                             2015 IL App (2d) 131106
                                   No. 2-13-1106
                          Opinion filed December 29, 2015
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 06-CF-4866
                                       )
                                       ) Honorable
JAMES EALY,                            ) Fred Foreman and
                                       ) Daniel Shanes,
      Defendant-Appellant.             ) Judges, Presiding.
______________________________________________________________________________

       JUSTICE BURKE delivered the judgment of the court, with opinion.
       Justices Hutchinson and Zenoff concurred in the judgment and opinion.

                                           OPINION

¶1     A jury found defendant, James Ealy, guilty of first-degree murder, and the trial court

sentenced him to a term of natural life imprisonment. On appeal, defendant argues that he is

entitled to a new trial due to the cumulative prejudice of three trial errors: (1) the admission of

evidence that, unlike several other people whom the police interviewed, defendant refused to

consent to DNA testing, and the State’s argument to the jury that his refusal showed

consciousness of guilt; (2) the exclusion of evidence that, like defendant, other residents of his

apartment complex paid rent in installments each month; and (3) the State’s closing argument

that an acquittal based on the absence of fingerprints or DNA evidence would improperly
2015 IL App (2d) 131106


“reward” defendant.    Defendant also argues that a new trial is necessary because the jury

returned inconsistent verdicts in finding him guilty of intentional murder and not guilty of

knowing murder.

¶2     The State denies any trial error.     Alternatively, the State argues that (1) defendant

forfeited his challenge to the admissibility of his refusal of DNA testing and (2) “any alleged

evidentiary errors and instances of prosecutorial misconduct did not rise to cumulative error.”

¶3     We hold that (1) defendant preserved his challenge to the admissibility of his refusal of

DNA testing; (2) the trial court abused its discretion in admitting the evidence of the refusal and

allowing the State to argue that it showed consciousness of guilt; (3) the court did not abuse its

discretion in excluding evidence that other residents of the apartment complex paid rent as

defendant had; (4) the State’s argument that the jury should not “reward” defendant for the

absence of fingerprints or DNA evidence was not prosecutorial misconduct; and (5) the

admittedly inconsistent verdicts do not warrant a new trial. The State produced overwhelming

evidence of defendant’s guilt such that any trial error was harmless beyond a reasonable doubt.

We affirm.

¶4                                     I. BACKGROUND

¶5     Mary Hutchinson’s body was found on the floor of her office at the Burger King

restaurant in Lindenhurst at 5:10 a.m. on November 27, 2006.              Hutchinson died from

strangulation and stab wounds inflicted by a flat-head screwdriver. The safe in her office was

found open and empty. A large screwdriver that employees had used to disengage the locking

mechanism of the main entry doors was missing from the office. A few days after the incident, a

search of defendant’s home disclosed cash, and he was charged with the murder. Defendant




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knew the victim from his time working at the Burger King from July 26, 2005, to October 25,

2006.

¶6      On the date of the incident, Hutchinson, a manager, had been authorized to come in early

to complete her monthly inventory check. The restaurant’s records showed that the alarm had

been deactivated just before 4 a.m., and an audit of the safe showed that it had most recently

been opened at 4:23 a.m. A cash report from the night before showed that the safe was missing

$236 in 1-dollar bills, $645 in 5-dollar bills, $410 in 10-dollar bills, and $300 in 20-dollar bills.

Also missing were $40 in dimes and $70 in quarters.

¶7      The Lake County Major Crimes Task Force took charge of the investigation and began

interviewing current and former employees of the Burger King. George Filenko, the commander

of the task force, and Detectives Viramontes and Lambie were responsible for interviewing

defendant.

¶8      Filenko, Viramontes, and Lambie went to defendant’s apartment at 8:30 p.m. on the date

of the incident. According to Filenko, defendant invited the officers inside and said that he had

heard about Hutchinson’s death from a friend. Defendant agreed to go to the Lindenhurst police

station for further questioning.

¶9      At the station, defendant told Filenko and Lambie that he was working at McDonald’s

but quit his second job at Burger King to start working at Value City, where he received higher

pay. Defendant regularly worked at McDonald’s from 10 p.m. to 6 a.m., Monday through

Thursday. Defendant worked a similar shift on Sunday nights, usually leaving at 4 a.m.

¶ 10    Defendant told Filenko that, on Monday, November 27, 2006, defendant left McDonald’s

at 4:01 a.m. and drove to the Lake Villa post office. Filenko testified that defendant said he

arrived at the post office at 4:17 a.m. and then drove home to take a nap until 5:45 a.m. before



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2015 IL App (2d) 131106


going to work at Value City. To refute defendant’s account of events, the State introduced

evidence at trial that he was at a White Hen convenience store in Lindenhurst a short time after

the offense. Steve Schwaller, a manager of the White Hen, testified that he saw defendant in his

store about 4:42 a.m. Defendant walked in and stared at Schwaller for a few seconds without

responding to his greeting. After seeing a police officer reading a newspaper inside the store,

defendant picked up a candy bar and brought it to the counter. A receipt for the purchase was

time stamped at 4:42 a.m.

¶ 11   Continuing the interview at the station, defendant told Filenko that he and Hutchinson

were friends and that she had told him about an armed robbery she had endured while working at

a Burger King in Antioch. According to Filenko, defendant said that Hutchinson had brought up

the possibility of defendant acting as her bodyguard while he worked at Burger King. Defendant

left the station when he said he would be late for work, and the interview ended.

¶ 12   At Filenko’s request, defendant returned to the station the next day. Defendant appeared

agitated and upset that the media had been filming at his apartment the previous night. Filenko

took defendant to the area of the station where the police were collecting fingerprints and DNA

samples from several current and former employees of the Burger King.

¶ 13   Over defense objection, Filenko testified that defendant refused to give the police a

sample of his DNA. Officer Ralph Goar, an evidence technician, testified that, on November 28,

2006, he collected palm prints and fingerprints from 22 current and former employees, including

defendant. When Goar asked defendant for a DNA sample, “he was adamant and actually

appeared to be agitated about even being asked to take his DNA samples.” Goar testified that the

other 21 people gave DNA samples. The next day, Goar collected fingerprints and DNA




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2015 IL App (2d) 131106


samples from nine more current or former employees. Two days later, the police obtained a

search warrant and collected samples of defendant’s DNA.

