People v. Boston

JUSTICE REYES delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County No. 06 C6 60650 Honorable Charles P. Burns, Judge Presiding. JUSTICE REYES delivered the judgment of the court, with opinion.
Justice Gordon specially concurred, with opinion.
Justice Lampkin dissented, with opinion.

OPINION

¶ 1 Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in connection with the fatal stabbing of Steven Moore, Sr. (Moore) and sentenced to 50 years' imprisonment. On appeal, defendant contends (1) the admission of preliminary hearing testimony of a key eyewitness violated the confrontation clause of the sixth amendment to the United States Constitution (U.S. Const., amend. VI) and the Illinois Rules of Evidence, (2) the trial court erred in allowing the State to introduce defendant's prior conviction for possession of contraband in a penal institution, (3) the State's improper comments on defendant's postarrest silence warrant a new trial, (4) defendant was denied his right to a properly instructed jury where the court failed to clarify Illinois law on self-defense in response to a jury note, (5) defendant's right to a unanimous jury verdict was violated where a juror expressly dissented during the polling of the jury, and (6) defendant's trial counsel was ineffective for failing to preserve certain issues for appellate review. ¶ 2 This court initially filed an opinion affirming defendant's conviction. Thereafter, defendant filed a petition for rehearing, arguing that we misapprehended the law when considering the jury polling issue. This court granted the petition, vacated the previous opinion, and requested supplemental briefing from the parties not only in regards to the jury polling issue but also in regard to the alleged prosecutorial misconduct. The parties filed supplemental briefs addressing both issues. Upon review and consideration of those briefs, we continue to affirm the judgment of the circuit court in its entirety.

¶ 3 BACKGROUND ¶ 4 Pretrial Matters

¶ 5 During a preliminary hearing on June 29, 2006, the State called Grace Sharp, Moore's mother, who testified as follows. On June 24, 2006, she was in her residence on the 14500 block of University Avenue in Dolton with defendant and Moore. Defendant was a friend of Steven Moore, Jr. (Steven), Sharp's grandson and Moore's son. Sharp had known defendant since he was a teenager. Defendant had asked to stay with Sharp for a "couple of days" prior to commencing Job Corps. He stayed in an upstairs bedroom in her raised ranch, and 51-year-old Moore lived in the basement. ¶ 6 On the day of the incident, Sharp did not hear any "words of conflict" between Moore and defendant. According to Sharp, "[t]hey were just talking about the job corp [sic] and things like that." In the early evening hours, she heard a "ruffling, scuffling noise" coming from the violent nature, including his guilty pleas to charges of domestic battery and resisting a police officer. After a hearing, the circuit court denied the motion to bar Sharp's preliminary hearing testimony but permitted the defense to present certified copies of Moore's convictions. ¶ 11 The State filed a motion in limine seeking, among other things, to introduce evidence regarding defendant's criminal history for impeachment purposes, i.e., his conviction for possession of contraband in a penal institution. After conducting a balancing test, the trial court concluded that "the probative value does, in fact, outweigh any prejudicial effect." The trial court indicated its willingness to give a "limiting instruction immediately upon the introduction of the certified copy of conviction or if [defendant] is going to front it first if he testifies."

This court previously affirmed this conviction. See People v. Boston, 2016 IL App (1st) 133497.

¶ 12 Trial Testimony

¶ 13 Steven testified that his childhood home was on University Avenue in Dolton, where he had lived with his brother, Sharp, and Moore. In June 2006, 22-year-old Steven attended school in DeKalb. When he periodically returned to Dolton, he would stay at the University Avenue residence. According to Steven, Moore stayed in the basement. ¶ 14 Steven had known defendant since junior high school, and defendant spent significant amounts of time at Steven's home during their teenage years. At one point, Steven and defendant had a dance group, and they frequently practiced in Steven's basement. Steven characterized defendant's interactions with Moore as "[r]espectful," and he never observed any physical or verbal altercation between the two. ¶ 15 On the weekend of June 17, 2006, Steven had returned to Dolton and observed defendant walking. Steven exited his vehicle and conversed with defendant. According to Steven, defendant "seemed as if he was having some issues." Steven suggested that defendant stay with trial court inquired whether the defense wished to have the jury polled, and defense counsel responded affirmatively. The trial court then informed the jury, "I'm going to ask the question and the question is: Was this then and is this now your verdict, and all of you will have to answer out loud." According to the original version of the transcript, Greco—the fifth juror polled—responded, "No." The other eleven jurors responded in the affirmative. The trial court then stated, "Okay. Has anyone not been asked that question? Okay. The jury has been polled. I'll enter judgment on the verdict." Neither counsel nor the trial judge questioned or commented upon Greco's response, and the jury was discharged. ¶ 49 Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. At the hearing, defense counsel argued, among other things, that the admission of the preliminary hearing transcript constituted reversible error. The trial court denied the motion. Defendant was sentenced to 50 years' imprisonment. The trial court denied his motion to reconsider sentence, and defendant filed this timely appeal.

The trial transcript refers to "June 4, 2006." Such reference appears inaccurate.

With respect to fingerprint analysis, the parties stipulated that "within a reasonable degree of forensic scientific certainty there were no latent impressions suitable for comparison on the four knives."

As discussed herein, the transcript was subsequently corrected in accordance with Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006). --------

¶ 50 ANALYSIS

¶ 51 Defendant raises six primary challenges on appeal. We address each argument in turn.

