2025 IL 130067
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 130067)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MATTHEW SMITH, Appellee.
Opinion filed October 2, 2025.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and Rochford concurred in the judgment and opinion.
OPINION
¶1 Defendant Matthew Smith appealed his conviction for first degree murder (720
ILCS 5/9-1(a)(1) (West 2012)). The appellate court reversed and remanded for a
new trial, finding that the Cook County circuit court violated defendant’s right to a
public trial when it excluded his mother from the courtroom. 2023 IL App (1st)
181070. We conclude that defendant’s right to a public trial was not violated,
review other errors he challenges, and ultimately reverse the appellate court
judgment, affirm defendant’s conviction, and remand for the appellate court to
determine the issues it left unresolved.
¶2 BACKGROUND
¶3 Defendant was arrested and charged with a murder that occurred in the parking
lot outside the Press Box bar in the early morning hours of August 11, 2012. Prior
to a jury trial, defendant filed a motion in limine to suppress the eyewitness
identifications from the two lineups in which defendant participated. The motion
does not distinguish between the two lineups but argues that the lineup procedure
was unduly suggestive. The trial court held a hearing on the motion. Harvey Police
Department Deputy Chief Jason Banks testified that he was a detective on August
11, 2012, and conducted two lineups on that date. Banks testified to the procedures
used for the lineups. He attempted to locate fillers who looked similar to defendant,
who was 16 years old, stood 5 feet, 7 inches, and weighed 145 pounds. Because
defendant was a juvenile, Banks looked for fillers who were as close as possible in
age but did not use other juveniles because he would have to obtain their parents’
permission. In the first lineup, the fillers were 5 to 13 years older than defendant
with weights ranging from 145 pounds to 200 pounds. Banks did not testify to the
fillers’ heights. No one had a mohawk hairstyle; one filler wore his hair in braids,
and the other three individuals had low, natural hair. None of the fillers were
wearing sleeveless shirts. One had on a long-sleeved shirt, one wore two shirts
including an orange one, and another filler wore a black shirt, while the other wore
a white T-shirt. All the fillers were medium to medium-brown complected. In the
second lineup, the fillers ranged in age from 5 to 14 years older than defendant. The
first filler was 5feet, 6 inches, weighed 175 pounds, and wore a white shirt. The
second filler was 5 feet, 7 inches, weighed 149 pounds, and was dressed in a black
and blue plaid shirt. The third filler was 5 feet, 8 inches, weighed 150 pounds, and
wore a gray hoodie. The final filler was 5 feet, 10 inches, weighed 145 pounds, and
wore a white shirt. As in the first lineup, the fillers had medium to medium-brown
complexions.
¶4 The first lineup was viewed by only one eyewitness, and the second lineup, later
the same day, was viewed by three eyewitnesses. Defendant was identified in both
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lineups as the shooter. Defendant was wearing a white tank top in the first lineup,
and in the second lineup he was wearing a red and white shirt that eyewitnesses
described the shooter as wearing. Banks testified that the red and white shirt
belonged to defendant. He did not know why defendant wore it for the second
lineup. The trial court denied defendant’s motion to suppress the identifications,
finding that there was nothing suggestive in the lineup procedures. In part, the trial
court found that everyone in the lineups was dressed differently and there was
“nothing that would jump out” to cause an improper identification.
¶5 Defendant filed a second motion in limine, seeking to exclude a photograph
taken in the bar the night of the shooting, arguing that its prejudicial effect
outweighed any probative value. Defendant contended that the photograph
prejudicially showed him and other people in the photograph flashing gang signs.
At the hearing on defendant’s motion, the State responded that it was seeking only
to introduce the photograph that was taken in the bar on the night of the shooting
and found with defendant’s belongings when he was arrested for identity purposes
and maintained it would not use the photograph as gang-related evidence. Defense
counsel also described the photograph as “taken at the club, which was the site of
the shooting.” In response to the court’s inquiry as to where the photograph was
taken, defense counsel again replied, “[i]n the club.” The State maintained the
photograph was taken “that night in the club” and “the night of the shooting” and
showed defendant in the red and white shirt. Defense counsel responded that
defendant was not contesting that he was “wearing that shirt in the club. We will
admit to that.” Counsel reiterated, “He was wearing the shirt in the club.” The trial
court found that the photograph was admissible as probative in that it showed
defendant was wearing the red and white shirt “earlier that day.” The trial court
denied defendant’s motion in limine.
¶6 Also prior to trial, defense counsel acknowledged that both parties had
requested that all witnesses be excluded from the courtroom, but the defense sought
an exception for defendant’s mother, who was listed as a possible witness for the
State. Defendant was a minor at the time of the offense, so his mother was present
at the police station before and during questioning, and the electronic recording of
defendant’s interview depicted an interaction between defendant and his mother
before he decided whether to speak with police officers. The State argued that
defendant’s mother was an unlikely witness but she was still a possible witness.
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Defense counsel contended that the entire interaction between defendant and his
mother was recorded, so it would not be necessary to call her as a witness. The trial
court denied defendant’s motion, ruling that, because defendant’s mother was a
possible witness, no exception would be made to allow her to remain in the
courtroom. The court asked the State to inform it when defendant’s mother was no
longer a potential witness, at which time she would be allowed in the courtroom.
¶7 The jury trial ensued. Arlanza Townsend testified that he arrived at the Press
Box at approximately 11 p.m. on August 10, 2012, at the request of his friend, the
victim, Kevin Guice. Guice was the president of a social club that was having its
anniversary party at the Press Box that night. Townsend drove his own vehicle and
parked in the unpaved lot located north of the paved Press Box parking lot. There
were about 150 people socializing in the bar with music playing. Townsend did not
drink alcohol that night. At some point, Guice went into the deejay booth and
stopped the music, requesting a moment of silence for a deceased social club
member. Townsend heard a voice say “Fuck your club member. Play the music.”
After that, there was a confrontation and a fight. Guice was still in the deejay booth,
asking everyone to calm down. One of the security guards dispersed pepper spray,
and the crowd quickly exited the Press Box. Townsend spoke to Guice outside the
bar as Townsend was heading to his vehicle. Townsend could not leave the parking
lot because his vehicle was blocked in by other vehicles. As Townsend sat waiting
in his vehicle with his headlights on, he observed a man in a red shirt retrieve a
silver gun from a vehicle one or two car lengths in front of Townsend’s vehicle.
The man in the red shirt fired the gun once or twice toward Townsend’s left, but
Townsend could not see at whom the man was firing and did not see Guice get shot.
The recoil from firing the gun pushed the shooter back, but he was braced against
another car and did not fall down. Townsend identified defendant in the first lineup
later that morning as the man who fired the shots. Townsend also identified
defendant in court as the shooter.