¶ 14   Evidence such as fingerprints and swabs of possible bodily fluid were collected from the

crime scene, analyzed, and compared to the fingerprints and DNA from defendant and the other

current and former employees.       None of the evidence from the scene provided relevant

identification information.

¶ 15   Phone records showed that the Burger King received two calls about 4:23 a.m. on the

date of the incident. Both calls were from the number that defendant had given to the police as

his cell phone number. Records showed that the caller dialed “*67” before each call, meaning

that the caller’s phone number would be blocked on the receiver’s caller identification feature.

Filenko testified that, during his interview, defendant did not mention calling the Burger King.

¶ 16   The police set up a team to watch defendant while he was at work. Three days after the

murder, at 5:45 a.m. on November 30, 2006, defendant left the McDonald’s and began driving

west, at which point the surveillance team stopped and arrested him. The surveillance team

detained defendant at the Round Lake Park police station while other officers executed a warrant

to search his home.

¶ 17   The search disclosed a bundle of cash hidden between the inner and outer linings of a

full-length leather jacket. The jacket was in defendant’s bedroom closet. The cash was in a

white plastic bag and accessible through a hole in the jacket’s pocket. Forensic testing revealed

that the bag contained three latent fingerprints from defendant’s left hand. The cash was $286 in

1-dollar bills, $550 in 5-dollar bills, and $180 in 10-dollar bills, with each denomination grouped

and the groups ordered sequentially. The search also disclosed a pillow case filled with $70 in




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2015 IL App (2d) 131106


quarters and $40 in dimes, which matched the denominations and numbers of coins reported

missing from the safe.

¶ 18   About 3:30 p.m. on December 1, 2006, four detectives transferred defendant from the

Round Lake Park police station to the Criminal Investigations Division in Waukegan. During

the drive, defendant sat handcuffed between two detectives in the back seat. According to one of

the detectives, defendant began speaking, unprompted. Defendant said he had a “f*** up

feeling” and began to cry. The detective wiped defendant’s tears. Defendant said that nothing

good should happen to him, “because of the evil” in him. Defendant also spoke generally about

his wife and how the news would affect her.

¶ 19   At the Criminal Investigations Division, defendant was placed in an interview room with

audio and video recording equipment. Defendant was advised of his Miranda rights (Miranda v.

Arizona, 384 U.S. 436 (1966)), and he invoked his right to counsel. The trial court determined,

however, that defendant reinitiated conversation with two detectives while he was confined in

the room. The recording from that period is largely inaudible but there is some discussion of

morality, good versus evil, and karma. The interaction between defendant and the detectives

appears generally cordial.

¶ 20   One portion of the recording shows a detective asking defendant if he needed to use the

restroom, because it would be locked soon. The detective testified that, while defendant was

washing his hands off-camera, he said, “[y]ou, your partner, and God Almighty know what I

did.” Defendant also said, “[y]ou in your heart know what I did, and I just wanted to tell you and

your partner that.” Two other officers who accompanied defendant to the restroom corroborated

the testimony about these statements. Once charges against defendant were approved, defendant




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2015 IL App (2d) 131106


was taken to the booking area. He inquired whether the detectives would speak to the victim’s

husband and asked, “[w]ill you tell Mary’s husband I am sorry for what I did?”

¶ 21   The State argued that defendant committed the offense for financial gain, and it

introduced evidence of defendant’s financial situation to establish his motive. Michael Stumpp,

one of defendant’s friends, testified that defendant had asked to borrow $500 near the end of

October 2006. Stumpp loaned defendant $300, which was all he had, and defendant promised

repayment in February.

¶ 22   James McDonald, the property manager at defendant’s apartment complex, testified that

defendant often paid rent in installments throughout the month. Defendant made three payments

in August 2006, four payments in September 2006, three payments in October 2006, and three

payments in November 2006. On cross-examination, McDonald stated that he was “working

with” defendant and never charged him a late fee, to ensure he could pay rent each month. The

trial court barred the defense from eliciting evidence that almost all the other tenants in the

complex paid rent under similar payment arrangements.

¶ 23   The State began its first closing argument by commenting on the absence of

incriminating fingerprints or DNA at the crime scene.           The trial court overruled defense

counsel’s timely objection. The prosecution opened by stating, “well, it’s reward time, Ladies

and Gentlemen” and continued as follows:

              “That’s right, it’s reward time, or at least it’s reward time if you listen to the

       defense.

              The reason it’s reward time, according to them, is because if a defendant is either

       smart enough or lucky enough not to leave his fingerprints at a crime scene, then

       according to them the defendant gets found not guilty.



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2015 IL App (2d) 131106


                                               ***

               And if the defendant is either smart enough or lucky enough to not leave his DNA

       behind at a crime scene, then according to them the defendant gets found not guilty.

               Now understand, that is not what the law is. Not once when Judge Shanes reads

       you the jury instructions is he going to tell you that if the defendant’s fingerprints aren’t

       at the crime scene that you have to find him not guilty.

               Not once is Judge Shanes going to tell you that if the defendant’s DNA is not at

       the crime scene that you have to find the defendant not guilty, and the reason the judge is

       not going to instruct you on that is because that is not the law, and the reason that is not

       the law is because the law does not reward criminals for doing their jobs too well. The

       law does not reward criminals for doing their jobs too well.”

¶ 24   The jury received separate verdict forms for intentional murder and knowing murder, as

well as forms for whether the State proved that the murder was accompanied by exceptionally

brutal or heinous behavior indicative of wanton cruelty and whether the murdered individual was

killed during the course of another felony, robbery. After the initial deliberations, the jury

returned only three of the four verdict sets. The trial court inquired about the discrepancy, and

the foreperson admitted the oversight. After further deliberations, the jury returned all the

verdict forms, finding (1) defendant not guilty of knowing murder, (2) defendant guilty of

intentional murder, (3) that the murder was accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty, and (4) that the murdered person was killed in the course

of another felony.




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2015 IL App (2d) 131106


¶ 25   On October 9, 2013, the trial court sentenced defendant to natural life imprisonment.

Defendant filed a motion to reconsider the sentence, which was denied on October 17, 2013.

