                                          2016 IL App (3d) 140120

                                 Opinion filed July 13, 2016
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2016

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 10th Judicial Circuit,
                                                       )       Peoria County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-14-0120
            v.                                         )       Circuit No. 09-CF-618
                                                       )
     ALI LEMONT EVANS,                                 )       The Honorable
                                                       )       Stephen Kouri,
            Defendant-Appellant.                       )       Judge, presiding.
     _____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Presiding Justice O'Brien concurred in the judgment and opinion.
           Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant was found guilty of first degree murder. 720 ILCS 5/9-1(a)(3) (West 2008) (a

     person who kills an individual without lawful justification commits first degree murder if, in

     performing the acts which cause the death, he is attempting or committing a forcible felony).

     Defendant was sentenced to 58 years of imprisonment. On appeal, defendant argues, inter alia,

     that his constitutional right to confront witnesses was violated where the prosecutor continued to

     question a witness, in the presence of the jury, and the witness refused to testify and repeatedly
     asserted his fifth amendment privilege against self-incrimination. U.S. Const., amend. V. We

     reverse and remand for a new trial.

¶2                                                 FACTS

¶3          Defendant was charged with first degree murder, based on allegations that on May 27,

     2009, he and codefendant, Deangelo Lindsey, shot the store clerk, with a handgun, during an

     attempt to commit armed robbery. The trials of defendant and his codefendant—Lindsey—were

     severed.

¶4          Prior to defendant's trial, defendant filed a motion to suppress incriminating statements

     that he made to police, arguing that his right to counsel was violated because police continued to

     interrogate him after he had requested an attorney. The trial court denied the motion, and

     defendant was subsequently convicted of first degree murder and sentenced. On appeal, this

     court reversed defendant's conviction and remanded for a new trial, finding that the motion to

     suppress should have been granted because defendant had invoked his right to counsel and did

     not initiate the subsequent incriminating conversation with police. People v. Evans, 2012 IL

     App (3d) 100737-U.

¶5          On remand, the case proceeded to a jury trial. During opening statements, the prosecutor

     told the jury that defendant had fired four shots into the victim's body and then fled with

     Lindsey, leaving the victim to die. The prosecutor informed the jury that Sheanneya Sherman

     drove into the gas station parking lot as defendant "was turning the [victim] into a corpse." The

     prosecutor indicated that Sheanneya saw two people run out of the gas station store, one of

     whom she recognized as a person named "Ali" and she later identified as defendant. The

     prosecutor further indicated that the murder weapon was found in the house of Lindsey's sister




                                                      2
     and matched "the bullets pulled out of [the] poor [victim]'s body." The prosecutor also thanked

     jurors for their attention on behalf of the victim.

¶6          On the first day of trial, witnesses testified that the body of the deceased store clerk was

     discovered behind the counter of the gas station store. Four .22-caliber cartridges were removed

     from the store clerk's body during the autopsy. The cartridges were sent to the state crime

     laboratory for analysis. The sister of Lindsey testified that she lived in an apartment two houses

     from the gas station, which she allowed police officers to search.

¶7          Following a lunch break on the first day of trial, the prosecutor informed the trial court

     that the State intended to call Lindsey to testify by way of immunity. Defendant's counsel

     informed the trial court that he spoke with Lindsey's appellate counsel via telephone, and

     appellate counsel had indicated that he was Lindsey's attorney of record because in Lindsey's

     case there was a pending petition for leave to appeal to the Illinois Supreme Court. Lindsey's

     appellate counsel had not been contacted about Lindsey testifying in defendant's trial and he

     wanted to speak with Lindsey regarding his intent to assert his fifth amendment right against

     self-incrimination. The prosecutor argued that Lindsey did not have the right to assert his fifth

     amendment because he had been given "use immunity" and that Lindsey should be held in

     contempt if he refused to testify. Defendant's attorney argued that Lindsey should not be put on

     the witness stand "without the benefit of speaking with his attorney of record." The trial court

     found that defendant would not be prejudiced if Lindsey did not speak with his attorney of record

     prior to testifying, noting that Lindsey had already been able to consult with his trial attorney.

¶8          The State called Sheanneya Sherman to testify. Sheanneya testified that she had turned

     into the gas station parking lot to make a U-turn when she saw two men run out of the gas station

     store and flee into the alley behind the gas station. The first man's face was covered and he was


                                                           3
       holding a gun. The second man had a bag in his hand and Sheanneya recognized him as a person

       named "Ali." Sheanneya reported her observations to police two days later when she found out

       that the store clerk had been killed. Sheanneya identified defendant from one of hundreds of

       photographs. She also identified defendant from an in-person lineup. Sheanneya testified at trial

       that she was "a hundred percent positive that the [d]efendant [was] the second person out of the

       store with the bag in his hand."

¶9            Sheanneya's father, Larry Bush, had been in the car with Shaeanneya on the day of the

       incident. He testified that he saw two African American "kids" run out of the gas station store—

       one of them was carrying a gun and the other was carrying a bag. Larry described the two males

       as 17 or 18 years of age. The first person out of the store jumped the fence near the back of the

       store and the other person stood by the dumpsters holding the gun in the air. Larry had viewed a

       police lineup but was not able to make an identification.

¶ 10          Police detective Keith McDaniel testified for the State. The prosecutor asked McDaniel

       what he did after he had questioned defendant. McDaniel responded that after speaking with

       defendant he "went to locate Lindsey" and searched the home of Lindsey's sister. Defendant's

       attorney objected. Outside the presence of the jury, defendant's attorney moved for a mistrial,

       arguing that McDaniel's testimony was prejudicial in that it directly went to defendant's

       inculpatory statements that had previously been suppressed. The trial court sustained the

       objection and denied defendant's request for a mistrial. When the jury returned, the trial court

       instructed the jury to "[d]isregard that question and answer."

¶ 11          McDaniel testified that in conducting a search of the apartment of Lindsey's sister, police

       found a handgun. The apartment was located two houses away from the gas station. Lindsey's




                                                        4
       fingerprint was found on the handle of the gun. A forensic scientist testified that the bullets

       recovered from the victim's body were fired from the handgun found in the apartment.

¶ 12          Outside the presence of the jury, the prosecutor informed the trial court of her intent to

       call Lindsey as a witness and that Lindsey intended to invoke his fifth amendment right against

       self-incrimination. The prosecutor argued that Lindsey could not assert the fifth amendment

       right against self-incrimination where he had immunity because nothing he said could be used

       against him. Defendant's attorney objected to the State presenting Lindsey as a witness when the

       prosecutor knew that he would assert his fifth amendment right not to testify. The trial court

       allowed the State to call Lindsey as a witness. The trial judge indicated "for the record" that he

       was allowing the State to call Lindsey as a witness pursuant to People v. Calabrese, 398 Ill. App.

       3d 98 (2010) (allowing the State to call defendant's brother to testify was not an abuse of

       discretion, although court knew that brother would invoke his fifth amendment right not to

       testify, where defendant had suggested that his brother was the actual offender and the State's

       motive was to refute that argument).

¶ 13          Lindsey confirmed that he intended to plead the fifth to "[e]very question." The trial

       court informed Lindsey that he did not have a fifth amendment right to refuse to testify because

       he was given immunity and he would be ordered to answer the questions or be subject to

       contempt. Lindsey confirmed that he understood but still intended to "plead the Fifth." The jury

       was brought back into the courtroom.

¶ 14          The following direct examination of Lindsey took place in the presence of the jury:

                              "Q. [Prosecutor]: Would you state your name?

                              A. Deangelo Lindsey.

                              Q. And are you from the Peoria area?


                                                        5
       A. Yes, ma'am.

       Q. Do you know a person by the name of Tonica Fullilove?

       A. Yes, ma'am.

       Q. How do you know her?

       A. It's my sister.

       Q. And back in May of 2009, did she live at 1207 West McClure?

       A. Yes, ma'am.

       Q. And were there times that you would frequent her apartment on

McClure?

       A. Yeah.

       Q. I want to direct your attention to May 27th of 2009. Did you go into

the USA Gas Station and attempt to commit an armed robbery?

       A. I plead the Fifth.

       [PROSECUTOR]: Judge, I would—

       THE COURT: I'm instructing you to answer that question.

       [LINDSEY]: I plead the Fifth.