¶8 Latrice Perdomo testified she was the vice president of the same social club for
which Guice was the president. Perdomo arrived at the Press Box around 8:30 or 9
p.m. on August 10, 2012. About 25 of the patrons of the Press Box that evening
were members of the social club, and the other 80 or so people in attendance were
not members. Perdomo testified that she did not drink any alcohol that night.
Around 1 a.m., Guice asked for a moment of silence for the deceased club member.
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A male, who was not part of the social club, yelled “Fuck that bitch,” and a fight
ensued. Guice helped Perdomo exit the building, leading her to the unpaved parking
lot. Perdomo saw someone in a gray shirt in the back of the unpaved lot holding his
arm up and shooting a gun into the air. Then a boy ran up and pulled a silver gun
out and fired at Guice from about five feet away. The force of the gun jerked the
boy back, and he fired two more shots. Guice fell to the ground and Perdomo
observed that Guice had been shot in the head. Perdomo testified that the shooter
had a mohawk hairstyle and was wearing a white, red, and blue button-up shirt with
a white tank top underneath. Perdomo identified defendant as the shooter in the
second lineup. On cross-examination, she admitted that defendant was the only one
in the lineup wearing a red shirt and with a mohawk haircut. On redirect
examination, she explained that she picked defendant out because she recognized
him as the shooter, not because of his red and white shirt or his mohawk hairstyle.
Perdomo also identified defendant in court.
¶9 Salenthia Davis, a member of the social club, attended the party at the Press
Box, arriving around 9:30 p.m. Davis testified that, when Guice asked for a moment
of silence, a “brown, skinny guy with a Mohawk, with a red and white shirt on”
stated: “Fuck that. You’re not going to have a moment. I’m not trying to hear it.”
Davis identified that person as defendant in the second lineup and in court. On
cross-examination, Davis testified that she went to the Harvey police station after
the incident and spoke with Banks, attempting to recount the events that had
occurred in the Press Box. When asked if she identified the man who was
disrespectful, Davis testified that she did not because Banks never asked her for a
description. Davis did not see the shooting in the parking lot.
¶ 10 Aaliyah Ali testified that she arrived at the Press Box for the social club’s
anniversary party at around 10:45 p.m. on August 10, 2012. Ali recounted that
obscenities were said after Guice asked for a moment of silence, but she did not see
who made the statements. As fighting in the bar began, Ali exited the building. Her
vehicle was parked in the unpaved parking lot, but while she was still directly
outside the Press Box facing the unpaved lot, she saw an individual in a red and
white shirt and with a mohawk hairstyle, whom she identified as defendant, point a
gun at and shoot Guice. Ali identified defendant in both the second lineup and in
court.
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¶ 11 The medical examiner testified that Guice died from a gunshot wound to the
head.
¶ 12 Sergeant Cary Morin, a crime scene investigator for the Illinois State Police
(ISP), processed the crime scene at the Press Box. Morin recovered .380-caliber
shell casings that were likely from a semiautomatic handgun, although such a gun
was never recovered. Morin also processed a silver Buick Regal about a mile north
of the Press Box and identified the firearm that was recovered from that vehicle as
a Smith & Wesson .357 Magnum revolver.
¶ 13 Mary Wong, a forensic scientist with the ISP, testified as an expert in primer
and gunshot residue analysis. She testified that, in accordance with her training with
the ISP, a positive finding for primer gunshot residue required three “tri-component” particles. Wong tested both of defendant’s hands and two areas of his
shirt, and he did not test positive for gunshot residue. In response to State
questioning and over defense counsel’s objection, Wong testified that some outside
laboratories allow a positive gunshot residue finding based upon a single tri-component particle. Wong found a single tri-component particle on defendant’s
right hand. Wong also testified that some labs require four particles to be considered
positive for gunshot residue. ISP, though, sets its baseline at three tri-component
particles in order to be scientifically correct, based upon a validation study where a
one tri-component particle analysis returned a false positive.
¶ 14 Nicole Fundell, a forensic scientist specializing in firearms examinations with
the ISP, testified that she received six .357 Magnum cartridge casings, which were
recovered from the Smith & Wesson revolver found in the vehicle from which
defendant fled. She could not match bullet fragments recovered from Guice’s body
with the recovered Smith & Wesson revolver but could not exclude that one of the
fragments was fired from the Smith & Wesson. She concluded that the .380-caliber
cartridge casings and a bullet jacket also recovered from the crime scene were not
fired from the Smith & Wesson revolver.
¶ 15 Gregory Williams, an officer with the Harvey Police Department, was
dispatched to the Press Box at approximately 1:28 a.m. on August 11, 2012. Upon
arriving, he found a large crowd of approximately 100 people in the parking lot.
Several people were pointing at a fleeing silver Buick. Williams followed the
Buick, which was traveling in a reckless manner at a high rate of speed. The vehicle
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abruptly stopped about four blocks from the Press Box, and a male wearing a white
tank top and tan pants exited from the front passenger seat and fled on foot.
Williams chased and apprehended him. Williams returned to the Buick and found
a silver revolver handgun on the floor of the passenger side. Williams identified the
revolver as the Smith & Wesson that was admitted into evidence. Williams also
identified defendant as the fleeing person he apprehended.
¶ 16 Harvey police officer Daniel Walz also followed the Buick. Walz testified that,
while Williams chased the front seat passenger, Walz secured the driver and the
rear seat passenger. Walz also identified the handgun that was recovered from the
front passenger floor of the vehicle as the Smith & Wesson revolver that was
admitted into evidence. Walz further searched the Buick and recovered a red and
white shirt, identified in court, from the center front floorboard of the vehicle.
¶ 17 Officer Dominique Randle-El was the booking officer for the Harvey Police
Department on August 11, 2012. He testified to the property that was in defendant’s
possession when he was arrested. That property included defendant’s belt,
shoelaces, a photograph, a fake identification card, money, jewelry, and a cell
phone.
¶ 18 Banks testified that he prepared the lineups and his description of the procedure
for the lineups was consistent with the description he gave at the hearing on the
pretrial motion to suppress. He acknowledged that defendant was the only person
in the second lineup who was wearing a red and white shirt and with a mohawk
hairstyle. Banks confirmed that defendant was wearing a white tank top in the first
lineup and a red and white shirt in the second lineup and that defendant was in
custody during the time between the two lineups. He did not provide an explanation
to the jury as to why defendant wore the red and white shirt in the second lineup.
¶ 19 After the State rested and the trial court denied defendant’s motion for a directed
verdict, defendant made the decision not to testify. At that point, defendant’s
mother was allowed into the courtroom. The defense submitted a stipulation that
Sharon T. McClain, a court reporter on December 1, 2015, would testify regarding
the testimony of responding officer Williams regarding crowd size at the Press Box.