Defendant filed a timely notice of appeal the same day.

¶ 26                                     II. ANALYSIS

¶ 27                                      A. Trial Error

¶ 28   On appeal, defendant argues that he was prejudiced by three trial errors: (1) the

admission of evidence that, unlike several other people whom the police interviewed, defendant

refused to consent to DNA testing, and the State’s argument to the jury that his refusal showed

consciousness of guilt; (2) the exclusion of evidence that, like defendant, other residents of his

apartment complex paid monthly rent in installments; and (3) the State’s closing argument that

an acquittal based on the absence of fingerprints or DNA evidence would improperly “reward”

defendant.

¶ 29                               1. Refusal of DNA Testing

¶ 30   As part of its investigation, the task force interviewed 31 current and former Burger King

employees, including defendant.     The police asked each interviewee to voluntarily submit

fingerprints and a DNA sample for comparison to any fingerprints and DNA that might be

discovered at the crime scene. Defendant voluntarily provided fingerprints but refused to submit

a DNA sample. The other 30 interviewees consented to providing both.

¶ 31   Defendant argues on appeal that he was “unduly prejudiced by the State’s use of his

refusal to consent to a collection of his DNA, and by the State’s subsequent argument that the

refusal was evidence of his guilt.” In support of his claim, defendant quotes People v. Eghan,

344 Ill. App. 3d 301 (2003), for the proposition that a ruling is improper when it “permits a jury




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2015 IL App (2d) 131106


to infer consciousness of guilt from the defendant’s exercise of his rights.” Eghan, 344 Ill. App.

3d at 310.

¶ 32   Generally, evidence is admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1, 2011).

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be excluded

“if its probative value is substantially outweighed by the danger of unfair prejudice” or if another

rule of evidence excludes the evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 33   A trial court has discretion to determine whether evidence is relevant and admissible, and

therefore an evidentiary ruling will not be overturned unless it is arbitrary, fanciful, or

unreasonable. People v. Hanson, 238 Ill. 2d 74, 101 (2010). A court may exercise its discretion

and exclude evidence, even if it is relevant, if the danger of unfair prejudice substantially

outweighs its probative value. Hanson, 238 Ill. 2d at 102.

¶ 34   A compelled DNA extraction undeniably constitutes a search under the fourth

amendment to the federal constitution (U.S. Const., amend. IV) and the search-and-seizure

provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) and, as such, generally requires

a warrant due to the inherent interest an individual possesses in his privacy and bodily integrity.

People v. Garvin, 219 Ill. 2d 104, 117 (2006).

¶ 35   At the time of defendant’s interview, the police had no warrant to compel extraction of

his DNA. Two days later, the police obtained and executed a warrant to collect his DNA, but the

State does not argue on appeal that such a search would have been supported by probable cause

when he initially refused the testing. At the time of his refusal, defendant had no legal obligation

to provide his DNA, and voluntary consent would have been the only lawful basis for collecting



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2015 IL App (2d) 131106


it. However, the State argued to the jury that defendant’s refusal to submit to DNA testing

showed his consciousness of guilt, and to drive home the point, it emphasized that every other

interviewee had given a DNA sample voluntarily.

¶ 36                                        a. Forfeiture

¶ 37   The State argues that defendant has forfeited his appellate argument that the introduction

of his refusal to consent to DNA testing was unduly prejudicial because it allowed the jury to

infer his consciousness of guilt from his exercise of his rights. Anticipating the State’s forfeiture

claim, defendant argues that he has preserved the issue, and if not, that we may consider it under

the plain-error doctrine.

¶ 38   At trial, defendant objected to Filenko’s testimony regarding his refusal to consent to

DNA testing. Defense counsel explained to the trial court that defendant had refused the testing

because the State already had his DNA profile from his prior incarceration for an unrelated

crime. Noting a previous ruling that defendant’s criminal history had been deemed inadmissible,

defense counsel argued that articulating the reason for the refusal would disclose defendant’s

criminal history to the jury and unduly prejudice him. The court acknowledged defendant’s

strategic “predicament” but allowed the testimony regarding his refusal and the other

interviewees’ acquiescence to DNA testing.

¶ 39   In his posttrial motion, defendant argued that the prosecution gave the false impression

that defendant somehow prevented the police from obtaining his DNA. The motion cited the

prosecution’s opening statement that defendant said “you’re not getting my DNA” and testimony

by Filenko and Goar that defendant “refused” to provide a DNA sample.

¶ 40   The State contends that defendant forfeited his appellate argument because (1) counsel

did not object during opening statements when the prosecution mentioned defendant’s refusal,



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2015 IL App (2d) 131106


(2) counsel did not “object to the relevance of the refusal, its constitutional implications, or to the

similar examination questions posed to Goar,” and (3) counsel did not object to the prosecution’s

closing argument that the refusal showed defendant’s consciousness that he killed the victim and

that he did not want to help confirm that his DNA was on her body. The State distinguishes

defendant’s appellate argument from his trial objection that the State misstated the evidence and

prevented him from adducing the rationale for his refusal.

¶ 41      Both an objection at trial and raising the issue in a posttrial motion are necessary to

preserve the issue for appellate review. People v. Herron, 215 Ill. 2d 167, 175 (2005). “A

specific objection at trial forfeits all grounds not specified.” People v. Lovejoy, 235 Ill. 2d 97,

148 (2009). However, “[a]n issue raised by a litigant on appeal does not have to be identical to

the objection raised at trial, and we will not find that a claim has been forfeited when it is clear

that the trial court had the opportunity to review the same essential claim.” Lovejoy, 235 Ill. 2d

at 148.