¶ 52 Admission of Preliminary Hearing Testimony

¶ 53 Defendant contends that the admission of Sharp's testimony from the preliminary hearing violated the confrontation clause and Illinois law where the defense did not have a "meaningful" opportunity to cross-examine Sharp. As the Illinois Supreme Court has recognized, the requirement of a prior, adequate opportunity to cross-examine the absent witness "is at once both an evidentiary and constitutional requisite for admission of former testimony." (Emphasis in original.) People v. Torres, 2012 IL 111302, ¶ 52. See U.S. Const., amend. VI; 725 ILCS 5/115- statute,' was improperly barred from asking complainant about her prior sexual contact." Id. ¶ 28 (citing People v. Starks, 365 Ill. App. 3d 592, 600 (2006)). The court thus concluded that "the inability of defendant to cross-examine complainant regarding her prior sexual conduct or the exculpatory DNA and serology test results precluded defendant from exposing facts from which the fact finder could have drawn inferences about complainant's reliability and credibility." Id. ¶ 28. Unlike in Starks, the record in this case does not suggest defense counsel's questioning of Sharp was limited by the court or that counsel was provided any incorrect or misleading information. As our supreme court has observed, " '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.) People v. Harris, 123 Ill. 2d 113, 144-45 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). See also People v. Williams, 139 Ill. 2d 1, 19 (1990) (noting that "effective advocacy is not measured by the number of objections raised or the number of pages of cross-examination"). ¶ 66 Defendant further argues that the proper method for the State to preserve Sharp's testimony was an evidence deposition in accordance with Rule 414 of the Illinois Supreme Court Rules. Rule 414(a) provides:

"If it appears to the court in which a criminal charge is pending that the deposition of any person other than the defendant is necessary for the preservation of relevant testimony because of the substantial possibility it would be unavailable at the time of hearing or trial, the court may, upon motion and notice to both parties and their counsel, order the taking of such person's deposition under oral examination or written questions for use as evidence at a hearing or trial." Ill. S. Ct. R. 414(a).

motion in limine to bar Sharp's preliminary hearing testimony, the trial court appears to have thoroughly and thoughtfully reviewed the hearing transcript and considered defendant's arguments. We neither view the trial court's decision as "arbitrary, fanciful, or unreasonable" nor find that "no reasonable person would take the court's view." Starks, 2012 IL App (2d) 110273, ¶ 20. The trial court did not abuse its discretion in admitting Sharp's testimony from the preliminary hearing.

¶ 69 Introduction of Prior Conviction

¶ 70 Over defense objection, the State was permitted to introduce defendant's conviction for possession of contraband in a penal institution. See 720 ILCS 5/31A-1.1(b) (West 2010). Defendant contends on appeal that "[u]nlike most offenses in the Criminal Code, a conviction for possession of contraband in a penal institution informs the jury that the accused was incarcerated at the time of his conduct." He thus asserts that "its admission carries a uniquely acute kind of unfair prejudice akin to telling jurors that the accused is currently jailed." ¶ 71 The State initially responds that defendant forfeited this claim by failing to include it in his posttrial motion. See People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (noting that "[t]o preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion"). Rule 615(a) of the Illinois Supreme Court Rules provides, in part, that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S. Ct. R. 615(a). The "plain-error doctrine allows a reviewing court to consider unpreserved error 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 length of the witness' criminal record." Id. The evidence of the prior conviction must be excluded if the trial judge determines that the prejudice outweighs the probative value of admitting the evidence. Id. ¶ 74 As noted in our earlier decision, the indictment in case number 10 CR 14728 alleged that defendant possessed a shank that was discovered in his waist band while in the Cook County department of corrections. Boston, 2016 IL App (1st) 133497, ¶ 1. Defendant was found guilty and sentenced to five years' imprisonment. Id. During the hearing on the State's motion in limine to introduce this conviction, the court and counsel engage in an extended colloquy regarding, among other things, the exact name of the offense. After determining that the charge was "possession of contraband in a penal institution," the court stated, in part:

"Okay. Well, you know, that's a lot different than possession of a shank, particularly when the defendant is charged with a stabbing here. I mean, because then I would agree [defense counsel] has a pretty strong argument that this could be considered by the jury for propensity purposes.

Contraband is kind of a generic term. They could envision someone being caught with marijuana or some type of paraphernalia in the institution. Obviously, if you are seeking to introduce it as possession of a weapon—contraband; to wit, knife or weapon, then I believe the *** prejudicial effect would outweigh any probative value."

Prior to granting the motion, the trial court observed:

"This is one conviction. This is not several convictions. This is not for a crime that's similar, as I am told, to the charge against defendant. I do believe the probative value of allowing that outweighs any prejudicial effect."

of defendant's conviction—together with a limiting instruction—as substantially different from the potentially inflammatory mug shot evidence of the defendant provided to the jury in Nelson. We also reject defendant's comparison of the court's admission of defendant's prior conviction as akin to forcing a defendant to wear shackles or prison attire in court. See, e.g., Deck v. Missouri, 544 U.S. 622, 624 (2005); Estelle v. Williams, 425 U.S. 501, 504 (1976); People v. Boose, 66 Ill. 2d 261, 268 (1977). Based on the foregoing, we conclude that the trial court did not abuse its discretion in permitting the State to introduce defendant's conviction for possession of contraband in a penal institution.