       THE COURT: All right, I'm going to tell the jury this: [Lindsey] has

been given what we call use immunity, which means that nothing he says today in

testimony can ever be used against him, and he's refusing to answer. He doesn't

have the privilege to refuse to answer, so I'm ordering –

       [LINDSEY]: So I can't not answer a question? That's what you-all are

saying?


                                 6
       THE COURT: Exactly. You're to answer.

       [LINDSEY]: So me as a human, I can't answer.

       THE COURT: I'm ordering you—

       [DEFENDANT'S ATTORNEY]: Your Honor, I will object at this point.

He is asking for legal advice. His counsel is not here.

       THE COURT: Are you representing him?

       [DEFENDANT'S ATTORNEY]: I'm not representing him.

       THE COURT: I'm ordering you to answer the question.

       [LINDSEY]: I want to talk to my lawyer.

       THE COURT: Are you refusing to answer the questions?

       [LINDSEY]: To any other questions, I plead the Fifth.

       BY [PROSECUTOR]:

       Q . You're currently in the Department of Corrections?

       A. Yes, ma'am.

       Q. That's for first degree murder?

       A. Accountability.

       Q. For first degree murder?

       A. Yes, ma'am.

       Q. Do you know a person by the name of Ali Evans?

       A. Yes, ma'am.

       Q. And do you see the person you know as Ali Evans in court today?

       A. Yes, ma'am.


                                 7
       Q. Could you point him out and describe what he's wearing?

       A. (Indicating) In a black suit, glasses, look real nice.

       [PROSECUTOR]: Judge, may the record reflect the witness identified the

defendant?

       THE COURT: Noted for the record.

       BY [PROSECUTOR]:

       Q. How do you know Mr. Evans?

       A. Associate.

       Q. How long have you been an associate with him?

       A. Been locked up for a year, so I can't really answer that.

       Q. Prior to that, how long had you been an associate with [defendant]?

       A. We really just got to know each other, so I—three, four months—three

to four months.

       Q. And were you with Mr. Evans on May 27th of 2009?

       A. I plead the Fifth. I don't remember.

       Q. You don't remember?

       A. No, ma'am.

       Q. Well, do you remember going into the USA Gas Station on May 27th

of 2009?

       A. I plead the Fifth.

       Q. Do you remember?

       A. Plead the Fifth.


                                  8
        Q. The Judge informed you [that you don’t have that right.

        A. I plead the Fifth.

        Q. Do you remember going into the USA Gas Station on May 27th of

2009?

        A. I'm not really trying to be rude or anything, but I'm pleading the Fifth,

so I'll just be quiet from here on out.

        Q. And the Judge informed you that you cannot do that and is ordering

you to testify.

        A. Yes, ma'am.

        Q. So do you remember? Do you remember when the gas station clerk

died? Let's start with the easy one. Do you remember that? That's a question.

        A. I plead the Fifth.

        Q. And you don't have that right. Yes or no, do you remember – yes or

no, do you remember when the gas station clerk lost his life? Do you remember,

yes or no?

        A. I plead the Fifth.

        Q. Let's start with—let's start with another easy one. Do you remember

the gun you used when the gas station clerk lost his life.

        A. I plead the Fifth.

        Q. Do you remember the gun you touched?

        A. That's a question?

        Q. Yes.



                                   9
       A. I plead the Fifth.

       Q. Well, your fingerprints are on the gun.

       A. To my knowledge, it's not my trial. I got found guilty, remember?

       Q. So you don't know if your fingerprints were on the gun?

       A. I plead the Fifth.

       Q. You plead the Fifth?

       A. Yes, ma'am.

       Q. You don't have that right. Were your fingerprints on the murder

weapon?

       A. I plead the Fifth.

       Q. Were your fingerprints on it because you grabbed the murder weapon

from Ali Evans?

       A. I plead the Fifth.

       Q. Were you at your sister's house or sister's apartment before you went

over to the gas station?

       A. I plead the Fifth.

       Q. You have to answer the question. Were you at your sister's apartment

before you and Mr. Evans went to the gas station?

       A. My answer is I plead the Fifth.

       Q. Were you just chilling at your sister's crib before you went to the

store? (No response) Were you chilling at your sister's crib before you went to

the store?


                                 10
       A. I'm not going to answer any more questions. I'm giving you all the

same answer every time.

       Q. I know, and you can't use that answer.

       A. I'm wasting you-all time. You-all got me up here.

       Q. It's a simple yes or no question.

       [DEFENDANT'S ATTORNEY]: Your Honor, I'll object to further

questioning.

       THE COURT: Why don't you approach.

               (A bench conference was held.)

BY [PROSECUTOR]:

       Q. On May 27th, 2009, when you and Mr. Evans went into the store and

Mr. Evans was up in front of the cashier, did you tell him that there wasn't a gun?

There was no gun, Bro?

       A. I plead the Fifth.

       [DEFENDANT'S ATTORNEY]: Objection.

       THE COURT: Overruled.

BY [PROSECUTOR]:

       Q. When the two of you went in the store, was the purpose to rob the

store clerk, but that you were simply at that point going to see how many people

were in the store.

       A. I plead the Fifth.

       Q. Or how many people are working?


                                 11
        A. I plead the Fifth.

        Q. Did you go through the middle aisle, and Bro, being Mr. Evans,

walked around the first aisle and said, Fuck this shit. Ain't nobody here. And

then he went up to the cashier.

        [DEFENDANT'S ATTORNEY]: Objection.

        A. My answer is the last time I'm answering, I plead the Fifth.

        THE COURT: What's your objection?

        [DEFENDANT'S ATTORNEY]: This is just the prosecutor testifying at

this point, [Y]our Honor. He's told us very clearly he's not going to answer any

more questions.

        THE COURT: He did answer some questions. I'm going to—but I will

sustain it in the sense that we are getting to—I mean, it's leading, so—

        [PROSECUTOR]: Could we approach on that?

        THE COURT: Yes.

               (A bench conference was held.)

        BY [PROSECUTOR]:

        Q. Did Ali Evans go up to the clerk and say, give me that shit. Give me

that shit?

        [DEFENDANT'S ATTORNEY]: Objection.

        THE COURT: Sustained.

        BY [PROSECUTOR]:

        Q. What did Ali Evans say to the cashier?


                                  12
                [DEFENDANT'S ATTORNEY]: Objection.

                THE COURT: Overruled.

                BY [PROSECUTOR]:

                Q. What did the cashier do?

                A. I'm not answering any more questions. I'm pleading the Fifth.

                Q. Did the cashier bend down to reach for money?

                [DEFENDANT'S ATTORNEY]: Objection.

                [LINDSEY]: You-all can't take me out of here?

                THE COURT: Hold on. Overruled. To answer your question now—

                [LINDSEY]: I'm not answering your questions. I plead the Fifth, sir.

                THE COURT: Okay.

                [LINDSEY]: I don't know nothing. I want to go back to where I

belong in your eyes, and I'll leave it at that.

                BY [PROSECUTOR]:

                Q. Did [defendant] shoot the cashier?

                [DEFENDANT'S ATTORNEY]: Objection.

                THE COURT: Overruled.

                BY [PROSECUTOR]:

                Q    Did Ali shoot the cashier? It's a yes or no question. Did Ali shoot

        the cashier? (No response). Enjoy your life in prison.

                [DEFENDANT'S ATTORNEY]: Objection, your Honor.

                [LINDSEY]: Don't object. Don't object. She mean that, her exact

        meaning.



                                           13
                               [PROSECUTOR]: I have no further questions.

                               THE COURT: Sustained. Disregard that last comment. [Counsel for

                       defendant], do you want to ask any questions?

                               [LINDSEY]: Why disregard it? She meant it. This is the people that

                       got us going to jail.

                               THE COURT: All right. Take him out.

                               [LINDSEY]: Good luck with your trial, Bro."