¶ 42      We conclude that defendant preserved the issue for review, as he repeatedly and

consistently challenged as unduly prejudicial the evidence that he refused to consent to DNA

testing, arguing that its probative value was substantially outweighed by the danger of unfair

prejudice. See Ill. R. Evid. 403 (eff. Jan. 1, 2011). At trial, in his posttrial motion, and on

appeal, defendant has argued that the trial court erred in allowing the prosecution to give the

false impression that defendant refused the testing because he knew he was guilty. At trial,

defendant argued that he could not effectively cross-examine the State’s witnesses without

disclosing his criminal history, and on appeal he makes the related argument that the testimony




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was unduly prejudicial because he had a right to refuse the testing. We deem this argument

sufficiently preserved. 1

¶ 43                          b. Probative Value and Prejudicial Effect

¶ 44    Federal courts have long held that the admission of evidence that a defendant has

exercised his rights is unduly prejudicial and deprives him of a fair trial because it permits the

jury to infer consciousness of guilt from the defendant’s exercise of his rights. Specifically,

several federal circuit courts have held that it is improper for the government to elicit testimony

that a defendant refused to consent to a search unsupported by a warrant or probable cause. For

example, in United States v. Moreno, 233 F.3d 937 (7th Cir. 2000), a United States Customs

Service task force encountered Moreno, her husband, and their nine-year-old son during an

unrelated investigation. After witnessing a suspicious transaction in which Moreno received a

small white bag, the agents followed and eventually stopped the vehicle in which the Morenos

were riding. Moreno, 233 F.3d at 938. The husband consented to a search of the car, which

disclosed $69,000 in cash in the white bag. As it turned out, the agents had stopped the Morenos

within a block of their home, so an agent requested and received the husband’s consent to search

the home. Moreno, 233 F.3d at 939. Before the agents entered the home, Moreno yelled

something in Spanish to her husband, and he promptly withdrew his consent. The agents, who

did not understand what Moreno had said, were forced to obtain a warrant, which resulted in the

discovery of cocaine in the house. Moreno, 233 F.3d at 939.

¶ 45    Moreno’s defense at trial was that she was unaware of her husband’s narcotics trafficking

and at most was an unwitting accomplice to it. To meet that defense, the government was

        1
            In Eghan, a similar claim of error was subject to plain-error review, after this court

determined that the defendant had forfeited the issue.



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permitted, over Moreno’s objection, to elicit testimony from several agents that the husband

withdrew his consent after Moreno yelled something in Spanish to him. Although no witness,

other than the Morenos, understood what Moreno had yelled, the government was allowed to

argue that the jury could reasonably infer that she in some way urged him not to permit the

search, which showed that she knew about the narcotics in the house. Moreno, 233 F.3d at 939.

¶ 46   The Seventh Circuit Court of Appeals held that the challenged evidence was inadmissible

because it had little, if any, probative value and potentially violated Moreno’s constitutional

rights. First, the court expressed skepticism that the husband’s decision to grant or withhold his

consent to the search had any probative value regarding Moreno’s culpable knowledge of the

drugs in the house. The court noted that the government’s theory as to the relevance of the

husband’s statements depended on the assumption that Moreno instructed or encouraged her

husband not to let the agents search the house. Although it was possible that she did, it was also

possible that she said “something entirely different,” such as expressing disgust at his hidden

criminality. Even if Moreno in fact said something that encouraged her husband to reconsider

his consent to search, the remark did not necessarily reflect guilt on her part. Perhaps she simply

reminded him that he had a right to insist on a warrant, as any competent attorney might have

done. Moreno, 233 F.3d at 940 (“ ‘Because the right to refuse entry when the officer does not

have a warrant is equally available to the innocent and the guilty, just as is the right to remain

silent, the refusal is as “ambiguous” as the silence was held to be in United States v. Hale, 422

U.S. 171, 176-77 *** (1975).’ ” (quoting United States v. Prescott, 581 F.2d 1343, 1352 (9th

Cir. 1978))). The court declined to speculate as to the nature of Moreno’s remark, which

diminished its probative value. Moreno, 233 F.3d at 940.




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¶ 47   Second, the Moreno court concluded that, even if Moreno’s unknown remark had tended

to show her consciousness of guilt, “admitting this evidence as a means of establishing Moreno’s

guilt may have run afoul of her constitutional rights.” Moreno, 233 F.3d at 940. The court cited

the well-settled principle that the government may not point to a defendant’s post-arrest silence,

or to his invocation of his fifth amendment privilege not to testify, as evidence of his guilt.

Moreno, 233 F.3d at 940-41 (citing Doyle v. Ohio, 426 U.S. 610 (1976), and Griffin v.

California, 380 U.S. 609 (1965)). The court observed that, in reliance on Griffin and Doyle,

many courts “have either held or suggested that the government may not cite a defendant’s

refusal to consent to a search of his home as evidence that he knew the search would produce

incriminating evidence. [Citations.]” Moreno, 233 F.3d at 941. The court held that “[t]he

Fourth Amendment entitled the Morenos to withhold their consent to the search, and so to have

held up Mr. Moreno’s invocation of that right, purportedly at his partner’s urging, as evidence

that Ms. Moreno knew the house contained contraband, may have been inconsistent with due

process.” Moreno, 233 F.3d at 941.

¶ 48   Moreno supports our conclusion that the admission of defendant’s refusal to consent to

DNA testing was an abuse of discretion because it permitted the jury to infer consciousness of

guilt from defendant’s exercise of his rights. One could argue that defendant’s refusal had some

probative value in tending to show his consciousness of guilt, because the discovery of his DNA

in the manager’s office would confirm his presence there and support the inference that he

committed the offense. Refusing to submit to the testing tended to show that defendant expected

an incriminating match of his DNA to the crime scene.

¶ 49   That said, defendant could argue that his prior employment at the Burger King provided

an exculpatory explanation for finding his DNA in the office. More importantly, the right to



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refuse DNA testing in the absence of a warrant or probable cause is “equally available to the

innocent and the guilty,” rendering defendant’s refusal ambiguous. Prescott, 581 F.2d at 1352.

Perhaps defendant’s refusal was motivated simply by his awareness of his fourth amendment

right to be free from a compelled DNA extraction.

¶ 50    Any probative value of defendant’s refusal to submit to the DNA testing was

substantially outweighed by its prejudicial effect. As in Moreno, the fourth amendment entitled

defendant to withhold his consent to the DNA testing, and holding up defendant’s invocation of

that right as evidence that he expected his DNA to be found at the crime scene was unduly

prejudicial and potentially violated his constitutional rights. See Moreno, 233 F.3d at 941.