¶ 78 Rebuttal Closing Argument

¶ 79 Defendant next contends that his conviction should be reversed and the cause remanded for a new trial because the State improperly commented during rebuttal closing argument on his postarrest silence. Defendant acknowledges that he did not preserve this error for review, but maintains that under both prongs of the plain-error doctrine the matter warrants reversal. To that end, defendant maintains that the evidence was not closely balanced and that the prosecutor's improper remarks deprived him of his substantial right to a fair trial. The State responds that no error occurred because the majority of the comments were directed at defendant's silence prior to his arrest. The State further contends that the error, if any, did not rise to the level of plain error. ¶ 80 We again engage in plain-error review, as defendant failed to include this issue in his posttrial motion. See, e.g., Thompson, 238 Ill. 2d at 611-12. As previously observed, defendant has the burden of establishing either that (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 and obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the confusion regarding the appropriate standard of review regarding alleged errors occurring during closing arguments"(People v. Johnson, 2015 IL App (1st) 123249, ¶ 39). Such confusion "originates from our supreme court's apparent conflicting holdings" in Wheeler (applying de novo standard), and People v. Blue, 189 Ill. 2d 99, 128 (2000) (employing an abuse of discretion standard). Johnson, 2015 IL App (1st) 123249, ¶ 39. We need not resolve the issue, however, because we reach the same conclusion under either standard. ¶ 83 We begin our consideration of the claimed error with a historical overview of the law in Illinois regarding the prohibition of the use of pre-Miranda silence, including the silence following a defendant's arrest but before receiving Miranda warnings, as stated in this court's opinion People v. Quinonez, 2011 IL App (1st) 092333:

"[T]he United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 617-20 (1976), that it was a violation of the due process clause of the fourteenth amendment for the State to impeach a defendant using evidence that defendant was silent following his arrest, after he was advised of his Miranda rights. The Court reasoned that since Miranda warnings carry the implicit assurance that his silence will carry no penalty, it would be fundamentally unfair to allow a defendant's post-Miranda silence to impeach his trial testimony. Doyle, 426 U.S. at 612. However, the Supreme Court later held that the prohibition applies only to a defendant's silence after being advised of his Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) ( per curiam). In doing so, it found that states were free to formulate their own rules with respect to [a] defendant's silence before arrest [citation], as well as after arrest but before receiving Miranda warnings [citation]." Quinonez, 2011 IL App (1st) 092333, ¶ 25 (citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980); Fletcher, 455 U.S. at 607).

however, are proper. See People v. Manley, 222 Ill. App. 3d 896, 909 (1991); People v. Graves, 142 Ill. App. 3d 885, 890 (1986). ¶ 85 With this law in mind, we now turn to consider the statements made by the ASA during rebuttal closing argument:

"The defendant doesn't say to her, I mean, you know, in his lie, but in reality, he never says I need help, and, in fact, the police told you that when Curry comes with McPherson, the defendant says nothing. If you're killing someone in self-defense, aren't you shouting it from the toppist [ sic], highest mountain you can find. Wait a minute, thank God you're here[.]"

After the court overruled a defense objection, the prosecutor stated:

"Drop the knife, police, I was attacked, it's not what it looks like, I have blood on me, it's not—I'm cut, I was defending myself, I was attacked, he attacked me. He said nothing to the police. He runs in the back, and then Lieutenant Bankhead comes, and he comes out, and he's got his hands up, does he say then, listen, it's a mistake, I am not the one, I am a victim, I was attacked, I had to do it, or to granny, call an ambulance, this is a horrible event. Yeah, if you were truly justified, if you were truly not guilty, that's what you would do, and that's not what he did, and that's how you know."

¶ 86 These comments can be broken down to reference three distinct periods in time (1) when Sharp appeared in the basement; (2) when Curry and McPherson came in contact with defendant; and (3) when Bankhead was on the basement stairs. Therefore, in order to determine whether the prosecutor's comments were improper, we must first determine at what point defendant was arrested. See Quinonez, 2011 IL App (1st) 092333, ¶ 30. ¶ 87 "An arrest occurs when a person's freedom of movement is restrained by physical force balanced where the jury had before it sufficient evidence that he acted in self-defense and thus could have found him guilty of second-degree murder. Defendant points to his testimony that he acted out of "fear[] for his life" and that he "slashed at" Moore to protect and defend himself. Defendant further notes that the State failed to offer any eyewitness testimony regarding how the fight ensued and thus his testimony that Moore attacked him first was unrebutted. This evidence, along with the evidence of Moore's criminal record and the presence of cocaine in his system at the time of the fight, could lead a jury to conclude that he acted in self-defense. ¶ 93 Where a defendant claims first-prong plain error, a reviewing court must decide whether the defendant has demonstrated that the evidence was so closely balanced the error alone severely threatened to tip the scales of justice. People v. Sebby, 2017 IL 119445, ¶ 51. If the defendant carries that burden, prejudice is not presumed; rather, "[t]he error is actually prejudicial." Herron, 215 Ill. 2d at 193; accord Piatkowski, 225 Ill. 2d at 566, 312 Ill.Dec. 338, 870 N.E.2d 403 ("defendant must meet his burden to show that the error was prejudicial—in other words, he must show that the quantum of evidence presented by the State against the defendant rendered the evidence 'closely balanced' "). In determining whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case. Belknap, 2014 IL 117094, ¶¶ 52-53. A reviewing court's inquiry thus "involves an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses' credibility." Sebby, 2017 IL 119445, ¶ 53. ¶ 94 Here, defendant was found guilty of first degree murder under section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2006)). That section provides:

"(a) A person who kills an individual without lawful justification commits first

degree murder if, in performing the acts which cause the death:

(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another[.]" Id.

