan, 197 Ill. 2d 404, 455

(2001).



                                                   18
No. 1-12-2325


¶ 45   Here, the well-known singer and actress testified that she had known defendant since

elementary school when she was his classmate. She told the jury that she did not like defendant

and that she repeatedly told her sister to not marry him. The State responds that this evidence

was proper because it was part of its evidence to establish defendant's motive to kill his

estranged wife's family. We agree. This evidence was corroborated by Julia's coworker's

husband, who related threats made to Julia's family, who was said to not want him around. Julia

herself also testified that her family did not want defendant around the family home. In addition,

Jennifer was called to the witness stand as a "life and death" witness. The State notes that she

further testified that she gave her brother Jason the white SUV, a fact that could tend to eliminate

the suggestion that he used drug money to pay for the vehicle. In light of the fact that the

defense tried to convince the jury that the murders may have been committed by a disgruntled

drug customer of Jason's, this testimony was relevant.

¶ 46   Suffice it to say that the fact that Jennifer is a well-known singer and actress does not

disqualify her from testifying about relevant issues in a case involving the death of her family

members. In addition, any risk of prejudice did not outweigh the probative value of her

testimony. There were extensive efforts in voir dire to ensure that jurors selected would not be

swayed by the fact that Jennifer would testify in open court. It is also worth noting that the

defense tried to get a lot of mileage out of this woman's celebrity, using it to develop a theme

that investigating officers were desperate to pin the murders on their client, who also invoked

Jennifer's name when trying to convince police that he was getting blamed because people were

trying to "protect" her name. We find absolutely no error here.

¶ 47                          D. Trial Court's Denial of a Continuance

¶ 48   Defendant next contends that the trial court erred when it denied defendant's motion for a



                                                 19
No. 1-12-2325


continuance when the State tendered discovery related to a witness on the eve of trial. It is well

settled that the decision of whether to grant or deny a request for a continuance is a matter within

the sound discretion of the trial court and will not be reversed absent an abuse of that discretion.

People v. Weeks, 2011 IL App (1st) 100395, ¶ 30. Whether a court has abused its discretion

depends upon the facts and circumstances of each case. People v. Walker, 232 Ill. 2d 113, 125

(2009). Factors a trial court may consider in determining whether to grant a continuance

includes the movant's diligence, the interests of justice, the history of the case, the complexity of

the matter, docket management, judicial economy, and inconvenience to the parties. Id. at 125-

26.

¶ 49   Here, we cannot say that the trial court abused its discretion. During the hearing on

defendant's motion for a continuance, defense counsel argued that discovery from the State

referencing an Illinois Department of Corrections (IDOC) inmate, named Scott Shanahan, was

untimely. The State explained that in April 2011, CPD officers and an assistant State's Attorney

interviewed Shanahan after receiving a letter from an informant suggesting Shanahan had

information about the case. Shanahan revealed that he had no firsthand knowledge, but received

information from his cellmate, later identified as "Mr. Webb," that defendant committed the

murders with a Gangster Disciple leader. Webb, however, told investigators that he made the

whole thing up. Subsequently, this information was tendered to the defense and defense counsel

admitted that they had spoken to Shanahan, who refused to speak to them about the case.

Accordingly, defendant knew Shanahan existed. The trial court also determined that a

continuance was not warranted because defendant still had ample time to investigate given the

trial's prospectively lengthy duration. Thereafter, this issue was revisited during the hearing on

defendant's motion for a new trial. Defense counsel had nothing to add when the judge asked if



                                                 20
No. 1-12-2325


there was "anything that you found out subsequently regarding these two witnesses that

mandates a hearing as to whether or not it was in fact any violation here or whether or not these

witnesses were in fact material to the guilt or innocence of your client." Furthermore, defendant

fails to offer any argument on how he was prejudiced by the court's denial of the continuance or

how any delay in discovery caused him to be ill prepared during the trial proceeding.

Accordingly, we find that the trial court did not abuse its discretion in this matter.

¶ 50                                   E. Sufficiency of the Evidence

¶ 51   We now turn to the gravamen of defendant's appeal, which rests upon the alleged

insufficiency of the evidence to sustain his convictions. The question for the reviewing court is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime were proven beyond a

reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541 (1999). We will not overturn a criminal

conviction on appeal unless the evidence is so improbable or unsatisfactory as to supply

reasonable doubt of defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). It is in the

province of the jury to determine the credibility of witnesses and to resolve any conflicts in the

testimony. People v. Sykes, 341 Ill. App. 3d 950, 983 (2003). We will not substitute our

judgment for that of the trier of fact on these matters. People v. Siguenza-Brito, 235 Ill. 2d 213,

224-25 (2009).