The defense called only one witness, Deborah Hansen, a former investigator at the
Cook County Public Defender’s Office. She interviewed eyewitness Davis, who
said three men ran from the bar and described that one was tall with dreadlocks,
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that one was wearing a blue flannel shirt and jeans, and that she could not describe
the third man. The defense rested.
¶ 20 The State’s exhibits, including the photograph, were admitted into evidence
without objection. The parties discussed a number of the exhibits, debating which
would be sent to the jury to be considered during deliberations. Defense counsel
objected to the exhibit that contained the photograph and other items that were
recovered from the defendant when he was arrested. The court found that there was
no evidence introduced about the photograph, specifically where and when it was
taken, other than that it was found with his belongings when he was arrested.
Because there was no other foundation for the photograph, the court ruled it would
not be provided to the jury. The parties agreed that the remainder of defendant’s
personal property could be sent to the jury.
¶ 21 The matter proceeded to closing arguments. During the State’s rebuttal closing
arguments, after defense counsel characterized the case as a “whodunit,” the State
argued:
“[PROSECUTOR]: … In addition to this being a whodunit, it assumes two
things. One, that we completely disregard what these four people testified to;
and, two, let’s not mince words, in order for you to find him not guilty, you
have to find that what they’re saying is that all four people lied, lied to your
face. That is what you have to find.”
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is overruled.
[PROSECUTOR]: Let’s not mince words. That’s exactly what they want
you to believe.
[DEFENSE COUNSEL]: Objection.
[PROSECUTOR]: They lied.
THE COURT: Objection is overruled. It’s argument.”
The State further argued that “[t]he only way this is whodunit is if you ignore the
testimony that you have, if you find the four people who were in front of you liars.”
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¶ 22 Jury deliberations began. The jury sent a note asking: “Photo taken inside bar?”
In response to the note, defense counsel argued the photograph found with
defendant’s property was prejudicial but also argued that there was no evidence that
the photograph was taken in the bar, so it was not clear what photograph the jury
was requesting. Over defendant’s objection, the court stated that the photograph
was admitted into evidence as part of defendant’s property with him when he was
arrested and defendant signed the acknowledgement that it was his property. The
court found the photograph to be probative. The court determined the foundation
was that it was property on defendant’s person when he was arrested and it did not
matter that there was no foundation provided for when it was taken. The trial court
did not submit a written response to the jury but merely sent the photograph to the
jury.
¶ 23 Following deliberations, the jury found defendant guilty of first degree murder
and further found the State had proven that defendant was armed with a firearm and
personally discharged it.
¶ 24 Defendant filed a motion for a new trial, which was amended, arguing,
inter alia, that (1) he was denied his right to a public trial by the exclusion of his
mother from the courtroom, (2) the trial court erred in denying his motion to
suppress the lineups, (3) the State violated discovery rules by eliciting testimony
regarding the gunshot residue test, (4) the State made improper arguments at
closing, and (5) the trial court erred in sending the photograph to the jury in
response to the jury’s question. The trial court denied the motion and sentenced
defendant to 30 years in prison.
¶ 25 On appeal to the appellate court, defendant argued that (1) his right to a public
trial was violated when his mother was excluded from the courtroom, (2) evidence
of the lineup identifications should have been suppressed because the lineups were
unduly suggestive, (3) the State elicited improper testimony on gunshot residue
testing, (4) the photograph provided to the jurors during deliberations deprived him
of a fair trial, and (5) closing statements were prejudicial. 2023 IL App (1st)
181070, ¶ 1. The appellate court reversed defendant’s conviction on the first issue
and remanded for a new trial. Id. ¶ 29. It concluded that defendant was denied his
right to a public trial and such a violation was a structural error. Id. ¶ 28. It found
that the trial court implicitly applied the factors set forth in Waller v. Georgia, 467
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U.S. 39 (1984), concerning the right to a public trial. 2023 IL App (1st) 181070,
¶ 23. The appellate court found that the State failed to show that there was a
reasonable probability that defendant’s mother would actually testify and described
the State’s posited reasons as “far-fetched.” Id. ¶ 24. Thus, the appellate court
concluded the record failed to support findings that would satisfy the exclusion of
defendant’s mother under the Waller test. Id.
¶ 26 After determining the first issue was dispositive, the appellate court went on to
discuss the four other issues raised by defendant. Id. ¶ 30. In doing so, the court
reasoned that such discussion would provide guidance to the trial court on remand.
Id. It found the second lineup where defendant was wearing the red and white shirt
was unduly suggestive and vacated the trial court order denying the motion to
suppress the second lineup. Id. ¶¶ 42-43. The court also found that the State violated
discovery rules with respect to the gunshot residue expert by eliciting testimony
that contradicted the expert’s disclosed report. Id. ¶ 53. It further concluded that the
State made improper remarks in its closing argument, but the appellate court did
not determine if the remarks were egregious enough to warrant a new trial, as it had
already determined defendant was entitled to a new trial based on the violation of
his right to a public trial. Id. ¶¶ 58-59. Lastly, the court determined that sending the
photograph to the jury in response to its query was an error because it improperly
filled in evidentiary blanks. Id. ¶ 64.
¶ 27 The State filed a petition for leave to appeal challenging the appellate court’s
findings, which we granted. We also granted defendant’s motion for leave to file a
corrected brief to address citation errors. 1
1
Although the corrected brief has significantly improved the accuracy of the citations
of caselaw offered by the appellant in support of his arguments on appeal, we take this
opportunity to caution counsel that the obligations set forth in the Rules of Professional
Conduct, notably Rule 3.1 (Ill. R. Pro. Conduct R. 3.1 (eff. Jan. 1, 2010)) and Rule 3.3 (Ill.
R. Pro. Conduct R. 3.3 (eff. Jan. 1, 2010)), extend to all representations made to a tribunal.
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¶ 28 ANALYSIS
¶ 29 The question before us is whether defendant was denied a fair trial by various
errors he alleged were committed by the trial court. We begin with the issue on
which the appellate court decided the case: whether the trial court violated
defendant’s right to a public trial by excluding his mother from the courtroom
during parts of the trial proceedings, including jury selection, opening statements,
and the presentation of the State’s case-in-chief. The State argues that excluding a
potential witness from the courtroom does not implicate, let alone violate, a
defendant’s right to a public trial. In response, defendant argues that his mother was
not a witness and therefore her exclusion from the trial resulted in structural error.
Upon review, we agree with the State and find that exclusion of defendant’s mother
from the courtroom did not implicate defendant’s public trial right or deny him a
fair trial.