¶ 51    The State may not introduce evidence that the accused exercised his constitutional right

to be free from unreasonable searches and seizures, because the prejudicial effect substantially

outweighs the probative value of allowing the jury to infer the accused’s consciousness of guilt

from his exercise of his rights. In this case, the prejudicial effect was compounded by the

admission of evidence that, (1) unlike defendant, the other interviewees consented to the testing;

(2) the police obtained and executed a warrant to compel the extraction of defendant’s DNA two

days after he refused to voluntarily submit to testing; and (3) the investigation of the crime scene

did not reveal defendant’s DNA or any other incriminating forensic evidence. Thus, consistent

with Moreno, we hold that the admission of evidence of defendant’s refusal to submit to testing

was an abuse of discretion because it permitted the jury to infer consciousness of guilt from his

exercise of his rights.

¶ 52    The parties rely almost exclusively on Eghan in support of their opposing positions, but

the legal reasoning in that case is inapposite. A jury convicted Eghan of unlawful possession of

less than 15 grams of a substance containing cocaine, and on appeal he argued that he was denied



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a fair trial because the jury heard testimony of his refusal to submit to a drug test. The evidence

showed that two police officers encountered Eghan while patrolling the parking lot of his

apartment complex. The officers walked up to Eghan, who was standing next to a pickup truck,

and one officer observed a plastic baggie containing cocaine on the rear bumper. Eghan, 344 Ill.

App. 3d at 304-05. Eghan was arrested and advised of his Miranda rights, and he denied

ownership of the cocaine. Eghan, 344 Ill. App. 3d at 305.

¶ 53   At the police station, one of the officers asked Eghan if he would undergo a drug test to

determine the presence of cocaine in his bloodstream. Eghan admitted that he had cannabis in

his system but denied ingesting cocaine and refused the test. Eghan, 344 Ill. App. 3d at 305.

During closing argument, the State noted that the officers had given Eghan an opportunity to take

a drug test to show whether he had cocaine in his system. “The State argued, ‘[Eghan] refused to

do that, refused to cooperate. He knew that those drugs on that bumper were his.’ ” Eghan, 344

Ill. App. 3d at 306.

¶ 54   On appeal to this court, Eghan argued that the trial court abused its discretion in allowing

evidence that he refused to submit to the drug test proposed by the police. Eghan, 344 Ill. App.

3d at 309. He argued that the evidence that he had exercised his fourth amendment right to be

free from unreasonable searches and seizures should not have been admitted as evidence of his

consciousness of guilt. Eghan, 344 Ill. App. 3d at 309 (citing U.S. Const., amend. IV). He also

argued that the admission of the testimony violated his fifth amendment right not to be

compelled to give evidence against himself. Eghan, 344 Ill. App. 3d at 309 (citing U.S. Const.,

amend. V).

¶ 55   This court held that “the admission of evidence of [Eghan’s] refusal did not itself

constitute a violation of either the fourth or fifth amendment.” Eghan, 344 Ill. App. 3d at 310.



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The refusal did not violate the fourth amendment, because no drug test was administered and

therefore no seizure occurred. Eghan, 344 Ill. App. 3d at 310. The refusal also did not violate

the fifth amendment, because drug tests are noncommunicative “real or physical” evidence of

which the defendant is merely the source and not testimonial statements within the scope of fifth

amendment protection. Compelling an accused to submit to a drug test does not violate his

constitutional privilege against self-incrimination, and the act of refusing to submit is not itself a

compelled communication that violates the fifth amendment Eghan, 344 Ill. App. 3d at 310.

¶ 56   Although we concluded that evidence of Eghan’s refusal to submit to a drug test did not

violate the fourth or fifth amendment, we restated the principle that the admission of such

evidence is nonetheless unduly prejudicial and deprives a defendant of a fair trial as it permits a

jury to infer consciousness of guilt from the defendant’s exercise of his rights. Eghan, 344 Ill.

App. 3d at 310-11 (citing Moreno, 233 F.3d at 940-41, United States v. Thame, 846 F.2d 200,

206-07 (3d Cir. 1988) (error for prosecution to comment upon the defendant’s refusal to consent

to a warrantless search of a piece of luggage), and Prescott, 581 F.2d at 1352 (court erred in

admitting evidence that the defendant exercised her fourth amendment right to refuse to consent

to a warrantless search of her home)).

¶ 57   We held that the admission of Eghan’s refusal to submit to a drug test was “unduly

prejudicial and denied [Eghan] a fair trial.” Eghan, 344 Ill. App. 3d at 312. We rejected the

notion that the testimony had probative value in tending to indicate a consciousness of guilt.

Eghan, 344 Ill. App. 3d at 312. We commented that “[t]he only fact that such evidence would

have some tendency to support, however, is that [Eghan] had recently ingested drugs,” which

was not an element of the charged offense of possession of a controlled substance. Eghan, 344

Ill. App. 3d at 312. Although evidence tending to establish that Eghan had recently consumed



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cocaine might have made it more likely that he had possessed the cocaine found by the police,

the probative value of his refusal to submit to a drug test was “limited at best.” Eghan, 344 Ill.

App. 3d at 312.

¶ 58   We also contrasted the limited probative value of Eghan’s refusal with its “significant

prejudicial effect.” Eghan, 344 Ill. App. 3d at 312. The admission of the refusal did not itself

violate Eghan’s fourth or fifth amendment rights, but it nonetheless allowed the State to argue

that his attempt to exercise his rights indicated that he knew he was guilty of the charged offense.

We characterized such argument as “improper” and “highly prejudicial and fundamentally

unfair.” Eghan, 344 Ill. App. 3d at 312-13. The admission of defendant’s refusal to submit to

DNA testing as showing consciousness of guilt was similarly prejudicial and unfair.

¶ 59   Relying on Eghan, the State contends that arguing consciousness of guilt from

defendant’s exercise of his rights was not error, because, unlike Eghan receiving Miranda

warnings, defendant had not been advised of the right he was exercising. Noting that Eghan had

been advised, inter alia, that he had the right to remain silent, we concluded that “[t]hese

warnings effectively informed [Eghan] that he did not have to cooperate with the police or

provide them with potentially incriminating information.” Eghan, 344 Ill. App. 3d at 313. We

determined that “[Eghan’s] refusal to consent to a drug test may well have been a consequence of

receiving these warnings.” Eghan, 344 Ill. App. 3d at 313.