¶ 52   As his counsel did at trial, defendant now references various alleged inconsistencies in

witness testimony and perceived gaps in evidence in an effort to persuade us that the State's

evidence is simply improbable. As the following analysis will establish, each such contention is

meritless. First up is the suggestion that Cathey's testimony about defendant's confession did

nothing more than inject reasonable doubt, as it "does not match the evidence" at the scene.



                                                  21
No. 1-12-2325


Defendant argues that "Cathey could not provide correct details, because she never spoke to

anybody who actually was involved in the shootings." Defendant discounts Cathey's claim that

defendant told her he shot Jason after he "rushed" him, because the evidence established he was

killed while still asleep in bed. This "inconsistency" is neither a bit prejudicial nor the least

surprising, as one can easily conclude that defendant blurted out the murderous events in a

manner more acceptable to his paramour, as compared to the State's proof where he shot a

grandmother in the back, killed a sleeping man in his bed and then kidnapped and put two bullets

in the head of a child as he cowered on the floor of his murdered uncle's stolen car. This

argument does not suggest that the State's proof was unsatisfactory or manifestly improbable.

See People v. Hall, 194 Ill. 2d 305, 330 (2000).

¶ 53   As at trial, defendant here seeks to sow reasonable doubt by undermining the credibility

of a cocaine-addict witness, Debra Hampton, who testified about threats defendant made against

Julia and her family, even though he was her cocaine dealer. In a similar way, defendant would

have us focus on the fact that his wife was still intimate with him while they were separated, as if

that curious fact would eliminate any possible motive to kill her. Doing so would obviously

require us to ignore the many threats that defendant made against the lives of Julia and her

family members. This evidence does not support an argument that the State's proof was so

improbable or unsatisfactory as to supply reasonable doubt of defendant's guilt. The jury heard

and weighed the credibility, of all of the evidence which clearly established beyond any

reasonable doubt that this defendant was guilty of all three murders, despite any claimed doubt as

to certain links in the evidence. Id.

¶ 54   As noted previously, the police testified that when defendant was taken into custody,

defendant was in possession of keys, at least one of which was found to fit the vehicle in which



                                                   22
No. 1-12-2325


Julian was killed. The keys to defendant's own vehicle were not in his possession even though

he claimed to have parked the car near Robeson High School before getting on the CTA. At

trial, the defense sought to prove that police were involved in some chicanery with Jason's keys

in an effort to frame defendant. This effort centered on the fact that the inventory process for the

keys did not follow protocol and that the keys were inventoried weeks after defendant was taken

into custody. On appeal, defendant claims that the circumstances surrounding collecting,

inventorying and forensic testing of the keys provide sufficient doubt to overturn his convictions.

We disagree. Even though the police investigative work was less than perfect in some respects,

it did not require the jury to dismiss police testimony that defendant had Jason's keys, let alone

undermine confidence in defendant's convictions. People v. Sutherland, 223 Ill. 2d 187, 242

(2006) (the trier of fact is entitled to assess the witnesses' credibility).

¶ 55    Defendant's opening brief before this court expends considerable effort at attempting to

create reasonable doubt out of its trial theory that the murders were related to Jason Hudson's

activity as a drug dealer. It is quite the understatement that the defense is overstating this aspect

of the evidence at trial. The evidence established that Jason lived with his half-brother, Lonnie

Simpson, who was a drug dealer in Michigan. Jason later moved back to Chicago. Jurors heard

that Jason bought his cocaine in Michigan but sold it in Illinois, so the defendant has dubbed him

"a multi-state drug dealer" who "sold what's usually termed weight" that included "kilos and 8-

balls," though there was nothing in the way of evidence to support the claims about "weight" and

the alleged copious amounts of money that was supposedly routinely stashed at the home.

Police did not have to wait long to consider this theory, as it was offered by defendant himself in

an interview shortly after he was taken into custody. In that interview, defendant denied any

knowledge of the murders or the location of the young boy, while inferring he was put out as a



                                                    23
No. 1-12-2325


suspect "because they trying to protect they [sic] sister's name" by shifting the focus away from

Jason's drug sales activity. Defendant volunteered that Jason "had a lot of enemies," because he

was "pushing weight" out of the house. The defense also pointed to evidence that Jason had

been shot twice as proof of the existence of people who meant to do him harm. In this statement,

defendant offered up his version of his separation from his wife (they had lived together in that

very home) with his claim that he "left up out that house," because "it's a drug house." Thus, the

defense sought to establish that defendant, himself a drug dealer, left the marital abode of his

own accord to avoid the perils of drug dealing. At trial, this theory was used repeatedly in cross-

examination and in closing argument, but it does nothing to establish that, when viewed in the

light most favorable to the prosecution, a rational jury could not have found the essential

elements of the crimes defendant was convicted of committing. The jury heard that theory but

clearly rejected it, as it was entitled to do. Sutherland, 223 Ill. 2d at 271.