¶ 30 The right to a public trial is enshrined in our federal and state constitutions. See
U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The protections conferred by
the public trial right are to (1) ensure a fair trial, (2) remind the prosecutor and judge
of their responsibilities to the accused and the importance of their functions,
(3) encourage witnesses to come forward, and (4) discourage perjury. Waller, 467
U.S. at 46; People v. Radford, 2020 IL 123975, ¶ 25. The right to a public trial is
not absolute, and not all courtroom closures are prohibited, nor are they all violative
of the sixth amendment. People v. Schoonover, 2021 IL 124832, ¶ 44. We review
de novo the legal question of whether a courtroom closure violated a defendant’s
public trial right. Id. ¶ 19.
¶ 31 Defendant’s right to a public trial was not implicated by the trial court’s
exclusion of his mother from the courtroom. At no time did the trial court close the
courtroom. Although defendant’s mother was temporarily excluded, the courtroom
remained open to the public, including other family members, spectators, and the
media. In fact, defendant’s other family members were in attendance throughout
the trial. In finding that the trial court erred in excluding defendant’s mother, the
appellate court failed to recognize the critical difference between a defendant’s
right to a public trial and the trial court’s authority to exclude witnesses from the
courtroom. Defendant’s mother was excluded from the courtroom not in order to
hold a secret trial or for other nefarious reasons violative of defendant’s public trial
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right but because she was a potential witness, the exclusion of which is a common
courtroom practice. People v. Chatman, 2022 IL App (4th) 210716, ¶ 71
(“ ‘Exclusion of witnesses from the courtroom during trial is a time-honored
practice designed to preclude one witness from shaping his testimony to conform
to that of those who preceded him on the stand.’ ” (quoting People v. Johnson, 47
Ill. App. 3d 362, 369 (1977))).
¶ 32 A defendant’s right to a public trial is not impacted by the trial court’s exercise
of its authority to exclude witnesses. In Radford, 2020 IL 123975, ¶¶ 41-42, we
found that a partial courtroom closure where other spectators, including family
members and the media, remained did not violate a defendant’s sixth amendment
right to a public trial. In People v. Holveck, 141 Ill. 2d 84, 101-02 (1990), we found
that excluding nonmedia individuals without a direct interest in the case during the
testimony of the child victim did not violate the defendant’s right to a public trial
where the courtroom remained open to the media. In People v. Taylor, 244 Ill. App.
3d 460, 467 (1993), the appellate court differentiated between a defendant’s public
trial right and the trial court’s authority to exclude witnesses from the courtroom.
It found that the exclusion of the defendant’s parents, who were identified as
possible witnesses, did not implicate nor violate his right to a public trial. Id.
¶ 33 These cases establish that defendant’s right to a public trial was not implicated
by the trial court’s exclusion of his mother from the courtroom. The defense
conceded that defendant’s mother was a potential witness, a concession supported
by the evidence. There is also no dispute that the trial court did not close the
courtroom to other family members, spectators, or the media. Because the exclusion
of defendant’s mother from the courtroom did not affect his right to a public trial,
we reverse the appellate court’s ruling that the courtroom was improperly closed
during defendant’s trial based on the exclusion of his mother.
¶ 34 While the appellate court found this first issue dispositive and remanded the
cause for a new trial on this ground, it proceeded to address four additional
contentions of error that it believed were likely to recur on remand. 2023 IL App
(1st) 181070, ¶ 30. The additional four issues are as follows: (1) whether the trial
court should have suppressed evidence of the identifications for trial on the grounds
that the second police lineup was unduly suggestive (id. ¶¶ 32-43); (2) whether the
testimony of the gunshot residue amounted to a discovery violation because the
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expert’s report tendered before trial only disclosed her opinion that she detected an
insufficient number of particles to make a positive finding (id. ¶¶ 45-56);
(3) whether the photograph that appears to show defendant wearing the same red
and white shirt described by witnesses with other people making gestures was
improperly provided to the jury (id. ¶¶ 61-64); and (4) whether the State’s closing
argument was improper and violated defendant’s right to a fair trial (id. ¶¶ 58-59).
Because the appellate court found it appropriate to address these additional four
issues, we, too, will examine each in turn.
¶ 35 First, we look at whether the identifications from the second police lineup
should have been suppressed as unduly suggestive. The appellate court found the
second lineup to be unduly suggestive; however, the court determined that, when
such a finding is made, the burden of proof must shift to the State to show by clear
and convincing evidence that the witnesses identified defendant based on their
independent recollections. Id. ¶ 43. The appellate court concluded that the trial
court is better suited to conduct the inquiry into whether the witnesses identified
defendant based on their independent recollections. Id. Thus, the appellate court
simply chose to vacate the trial court’s order denying defendant’s motion to
suppress as to the identifications made in the second lineup. Id.
¶ 36 Before us, the State, as appellant, maintains that defendant did not meet his
burden to show the second lineup was unduly suggestive. The State primarily
argues defendant was wearing his own shirt and thus the lineup identifications were
admissible. In response, defendant argues that he was impermissibly spotlighted in
the second lineup when wearing the red and white shirt the shooter was identified
as wearing by eyewitnesses at the Press Box. He also complains that the other
individuals in the second lineup were not suitable “fillers,” as they were older and
had different hairstyles from what defendant wore.
¶ 37 We will exclude a pretrial identification “only if the identification procedure
was unnecessarily suggestive leading to a substantial likelihood of
misidentification.” People v. Faber, 2012 IL App (1st) 093273, ¶ 55. A defendant
bears the burden of establishing that the identification procedures were suggestive,
and if he does, the burden shifts to the State to show that the witness identified the
defendant based on an independent recollection. People v. Brooks, 187 Ill. 2d 91,
126 (1999). Where a pretrial identification is “unnecessarily or impermissibly
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suggestive so that a very substantial likelihood exists that the offender was
irreparably misidentified,” its use violates due process. People v. Ayoubi, 2020 IL
App (1st) 180518, ¶ 29. On a suppression motion, we accept a trial court’s factual
findings unless they are against the manifest weight of the evidence and review the
ultimate legal question of whether suppression is warranted de novo. People v.
Bass, 2021 IL 125434, ¶ 21.
¶ 38 The lower courts considered the discrepancies in the fillers’ physical
characteristics and found they did not make the second lineup unduly suggestive.
We agree. In the second lineup, three fillers were between 5 and 14 years older than
defendant, and the fourth filler was 30 years older. No filler had a mohawk haircut.