¶ 15          As indicated above, Lindsey testified that he was currently residing in the Department of

       Corrections (DOC) for accountability for first degree murder and knew defendant as an

       "[a]ssociate." The prosecutor repeatedly asked Lindsey various questions about the robbery and

       the shooting of the store clerk, to which Lindsey replied 20 times, "I plead the Fifth." 1

              1
                  The prosecutor's questions to Lindsey closely paralleled Lindsey's testimony from his

       own trial, which was not made part of the record in this case but was set out in the opinion

       resulting from Lindsey's direct appeal. See People v. Lindsey, 2013 IL App (3d) 100625, ¶¶ 22-

       24. As set out in the Lindsey opinion, at his trial, Lindsey testified to the following: on the day

       of the offense Lindsey was 17 years old and had met up with defendant at the home of Lindsey's

       sister; Lindsey and defendant discussed robbing defendant's uncle; defendant had a gun;

       defendant and Lindsey went to the nearby convenience store to buy some juice and a cigarillo;

       Lindsey did not have a weapon; the store clerk refused to sell Lindsey a cigarillo because he was

       too young to buy tobacco; Lindsey gave defendant money to buy the cigarillo; Lindsey heard

       defendant say, "Give me that shit" and saw defendant pointing a gun at the clerk; Lindsey asked

       defendant what he was doing, and defendant pointed the gun at Lindsey and told Lindsey to shut

       up; defendant shot the clerk as the clerk was reaching under the counter; Lindsey had his cell


                                                        14
¶ 16           In defendant's case, the State called its final witness—Corey Braggs. Braggs testified

       that he was currently in jail on felony charges and expected to receive a lesser sentence for his

       testimony in this case. Braggs testified he was defendant's cellmate and, in July of 2013,

       defendant told Braggs that he and Lindsey had planned the robbery of a gas station and Lindsey

       had grabbed items from behind the counter while defendant "had a gun to the man." Braggs also

       testified that defendant told him that he shot the store clerk twice because he got scared when the

       store clerk reached for something and that defendant and Lindsey hid the gun at the home of

       Lindsey's sister. Defendant had further told Braggs that Lindsey would "probably plead the 5th"

       when called to testify at defendant's trial.

¶ 17           After the State rested its case, defense counsel motioned the court for a directed verdict.

       The trial court denied the motion.

¶ 18           Brian VonBehren testified for the defense that he was a convicted felon and currently

       residing in the Peoria County Jail and was in the same "jail pod" as defendant and Braggs. A jail

       pod consisted of five jail cells, with two inmates in each jail cell. In the four months that they

       were all in the same jail pod, VonBehren had never seen defendant and Braggs hang out together

       or have a conversation with each other. According to VonBehren, defendant and Braggs did not

       get along and Braggs did not like defendant. Braggs had told VonBehren that morning that he

       did not like defendant.


       phone in his hand as he and defendant ran out of the store; they ran to the home of Lindsey's

       sister where Lindsey snatched the gun from defendant and asked why he had shot the clerk;

       defendant said that he was " 'trigger happy.' " Id. ¶ 25. Lindsey did not testify to any of the

       foregoing statements at defendant's trial but, instead, refused to testify.




                                                         15
¶ 19          In her closing argument, the prosecutor contended that on May 27, 2009, defendant and

       Lindsey made sure the store clerk "had a past and no future" and, by the time of the 911 call, the

       store clerk was "a bloody corpse." In her rebuttal argument, the prosecutor stated:

                              "Reasonable doubt, ladies and gentlemen, that is our burden. It's beyond a

                      reasonable doubt. It's reasonable, not beyond all doubt, not beyond a shadow of a

                      doubt, not 100 percent certainty, certainly not the 100 percent certainty that

                      [Sheanneya] writes on her little identification, not that 100 percent positive.

                      That's not what we have to prove. We have to prove beyond a reasonable doubt,

                      and is it reasonable that this guy is fleeing with the murderer if that's the defense?

                      Is it reasonable that he's going to run out of that store with a bag in hand and

                      follow the guy with a gun if he wasn't in on it? That is unreasonable."

¶ 20          The jury found defendant guilty of first degree murder, finding that he, or someone for

       whose conduct he was legally responsible, was armed with a firearm.

¶ 21          Defendant filed a motion for a new trial, in which he argued, among other things, that the

       trial court erred by allowing the State to continue to examine Lindsey in the presence of the jury

       where the examination amounted to testimony by the prosecutor and assumed facts not in

       evidence. The prosecutor responded that her leading questions to Lindsey were proper to

       "impeach him with the earlier statements" where he had responded, "I don't remember." She

       continued, "at some point I stopped" because Lindsey "clearly was continuing to say either, no,

       or I want my, or I plead the Fifth." The trial court denied defendant's motion for a new trial.

¶ 22          The trial court sentenced defendant to 58 years of imprisonment. Defendant filed a

       motion to reconsider the sentence, which the trial court denied. Defendant appealed.

¶ 23                                               ANALYSIS


                                                        16
¶ 24          On appeal, defendant argues that he should receive a new trial because: (1) his

       constitutional right to confront witnesses was violated when the prosecutor continued her direct

       examination of Lindsey after Lindsey refused to answer leading questions regarding the day of

       the murder and repeatedly responded, "I plead the Fifth"; (2) the State improperly elicited

       testimony from Lindsey that he had been convicted of first degree murder on the basis of

       accountability; (3) the State improperly elicited testimony from McDaniel that he went to locate

       Lindsey and search the home of Lindsey's sister after speaking with defendant despite

       defendant's statements to McDaniel having previously been suppressed; and (4) the cumulative

       effect of the alleged errors, in addition to improper comments made by the prosecution during

       opening statements and closing arguments, deprived defendant of a fair trial. Alternatively,

       defendant requests that this court vacate the fines and fees assessed against him and remand this

       case for a proper order of monetary assessments because the trial court had not ordered any

       specific monetary assessments and the imposed assessments were erroneous.

¶ 25          In addressing the first issue, defendant argues that he is entitled to a new trial because the

       manner in which the prosecutor questioned Lindsey deprived him of his constitutional right to

       confront witnesses against him. Defendant claims he was unfairly prejudiced by the prosecutor's

       questioning because the inferences that could have been made from Lindsey's refusal to answer

       added "critical weight" to the State's case in a form not subject to cross-examination.

¶ 26          The State argues on appeal that the prosecutor was merely attempting to refresh Lindsey's

       recollection with his prior statements after Lindsey responded, "I plead the Fifth. I don't

       remember." During posttrial proceedings, the prosecutor had argued that her questioning of

       Lindsey was proper for impeaching Lindsey's response that he did not remember being with

       defendant on the day of the murder. The State additionally argues that the continued questioning


                                                        17
       of Lindsey was not error because Lindsey had answered some questions, which created an

       inference he might be willing to answer additional questions. The State also claims the

       questioning was proper to refute assertions defendant's attorney made in his opening statement

       that it was Lindsey that had committed the murder. Finally, the State also claims that if the

       questioning was erroneous, it was harmless error.

¶ 27          The first issue raised by the parties of whether the continued questioning of Lindsey

       violated defendant's constitutional right of confrontation highlights the interplay between a

       prosecutor's right to compel a witness to testify under immunity and the right of the defendant on

       trial to confront witnesses despite a witness's refusal to testify. Inherent in those issues is the

       applicability of various Illinois Rules of Evidence and constitutional provisions, as is discussed

       below. Thus, in this case, a threshold issue is the use of a prior statement in questioning the

       witness without any attempt to lay a foundation for introducing the prior statement into evidence

       for impeachment or substantive use.

¶ 28          Generally, we review the trial court's evidentiary ruling of whether to admit certain

       testimony for an abuse of discretion. People v. Lovejoy, 235 Ill. 2d 97, 141 (2009). However, a

       defendant's claim that his right to confrontation was violated is a question of law subject to a

       de novo review. Id. at 141-42.

¶ 29                                      I. Prior Inconsistent Statement


¶ 30          First, we address the State's claim that the prosecutor's questioning was proper to

       impeach Lindsey with a prior statement. Pursuant to Illinois Rule of Evidence 607: "[t]he

       credibility of a witness may be attacked by any party, including the party calling the witness,

       except that the credibility of a witness may be attacked by the party calling the witness by means

       of a prior inconsistent statement only upon a showing of affirmative damage. " Ill. R. Evid. 607

                                                         18
       (eff. Jan. 1, 2011) (the affirmative damage requirement for using prior inconsistent statements for

       attacking the credibility of one's own witness does not apply to the admission of prior

       inconsistent statements that are admissible, in part, for substantive purposes pursuant to Illinois

       Rule of Evidence 801(d)(1)(A)(1) (eff. Oct. 15, 2015) (prior inconsistent statement in a criminal

       case where the witness was subject to cross-examination about the statement and the statement

       was made under oath)). Under Illinois Rule of Evidence 613(b), before a witness can be

       impeached with extrinsic evidence of a prior inconsistent statement, a proper foundation must be

       laid by affording the witness an opportunity to explain or deny it and the opposing party is

       afforded an opportunity to interrogate the witness about the statement. Ill. R. Evid. 613(b) (eff.