¶ 56    Defendant suggests that the lack of any eyewitness testimony about the killer or killers

entering or leaving the Hudson house around the time of the murders means that the State did not

prove beyond a reasonable doubt that he was solely responsible for the murders. Defendant also

claims that "Jason's stash of drugs, drug paraphernalia, and cash were not discovered by the

police when they searched the Hudson home, because they were taken by the killers."

Speculation that another person might have committed an offense does not necessarily raise

reasonable doubt. People v. Herrett, 137 Ill. 2d 195, 206 (1990). These arguments, though

factually and legally anorectic, were presented to and rejected by a jury which was evidently

more persuaded by the voluminous evidence tying defendant to these crimes. We will not

substitute a contrary view of the evidence as defendant requests.




                                                   24
No. 1-12-2325


¶ 57    Still, defendant attempts to persuade this court that the State's evidence with respect to

Julian's murder is somehow improbable and riddled with doubt. Defendant argues that, in order

for the State's factual theory to hold, he would have needed at least one accomplice to move his

own vehicle from the vicinity of the Hudson home. Defendant argues that the police made him

their "only suspect *** not because [he] was guilty of single-handedly committing the offenses,

but rather because the police failed to develop any other leads." Defendant points to testimony

about the time of death from the pathologist who performed the child's autopsy, claiming that the

testimony would support a finding that the boy was shot and killed after defendant was taken

into custody. Defendant claims that the witness testified that the "very earliest that Julian could

have been killed is October 25, 2008." Bluntly put, the pathologist did not offer that opinion to

this jury. In fact, the witness testified that she was unable to forensically determine the date and

hour when Julian died. She basically opined that the lack of rigor mortis and decomposition

were "consistent" with a "time frame of 36 to 72 hours." Even were we to accept the suggestion

that this opinion testimony is arguably inconsistent with the State's timeline of events, it is not

something that will be accorded dispositive effect here. See People v. Howard, 376 Ill. App. 3d

322, 329 (2007) ("[i]t is not the role of this court to reevaluate the credibility of witnesses in light

of inconsistent testimony and ostensibly retry the defendant on appeal" it is, however, the trier of

fact's role to decide whether inconsistencies in testimony irreparably undermined the credibility

of the witnesses); People v. Davis, 304 Ill. App. 3d 427, 441 (1999) ("it is for the jury to resolve

any conflicts in the evidence” and "to decide which testimony to believe and which testimony to

discount"). Defendant likewise attempts to discredit the testimony of his girlfriend's neighbor

who, several hours after shots were heard on Yale, saw defendant driving the SUV in which

Julian was killed, as if he were spinning a yarn to help police. For further support, defendant



                                                  25
No. 1-12-2325


points to the prosecution closing argument in which it was suggested that defendant must have

had an accomplice assisting him. To the defense, this means that "this second person shot Julian

after learning that [defendant] had been taken into custody." While this is fine fodder for cross-

examination of the involved witnesses in an effort to poke holes in the State's theory at trial, it is

the jury's job to determine the truth of the facts presented before it. See People v. Douglas, 2014

IL App (5th) 120155, ¶ 30 (it is within the province of the jury to assess the credibility of

witnesses, weigh the evidence presented, resolve conflicts in the evidence, and draw reasonable

inferences). Despite the very best efforts of the talented defense counsel at trial, the jury quite

simply did not buy these arguments. The jury is not required to accept any possible explanation

compatible with defendant's innocence and elevate it to the status of reasonable doubt. Herrett,

137 Ill. 2d at 206 (citing People v. Arndt, 50 Ill. 2d 390, 396 (1972)). Notwithstanding

defendant's suggestions to the contrary, the evidence here was neither improbable nor

unsatisfactory and does not in any way create reasonable doubt of defendant's guilt.

¶ 58   Much of the dogged defense effort at trial focused on the lack of conclusive DNA

evidence and the absence of definitive gunshot residue evidence as proof of reasonable doubt of

his involvement in these murders. Understandably, this was the overarching theme of the

spirited defense at trial, but defendant's attempt on appeal to compare his legal plight to that of

the defendant in a controversial case where DNA excluded the defendant from guilt is singularly

lacking in merit. See People v. Rivera, 2011 IL App (2d) 091060.

¶ 59   In Rivera, the defendant was tried and convicted in 1993 of raping and killing an 11-

year-old girl. Id. ¶ 22. He was granted a retrial on appeal and was again convicted in 1998.