None of them wore a white sleeveless T-shirt or a red and white shirt. Nevertheless,
the trial court rejected defendant’s claim after viewing the lineup photograph,
finding that the fillers did not “look much older than the defendant” and that his
mohawk was “not very pronounced. It’s not spiky or dyed a different color.” The
appellate court agreed with the trial court on this point, noting that, “[i]n
appearance, the fillers are not grossly dissimilar from [defendant] in these respects”
and that the mohawk was “not so pronounced as to amount to spotlighting.” 2023
IL App (1st) 181070, ¶ 38. Our viewing of the lineup photographs supports the
lower courts’ assessment of them. The discrepancies in neither age nor hairstyle
stand out to any degree that would result in a misidentification. See People v.
Simpson, 172 Ill. 2d 117, 140 (1996) (differing hairstyles in lineup do not render it
unduly suggestive); People v. Guest, 166 Ill. 2d 381, 398 (1995) (age difference in
lineup participants did not, by itself, render lineup unduly suggestive). The age,
size, and appearance discrepancies in the lineup participants go to the
identification’s weight and not necessarily its admissibility. People v. Kavanaugh,
85 Ill. App. 3d 783, 788-89 (1980) (“claims that there were significant differences
between the age, size, and appearance of a suspect and other lineup participants
goes to the weight of the evidence and not necessarily to its admissibility”); People
v. Richardson, 123 Ill. 2d 322, 350 (1988) (“[p]articipants in a lineup need not be
physically identical”).
¶ 39 In addition to the physical discrepancies of the fillers, in the second lineup,
defendant was wearing the red and white shirt, which the eyewitnesses identified
the shooter as wearing. The appellate court found this fact particularly significant.
2023 IL App (1st) 181070, ¶ 40. We find our decision in People v. Johnson, 149
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Ill. 2d 118, 146 (1992), dispositive on the question of whether the identification
procedures used in the second lineup were unduly suggestive based on defendant
wearing the red and white shirt. The defendant in Johnson challenged as suggestive
the lineup in which he was identified as the offender. The defendant was wearing a
black leather coat, which the eyewitnesses said the offender was wearing. Id. We
noted several situations in which lineups were so suggestive that they prejudiced
the defendant. Id. at 147. These included where the witnesses knew everyone in the
lineup but the defendant, the others in the lineup looked “ ‘grossly dissimilar’ ” to
the defendant, the defendant was required to wear the distinctive clothes the suspect
wore, the police told the lineup witnesses that they caught the offender and showed
the defendant alone or in jail, the police pointed out the defendant to the witnesses
before or after the lineup, and the individuals in the lineup were required to try on
clothes that only fit the suspect. Id. (quoting United States v. Wade, 388 U.S. 218,
233 (1967)). We determined that none of those situations were at play in the lineup
identification the defendant challenged, and he provided no evidence that he
appeared in the black coat by design. Id. at 147-48. Rather, defendant was wearing
his own clothing. Id. at 148. We rejected the defendant’s challenge to the
identifications, noting that a defendant who wears his own clothes differed from a
perpetrator who was ordered to wear an orange coat when all the others in the lineup
were made to wear brown coats. Id.
¶ 40 In rejecting the defendant’s claim that the lineup was unduly suggestive, the
Johnson court emphasized the “strength of suggestion made to the witness” in
determining suggestiveness. Id. at 147. The court explained that a lineup is
suggestive when, “[t]hrough some specific activity on the part of the police, the
witness is shown an individual who is more or less spotlighted by the authorities.”
Id. In the lineup at issue, there is no evidence the police meant to intentionally
distinguish defendant from the other individuals in the lineup in order to aid the
witnesses in identifying him. The eyewitnesses who identified defendant in the
second lineup (Perdomo, Davis, and Ali) all testified the shooter wore a red and
white shirt and had a mohawk hairstyle. Townsend, who identified defendant in the
first lineup in which defendant was wearing the white tank top, also testified the
shooter wore a red shirt. Defendant appeared in the second lineup in the red and
white shirt, which was his own clothing and which he admitted he was wearing at
the Press Box the night of the shooting. As in Johnson, the fact that he wore his
own clothing did not make the lineup suggestive. See Faber, 2012 IL App (1st)
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093273, ¶ 57 (appellate court determined that, without evidence the police
spotlighted the defendant, the fact that he wore his own clothes in the lineup was
not suggestive); People v. Gabriel, 398 Ill. App. 3d 332, 349 (2010) (without
evidence the police spotlighted the defendant, there was “no improper influence
here where the defendant simply wore his own clothing in the lineup”); People v.
Johnson, 222 Ill. App. 3d 1, 8 (1991) (lineup was not suggestive where the
defendant wore red pants, which witnesses described the offender wearing).
Accordingly, we find the second lineup was not suggestive, reverse the appellate
court’s contrary conclusion, and affirm the trial court’s denial of defendant’s
motion to suppress the lineup identifications.
¶ 41 Second, we review the appellate court’s finding that the testimony of the
gunshot residue expert, Wong, amounted to a discovery violation because her report
tendered before trial only disclosed her opinion that she detected an insufficient
number of gunshot particles to make a positive finding that defendant discharged a
firearm. Discovery is governed, in part, by Illinois Supreme Court Rule 412(a)(iv)
(eff. Mar. 1, 2001)), which requires the State to disclose upon written motion of
defense counsel “any reports or statements of experts, made in connection with the
particular case” that are “within its possession or control,” including results of
scientific tests. “[T]he purpose of the discovery rules is to protect the accused
against surprise, unfairness, and inadequate preparation.” People v. Heard, 187 Ill.
2d 36, 63 (1999). Compliance with discovery rules is mandatory, but reversal for a
rule violation is required only where a defendant shows he was prejudiced by the
violation. Id. Where a defendant, who bears the burden of proof, demonstrates that
he was prejudiced by the discovery violation and the trial court failed to eliminate
the prejudice, a new trial should be granted. People v. Lovejoy, 235 Ill. 2d 97, 120
(2009). Where the facts giving rise to the alleged discovery violation are not in
dispute, the issue becomes one of law, which we review de novo. Id. at 118.
¶ 42 The appellate court held that “the State violated its discovery obligation by
eliciting testimony that contradicted the expert’s disclosed report.” 2023 IL App
(1st) 181070, ¶ 53. Specifically, the court found:
“Wong’s report indicated a negative result for the presence of [gunshot residue].
Yet, the overall effect of her testimony was, despite the negative result, Smith
likely fired a gun. The tacit message of testifying that other labs would find a
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single particle a positive result is that Wong believes her detection of one
particle on Smith was a positive result—she is only prevented from saying so
explicitly due to an ISP regulation.” Id. ¶ 55.