¶ 95 Defendant here also raised the affirmative defense of self-defense. Once the affirmative defense of self-defense is raised, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, in addition to proving the elements of the charged offense. People v. Lee, 213 Ill. 2d 218, 224 (2004). Self-defense includes the following elements: (1) unlawful force threatened against a person, (2) the person threatened was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the person threatened actually and subjectively believed a danger existed that required the use of the force applied, and (6) the beliefs of the person threatened were objectively reasonable. 720 ILCS 5/7-1 (West 2006); accord Lee, 213 Ill. 2d at 225 (enumerating elements). If the State negates any one of these elements, the defendant's claim of self-defense necessarily fails. Lee, 213 Ill. 2d at 225. Of course, the State does not have the burden to disprove an affirmative defense unless sufficient evidence is present on it. People v. Smith, 237 Ill. App. 3d 901, 907-08 (1992). ¶ 96 Here, the evidence defendant committed first degree murder was overwhelming. Sharp's testimony established that upon hearing a "scuffling noise" in the basement, she went towards the basement stairs and directed those in the basement to "stop the noise." Sharp further testified her son, Moore, directed her to "call the police, call the police." Instead of calling the police directly, Sharp went downstairs into the basement where she observed defendant on top of Moore, stabbing him. She attempted to pull defendant off of Moore, and at one point attempted to strike him with a milk crate, but she was unsuccessful in stopping the attack. Sharp then went upstairs and dialed 911. Some amount of time passed between when Sharp called 911 and the ¶ 103 Additionally, defendant testified that he was not silent, yet the prosecutor argued otherwise in closing argument. Despite the trial court's failure to sustain the objection by defense counsel that this line of argument was improper, the jury was still advised on multiple occasions that it was only to consider the evidence. "[I]mproper arguments can be corrected by proper jury instructions, which carry more weight than the arguments of counsel." People v. Willis, 409 Ill. App. 3d 804, 814 (2011). "Moreover, any possible prejudicial impact is greatly diminished by the court's instructions that closing arguments are not evidence." Id. A trial court's instructions that closing arguments are not evidence protect defendant against any prejudice caused by improper comments made during closing arguments. People v. Quiroz, 257 Ill. App. 3d 576, 585 (1993). It is presumed that jurors follow the instructions provided by the trial court. People v. Taylor, 166 Ill. 2d 414, 438 (1995). Here, prior to closing arguments the trial court informed the jury that argument from counsel was not evidence. Subsequently, the trial court provided the jury with Illinois Pattern Jury Instruction No. 1.03, which states:

"Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable inferences to be drawn from the evidence. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded." Illinois Pattern Jury Instructions, Criminal, No. 1.03 (approved July 18, 2014).

Accordingly, the jury was aware that the prosecutor's statements were not evidence and that they were only to consider the evidence when deciding the verdict. ¶ 104 Defendant cites to numerous cases in an attempt to support his position that improper nevertheless must be of a similar kind: an error affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Internal quotation marks omitted.) People v. Johnson, 2017 IL App (2d) 141241, ¶ 51 (quoting Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). The claimed error here did not affect the framework within which defendant's trial proceeded and it did not challenge the integrity of the judicial process. Instead, it merely resulted in inaccurate commentary not based on the evidence. The record discloses that the jury had before it defendant's testimony that he was not silent; indeed in response to the prosecutor's question on recross-examination, "When you saw the police, you didn't say to them, 'I had to defend myself,' did you?" defendant responded, "Actually, when I came up—yes, I said that yes." It is well established that a prosecutor's statements during closing argument are not evidence, and the jury was so advised of this point by the trial court. See People v. Nicholas, 218 Ill. 2d 104, 123 (2005). Moreover, the comments were limited to rebuttal closing argument, and they "did not add their weight" to any "cloud of prejudice formed by a wider array of prosecutorial misconduct." Nicholas, 218 Ill. 2d at 123. We conclude defendant has not met his burden to demonstrate the error was so serious it affected the fairness of the trial and challenged the integrity of the judicial process. See Sebby, 2017 IL 119445, ¶ 50.

¶ 107 Jury Note

¶ 108 During deliberations, the jury sent a note to the judge stating, "Can self-defense be a mitigating factor? (Definition of mitigating factor is unclear on sheet)." After a discussion with counsel, the trial court replied, "[Y]ou heard the evidence, you have the instructions of law. Please continue to deliberate." Defendant contends on appeal that "[b]ecause how the jury would consider self-defense in relation to first- and second-degree murder was the decisive issue in the case, the failure to clarify the issue for the jury was reversible, plain error." ¶ 109 Plain-error review is forfeited, however, when the defendant invites the error. See People v. Patrick, 233 Ill. 2d 62, 77 (2009) (declining to address the defendant's plain-error claim because he invited any error by submitting the challenged jury instruction); People v. Villareal, 198 Ill. 2d 209, 228 (2001). The State invokes the invited-error doctrine, arguing that defendant "acquiesced" to the trial court's response "because it substantially conveyed the response he proposed." ¶ 110 After reading the jury note to the parties, the following exchange occurred:

"[ASA]: You have the evidence, continue to deliberate.

[DEFENSE COUNSEL]: Or you can instruct them on the law, please continue your deliberations. You have all the evidence and the instructions under the law.

THE COURT: I just want to look at the instructions real quick. We're told if we can answer a question, we should. Let me see if I could refer them to a particular instruction

***

THE COURT: I don't know exactly how to answer this. I mean I could refer them to the definition of mitigating factor, but I think they know about it. I mean I don't want to give them an answer that's going to infer a verdict.

[ASA]: I mean you have all the evidence and instructions on the law, please keep deliberating.

THE COURT: I mean the only thing I would say, and I don't know if this is necessary, I understand the standard response, refer them to [Illinois Pattern

Jury Instructions, Criminal Nos. 7.03, 7.05 (4th ed. 2000) (hereinafter, IPI Criminal 4th], definition of murder and definition of mitigating factor.

[DEFENSE COUNSEL]: And what about self-defense?

[ASA]: Which would be [IPI Criminal 4th No. 7.06].

THE COURT: I could refer them to—you're right, I mean I could refer them to [IPI Criminal 4th No. 24-25.06].

[ASA]: I think they're saying they're aware of the instructions, that they're find [sic] it confusing.

THE COURT: Well, I find them confusing, and I've been doing this for you know, 30 years I guess. Okay, I will—you heard the evidence, you have the instructions of law. Please continue to deliberate."