After his second appeal was denied, the trial court in 2004 granted the defendant's motion for

DNA testing of material taken from the vaginal swabs from the decedent. These tests



                                                  26
No. 1-12-2325


unequivocally excluded the defendant as the source of the DNA. Despite this evidence, the State

decided to retry the defendant. At this trial, there was extensive evidence of the brutality of the

crimes committed on the young girl and evidence of a confession that the defendant gave after

being picked up by police. In this rambling confession, he admitted to having sex with the child

and then killing her when she attacked him with a knife. The State also presented testimony of

two "jailhouse snitches" who claimed defendant had confessed to them. The defendant

contended that his confession was false, that he was not involved in the attack, that there was no

fingerprint or DNA evidence that linked him to the crime and that the DNA evidence collected

from the raped and murdered child actually excluded his involvement. Id. ¶¶ 4-21. Remarkably

enough, the jury nonetheless convicted this demonstrably innocent man. Our colleagues in the

Second District reversed the case outright. Id. ¶ 41 (corpus delicti cannot be proved by the

defendant's confession alone and corroborating independent evidence must inspire belief in the

confession). The reviewing court found there was absolutely no physical evidence tying the

defendant to the scene of the crime, that the vaginal swab excluded defendant and that his

confession was not reliable since it was not met with any evidence aliunde the confession to

prove the offense. Id. at ¶ 45 (citing People v. Ehlert, 211 Ill. 2d 192, 202 (2004) and People v.

Dalton, 91 Ill. 2d 22, 29 (1982)).

¶ 60   Simply put, this case bears no factual or legal resemblance to Rivera. First, defendant

was not pressured into making any statements to Cathey or Brown where he implicated himself.

Our review of the police interviews with defendant are simply inconsistent with any undue

pressure or psychological tactics that riddled the Rivera record. Contrarily, he did not confess to

police, he was slyly attempting to divert attention away from himself to distract police. In

Rivera, apart from defendant's confession and some questionable jailhouse snitches, there was no



                                                 27
No. 1-12-2325


evidence tying defendant to the heinous crimes that he was convicted of. In the matter sub

judice, the State presented evidence aliunde establishing that defendant: (1) repeatedly

threatened the lives of his wife and her family; (2) was known to have stolen the murder weapon

at the end of July and was seen in possession of it only days before the shootings; (3) had an

argument with his wife at the scene of the murders and another one while she was at work and he

was outside her house shortly before two of the three victims were killed in that house; (4) asked

several people to give him an alibi for the time of the murders; (5) was apprehended in an area in

which he was seen on the date of the murders driving the vehicle stolen from the scene of two of

the murders and which was where the seven-year-old child was killed and secreted for several

days; (6) admitted to two of the murders to his girlfriend shortly after they occurred; (7) told a

friend on the day of the murders that his wife was blaming him "of all people" for the murders

because he "got into it with that bitch-ass nigga [sic]," meaning her brother, Jason; (8) was in

possession of the keys to the stolen vehicle; (9) gave police a version of his activities on the date

of the murder proved false by witness testimony and evidence of his unused transit card; and (10)

was unable to establish an alibi for a large chunk of the day of the murders, a period that would

have given him time to hide the stolen vehicle, discard the murder weapon and otherwise make it

more difficult for investigators to uncover more evidence of his guilt. In addition, nothing of

value was stolen from the home itself, indicating a crime of passion, not profit.

¶ 61   While the above-listed facts and inferences are surely not the only ones that could be

drawn from the evidence at trial, it is clear that this case is quite the opposite of Rivera. This is a

case in which the State offered plentiful evidence of this defendant's role in the murders of all

three members of his wife's family, an act that unfortunately was cruelly presaged in his many

threats. Defendant would have this court focus almost exclusively on the "fact" that the State did



                                                  28
No. 1-12-2325


not offer forensic evidence that unequivocally tied him to the murders, as if that were

controlling. It is not. Wheeler, 226 Ill. 2d at 120. Despite these urgent arguments, it is axiomatic

that the absence of forensic evidence does not equate to reasonable doubt in all cases. See

Trzeciak, 2014 IL App (1st) 100259-B, ¶ 58 (circumstantial evidence is sufficient to sustain a

criminal conviction, provided that such evidence satisfies proof beyond a reasonable doubt of the

elements of the crime charged); Hall, 194 Ill. 2d at 330 (the trier of fact need not, however, be

satisfied beyond a reasonable doubt as to each link in the chain of circumstances as long as all of

the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's

guilt). Accordingly, defendant's argument on the sufficiency of evidence must fail.

¶ 62                                  III. CONCLUSION

¶ 63   Based on the foregoing, we affirm the judgments of the circuit court in all respects.


¶ 64   Affirmed.




                                                 29
No. 1-12-2325




                30