¶ 43 The record reveals that Wong’s testimony tacitly contradicted her report, as the
appellate court found. Both parties agree that Wong concluded in her report that
her analysis did not reveal gunshot residue on defendant sufficient to establish that
he discharged a firearm. At trial, Wong testified that, under ISP laboratory rules,
“to return a finding” that a sample is “positive” for gunshot residue, she “must find
three tri-component particles” on the sample. She further testified that the sample
taken from defendant’s right hand did not test positive because she only found one
tri-component particle on it. According to Wong, her analysis “leads [her] to a
conclusion that the kit administered to [defendant] indicates that he may not have
discharged a firearm with either hand.” An expert cannot definitively say that
someone did not fire a gun, however, because, as Wong explained, gunshot residue
can be removed in various ways, such as through sweating, certain activities, or the
passage of time.
¶ 44 Although Wong presented her conclusion that the gunshot residue analysis did
not indicate defendant fired a gun, she then retreated from that conclusion by
testifying about the standards other laboratories use. She explained that some
laboratories require only one tri-component particle to conclude that a person fired
a gun, while other laboratories require four particles. This information was not
disclosed as part of Wong’s opinion, and the State elicited the testimony without
providing any foundation for it, such as identifying the other laboratories and
seeking an explanation of how Wong was aware of the other standards. The
implication from her testimony was that, because one tri-component particle was
discovered on defendant’s right hand, she could have found that he discharged a
firearm but for the ISP laboratory standard. The testimony suggested to the jury
was that, if Wong had worked for a different laboratory, she would have concluded
that the one tri-component particle found on defendant’s right hand indicated that
he had discharged a firearm. This implied conclusion differed from the conclusion
she reached in her report, that the gunshot residue analysis did not establish that
defendant fired a gun. Wong’s undisclosed testimony about other laboratories’
standards was a surprise to the defense and left defendant ill-prepared to crossexamine Wong and without an opportunity to call an expert to counter Wong’s
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explanation about other laboratories’ standards. Defendant was without a way to
erase the undisclosed testimony from the jurors’ minds and could not refute it.
¶ 45 In finding that the State violated its discovery obligations, the appellate court
relied on our holding in Lovejoy. Id. ¶ 53. In Lovejoy, 235 Ill. 2d at 113-14, the
expert prepared a report before trial stating that a sample taken from a tile in the
victim’s bathroom tested negative for the presence of blood. At trial, the expert
testified that it was a false negative in response to a direct question from the State.
Id. at 113-14. The discovery violation in Lovejoy was that the State did not disclose
that the expert intended to interpret the reported result as the opposite of what the
report indicated. Id. at 119. Like the expert in Lovejoy, Wong contradicted the
findings in her report with her equivocal testimony regarding the application of
gunshot residue standards from other laboratories. Although Wong did not overtly
contradict her report conclusion, her undisclosed testimony about the standards of
other laboratories suggested she could have found defendant discharged a firearm
based on the presence of the one tri-component particle on his right hand if she was
not bound by ISP laboratory standards. We agree with the appellate court that “the
State violated its discovery obligation by eliciting testimony that contradicted
[Wong’s] disclosed report.” 2023 IL App (1st) 181070, ¶ 53. We further find,
however, that this error is not reversible error.
¶ 46 The failure to comply with discovery rules requires reversal where the
defendant establishes he was prejudiced by the violation. Heard, 187 Ill. 2d at 63.
We consider several factors when determining whether a discovery violation
warrants a new trial. These factors include “the closeness of the evidence, the
strength of the undisclosed evidence, and the likelihood that prior notice would
have helped the defense discredit the evidence.” Lovejoy, 235 Ill. 2d at 120. Another
factor we consider is what remedies the defendant sought for the violation,
including whether he sought a continuance. Heard, 187 Ill. 2d at 63. Applying the
factors to the facts before us, we do not believe a new trial is warranted.
¶ 47 Under the first factor, the evidence against defendant was overwhelming: he
admitted he was at the Press Box wearing the red and white shirt the night of the
shooting, four eyewitnesses identified him in lineups, he removed his red and white
shirt after the shooting, and he fled from the Press Box and from the officers after
his vehicle was stopped. As to the second factor, the undisclosed evidence served
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to further strengthen the State’s case by implying Wong could have testified that
the gunshot residue analysis indicated defendant did discharge a gun if she were
not bound by the ISP laboratory standards. However, this testimony was mitigated
by Wong’s ultimate conclusion that the gunshot residue analysis indicated that
defendant may not have discharged a firearm. The final factor concerns whether
prior notice of the undisclosed topics of Wong’s testimony would have allowed the
defense to counter it with either its own expert or discrediting cross-examination
questions. The State maintains defendant cannot establish prejudice because he
failed to request a continuance when Wong presented her surprise testimony. See
People v. Robinson, 157 Ill. 2d 68, 82 (1993) (discovery violation waived where
the defendant failed to seek a continuance). Defendant asserts that any such request
would have been futile. He reasons that, even if he had sought a continuance to
obtain his own expert, the expert would have reached the same conclusion as Wong
reached in her report: that under ISP protocols the gunshot residue analysis on
defendant indicated that he may not have discharged a firearm and that other
laboratories use different standards in analyzing gunshot residue. Because a
continuance would not have corrected the prejudice resulting from the State’s
discovery violation, defendant’s failure to request one does not weigh against him.
Based on our application of the above factors, we conclude that, although the State
violated its discovery obligations, the error was not reversible error and does not
warrant a new trial for defendant.
¶ 48 Third, we look at whether the photograph taken inside the bar that shows
defendant, wearing the same red and white shirt described and identified by
eyewitnesses and posing with other people making alleged gang gestures, was
improperly provided to the jury. At no point in its opinion when examining this
issue does the appellate court identify the appropriate standard of review, which is
abuse of discretion. See People v. Hollahan, 2020 IL 125091, ¶ 11 (holding a trial
court’s response to the jury’s request to view evidence during deliberations is
reviewed for an abuse of discretion). Instead, the appellate court simply finds that
it was “error” to send the photograph back to the jury in response to the jury
question: “ ‘Photo taken inside bar?’ ” 2023 IL App (1st) 181070, ¶ 64. The
appellate court determined that the act of sending the photograph filled in
evidentiary blanks and connected dots for the jury. Id. The appellate court reasoned
that by sending the photograph to the jury in response to the question, with no
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further explanation, the photograph supplied additional evidence not presented at
trial: that the photograph was taken at the Press Box the night of the shooting. Id.