¶ 111 Defendant contends, and we agree, that his trial counsel's statements were "somewhat unclear." For example, defense counsel appears to have both suggested additional instructions and accepted the State's position that the jury had received the necessary instructions. In the absence of clear invited error, we apply plain-error review. See also Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013) (providing that substantial defects in jury instructions "are not waived by failure to make timely objections thereto if the interests of justice require"); People v. Cacini, 2015 IL App (1st) 130135, ¶ 42 (noting that "Rule 451(c) is coextensive with the plain-error clause of Illinois Supreme Court Rule [615](a)"). Although we are aware that defendant's posttrial motion stated that the trial court had "replied appropriately" to the jury note "and admonished the jury [to] resume deliberations," we do not view such posttrial statements as having "invited" any alleged error that had previously occurred. ¶ 112 Citing People v. Downs, 2015 IL 117934, ¶ 15, defendant contends that "[t]he propriety his trial would be different. See People v. Hicks, 2015 IL App (1st) 120035, ¶ 59.

¶ 121 Jury Polling

¶ 122 In his appellate briefs, defendant contends that "[w]here a juror expressly dissented from the guilty verdict during polling and the court failed to question him, [defendant's] right to a unanimous jury verdict was violated." We initially observe that defendant has forfeited appellate review of this claim by failing to object during the trial or assert the claim in a posttrial motion. See Thompson, 238 Ill. 2d at 611 (noting that "[t]o preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion"). The plain-error rule, however, bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error in specific circumstances. Id. at 613. The first step of plain-error review is determining whether any error occurred. Id. For the reasons discussed below, we find no error. ¶ 123 The purpose of a jury poll is to determine whether the verdict has been freely reached and is unanimous. People v. Wheat, 383 Ill. App. 3d 234, 237 (2008). "Through a jury poll, jurors may freely assent or dissent to the verdict without the fear, errors, or coercive influences that may have prevailed in the jury's private collective deliberations." Id. See also United States v. Shepherd, 576 F.2d 719, 725 (7th Cir. 1978) (noting that "[t]he purpose of affording a right to have the jury polled is not to invite each juror to reconsider his decision, but to permit an inquiry as to whether the verdict is in truth unanimous"). ¶ 124 In Illinois, after a guilty verdict is returned but before it is accepted and recorded, a criminal defendant has an absolute right to poll the jury regarding whether each individual agreed with the pronounced verdict. Wheat, 383 Ill. App. 3d at 237. The opportunity for jurors to express their assent or dissent to a verdict is basic to our system which requires unanimity among the jurors and if any juror dissents from the verdict, it cannot be recorded. People v. Rehberger, 73 Ill. App. 3d 964, 968 (1979). See also 725 ILCS 5/115-4(o) (West 2006) (requiring the "unanimous verdict of the jury"); Martin v. Morelock, 32 Ill. 485, 487-88 (1863) (stating that a "case is not at an end until the verdict is recorded and the jury discharged, and it would be unjust to record a verdict from which the jury, in the presence of the court, dissent"). ¶ 125 In the original version of the transcript of the jury polling, juror Greco answered "[n]o" when asked, "Was this then and is this now your verdict[?]" After oral arguments in this appeal, the State filed in the trial court a "Motion Pursuant to Supreme Court Rule 329 to Make the Record on Appeal Conform to the Truth." The motion provided, in part, that the "transcript regarding Juror Greco's answer to the jury poll is incorrect and must be corrected." The State represented that after Ellen Dusza, the court reporter, reviewed her notes, "she found that the 'no' answer incorrectly reflected Juror Greco's answer which should have been transcribed as 'yes.' " Defendant responded, in part, that the State's motion was facially insufficient because it failed to provide a copy of Dusza's original stenographic notes. ¶ 126 Rule 329 provides, in pertinent part:

"The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in the manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth." Ill. S. Ct. R. 329 (eff. Jan. 1, 2006).

issue can become moot if circumstances change during the pendency of an appeal that prevent the reviewing court from being able to render effectual relief"). Finally, the parallel Rule 329 motion filed with this court and taken with the case is hereby denied as moot.

¶ 142 Ineffective Assistance of Counsel

¶ 143 Defendant contends that his trial counsel "unreasonably omitted three meritorious issues from his [posttrial] motion: the improper use of [his] post-arrest silence, the juror's dissent [from] the verdict, and the improper admission of [his] prior conviction." In determining whether a defendant was denied the effective assistance of counsel, we ordinarily "apply the familiar two-prong test established in [Strickland v. Washington, 466 U.S. 668 (1984)]." Cherry, 2016 IL 118728, ¶ 24. To prevail on a claim of ineffective assistance of counsel under Strickland, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Id. ¶ 144 We have rejected defendant's contentions regarding the State's use of his silence during rebuttal closing argument. We have further concluded that the trial court did not err in admitting defendant's conviction for possession of contraband in a penal institution for impeachment purposes. Defendant's trial counsel was not ineffective for failing to preserve these claims. " 'Defense counsel is not required to make futile motions or objections in order to provide effective assistance.' " People v. Smith, 2014 IL App (1st) 103436, ¶ 64, (quoting People v. Glass, 232 Ill. App. 3d 136, 152 (1992)). See also Anderson, 2012 IL App (1st) 103288, ¶ 53 (stating that "[g]iven that the deviation from [the] drafting committee's directives was not erroneous, it was not objectively unreasonable for defense counsel to fail to address this issue through objection or a posttrial motion"). Furthermore, as discussed above, juror Greco did not dissent from the verdict—as is now reflected in the corrected record—and thus defense counsel was not ineffective vis-à-vis jury polling.