¶ 60   The State argues that, while the Miranda warnings potentially misinformed Eghan that

any refusal of testing could not be used against him, defendant received no such misinformation.

This distinction is a red herring, as the administration of Miranda warnings is irrelevant in either

case. Instead, the issue turns on whether the accused has a constitutional basis for refusing to

consent to the test, not whether he was advised that he did not have to cooperate with the police.



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Eghan and defendant each had a constitutional basis to withhold consent, regardless of Miranda

warnings advising them of that right. Significant prejudice resulted in each case from the

prosecution arguing that the exercise of the right to be free from unreasonable searches and

seizures showed consciousness of guilt.

¶ 61      We note that, at the times of their respective refusals, Eghan was in custody whereas

defendant had appeared at the police station voluntarily and was free to leave. Thus, defendant

had even less reason than Eghan to believe that he was compelled to cooperate with the police or

provide them with potentially incriminating information. Adopting the State’s position in this

case would lead to the absurd result of affording greater constitutional protection to a person who

receives Miranda warnings upon an arrest than to a person whom there is no probable cause to

arrest.

¶ 62      The State also cites People v. Edwards, 241 Ill. App. 3d 839 (1993), for the proposition

that a “refusal to submit to blood and saliva [testing] has some tendency to indicate

consciousness of guilt.” The State implies that Edwards endorses the admission of defendant’s

exercise of his rights as evidence of his consciousness of guilt, which is misleading. Edwards

refused to submit to court-ordered blood testing, while defendant in this case was exercising his

right not to consent to be tested.

¶ 63      Edwards was charged with several offenses stemming from the abduction of three women

on three separate occasions. Edwards, 241 Ill. App. 3d at 840. One of the investigators testified

that he was assigned to “execute a court order to have blood and saliva taken from [Edwards].”

Edwards, 241 Ill. App. 3d at 841. The investigator showed Edwards the order and explained that

he must give the samples, but Edwards refused.           Rather than compelling extraction, the




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investigator left and returned once a month for three months until Edwards relented and

submitted to the testing. Edwards, 241 Ill. App. 3d at 841-42.

¶ 64     Edwards was ordered to submit to blood testing under Illinois Supreme Court Rule

413(a)(vii) (eff. July 1, 1982), which provides for judicial orders compelling the taking of blood

samples. Rather than mounting a meritless challenge to the constitutionality of the seizure,

Edwards argued on appeal that the prejudicial effect of his refusals outweighed the probative

value of showing his consciousness of guilt. Edwards, 241 Ill. App. 3d at 842. The Appellate

Court, First District, determined that Edwards had forfeited the issue by failing to object at trial

but also stated that, if he had made a timely objection, “a ruling against [Edwards] would not

have been an abuse of discretion in this case, particularly where the facts indicate that [Edwards]

repeatedly sought to hamper the police investigation closing in around him.” Edwards, 241 Ill.

App. 3d at 843.

¶ 65     Edwards is easily distinguished from this case. In finding an abuse of discretion here, we

adhere to the principle that, when a defendant exercises his constitutional rights, the admission of

the defendant’s refusal to waive those rights is prejudicial, and the prejudice substantially

outweighs the probative value of allowing the jury to infer consciousness of guilt. In contrast,

when Edwards refused to submit to testing, he was not exercising his rights, but flouting a court

order.

¶ 66     We note that our holding is consistent with the rule that, when a motorist refuses to

submit to a test designed to determine the person’s blood-alcohol content during a DUI stop,

evidence of the refusal is admissible and may be used to argue the defendant’s consciousness of

guilt. See People v. Johnson, 218 Ill. 2d 125, 140 (2005); People v. Rolfingsmeyer, 101 Ill. 2d

137, 141 (1984) (because a motorist has no constitutional right to refuse a breath test and may be



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compelled by the State to take such a test, evidence of the driver’s refusal to take such a test does

not violate the self-incrimination privilege and may properly be admitted at trial); People v.

Garriott, 253 Ill. App. 3d 1048, 1052 (1993) (section 11-501.2(c) of the Illinois Vehicle Code

(625 ILCS 5/11-501.2(c) (West 1992)) provides that evidence of a refusal shall be admissible at

trial for DUI and, thus, the legislature has determined that evidence of such a refusal is relevant

as circumstantial evidence of the driver’s consciousness of guilt); see also People v. Kane, 223

Ill. App. 3d 377, 385 (1991) (a trier of fact may infer that a motorist refused Breathalyzer testing

because he knew the test would confirm he was driving under the influence); People v. Roberts,

115 Ill. App. 3d 384, 387 (1983) (evidence of a driver’s refusal exposes him to an inference

regarding his state of mind about the likely results of that test). In such an instance, the motorist

acquiesces to that possibility by exercising his driving privileges, unlike in this case, where

consent was the only possible basis for the search when the police proposed the test. See People

v. Webber, 2014 IL App (2d) 130101, ¶ 3 (“Under section 11-501.1, the so-called ‘implied

consent law,’ a motorist operating a vehicle on a public highway in Illinois is deemed to have

consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level.”).

¶ 67                                    2. Rent Installments

¶ 68   Defendant next argues that he was unduly prejudiced by the trial court’s exclusion of

evidence that most of the other residents of his apartment complex paid rent as he did. We

review the trial court’s exclusion of the evidence for an abuse of discretion, and we will not

reverse the ruling unless it is arbitrary, fanciful, or unreasonable. See Hanson, 238 Ill. 2d at 101.

¶ 69   The property manager testified that defendant often paid in three to four installments per

month. The manager stated that he was “working with” defendant and never charged him a late

fee, to ensure he could continue residing in the complex. The State argued that defendant’s



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method of payment showed he had money problems, which created a motive for the offense. A

related inference is that defendant would not need to resort to installment rent payments if he was

flush with cash, as the search of his home revealed.

¶ 70   The trial court barred the defense from showing that almost all the other tenants in the

complex paid rent under similar payment arrangements. Defendant argues that such evidence

would have shown that he had merely availed himself of a payment arrangement afforded to all

residents, which would tend to negate the State’s claim that defendant had money problems and

was financially motivated to commit the offense. Defendant also contends that any financial

problems he might have had were not proper evidence of motive, because nearly everyone shares

a desire to obtain more money, which hardly made him uniquely motivated.