¶ 49 After reviewing the record and applying the appropriate standard of review, we
cannot determine that the trial court abused its discretion in permitting the jury to
view the photograph of defendant that was admitted at trial. There is no dispute that
the photograph of defendant was recovered with defendant’s other belongings when
he was arrested. Walz, the police officer who pursued and arrested defendant,
testified that he recovered the photograph from defendant’s vehicle. Randle-El, the
booking officer, identified the exhibit containing defendant’s personal property and
the property inventory form that listed the photograph. He identified defendant’s
signature on the prison arrestee property inventory form. The photograph was
admitted into evidence with the foundation that it was defendant’s personal
property when arrested.
¶ 50 The defendant argues, and the appellate court found, that admission of the
photograph was improper because there was no information on when or where the
photograph was taken. They maintain that, by sending the photograph back to the
jury in response to its note, the trial court improperly filled in evidentiary blanks.
We disagree. At the hearing on defendant’s motion in limine to exclude the
photograph, defendant’s concern was that the photograph showed him and the other
men flashing apparent gang signs. Defendant made no objection as to foundation,
and defense counsel made several admissions the photograph was taken in the Press
Box the night of the shooting. Defense counsel presented the motion as concerning
“some photographs that were taken at the club, which was the site of the shooting.”
In response to the trial court’s inquiry about where the photograph was taken,
defense counsel responded, “[i]n the club.” Defense counsel also stated that
defendant “was wearing that shirt in the club. We will admit to that” and “we are
not saying he wasn’t in the club, and we are not saying he wasn’t wearing that very
shirt.” The trial court rejected defendant’s argument that the prejudice from the
photograph outweighed its probative value and found the photograph admissible as
defendant’s personal property.
¶ 51 At the exhibit conference, defendant objected to the photograph going to the
jury, again arguing that its prejudice outweighed its probative value. The State
argued the photograph was relevant. The trial court ruled the photograph would not
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go to the jury because there was no testimony about where the photograph was
taken or that it was taken the night of the shooting, even if there was a foundation
for its admission as defendant’s personal property. After the jury requested the
photograph during deliberations, the trial court reversed its prior ruling and sent the
photograph to the jury. It found there was a foundation for the photograph as
defendant’s personal property that was with him when he was arrested. The court
noted there was no other foundation for the photograph but it was proper evidence
as part of defendant’s personal property. It rejected defendant’s argument that the
photograph was not probative and lacked relevance and a proper foundation
because there was no testimony the photograph was taken in the bar the night of
the shooting. The trial court said that defendant had only previously objected to the
photograph as prejudicial based on the alleged gang signs and had not raised an
objection to its foundation. The trial court found the foundation was that it was
defendant’s personal property, it was probative regarding identity, and its
foundation was not based on when the photograph was taken.
¶ 52 In responding to the jury’s note, defendant also objected on the basis that it was
unclear what photograph the jury was requesting and that providing the photograph
to the jury required assumptions that it was taken in the bar, an assumption that
lacked foundation. Although there was no trial testimony about where or when the
photograph was taken, the record establishes that the parties agreed the photograph
was taken in the Press Box the night of the shooting. At the motion in limine hearing
where defendant sought to exclude the photograph from admission into evidence,
defendant described that it was “taken at the club, which was the site of the
shooting.” In response to the trial court’s question as to where the photograph was
taken, defense counsel answered, “[i]n the club.” Defense counsel said defendant
was not contesting that he was “wearing that shirt in the club” or that the photograph
was taken at the Press Box the night of the shooting. Furthermore, defendant did
not object to the numerous references by the State and the trial court that the
photograph was taken at the Press Box.
¶ 53 However, at the exhibit conference and the conference to address the jury note,
defendant took the opposite position. He argued that the evidence did not establish
that the photograph was taken in the Press Box the night of the shooting. Defense
counsel contended that “[w]e don’t know where that photo was taken.” In response
to the trial court’s statement the jury was “asking for the photo taken inside the
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bar,” counsel stated again, “[w]e don’t know where that photo was taken” and “[w]e
don’t know if this photograph was taken in a bar.” We find that defendant is
precluded from reversing his position and arguing that it was unknown when the
photograph was taken after admitting at the motion in limine hearing that it was
taken in the Press Box the night of the shooting. People v. Carter, 208 Ill. 2d 309,
319 (2003) (“Under the doctrine of invited error, an accused may not request to
proceed in one manner and then later contend on appeal that the course of action
was in error.”). Had defendant not made the admissions the photograph was taken
in the Press Box the night of the shooting, the State could have secured testimony
to establish that it was. Because of the defendant’s admissions, the State had no
need to present any testimony on when the photograph was taken. Considering the
above facts, we cannot say that the trial court abused its discretion in permitting the
jury to view the admitted photograph of defendant in the bar. Accordingly, we
reverse the appellate court’s finding of “error” as to this issue. See 2023 IL App
(1st) 181070, ¶ 64.
¶ 54 Fourth, we look at whether the State’s closing argument was improper and
violated defendant’s right to a fair trial. The appellate court found the following
comments deprived defendant of a fair trial:
“In addition to this being a whodunit, it assumes two things. One, that we
completely disregard what these four people testified to; and, two, let’s not
mince words, in order for you to find him not guilty, you have to find that what
they’re saying is that all four people lied, lied to your face. That is what you
have to find.”
and
“The only way this is whodunit is if you ignore the testimony that you have,
if you find the four people who were in front of you liars.”
¶ 55 For purposes of this appeal, the State does not contest that the prosecutor erred
in making the first comment. The State, however, contends that the error was
isolated and did not prejudice defendant. As to the second statement at issue, the
State maintains that this was permissible argument and, even if error, it could only
be reviewed as plain error because defendant did not object to it. The appellate court
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found that the two comments were improper but did not reach the issue of whether
they entitled defendant to a new trial.
¶ 56 The State is afforded wide latitude in closing argument. People v. Caffey, 205
Ill. 2d 52, 131 (2001). In determining whether comments made during closing
argument are improper, we consider whether they “engender substantial prejudice
against a defendant such that it is impossible to say whether or not a verdict of guilt
resulted from them.” People v. Wheeler, 226 Ill. 2d 92, 123 (2007). Reversal and a
new trial are warranted where the misconduct in closing argument is substantial
and the improper comments “constituted a material factor in a defendant’s
conviction.” Id. When considering the State’s comments in closing argument, we
“will find reversible error only if the defendant demonstrates that the remarks were
improper and that they were so prejudicial that real justice was denied or the verdict
resulted from the error.” People v. Jackson, 2020 IL 124112, ¶ 83. Closing
arguments are to be considered in their entirety, rather than focusing on individual
remarks. Id. ¶ 82. An isolated comment may not be sufficient to prejudice a
defendant. Id. ¶¶ 85-86 (finding State’s mischaracterization of evidence to be
isolated remarks that did not rise to reversible error). Whether statements made by
a prosecutor at closing argument were so egregious that they warrant a new trial is
a legal issue this court reviews de novo. Wheeler, 226 Ill. 2d at 121.