       Oct. 15, 2015); People v. Bradford, 106 Ill. 2d 492, 500 (1985).

¶ 31           While Illinois Rule of Evidence 613 allows the use of prior inconsistent statements

       solely for impeachment purposes, Illinois Rule of Evidence 801(d)(1)(A) and section 115-10.1 of

       the Code of Criminal Procedure of 1963 (Code) allow for the admission of a prior inconsistent

       statement to be used for both impeachment purposes and as substantive evidence in criminal

       cases. Ill. R. Evid. 801(d)(1)(A)(1) ) (eff. Oct. 15, 2015) (in a criminal case, a prior inconsistent

       statement is admissible if the declarant is a testifying witness who is subject to cross-examination

       concerning the statement, and the prior inconsistent statement was made under oath at a trial,

       hearing, deposition, or other proceeding); 725 ILCS 5/115-10.1 (West 2012). Illinois Rule of

       Evidence 801(d)(1)(A) is a codification of section 115-10.1 of the Code. Ill. R. Evid.,

       Committee Commentary. The purpose of section 115-10.1 of the Code is to " ' "protect parties

       from turncoat witnesses" ' " who, disown a prior statement by testifying inconsistently or

       claiming an inability to remember the subject matter. People v. Brothers, 2015 IL App (4th)

       130644, ¶ 65 (quoting People v. Fauber, 266 Ill. App. 3d 381, 390 (1994) quoting Robert J.


                                                        19
       Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638,

       640-41 (1984)).

¶ 32          The proper admission of a prior inconsistent statement under Rule of Evidence

       801(d)(1)(A) and section 115-10.1 of the Code requires the proponent to lay a foundation for the

       statement. See Brothers, 2015 IL App (4th) 130644, ¶ 68; People v. Sykes, 2012 IL App (4th)

       100769, ¶¶ 37, 43-44 (the proponent must lay an adequate foundation for the witness's prior

       inconsistent statement to be admissible by establishing the time, place, and date of the statement

       and asking the witness whether she made the statement). Laying the foundation for the

       admission of prior inconsistent statement for use as substantive evidence under Rule of Evidence

       801(d)(1)(A) and section 115-10.1 of the Code is essentially the same as laying the foundation to

       impeach a witness with a prior inconsistent statement. See Brothers, 2015 IL App (4th) 130644,

       ¶ 68. The witness must have an opportunity to explain the inconsistency before the introduction

       of extrinsic evidence of the statement, which prevents unfair surprise and allows the opponent to

       cross-examine the witness regarding it. Id.

¶ 33           If the witness unequivocally admits having made the prior inconsistent statement, he

       stands impeached. People v. Grayson, 321 Ill. App. 3d 397, 406 (2001). If the witness denies

       having made the prior statement, equivocates, or states that he cannot recall making the

       statement, then it is incumbent on the examining party to offer evidence of the statement. People

       v. Olinger, 112 Ill. 2d 324 (1986); People v. Purrazzo, 95 Ill. App. 3d 886, 896-97 (1981);

       People v. Moore, 54 Ill. 2d 33 (1973) (where a witness states that he cannot remember a

       statement, the statement must be proven and counsel must be prepared to follow up with

       extrinsic evidence).




                                                       20
¶ 34          Even if a proper foundation were laid, it is error to lay a foundation for impeachment and

       then fail to substantiate the impeachment with evidence of the impeaching statement. Purrazzo,

       95 Ill. App. 3d at 896-97. If such a rule did not exist, a witness could exclude evidence of what

       he had previously said or did simply by answering that he did not remember. Id. at 896. Failure

       to prove the prior statement will result in reversible error where the circumstances show

       sufficient prejudice. People v. Adams, 283 Ill. App. 3d 520, 526-27 (1996).

¶ 35          Here, the prosecutor's leading questions appear to be a reflection of the testimony

       Lindsey gave at his own trial about the day of the murder. See Lindsey, 2013 IL App (3d)

       100625, ¶¶ 22-24. Lindsey's prior testimony may have been admissible as substantive evidence

       of a prior "inconsistent" statement under Rule 801(d)(1)(A)(1) and section 115-10.1 of the Code

       where Lindsey responded that he did not remember if he was with defendant on the day of the

       murder. See People v. Redd, 135 Ill. 2d 252, 308 (1990) (the "inconsistent" requirement under

       section 115-10.1 is met when a witness claims a memory loss at trial concerning a prior

       statement); People v. Flores, 128 Ill. 2d 66, 87 (1989) ("where a witness now claims to be unable

       to recollect a matter, a former affirmation of it should be admitted as a contradiction" (internal

       quotation marks omitted)). Arguably, if the proper foundation had been laid, Lindsey's prior trial

       testimony made under oath could have been admitted substantively as an "inconsistent"

       statement to Lindsey's response that he did not remember if he was with defendant on the day of

       the murder.

¶ 36          However, the prosecutor never attempted to lay a proper foundation regarding the prior

       statement made by Lindsey. Additionally, the prosecutor failed to offer any substantiating proof

       of the statement to complete the so-called impeachment. See People v. Vinson, 90 Ill. App. 3d 6,

       9 (1980); Purrazzo, 95 Ill. App. 3d at 896-97 (holding that the prosecutor's leading questions


                                                        21
       about the substance of an alleged prior statement of a witness who testified that he did not

       remember making the statement was improper impeachment where the State failed to introduce

       proof of the alleged statement).

¶ 37          Despite failing to lay a proper foundation and failing to provide proof of the prior

       statement, the prosecutor improperly disclosed the substance of Lindsey's alleged prior statement

       to the jury through leading or suggestive questions, which presumed facts not in evidence. See

       People v. Williams, 333 Ill. App. 3d 204, 210 (2002); People v. Enis, 139 Ill. 2d 264, 297 (1990)

       ("[t]he danger inherent in such questioning is that the jury will ignore the denial and presume the

       accuracy of the impeaching insinuation contained in the question"). Without the admission of

       the prior statement, Lindsey's refusal to respond to 20 of the prosecutor's leading questions about

       the murder by asserting his fifth amendment privilege resulted in defendant being deprived of

       meaningful cross-examination of Lindsey. See Redd, 135 Ill. 2d at 313-14 (assertions of the

       Fifth Amendment privilege by a witness may undermine the process to such a degree that

       meaningful cross-examination within the intent of the evidentiary rules no longer exists).

       Consequently, without the admission of the prior statement, the prosecutor's leading questions

       that placed Lindsey's alleged prior inconsistent statement before the jury constituted improper

       impeachment under applicable evidentiary rules.

¶ 38                                      II. Refreshing Recollection

¶ 39          The State additionally claims that the questioning of Lindsey was proper because the

       prosecutor was attempting to refresh Lindsey's recollection, where he had responded, "I don't

       remember" when asked whether he was with defendant on May 27, 2009. A witness's memory

       can be refreshed only after it is established that the witness has no memory concerning the fact in

       question. People v. Shatner, 174 Ill. 2d 133, 153 (1996). If a witness has testified that his


                                                       22
       memory is exhausted, then a writing may be used to refresh his memory. Ill. R. Evid. 612 (eff.

       Jan. 1, 2011).

¶ 40          Here, Lindsey did not testify that his memory was exhausted or that a prior statement was

       needed to refresh his recollection of whether he was with defendant on May 27, 2009. Thus, our

       review of the record indicates that there was not a proper foundation laid by the prosecutor to

       support the State's claim that the prosecutor's questions were an attempt to refresh Lindsey's

       recollection with a prior statement.

¶ 41                                          III. Confrontation Clause

¶ 42          On appeal, defendant specifically argues that he should receive a new trial because the

       State's direct examination of Lindsey violated his constitutional right to confrontation where the

       prosecutor continued to question Lindsey about the State's version of the murder, despite

       Lindsey's clear indication that he would not answer questions related to the day of the murder

       under the assertion of the fifth amendment privilege against self-incrimination. Once the

       prosecutor did not lay a proper foundation or attempt to introduce the prior statement, the

       prosecutor's continued questioning of Lindsey violated the defendant's right to confront

       witnesses under the confrontation clause where Lindsey repeatedly refused to testify citing a fifth

       amendment privilege against self-incrimination.