¶ 145 CONCLUSION

¶ 146 For the reasons stated above, we affirm the judgment of the circuit court of Cook County. The State's request for fees and costs is denied. ¶ 147 Affirmed. ¶ 148 JUSTICE GORDON, specially concurring: ¶ 149 I concur in the judgment and with the majority's opinion. I write separately because I must respectfully disagree with the majority's finding that the invited error doctrine does not apply to the jury-note issue. ¶ 150 At 6:24 p.m., the jurors began their deliberations. At 8:13 p.m., less than two hours later, the jurors sent out a note, stating: "Can self-defense be a mitigating factor? (Definition of mitigating factor is unclear on sheet)." After discussing the note with the attorneys from both sides, the trial court sent back a response stating, "you heard the evidence, you have the instructions of law. Please continue to deliberate." The following morning, after the jurors had reconvened, they reached a verdict, finding defendant guilty of first degree murder. ¶ 151 On appeal, defendant claims that the trial court committed plain error when it failed to clarify further the law of self-defense in response to the jury's note. Defendant argues that "how the jury would consider self-defense in relation to first- and second-degree murder was the decisive issue in the case." ¶ 152 The jurors were properly instructed on the law of self-defense, and how it related to first and second degree murder, before they retired to deliberate, and defendant does not claim on appeal that the original instructions were improper. ¶ 153 After receipt of the note, the ASA observed that "they're aware of the instructions, that 56 they're find[ing] it confusing." The trial court agreed, stating that it found the pattern instructions on this issue "confusing, and I've been doing this for you know, 30 years." Thus, further explanation would have required the trial court to go outside of the pattern instructions, and neither the State nor the defense sought or tendered a non-pattern instruction. The trial court observed that, while it "could refer them to the definition of mitigating factor," they already "kn[e]w about it." The jury note itself indicated that the jurors were well aware of the "[d]efinition of mitigating factor" that was "on [the] sheet" given to them. The trial court expressed the concern that giving them more than the pattern instructions was tantamount "to giv[ing] them an answer that's going to infer a verdict." ¶ 154 Defense counsel suggested the following response: "you can instruct them on the law, please continue your deliberations. You have all the evidence and the instructions under the law." When the trial court observed that "the standard response" would be to refer them to the pattern instructions defining murder and mitigating factor, defense counsel stated: "And what about self-defense?" That is when the ASA observed that the jurors were clearly aware of the pattern instructions that they had received and had found the pattern instructions confusing. The trial court then decided to give, in essence, the response that the defense had originally proposed: "you heard the evidence, you have the instructions of law. Please continue to deliberate." Neither attorney objected. ¶ 155 On appeal, defendant does not argue that the pattern instructions on these issues were improper, and he did not ask to provide the jurors with the non-pattern explanation that they were seeking. The trial court's response echoed, almost word-for-word, what defense counsel had proposed. ¶ 156 A party cannot invite an error by the trial court and then use it as a basis for appeal. 57 "Under the invited-error doctrine, a party cannot acquiesce to the manner in which the trial court proceeds and later claim on appeal that the trial court's actions constituted error." People v. Manning, 2017 IL App (2d) 140930, ¶ 16. See also People v. Cox, 2017 IL App (1st) 151536, ¶ 73; People v. Hughes, 2015 IL 117242, ¶ 33 ("the invited error rule" states that "a party cannot complain of error that it brought about or participated in"); People v. Bush, 214 Ill. 2d 318, 332 (2005) (when a party "procures, invites or acquiesces" to a trial court's evidentiary ruling, even if the ruling is improper, he cannot contest the ruling on appeal). "Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented." In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). ¶ 157 Even if we were to find that the invited error doctrine did not apply and we considered the issue under the plain error doctrine, I agree with the majority, for the reasons stated in its opinion, that the alleged error did not rise to the level of plain error. As the majority already discussed in its opinion, the evidence at trial was overwhelming, and therefore did not constitute first-prong plain error. Supra ¶¶ 96-98. The victim's mother testified that she observed defendant repeatedly stabbing her son and the police testified that, when they arrived, defendant was still stabbing him. Specifically, Officer Curry testified that, as he reached the bottom of the stairs, he observed that the entryway to the basement "was covered by a curtain or some kind of partition" and he heard what "sounded like to" him was someone "getting stabbed." Curry described the sound as "a squishing, a repeatedly [sic] like a chi, chi, chi." After Curry drew his weapon and instructed another officer to pull back the curtain, he observed defendant straddled over the victim, who was not moving. Supra ¶¶ 18-19. It is hard to argue self-defense in the face of such evidence. Similarly, the alleged error does not rise to second-prong plain error, as the majority explains (supra ¶ 118), where the jury instructions were complete and proper. 58 ¶ 158 In addition, I cannot find that defense counsel's performance constituted ineffective assistance of counsel. First, "what instructions to tender" is generally a matter of trial strategy. People v. Lowry, 354 Ill. App. 3d 760, 766 (2004); People v. Mims, 403 Ill. App. 3d 884, 890 (2010) (" 'Defense counsel's choice of jury instruction is considered a tactical decision, within the discretion of defense counsel.' " (quoting People v. Bobo, 375 Ill. App. 3d 966, 977 (2007))). Our supreme court has instructed its appellate courts to "be highly deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel's performance from his perspective at the time, rather than through the lens of hindsight." People v. Perry, 224 Ill. 2d 312, 344 (2007). "[A] mistake in trial strategy" will not, by itself, render representation constitutionally defective. People v. Peterson, 2017 IL 120331, ¶ 80. ¶ 159 Second, even if we were to assume that counsel's performance was deficient, defendant cannot establish the second prong of the Strickland test: that, but for counsel's unprofessional errors, the result of the proceeding would have been different. People v. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a court may dismiss the claim on the prejudice prong alone. People v. Peterson, 2017 IL 120331, ¶ 79; People v. Cherry, 2016 IL 118728, ¶ 24; People v. Flores, 153 Ill. 2d 264, 283 (1992). In the case at bar, defendant cannot establish prejudice where the evidence was overwhelming that he stabbed the victim repeatedly, while remaining virtually unscathed. Supra ¶ 98. ¶ 160 In addition, I am not persuaded by the dissent concerning the State's remarks in its rebuttal closing. As the majority opinion explains, the complained-of remarks primarily concerned defendant's prearrest silence (supra ¶ 102), and, to the extent that some remarks can be construed as referring to postarrest silence, they did not rise to the level of plain error, for the 59 reasons already explained in the majority opinion. Supra ¶¶ 96-106. In addition, defendant testified that he told the police that he was acting in self-defense and counsel's remarks may have been for impeachment purposes. ¶ 161 For the foregoing reasons, I concur with the majority opinion. ¶ 162 JUSTICE LAMPKIN, dissenting. ¶ 163 I respectfully dissent. I disagree with the majority's summary of the evidence and plain error analysis regarding the issue of the prosecutor's improper use of defendant's postarrest silence for impeachment purposes. I disagree with the majority's conclusion that defendant has not met his burden to show that the prosecutor's use of defendant's postarrest silence constituted a clear error that was so serious as to deny him a fair trial and challenge the integrity of the judicial process. Furthermore, I reject the State's assertion on appeal that its challenged remarks fall within an exception to the general rule that questions and remarks by a prosecutor regarding a defendant's postarrest silence are improper. I also disagree with the majority's conclusion that a general jury instruction given here—i.e., that closing arguments are not evidence but merely summaries of how the attorneys think the evidence can be interpreted—preempted the jury from considering the improper comments as evidence. I would find that the State's improper recross-examination of defendant and extensive commentary during rebuttal closing argument about his postarrest silence and failure to tell the police that he acted in self-defense were substantial errors that require reversal and a new trial. ¶ 164 Whether statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue subject to de novo review. People v. Wheeler, 226 Ill. 2d 92, 121 (2007). In reviewing a defendant's claims of prosecutorial misconduct in closing argument, the court considers closing arguments in their entirety in order to place the challenged 60 remarks in context (People v. Johnson, 385 Ill. App. 3d 585, 604 (2008)), and "asks whether or not the comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them." Wheeler, 226 Ill. 2d at 123. "Misconduct in closing argument is substantial and warrants reversal and a new trial if the improper remarks constituted a material factor in a defendant's conviction." Id. "If the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor's improper remarks did not contribute to the defendant's conviction, a new trial should be granted." Id. ¶ 165 I disagree with the majority's belief that a conflict exists concerning whether a reviewing court should apply an abuse of discretion analysis or de novo review to allegations challenging a prosecutor's remarks during closing argument. A careful review of supreme court precedent establishes that no such conflict exists and the supreme court has applied the two standards of review separately to the appropriate issue addressed on appeal. Specifically, in People v. Blue, 189 Ill. 2d 99, 128-34 (2000), the court held that the trial court abused its discretion by permitting the jury to hear the prosecutor's arguments that the jury needed to tell the police it supported them and tell the victim's family that he did not die in vain and would receive justice. In contrast, in Wheeler, 226 Ill. 2d at 121-31, the supreme court reviewed de novo whether a new trial was warranted based on the prosecutor's repeated and intentional misconduct during closing argument, which involved vouching for police credibility, attacking defense counsel's tactics and integrity, disparaging former defense counsel, and persistently stating that the prosecution was representing the victims. Whereas a reviewing court applies an abuse of discretion analysis to a trial court's determinations about the propriety of a prosecutor's remarks during argument (Blue, 189 Ill. 2d at 128), a court reviews de novo the legal issue of whether a 61 prosecutor's misconduct, like improper remarks during argument, was so egregious that it warrants a new trial (Wheeler, 226 Ill. 2d at 121). Our supreme court has not created any conflict about the appropriate standard of review to be applied to these two different issues. ¶ 166 According to the record, Officer Curry testified that his gun was drawn when Officer McPherson pulled the curtain open and Curry observed defendant straddled over a motionless Moore. Neither Moore nor defendant said anything to Curry. Curry did not see a weapon in defendant's hand. When Curry raised his gun, defendant and Curry "kind of just looked at each other" and then defendant jumped up and went around to a side of the basement outside of Curry's view. The officers went back up the stairs. Curry's testimony did not mention defendant's silence after Curry raised his gun. Furthermore, Officer Bankhead's testimony did not mention defendant's silence when Bankhead, with his gun pointed at defendant, guided him up the basement stairs. ¶ 167 Defendant testified that he acted in self-defense because Moore had attacked him. Also, defendant said he told Sharp, after she came down to the basement to break up the fight, that she should call the police. Defendant claimed that the police officers never came down the basement stairs and he immediately complied when they told him to come up the stairs. ¶ 168 When the assistant State's Attorney (ASA) began her recross-examination of defendant, she asked: "Q. When you saw the police, you didn't say to them, 'I had to defend myself,' did you? A. Actually when I came up—yes, I said that yes. THE COURT: I'm sorry? A. Yes. 62 Q. [ASA MS. WARD] The first time you're actually saying that is today in this court, isn't that correct? A. As far as I mean— Q. That you had to defend yourself? A. No. MR. TYSON [defendant's attorney]: Objection, Judge. THE COURT: Objection will be sustained." ¶ 169 During rebuttal closing argument, the ASA argued that only Moore asked Sharp for help, defendant's testimony that he asked Sharp for help was a lie, and defendant said nothing when Officers Curry and McPherson came. The ASA argued that a person who killed an attacker in self-defense would shout it from the highest mountain and thank God when the police arrived. Although defense counsel objected, the trial court overruled the objection. The ASA continued, arguing that if the police told a person acting in self-defense to drop the knife, the person would explain to the police that he was defending himself from the attacker but, here, defendant "said nothing to the police" and ran toward the back of the basement. Even after Officer Bankhead arrived and defendant had exited