¶ 57 We address the first challenged comment made by the State, which it concedes
was impermissible but contends did not amount to reversible error. People v.
Williams, 2022 IL 126918, ¶ 49 (State’s closing argument comment must be both
improper and substantially prejudicially to be reversible error). According to the
State, defendant cannot meet his burden to show he was prejudiced by the State’s
improper comments. We agree. First, we do not focus on individual phrases or
remarks but look at the State’s closing argument as a whole. Jackson, 2020 IL
124112, ¶ 82. Here, the State’s improper comment was a single misstatement in a
lengthy closing and rebuttal argument. It explained several times that the State bore
the burden of proof. People v. Mudd, 2022 IL 126830, ¶¶ 44-45 (State’s isolated
improper comment did not prejudice defendant where State explained multiple
times that the burden of proof was with the State); Jackson, 2020 IL 124112, ¶¶ 85-
86 (State’s mischaracterization of evidence in two comments did not prejudice
defendant where the comments were isolated among correct references to the
evidence). Importantly, the State also argued to the jury that “defendant has
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absolutely no burden to prove anything or disprove anything.” The State set forth
the propositions it was required to prove as to each of the allegations against
defendant. In discussing the propositions, it repeated that the “State has already
proven” the first proposition, that the “State has proven” the second proposition,
and that the “State must prove” the elements of the offenses. In rebuttal,
immediately before the first challenged comment, the State said, “The defendant
has absolutely no burden to prove anything or disprove anything.” The State’s
comments were emphasized when the trial court instructed the jury. The court
directed that closing arguments were not evidence, that defendant was presumed
innocent, that it was the State’s burden to prove the allegations beyond a reasonable
doubt, that the burden remained with the State throughout the case, and that
defendant did not have to disprove any allegations. The trial court repeated that the
State had the burden of proof as to each of the allegations.
¶ 58 We find any prejudice that could have occurred as a result of the single
improper comment was cured by the State’s other comments and the trial court’s
instructions to the jury, which specified the State had the burden of proof and
spelled out the elements the State was required to establish to sustain a first degree
murder conviction. Mudd, 2022 IL 126830, ¶ 42 (parties’ arguments and jury
instructions “offset any potential juror confusion about which party bore the burden
of proof”); People v. Flores, 128 Ill. 2d 66, 95 (1989) (trial court’s instruction to
the jury regarding the State’s burden of proof cured any remarks that could have
given the jury an improper impression).
¶ 59 Lastly, it is unlikely defendant would have been acquitted had the State not
made the improper comment. People v. Nieves, 193 Ill. 2d 513, 534 (2000) (finding
evidence of defendant’s guilt was “substantial enough that the jury would have
returned a verdict of guilty” even without the State’s improper argument).
Defendant was identified by several eyewitnesses as the shooter, he was arrested
after fleeing the scene and changing his shirt, a gun similar to the one identified as
used in the shooting was found in the vehicle from which he fled, and he admitted
he was in the Press Box wearing a red and white shirt the night of the shooting. The
strength of the evidence against defendant precludes the possibility the jury would
have found him not guilty if not for the State’s isolated improper remark. The
State’s improper comment did not engender substantial prejudice such that it is
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impossible to say if the guilty verdicts resulted from it. We thus conclude that the
State’s first comment, although improper, does not constitute reversible error.
¶ 60 We next examine the second comment at issue. Unlike the first challenged
comment, defendant failed to object to it during closing argument. He did, however,
raise the claim in his posttrial motion. Nevertheless, to preserve an issue for appeal,
a defendant must both object at trial and raise the issue in a posttrial motion.
Williams, 2022 IL 126918, ¶ 48. Failure to satisfy both requirements results in
forfeiture of the issue on appeal. Id. Unpreserved errors, however, may be reviewed
under the plain error doctrine when the evidence is so closely balanced that the error
tipped the scales against the defendant regardless of the seriousness of the error or
when the error is so serious it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial system, regardless of the closeness of the
evidence. Jackson, 2020 IL 124112, ¶ 81. The first step in a plain error analysis is
to determine whether a clear or obvious error occurred. Id.
¶ 61 We find the State’s second comment does not constitute a clear or obvious error.
The State argued to the jury that “the only way this is [a] whodunit” is if it ignored
the evidence and found all the State’s witnesses were liars. In People v. Coleman,
158 Ill. 2d 319, 346 (1994), we differentiated comments where the State argued
that, to believe defendant’s version of events, the jury would have to believe the
State’s witnesses were lying and where the State argued that, to acquit the
defendant, the jury would have to believe the State’s witnesses were lying. We
found the first comment is permissible, while the second is not. Id. at 346-47. The
concern with the second comment is that it impermissibly shifts the burden of proof
to the defendant. Id. at 346. Here, the State did not inform the jury that to acquit
defendant it had to believe all its witnesses were lying. Instead, the State’s second
comment in the instant case mirrors the first comment in Coleman. We thus
conclude that the State’s second comment does not constitute a clear or obvious
error.
¶ 62 In coming to this conclusion, we note that the appellate court curiously chose
to review only two of the several closing argument comments that defendant
alleged were improper on direct appeal. Accordingly, we must remand this case to
the appellate court for it to consider only those issues that were not addressed in its
decision appealed to this court. People v. Lantz, 186 Ill. 2d 243, 262 (1999)
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(“appropriate procedure generally is to remand the matter to the appellate court so
that previously unaddressed issues may be considered there first”).
¶ 63 CONCLUSION
¶ 64 We find that (1) the trial court’s exclusion of defendant’s mother from the
courtroom did not implicate his public trial right, which was not violated as the
courtroom was never closed to the public, (2) the identifications resulting from the
second lineup were not suggestive where defendant was wearing his own red and
white shirt, which he admitted he wore at the Press Box the night of the shooting,
(3) the testimony of the gunshot residue expert conflicted with the conclusions she
reached in her pretrial report that the gunshot residue analysis showed defendant
may not have discharged a firearm and constituted a discovery violation but was
not reversible error, (4) the record does not establish the trial court abused its
discretion in permitting the jury to view the admitted photograph of defendant in
the bar the night of the shooting, and (5) the first complained-of comment in closing
argument does not constitute reversible error and the second challenged comment
does not constitute clear or obvious error.
¶ 65 Accordingly, we reverse the judgment of the appellate court, affirm the
judgment of the trial court, and remand for the appellate court to consider any
remaining unresolved issues contained within the briefs filed in the appellate court.
¶ 66 Appellate court judgment reversed.
¶ 67 Circuit court judgment affirmed.
¶ 68 Cause remanded with directions.
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