¶ 43          Under the fifth amendment, a witness may refuse to answer questions that may

       incriminate him. People v. Ousley, 235 Ill. 2d 299, 306 (2009). The fifth amendment to the

       United States Constitution, held applicable to the states (see Malloy v. Hogan, 378 U.S. 1

       (1964)), provides that "[n]o person shall be *** compelled in any criminal case to be a witness

       against himself." U.S. Const., amend. V. The privilege against self-incrimination " 'is an

       exception to the general principle that the Government has the right to everyone's testimony.' "


                                                         23
       People v. Stevens, 2014 IL 116300, ¶ 16 (quoting Salinas v. Texas, 570 U.S.__ , __ , 133 S. Ct.

       2174, 2179 (2013)).

¶ 44          Under the sixth amendment, a defendant being accused has the right to confront

       witnesses against him. See U.S. Const., amend. VI (providing, "[i]n all criminal prosecutions,

       the accused shall enjoy the right *** to be confronted with the witnesses against him"); Pointer

       v. Texas, 380 U.S. 400, 403 (1965) (applies to both federal and state prosecutions); People v.

       Williams, 238 Ill. 2d 125, 142 (2010) (providing the confrontation clause applies to the states

       through the fourteenth amendment (citing U.S. Const., amend XIV)). The Illinois Constitution

       was amended to conform to the language of the confrontation clause in the sixth amendment of

       the federal constitution. People v. Lofton, 194 Ill. 2d 40, 53 (2000) (confrontation clause of

       Illinois Constitution amended to provide, " '[i]n criminal prosecutions, the accused shall have the

       right *** to be confronted with witnesses against him or her' " (quoting Ill. Const. 1970, art. I,

       § 8 (amended Nov. 8, 1994))).

¶ 45          A primary interest of the confrontation clause is the right of cross-examination. Douglas

       v. Alabama, 380 U.S. 415, 418 (1965). The United States Supreme Court has stated:

                      "[T]he [Confrontation] Clause's ultimate goal is to ensure reliability of evidence,

                      but it is a procedural rather than a substantive guarantee. It commands, not that

                      evidence be reliable, but that reliability be assessed in a particular manner: by

                      testing in the crucible of cross-examination. The Clause thus reflects a judgment,

                      not only about the desirability of reliable evidence (a point on which there could

                      be little dissent), but about how reliability can best be determined. Cf. 3

                      Blackstone, Commentaries, at 373 ('[t]his open examination of witnesses . . . is

                      much more conducive to the clearing up of truth'); M. Hale, History and Analysis


                                                        24
                      of the Common Law of England 258 (1713) (adversarial testing 'beats and bolts

                      out the Truth much better')." Crawford v. Washington, 541 U.S. 36, 61-62

                      (2004).

¶ 46          Generally, a witness is considered subject to cross-examination when he takes the witness

       stand under oath and willingly answers questions and the opposing party has an opportunity to

       cross-examine him. People v. Leonard, 391 Ill. App. 3d 926, 934 (2009).

¶ 47          In this case, Lindsey was given "use-immunity" so that his testimony could not be used

       against him. See 725 ILCS 5/106-2.5 (West 2012) (providing the State the option of giving a

       witness use immunity if his testimony is necessary and the witness is otherwise likely to invoke

       his privilege against self-incrimination). Where a grant of immunity is given, the prosecutor has

       the right to demand and expect the witness's testimony, even under compulsion by the court if

       necessary. People v. Crawford Distributing Co., 78 Ill. 2d 70, 75 (1979). Therefore, as

       defendant acknowledges in his brief on appeal, it was not error for the State to initially call

       Lindsey to the witness stand, in the presence of the jury, when Lindsey had been given

       immunity. See id. at 74 (the act of a prosecutor calling a witness to the stand, in the presence of

       the jury, when the prosecutor has advance knowledge that the witness will invoke the fifth

       amendment right not to testify may or may not be error).

¶ 48          Lindsey took the witness stand, answered some preliminary questions, and identified the

       defendant in court and as an "associate." Lindsey answered questions that were arguably non-

       testimonial or not incriminating. See People v. Redd, 135 Ill. 2d 252 (1990) (providing that the

       privilege against self-incrimination does not exist where there are no reasonable grounds to fear

       self-incrimination). After Lindsey answered preliminary questions, the prosecutor turned her

       questioning to the day of the murder. In response to the question of whether Lindsey was with


                                                        25
       defendant on the day of the murder, Lindsey responded, "I plead the Fifth. I don't remember."

       Thereafter, the prosecutor questioned Lindsey regarding the circumstances and details of the

       crime, which Lindsey refused to answer. The prosecutor permissibly began asking Lindsey

       leading questions because he was obviously hostile or unwilling to answer. See Ill. R. Evid.

       611(c) (eff. Oct. 15, 2015) (providing that interrogation of a hostile or an unwilling witness may

       be by leading questions).

¶ 49          However, thereafter, without attempting to introduce Lindsey's prior statement pursuant

       to Rule of Evidence 613(b) or Rule 801(d)(1)(A)(1) and laying the foundation for its admission,

       the prosecutor asked multiple leading and suggestive questions regarding all of the circumstances

       surrounding the alleged robbery and the murder of the store clerk on the day in question, which

       Lindsey refused to answer. Lindsey responded "I plead the Fifth" to 20 questions. As a result of

       the leading questions, the State's theory of the case regarding the circumstances of the murder

       was placed before the jury. Again, with no attempt to put into evidence Lindsey's prior

       statement, the testimonial aspects of the examination of Lindsey regarding the circumstances of

       the crime came from the prosecutor's questions and not from Lindsey.

¶ 50          Due to Lindsey's refusal to testify, defendant was unable to confront and cross-examine

       Lindsey on matters to which Lindsey had not testified and for which he was not available for

       cross-examination. This circumstance is very different from cases in which a witness claims a

       memory loss or denies making a previous statement and the prior statement was introduced

       properly as impeaching and/or substantive evidence. See, e.g., People v. Hampton, 387 Ill. App

       3d 206, 209 (2008) (witness was available for cross-examination despite testifying that he could

       not recall details about the crime when the prior statement was introduced into evidence); cf. In

       re Rolandis G., 232 Ill. 2d 13, 34 (2008) (finding that the victim was unavailable for cross-


                                                       26
       examination where the victim refused to testify about the crime at defendant's trial and there was

       no prior opportunity for defendant to cross-examine the victim). It was error for the trial court to

       allow the prosecutor to continue questioning Lindsey about all of the circumstances of the

       murder and disclose Lindsey's prior testimony through leading questions, in the presence of the

       jury, in the absence of the prosecutor's introduction of the prior statement pursuant to Rule of

       Evidence 613(b) or Rule 801(d)(1)(A)(1).

¶ 51          In his brief on appeal, defendant cites Douglas v. Alabama, 380 U.S. 415 (1965) to

       support his claim that his constitutional right to confrontation was violated by the prosecutor's

       questioning of Lindsey. In Douglas, the defendant and his codefendant were charged with

       assault with intent to commit murder, and the codefendant was tried and found guilty prior to

       defendant's trial. Id. at 416. Prior to the codefendant's sentencing, the State called him as a

       witness in defendant's trial. Id. at 416 n.1. The codefendant testified to his name and address but

       invoked the privilege against self-incrimination to 21 questions about the alleged crime. Id. at

       417 n.2. Under the guise of refreshing the codefendant's recollection, the prosecutor read the

       codefendant's entire written statement that detailed the alleged crime and indicated the defendant

       had fired the shotgun that had wounded the victim. Id. at 416-17. The prosecutor had paused

       after every few sentences and asked the codefendant, " 'Did you make that statement?' " Id. at

       416. The prosecutor did not offer the codefendant's written statement into evidence. Id. at 417.

       The trial court threatened to hold the codefendant in contempt for refusing to testify, finding that

       the fifth amendment privilege against self-incrimination was not available because the




                                                        27
       codefendant had already been convicted. 2 Id. at 416 n.1. The jury found the defendant guilty,

       and the appellate court affirmed his conviction. Id. at 417-18. The United States Supreme Court

       reversed, holding that the defendant's inability to cross-examine the codefendant denied the

       defendant the right of cross-examination secured by the confrontation clause. Id. at 419. The

       Douglas court noted that the only proof that the defendant had intended to commit the crime was

       the prosecutor's reading of the codefendant's alleged statement, which "may well have been the

       equivalent in the jury's mind of testimony that [the codefendant] in fact made the statement." Id.