¶ 71   In September 2010, our supreme court adopted Federal Rule of Evidence 406, which

allows for the admission of habit evidence regardless of eyewitness testimony. Powell v. Dean

Foods Co., 2013 IL App (1st) 082513-B, ¶ 124. Illinois Rule of Evidence 406 provides that

“[e]vidence of the habit of a person or of the routine practice of an organization, whether

corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the

conduct of the person or organization on a particular occasion was in conformity with the habit

or routine practice.” Ill. R. Evid. 406 (eff. Jan. 1, 2011). Defendant argues that evidence of the

payment practices of the other residents was admissible under this rule to show that he paid rent

in conformity with the routine practice of the apartment complex.

¶ 72   Under the circumstances, the trial court did not abuse its discretion in excluding the

evidence of other residents’ payment practices. Defendant does not argue that the practice was

in accordance with any lease or written policy of the complex. More importantly, the evidence

of how other residents paid would have been irrelevant on the issue of whether defendant had



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financial problems and thus a financial motive to commit the offense. As the State argued,

defendant would not have needed to resort to installment rent payments if he had not obtained all

the cash in his home recently. The court’s exclusion of evidence of the residents’ payment

practices was not an abuse of discretion and did not prejudice defendant.

¶ 73                                   3. Closing Argument

¶ 74   Finally, defendant argues that he is entitled to a new trial, based on improper comments

made by the prosecution during closing argument.             Defendant objected at trial to the

prosecution’s argument that the jury should not “reward” defendant for “doing [his] job too well”

because he was either “smart enough or lucky enough not to leave his fingerprints at [the] crime

scene.” Defendant argues that the argument was (1) “entirely improper, as it shifted the burden

of proof away from the prosecution and suggested, repeatedly, that the prosecution’s lack of

proof was somehow a ‘reward’ for [defendant]” and (2) turned the presumption of innocence on

its head by characterizing it as a “reward.”

¶ 75   It is well settled that prosecutors are afforded wide latitude in closing argument, and even

improper remarks do not merit reversal unless they resulted in substantial prejudice to the

defendant. People v. Burman, 2013 IL App (2d) 110807, ¶ 25. During closing argument, the

prosecutor may properly comment on the evidence presented or reasonable inferences drawn

from that evidence, respond to comments made by defense counsel that invite response, and

comment on the credibility of witnesses. Burman, 2013 IL App (2d) 110807, ¶ 25. In reviewing

whether comments made during closing argument are proper, we must view the closing

argument in its entirety and view remarks in context. Burman, 2013 IL App (2d) 110807, ¶ 25.

¶ 76   We recognize that our appellate courts are divided on the standard of review for closing

remarks. Burman, 2013 IL App (2d) 110807, ¶ 26. The confusion stems from two supreme



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court cases. In People v. Wheeler, 226 Ill. 2d 92, 121 (2007), the supreme court held that

whether a prosecutor’s remarks are so egregious as to require a new trial presents a question of

law, which is reviewed de novo. However, the Wheeler court also cited with approval People v.

Blue, 189 Ill. 2d 99 (2000), wherein the court applied the abuse-of-discretion standard to review

a prosecutor’s remarks. Wheeler, 226 Ill. 2d at 121. Where the result would be the same

regardless of the standard applied, the appellate court has noted the conflict but has declined to

determine the appropriate standard. Burman, 2013 IL App (2d) 110807, ¶ 26. Because we

would reach the same result under either standard in this case, we refrain from discussing the

applicable standard until our supreme court resolves the conflict. Burman, 2013 IL App (2d)

110807, ¶ 26.

¶ 77   In relation to the reward comments, the prosecution stated, “if a defendant is either smart

enough or lucky enough not to leave his fingerprints at a crime scene, then according to [the

defense] the defendant gets found not guilty.” A charitable translation is that physical evidence,

such as fingerprints and DNA, is not necessary to prove a defendant’s guilt, and the absence of

such evidence does not compel an acquittal. In fact, the prosecution expressly argued in rebuttal

that “you are not going to get an instruction from Judge Shanes that says the State has to present

DNA evidence or you must have DNA evidence or you must have biological evidence to find

someone guilty.”

¶ 78   In making the reward comments, the prosecution was not technically shifting to

defendant the burden to prove his innocence or urging disregard of the presumption of

innocence. Moreover, the State subsequently explained to the jury that the prosecution had the

burden of proving each element of the offense beyond a reasonable doubt. Viewing the closing

argument in its entirety and taking the remarks in context, we conclude that the comments do not



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rise to the level of prosecutorial misconduct. See Burman, 2013 IL App (2d) 110807, ¶ 25.

However, the argument could have been made much more artfully, and we caution prosecutors to

refrain from such unnecessary rhetoric that risks a diminution or confusion of the presumption of

innocence or the burden of proof.

¶ 79                                    4. Harmless Error

¶ 80   The trial court abused its discretion in admitting the evidence of defendant’s refusal of

DNA testing and allowing the State to argue that his exercise of his constitutional rights showed

consciousness of guilt. Defendant argues that this error entitles him to a new trial. The State

responds that any error was harmless beyond a reasonable doubt because the prosecution offered

significant evidence of defendant’s guilt. Although we do not condone the error, we reluctantly

agree with the State.

¶ 81   To establish that an error was harmless, the “State must prove beyond a reasonable doubt

that the jury verdict would have been the same absent the error.” People v. Thurow, 203 Ill. 2d

352, 363 (2003). When deciding whether an error was harmless, a reviewing court may: (1)

focus on the error to determine whether it might have contributed to the conviction; (2) examine

the properly admitted evidence to determine whether it overwhelmingly supports the conviction;

or (3) determine whether the improperly admitted evidence is merely cumulative or duplicates

properly admitted evidence. In re Rolandis G., 232 Ill. 2d 13, 43 (2008).

¶ 82   The State introduced overwhelming circumstantial evidence of defendant’s guilt. The

victim’s body was found at 5:10 a.m.        At 4:23 a.m., two phone calls were placed from

defendant’s cell phone to the Burger King, his former place of employment. Defendant had

called the Burger King during the weeks preceding the incident, but the two calls placed that

morning were the only ones using “*67” to block the receiver’s caller identification feature.