the basement and had "his hands up," defendant did not say "listen, it's a mistake, I am not the one, I am a victim, I was attacked, I had to do it." Nor did defendant tell Sharp to call an ambulance due to this horrible event. The ASA stated, "Yeah, if you were truly justified, if you were truly not guilty, that's what you would do, and that's not what [defendant] did, and that's how you know." ¶ 170 Due process precludes a prosecutor from impeaching a defendant's exculpatory testimony, offered for the first time at trial, by cross-examining the defendant regarding his failure to inform the police of his explanation after he was arrested and had received Miranda 63 warnings. Greer v. Miller, 483 U.S. 756, 761-62 (1987); Doyle v. Ohio, 426 U.S. 610, 619 (1976). Although federal law permits impeachment of a defendant with evidence that he was silent anytime before receiving Miranda warnings (Fletcher v. Weir, 455 U.S. 603, 605-07 (1982)), Illinois evidence principles prohibit impeachment of the defendant with his postarrest silence either before or after receiving Miranda warnings (People v. Quinonez, 2011 IL App (1st) 092333 ¶ 26). This Illinois rule is based on our supreme court's pre-Miranda decisions in People v. Lewerenz, 24 Ill. 2d 295, 299 (1962), and People v. Rothe, 358 Ill. 52, 57 (1934), which held that an accused's silence at the time of his arrest is neither relevant nor material because his exercise of his right to remain silent has no tendency to prove or disprove the charges against him. Because this Illinois rule is based on evidentiary principles rather than constitutional law, the rule is unaltered by the holdings in federal cases that the use of a defendant's pre-Miranda silence is not a constitutional violation of the defendant's due process rights. See Fletcher, 455 U.S. at 607; People v. Homes, 274 Ill. App. 3d 612, 619-20 (1995). ¶ 171 There are limited situations where a defendant's postarrest silence may be used for impeachment purposes. If the defendant testifies at trial to an exculpatory version of events and also claims to have told the police the same version upon arrest, then the State may impeach him with evidence that he did not do so. Doyle, 426 U.S. at 619 n.11; People v. Rehbein, 74 Ill. 2d 435, 441-42 (1978). Similarly, if a defendant's exculpatory testimony at trial is manifestly inconsistent with voluntary statements he made after his arrest, then comment or evidence about his failure to give the same statement at that time does not violate the Doyle rule. People v. Frieberg, 147 Ill. 2d 326, 353-54 (1992); People v. Beller, 74 Ill. 2d 514, 522-23 (1979). ¶ 172 Here, the prosecutor improperly questioned defendant regarding his postarrest silence and her questions did not fall within an exception to the rule against using a defendant's postarrest 64 silence against him. Defendant did not testify on direct examination that he told the police he acted in self-defense, so the prosecutor was not attempting to elicit impeachment when she asked him on recross-examination, "When you saw the police, you didn't say to them, 'I had to defend myself,' did you?" and "The first time you're actually saying that [you had to defend yourself] is today in this court, isn't that correct?" Furthermore, there was no evidence that defendant spoke to the authorities before trial, so the State possessed no statements manifestly inconsistent with his trial testimony that could properly be used for impeachment purposes. Arguably, the prosecutor's first question does not fit neatly within the category of a Doyle violation because it may refer to a time before defendant received the Miranda warnings. I believe, however, that the prosecutor's follow-up question clearly constitutes a Doyle violation because it refers to a time period that includes defendant's formal arrest, during which he would have received the Miranda warnings. ¶ 173 Although the trial court sustained defense counsel's late objection to this questioning, the jury was never given a curative instruction. Furthermore, the improper recross-examination of defendant was later compounded by the prosecutor's extensive comments during rebuttal closing argument about defendant's postarrest silence. Although defense counsel timely objected to the prosecutor's initial improper remark, the trial court overruled the objection and the prosecutor continued her line of argument by impersonating what a person who acted in self-defense would have said to the police at the scene. The prosecution is given wide latitude in closing arguments, but this latitude is not so wide as to encompass these improper comments regarding defendant's postarrest silence. People v. Simmons, 293 Ill. App. 3d 806, 813 (1998). ¶ 174 Defendant forfeited review of this issue by failing to both timely object and include the issue in his posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, he 65 seeks review under both prongs of the plain error doctrine or, alternatively, as a claim of ineffective assistance of counsel. Although I would not find that the evidence in this case was closely balanced, I would find that a clear error occurred and defendant met his burden to show the error was so serious as to deny him a fair trial and challenge the integrity of the judicial process. See People v. Herron, 215 Ill. 2d 167, 187 (2005). In People v. Dameron, 196 Ill. 2d 156, 163-66 (2001), the court, in the context of determining whether a Doyle violation was harmless error, considered (1) the party who elicited the testimony about the defendant's silence; (2) the intensity and frequency of the references to the defendant's silence; (3) the use that the prosecution made of the defendant's silence; (4) the trial court's opportunity to grant a mistrial motion or to give a curative jury instruction; and (5) the quantum of other evidence proving the defendant's guilt. I believe these same factors are helpful in the context of plain error analysis. ¶ 175 Here, the prosecution elicited the testimony about defendant's silence and made frequent and forceful references to his silence to damage his credibility and undermine his claim of self-defense, factors which were critical to his defense. The issue of second degree murder, which is a lesser mitigated offense of first degree murder, was before the jury, so the jury had to decide whether defendant thought he was defending himself during the struggle with Moore even if defendant's belief was unreasonable. Furthermore, the jury never received any curative instruction about the improper use of defendant's postarrest silence. Accordingly, the jury may have deemed it appropriate to consider defendant's postarrest silence during the jury's deliberations because the trial court overruled defense counsel's objection to the prosecutor's improper remarks during rebuttal closing argument about defendant's postarrest silence. Under these circumstances, the State's improper cross-examination and rebuttal argument about defendant's postarrest silence impinged upon his substantial right to remain silent. Accordingly, 66 defendant should not be held to his forfeiture of this issue.