       The Douglas court indicated that effective confrontation of the codefendant was possible only if

       the codefendant had affirmed the alleged statements as his, but his refusal to answer "added

       critical weight to the prosecution's case in a form not subject to cross-examination." ( Internal

       quotation marks omitted.) Id. at 420.

¶ 52          Without the introduction of Lindsey's prior statement, similar to Douglas, the witness in

       this case, Lindsey, did not testify to the facts of the crime. Yet, Lindsey's statement that

       defendant committed the crime was nonetheless presented to the jury through the prosecutor's

       leading questions. Without laying the foundation for Lindsey's prior inconsistent statement, the

       result of Lindsey's refusal to answer questions about the murder was that the State was able to

       present its theory of the case without defendant having the ability to cross-examine Lindsey on

       those matters. At some point during the questioning, defendant's counsel specifically objected to

       the questioning, indicating, "[t]his is just the prosecutor testifying at this point, your Honor."

       Without any acknowledgement by the witness or admission of the prior statement, the prosecutor

              2
                  In Douglas, the trial court did not hold the codefendant in contempt but, rather,

       interrupted defendant's trial to sentence the codefendant to 20 years of imprisonment. Douglas,

       380 U.S. at 416 n.1.


                                                         28
       factually presented the jury with her version of the circumstances of the crime with no

       supporting evidence thereof. Therefore, we hold that regardless of the grant of immunity to

       Lindsey and regardless of whether Lindsey actually had the right to assert the fifth amendment,

       without the admission of the prior statement, defendant's right to confrontation was violated

       where, over defendant's objection, in the presence of the jury, Lindsey refused to answer 20 of

       the prosecutor's leading and suggestive questions about the alleged crime.

¶ 53                                      IV. Harmless Error Review

¶ 54          The State argues that even if we find that error resulted from the prosecutor's questioning

       of Lindsey, any such error was harmless. The issue in this case was not an evidentiary matter of

       whether the admission of an out-of-court statement into evidence was proper. Thus, we do not

       apply an evidentiary harmless error review. See Brothers, 2015 IL App (4th) 130644, ¶ 97

       (improper admission of evidence is harmless where there is no reasonable probability that, if the

       evidence had been excluded, the outcome would have been different).

¶ 55          Rather, we determined that the prosecutor's leading questions, for which there was no

       evidentiary support and to which Lindsey had refused to respond, violated the defendant's

       constitutional right to confrontation. In determining whether a violation of the confrontation

       clause error is harmless, we look to whether it appears beyond a reasonable doubt that the error

       did not contribute to the verdict obtained. People v. Patterson, 217 Ill. 2d 407, 428 (2005). In so

       determining if the error was harmless, there are three approaches for measuring the error: (1)

       focusing on the error to determine whether it contributed to the conviction; (2) determining

       whether the other evidence overwhelming supports the conviction; and (3) determining whether

       improperly admitted evidence is merely cumulative or duplicates properly admitted evidence.




                                                       29
       Id. The State bears the burden of proving the violation of the confrontation clause was harmless.

       Id.

¶ 56          In this case, without the proper admission of the prior statement, defendant was

       prejudiced by the prosecutor's questioning of Lindsey where the prosecutor's questions

       insinuated that a robbery was planned, a robbery occurred, defendant initiated the robbery, and

       defendant was the gunman who shot and killed the store clerk. The evidence of defendant's guilt

       of felony murder in this case was not overwhelming. Other than the testimony given by

       defendant's cellmate of a conversation he claims to have had with defendant, which was called

       into doubt by the testimony of another inmate, there was no evidence that a robbery or attempted

       robbery was planned or took place, or that defendant shot the store clerk. Although the other

       evidence showed that defendant was leaving the gas station with Lindsey, Lindsey was the

       person seen carrying the gun and Lindsey's fingerprint was on the gun, with no indication of

       what had transpired inside the gas station store.

¶ 57          Although we recognize that the testimony of jail house informants is not to be viewed as

       inherently unbelievable and their credibility is a question for the jury, it is true that the testimony

       of jail house informants must be viewed with caution. People v. Belknap, 2014 IL 117094, ¶ 54.

       Here, the prosecutor improperly brought every detail of Lindsey's prior testimony to the attention

       of the jury, and it could be argued that it had a prejudicial influence in the minds of the jury due

       to the indication that the defendant committed the crime for which he was being tried.

¶ 58          Without laying a foundation and admitting the prior inconsistent statement, the

       prosecutor's questions attributed statements, which were not in evidence, to Lindsey that were

       fundamentally part of the State's case and the inferences that could be drawn from Lindsey's

       refusal to answer those questions "added critical weight" to the State's case in a form not subject


                                                           30
       to cross-examination in violation of the confrontation clause. See Douglas, 380 U.S. at 420.

       Those questions created a substantial risk that the jury would look to the implicit statements

       therein, which were not in evidence, to determine the defendant's guilt. Thus, the questioning of

       Lindsey by the prosecutor was not harmless beyond a reasonable doubt, and we reverse

       defendant's conviction and remand for a new trial.

¶ 59           Given our disposition on the first issue, we need not address the other issues raised.

       However, for the purposes of remand, we note that the prosecutor's remarks during closing

       arguments regarding the State's burden of proof of "beyond a reasonable doubt" were improper.

       The prosecutor's remarks conflated the "beyond a reasonable doubt" standard with a question of

       whether the actions of the defendant after the crime were reasonable, which could confuse a jury

       and tend to lessen the State's burden of proof. See People v. Downs, 2015 IL 117934, ¶ 18

       (defining reasonable doubt violates a defendant's due process right if there is a reasonable

       likelihood that jurors understood the instruction to allow conviction upon proof less than beyond

       a reasonable doubt) (citing Victor v. Nebraska, 511 U.S. 1, 5-6 (1994)). Neither the trial court

       nor counsel should define reasonable doubt for the jury. Id. ¶ 19 (the phrase "reasonable doubt"

       is self-defining and needs no further definition).

¶ 60                                             CONCLUSION

¶ 61           The judgment of the circuit court of Peoria County is reversed and this cause is remanded

       for a new trial.

¶ 62           Reversed and remanded.

¶ 63           JUSTICE SCHMIDT, dissenting.

¶ 64                              I. The State’s Direct Examination of Lindsey




                                                        31
¶ 65          At the outset, the majority concludes “a threshold issue [in this case] is the use of ***

       prior statement[s] in questioning the witness without any attempt to lay a foundation for

       introducing the prior statement into evidence for impeachment or substantive use.” Supra ¶ 27.

       The majority goes on to condemn the prosecution repeatedly for failing to lay a proper

       foundation.

¶ 66          “Arguably, if the proper foundation had been laid, Lindsey’s prior trial testimony made

       under oath could have been admitted substantively as an ‘inconsistent’ statement to Lindsey’s

       response ***.” Supra ¶ 35. “[T]he prosecutor never attempted to lay a proper foundation

       regarding the prior statement made by Lindsey. Additionally, the prosecutor failed to offer any

       substantiating proof of the statement to complete the so-called impeachment.” Supra ¶ 36.

       “Despite failing to lay a proper foundation and failing to provide proof of the prior statement,

       ***” (supra ¶ 37) “our review of the record indicates that there was not a proper foundation laid

       by the prosecutor to support the State’s claim that the prosecutor’s questions were an attempt to

       refresh Lindsey’s recollection with a prior statement.” Supra ¶ 40. “[W]ithout attempting to

       introduce Lindsey’s prior statement pursuant to [the rules of evidence] and laying the foundation

       for its admission, the prosecutor asked multiple leading and suggestive questions ***.” Supra ¶

       49.

¶ 67          The defendant never objected on foundational grounds at trial, forfeiting any related

       issues on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Johnson, 218 Ill. 2d

       125, 138 (2005). Further, there was no prejudice in not admitting Lindsey’s prior statements.