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¶ 83   At 4:42 a.m., about 20 minutes after the safe was opened, defendant was seen at the

White Hen a few miles from the Burger King.            The eyewitness testimony of defendant’s

presence at the White Hen contradicted defendant’s statement to police that he went to the Lake

Villa post office at 4:17 a.m. between his shifts at McDonald’s and Value City.

¶ 84   Defendant made several incriminating statements to police. Defendant talked about

having a “f*** up feeling,” having evil inside him, struggling between good and evil, the officers

knowing what he did, and apologizing to the victim’s husband for what he did.

¶ 85   The police found cash, arranged denominationally, like that from the Burger King safe, in

a plastic bag hidden in the lining of a coat in defendant’s bedroom closet.          Defendant’s

fingerprints were on the bag. The police also found a pillow case with quarters and dimes in the

exact amounts missing from the safe. The State contrasted the discovery of cash in defendant’s

home with evidence that he had financial problems, which caused him to borrow money from a

friend and pay rent in small amounts.

¶ 86   The evidence, though entirely circumstantial, overwhelmingly proved defendant’s guilt,

such that the prejudicial testimony that defendant exercised his rights in refusing the DNA

testing did not contribute to the conviction. This is especially true since defendant’s DNA was

not discovered at the crime scene.

¶ 87                                 B. Inconsistent Verdicts

¶ 88   Defendant argues that a new trial is necessary because the jury returned inconsistent

verdicts in finding him guilty of intentional murder (720 ILCS 5/9-1(a)(1) (West 2006)) and not

guilty of knowing murder (720 ILCS 5/9-1(a)(2) (West 2006)).           “A person who kills an

individual without lawful justification commits first degree murder if, in performing the acts

which cause the death: (1) he either intends to kill or do great bodily harm to that individual or



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another, or knows that such acts will cause death to that individual or another; or (2) he knows

that such acts create a strong probability of death or great bodily harm to that individual or

another[.]” (Emphases added.) 720 ILCS 5/9-1(a)(1), (a)(2) (West 2006). “When the law

provides that acting knowingly suffices to establish an element of an offense, that element also is

established if a person acts intentionally.” Pub. Act 96-710, § 25 (eff. Jan. 1, 2010) (adding 720

ILCS 5/4-5). Defendant concludes that it is impossible to commit intentional murder without

also committing knowing murder and that the inconsistent verdicts require a new trial. The State

concedes that “the less culpable state of knowledge is subsumed within defendant’s intentional

acts.”

¶ 89     Although the inconsistency of the guilty and not guilty verdicts is uncontested, our

supreme court has held that defendants may “no longer challenge convictions on the sole basis

that they are legally inconsistent with acquittals on other charges.” People v. Jones, 207 Ill. 2d

122, 133-34 (2003). The Jones court found persuasive United States v. Powell, 469 U.S. 57

(1984), which articulated that constitutional law does not require consistency in the verdicts and

that inconsistent verdicts can often be explained as a product of juror lenity. Jones, 207 Ill. 2d at

130. The Powell Court explained as follows:

                “ ‘ “ ‘The most that can be said in such cases is that the verdict shows that either

         in the acquittal or the conviction the jury did not speak their real conclusions, but that

         does not show that they were not convinced of the defendant’s guilt. We interpret the

         acquittal as no more than their assumption of a power which they had no right to

         exercise, but to which they were disposed through lenity.’ ” ’ ” Jones, 207 Ill. 2d at 130

         (quoting Powell, 469 U.S. at 63, quoting Dunn v. United States, 284 U.S. 390, 393

         (1932), quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)).



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¶ 90   The Powell Court also set forth three additional reasons for refusing to allow defendants

to challenge convictions on the basis of inconsistency: (1) when a jury enters inconsistent

verdicts, no one knows whom the error benefits, because all that can be gleaned is that the jury

did not follow the instructions (Powell, 469 U.S. at 65); (2) fashioning a rule that would allow

only the defendant to challenge an inconsistent verdict, where the inconsistency could harm

either side, would be unfair because the government is precluded from challenging an acquittal

on inconsistency grounds (Powell, 469 U.S. at 65); and (3) the defendant is still protected from

jury irrationality, because the defendant can always challenge his or her conviction on

sufficiency-of-the-evidence grounds (Powell, 469 U.S. at 67). Jones, 207 Ill. 2d at 130-31.

¶ 91   The guilty verdict on the intentional murder count and the not guilty verdict on the

knowing murder count present a situation governed by Jones and Powell. The jury’s conviction

on one count is inconsistent with its acquittal on another count, because the jury found that the

same essential element both did and did not exist. See Jones, 207 Ill. 2d at 135-36. Jones and

Powell hold that such an inconsistency is not a basis for reversing the conviction and ordering a

new trial.

¶ 92   Citing the well-settled rule that “defendants in Illinois can no longer challenge

convictions on the sole basis that they are legally inconsistent with acquittals on other charges”

(emphasis added) (Jones, 207 Ill. 2d 133-34), defendant argues that Jones is inapplicable because

“there was a guilty verdict and acquittal on the same charge” (emphasis in original). Defendant

claims that intentional murder and knowing murder are the “same charge” for purposes of

reviewing inconsistent verdicts. We disagree. While intentional murder and knowing murder

are both “murder,” the statutes defining the offenses represent different ways to charge murder.

Defendant was tried on two separate charges of murder, based on the distinction.



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¶ 93                                   III. CONCLUSION

¶ 94   For the reasons stated, we affirm the judgment of the circuit court of Lake County. The

State may not introduce evidence that the accused exercised his constitutional right to be free

from unreasonable searches and seizures, because the prejudicial effect substantially outweighs

the probative value of allowing the jury to infer the accused’s consciousness of guilt from his

exercise of his rights. However, in this case, the error was harmless beyond a reasonable doubt.

As part of our judgment, we grant the State’s request that defendant be assessed the State’s

Attorney fee of $50 under section 4-2002(a) of the Counties Code (55 ILCS 5/4-2002(a) (West

2014)) for the cost of this appeal. See People v. Nicholls, 71 Ill. 2d 166, 179 (1978).

¶ 95   Affirmed.




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