       The statements, in the form of trial transcripts, were readily available to and undoubtedly in the

       possession of both parties. Had the defendant objected to a lack of foundation, the issue would

       have been resolved. It was likely a street-smart decision on defense counsel’s part not to object



                                                       32
       on foundational grounds at trial. Admitting Lindsey’s prior statements would have been

       detrimental to the defendant. Regardless, any errors in examining Lindsey were harmless.

¶ 68          Criminal defendants are guaranteed a fair trial, not a perfect one. People v. Bull, 185 Ill.

       2d 179, 214-15 (1998). Witness examination errors are subject to harmless error review. People

       v. Patterson, 217 Ill. 2d 407, 427 (2005); People v. Kliner, 185 Ill. 2d 81, 134-35 (1998). An

       alleged constitutional error is harmless when it appears beyond a reasonable doubt that the errors

       did not contribute to defendant’s guilty verdict. Patterson, 217 Ill. 2d at 428. Such is the case

       with the errors arising from the State’s examination of Lindsey. Beyond a doubt, they are not

       grounds for reversal.

¶ 69          There are three potential approaches to measuring whether witness examination errors

       were harmless: (1) focusing on the error itself to determine whether it contributed to the

       defendant’s conviction; (2) examining the other evidence in the case to see if it was

       overwhelmingly in support of defendant’s conviction; and (3) determining whether any

       improperly admitted evidence is merely cumulative or duplicative of the properly admitted

       evidence. People v. Stechly, 225 Ill. 2d 246, 304-05 (2007) (quoting Patterson, 217 Ill. 2d at

       428, citing People v. Wilkerson, 87 Ill. 2d 151, 157 (1981)). By all three measures, the errors in

       the State’s examination of Lindsey were harmless and did not contribute to the defendant’s

       conviction.

¶ 70                           A. The State’s Continued Questioning of Lindsey

¶ 71          The majority concludes that the trial court violated defendant’s sixth amendment right to

       confrontation. “Without the admission of the prior statement, Lindsey’s refusal to respond to 20

       of the prosecutor’s leading questions about the murder by asserting his fifth amendment privilege

       resulted in defendant being deprived of meaningful cross-examination of Lindsey.” Supra ¶ 37.



                                                       33
       “Once the prosecutor did not lay a proper foundation or attempt to introduce the prior statement,

       the prosecutor’s continued questioning of Lindsey violated the defendant’s right to confront

       witnesses under the confrontation clause ***.” Supra ¶ 42. “Without laying the foundation for

       Lindsey’s prior inconsistent statement, the result of Lindsey’s refusal to answer questions about

       the murder was that the State was able to present its theory of the case without defendant having

       the ability to cross-examine Lindsey on those matters.” Supra ¶ 52. “[W]ithout the admission of

       the prior statement, defendant’s right to confrontation was violated ***.” Supra ¶ 52. “Without

       laying a foundation and admitting the prior inconsistent statement, the prosecutor’s questions

       attributed statements, which were not in evidence, to Lindsey that were fundamentally part of the

       State’s case and the inferences that could be drawn from Lindsey’s refusal to answer those

       questions ‘added critical weight’ to the State’s case in a form not subject to cross-examination in

       violation of the confrontation clause. [Citation.]” Supra ¶ 58.

¶ 72          The prosecution did not violate the confrontation clause in continuing to question

       Lindsey. Lindsey became uncooperative after he started to testify. The prosecution peppered

       him with leading questions that he refused to answer. Afterward, the trial court offered defense

       counsel an opportunity to cross-examine him. Supra ¶ 14. This does not equate to a

       confrontation clause violation. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)

       (“Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-

       examination, not cross-examination that is effective in whatever way, and to whatever extent, the

       defense might wish.” (Emphasis in original.)).

¶ 73          Lindsey was given use immunity and therefore had no fifth amendment privilege to

       invoke. Once a witness is given immunity, the State is entitled to demand the witness’s

       testimony. People v. Pirrello, 166 Ill. App. 3d 614, 621 (1988); see also People v. Calabrese,



                                                        34
       398 Ill. App. 3d 98, 108 (2010). Furthermore, Lindsey’s silence only benefited the defendant.

       Any cross-examination by defense counsel would have opened the door to impeachment by the

       State. Defense counsel’s wise decision not to cross-examine Lindsey does not equal a denial of

       defendant’s right to cross-examine.

¶ 74          The trial court had to perform a delicate balancing act during the prosecution’s

       examination of Lindsey. Lindsey was already incarcerated and granted use immunity. He did

       not have any valid claim to assert his right against self-incrimination. Supra ¶ 77. Once he

       began asserting this right, however, the trial court had minimal recourse to influence Lindsey’s

       behavior. Since he was already incarcerated for murder, being held in jail for contempt offered

       no practical means to gain his compliance. Under the circumstances, allowing the prosecutor to

       ask leading questions—which did not go completely unchecked by the trial court—was not, per

       se, an abuse of discretion.

¶ 75          There was a good faith basis for the prosecutor’s questions. The State was seeking to

       confirm Lindsey’s testimony from his own trial. See supra ¶¶ 15 n.1, 35. The prosecution

       gained nothing from Lindsey’s silence during direct examination and could not build its case on

       it. Hence, the prosecution’s repeated attempts to question Lindsey in spite of the fact that he was

       no longer cooperating. Accordingly, there is no valid argument that this was prosecutorial

       misconduct.

¶ 76          The majority characterizes the State’s case against defendant as being entirely reliant on

       the prosecutor’s leading questions. While continuing to decry the prosecution’s failure to

       comply with rules of evidence, which the defendant never objected to, the majority continues:

       “Again, with no attempt to put into evidence Lindsey’s prior statement, the testimonial aspects of

       the examination of Lindsey regarding the circumstances of the crime came from the prosecutor’s



                                                       35
       questions ***.” Supra ¶ 49. “It was error for the trial court to allow the prosecutor to continue

       questioning Lindsey about all of the circumstances of the murder and disclose Lindsey’s prior

       testimony through leading questions, in the presence of the jury, in the absence of the

       prosecutor’s introduction of the prior statement[s] pursuant to [the rules of evidence].” Supra

       ¶ 50. “Without the introduction of Lindsey’s prior statement, similar to Douglas, the witness in

       this case, Lindsey, did not testify to the facts of the crime.” Supra ¶ 52. “Without any

       acknowledgement by the witness or admission of the prior statement, the prosecutor factually

       presented the jury with her version of the circumstances of the crime with no supporting

       evidence thereof.” Supra ¶ 52. “[W]ithout the proper admission of the prior statement,

       defendant was prejudiced by the prosecutor’s questioning of Lindsey where the prosecutor’s

       questions insinuated that a robbery was planned, a robbery occurred, defendant initiated the

       robbery, and defendant was the gunman who shot and killed the store clerk.” Supra ¶ 56.

       “[T]here was no evidence that a robbery or attempted robbery was planned or took place, or that

       defendant shot the store clerk.” Supra ¶ 56. While the majority concedes that defendant and

       Lindsey were seen leaving the scene of the crime with the murder weapon, it asserts that there

       was “no [other] indication of what had transpired inside the gas station store.” Supra ¶ 56.

¶ 77          The majority concludes that the prosecution’s continued questioning of Lindsey added

       critical weight to the case. Supra ¶ 58. That is inaccurate. The prosecution’s leading questions

       did not bolster the State’s argument. It would be reversible error only if Lindsey’s silence was

       the primary means by which the prosecution built its case. See Namet v. United States, 373 U.S.

       179, 189 (1963). That is not the case here. As in Namet, this case “is not one *** in which a

       witness’ refusal to testify is the only source, or even the chief source, of the inference that the

       witness engaged in criminal activity with the defendant.” Id. at 189.



                                                         36
¶ 78          The prosecutor’s statements were duplicative of other evidence presented at trial. For

       example, Sheanneya Sherman testified to seeing the defendant and someone later identified as

       Lindsey run out of the store immediately before the victim was found dead inside. She also saw

       Lindsey holding the gun that was later found in Lindsey’s sister’s apartment—with his

       fingerprint on it—and identified as the murder weapon. The majority’s assertion that there was

       “no evidentiary support” for the prosecutor’s leading questions simply is not true. Supra ¶ 55.

¶ 79          The victim’s dead body, the eyewitness testimony presented at trial, and the murder

       weapon with Lindsey’s fingerprint on it are all solid evidentiary support. Thus, the prosecutor’s

       leading questions did not provide critical weight to the State’s case. The majority takes issue

       with the fact that, like the prosecution in Douglas v. Alabama, the prosecutor in this case “did not

       offer the codefendant’s written statement into evidence.” Supra ¶ 51 (citing Douglas v.

       Alabama, 380 U.S. 415, 417 (1965)). As the majority points out, however, in Douglas, the only

       proof of the defendant’s guilt was the witness’s prior statements. Supra ¶ 51. That is not the

       case here.

¶ 80          Moreover, Lindsey was subject to cross-examination. Supra ¶ 14. The trial court asked

       defense counsel whether he had questions for Lindsey. Defense counsel did not respond. The

       record shows Lindsey was hostile to the prosecution, not the defendant. Lindsey even

       commented that defendant looked “real nice” when he identified him in court and wished him

       "[g]ood luck with [his] trial" before he got off the stand. Supra ¶ 14.

¶ 81                                  B. Lindsey’s Incarceration Testimony

¶ 82          Defendant’s claim that Lindsey’s testimony regarding his incarceration and conviction

       for murder violated his right to a fair trial fails on the merits as well. Defendant forfeited this

       issue and it does not rise to the level of plain error. In order to preserve an issue for appeal



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       defendants must object at trial and raise the issue in a posttrial motion. Enoch, 122 Ill. 2d at 186;

       Johnson, 218 Ill. 2d at 138. Defendant did neither, but asserts the plain-error doctrine applies.

¶ 83          The plain-error doctrine is a limited exception to the general rule of procedural default;

       we can only consider upreserved errors when: “ ‘ “(1) a clear or obvious error occurred and the

       evidence is so closely balanced that the error alone threatened to tip the scales of justice against

       the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred

       and that error is so serious that it affected the fairness of the defendant’s trial and challenged the

       integrity of the judicial process, regardless of the closeness of the evidence.” ’ ” People v.

       Sebby, 2015 IL App (3d) 130214, ¶ 35 (quoting People v. Walker, 232 Ill. 2d 113, 124 (2009),

       quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). As discussed above, the evidence in

       this case was also not closely balanced. Further, Lindsey’s testimony did not violate any of

       defendant’s substantial rights denying him a fair trial.

¶ 84          Evidence that a codefendant was convicted of the crime for which the defendant is on

       trial is generally inadmissible in that defendant’s trial. People v. Sullivan, 72 Ill. 2d 36, 42

       (1978). Evidence of the codefendant’s conviction is admissible, however, for the purpose of

       impeaching the codefendant. Id.

¶ 85          When asked if he was presently incarcerated for first degree murder, Lindsey answered in

       the affirmative and further volunteered that it was under a theory of “[a]ccountability.” There

       was no mention of the victim in this case. Later in the examination, after Lindsey became

       uncooperative, the prosecutor stated that Lindsey’s fingerprints were on the murder weapon in

       this case. Instead of explaining that fact, Lindsey replied “[t]o my knowledge, it’s not my trial. I

       got found guilty, remember.” These were both nonresponsive answers. They were also general

       and do not implicate Lindsey for the murder of defendant’s victim in this case.



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¶ 86           The prosecution committed no error, let alone an obvious error, in asking the questions

       that preceded Lindsey’s answers. Furthermore, Lindsey’s “accountability” statement was

       nonresponsive to the prosecutor’s question. None of Lindsey’s testimony specifically states that

       he was in jail for the murder for which defendant was on trial. The mere possibility the jury

       might have inferred Lindsey was convicted of the same murder for which the defendant was on

       trial does not violate the integrity of the judicial process. Accordingly, defendant’s claim on this

       issue fails on the merits.

¶ 87                                   II. Defendant’s Motion for a Mistrial

¶ 88           At trial, Detective McDaniel confirmed that after having a conversation with the

       defendant, he went to Lindsey’s sister’s house to search it. Supra ¶ 10. Defense counsel

       objected, arguing that defendant’s confession had been suppressed by this court and the

       detective’s testimony implied defendant gave the police information about the murder. The trial

       court expressed concern over the testimony, but ultimately declined to declare a mistrial. The

       trial court further instructed the jury to disregard that portion of the detective’s testimony.

¶ 89           We review the denial of a motion for a mistrial for abuse of discretion. People v. Walker,

       386 Ill. App. 3d 1025, 1030 (2008) (citing People v. Bishop, 218 Ill. 2d 232, 251 (2006)).

¶ 90           On appeal, defendant makes the same argument he asserted at trial, claiming McDaniel’s

       testimony violated this court’s original ruling in defendant’s first appeal, which suppressed his

       statement to the police. Defendant argues McDaniel’s testimony led the jury to infer that

       defendant gave the police incriminating information. The State counters that this may have been

       a reference to suppressed evidence, however, the officer did not provide any details implicating

       the defendant. The State further argues the judge cured any potential negative inference that the

       jury might have drawn by immediately issuing a limiting instruction.



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¶ 91          Police officers may testify to their investigatory procedures without violating the hearsay

       rule, “even if a logical inference may be drawn that the officer took subsequent steps as a result

       of the substance of that conversation.” People v. Jones, 153 Ill. 2d 155, 159-60 (1992) (citing

       People v. Gacho, 122 Ill. 2d 221 (1988)); People v. Shorty, 408 Ill. App. 3d 504, 510 (2011).

       Mistrials are only necessary when a jury is so influenced and prejudiced that the damaging

       effects of the error cannot be cured by admonitions and instructions. People v. Garrett, 276 Ill.

       App. 3d 702, 713 (1995).

¶ 92          The trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

       Detective McDaniel provided no details regarding the substance of defendant’s statement. The

       mere potential for a mistrial is not enough to establish that the trial court abused its discretion.

       While there may have been a negative inference drawn from McDaniel’s testimony by the jury,

       there was just as equal a chance the jury drew no inference or a positive inference from

       McDaniel’s testimony. See, e.g., Calabrese, 398 Ill. App. 3d at 125 (noting that a “defendant

       could just as easily benefit from the witness because the jury could infer that [the witness] was

       the shooter and thus invoked his fifth amendment right to protect himself”). Thus, defendant is

       not entitled to a mistrial on this ground.

¶ 93                              III. Defendant’s Cumulative Error Arguments

¶ 94          Defendant further claims the errors raised in the first two issues and “a variety of

       improper arguments” made by the prosecutor at trial amount to cumulative error. Beyond the

       issues already addressed above, defendant argues the prosecutor made improper remarks during

       closing arguments and opening statements. The State reasserts the same arguments in response

       to the first two issues, and further argues defendant forfeited his arguments regarding the




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       prosecution’s opening statements and closing arguments by failing to object at trial and raise

       them in a posttrial motion.

¶ 95          In raising his cumulative error argument, defendant raises issues not raised at trial or in a

       posttrial motion. Defendant forfeited the additional issues he now raises for the first time on

       appeal. See Enoch, 122 Ill. 2d at 186; Johnson, 218 Ill. 2d at 138. Furthermore, defendant does

       not argue plain error applies to this issue or that the additional errors alleged implicate

       substantial rights. Therefore, defendant has forfeited this argument as well. Ill. S. Ct. R. 615(a);

       People v. Hillier, 237 Ill. 2d 539, 545 (2010).

¶ 96                      IV. The Fine and Fee Assessment Imposed Upon Defendant

¶ 97          Defendant argues, alternatively, that the fine and fee assessment imposed upon him

       should be vacated. Specifically, defendant argues the assessment should be remanded to the trial

       court for proper entry of an order of enumerated costs because the trial court did not order the

       specific monetary assessments imposed. Rather, the circuit clerk imposed specific assessments

       after defendant was sentenced, and the calculation of those assessments was subject to multiple

       errors. The State concedes these errors.

¶ 98          The imposition of a fine is a judicial act and the circuit clerk has no authority to impose

       them. People v. Williams, 2013 IL App (4th) 120313, ¶ 16 (citing People v. Swank, 344 Ill. App.

       3d 738, 747-48 (2003)). Therefore, any fines imposed by a circuit clerk are void at their

       inception.

¶ 99          For the reasons state above, I would affirm defendant’s conviction and vacate the fines

       imposed by the circuit clerk.




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