People v. Hatchett

                                                                     SECOND DIVISION
                                                                     DECEMBER 29, 2009




1-07-1769

THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from the
                                                             )       Circuit Court of
               Plaintiff-Appellee,                           )       Cook County.
                                                             )
       v.                                                    )       No. 05 CR 17920
                                                             )
DERRICK HATCHETT,                                            )       Honorable
                                                             )       Thomas Sumner,
               Defendant-Appellant.                          )       Judge Presiding.

       PRESIDING JUSTICE CUNNINGHAM delivered the modified opinion of the court upon

denial of petition for rehearing:

       Following a bench trial in the circuit court of Cook County, defendant Derrick Hatchett was

convicted of first-degree murder and sentenced to 45 years of imprisonment. On appeal, the

defendant argues that: (1) he was denied a fair trial when the trial court admitted the decedent’s

statement as an excited utterance and/or dying declaration; (2) he was denied a fair trial when the

trial court permitted the handwritten statement of a testifying witness, Tron Johnson, to be

introduced as substantive evidence; (3) he was denied a fair trial when the trial court refused the

defense counsel’s requests to recall Tron Johnson and for a one-day continuance to secure witnesses;

(4) the defendant was denied effective assistance of counsel; and (5) the defendant’s guilt was not

proven beyond a reasonable doubt. For the following reasons, we affirm.

                                        BACKGROUND

       On September 22, 2003, Patrick Taylor was shot multiple times on South Lowe Avenue in

Chicago, Illinois. Taylor died of his injuries the next day. In 2004, the defendant and Arthur Foote
1-07-1769


were charged with first-degree murder and aggravated battery of Taylor.1

         Prior to trial, the defendant filed a motion to quash arrest and a motion to suppress statement.

On May 3, 2006, the trial court denied the defendant’s motion to quash his arrest, but granted the

motion to suppress his statement, finding that inexplicable injuries which the defendant sustained

while in police custody showed that the defendant’s confession was a product of coercion. The

defendant’s and Foote’s cases were eventually severed and the defendant waived his right to a jury

trial.

         On March 6, 2007, a bench trial was held during which several witnesses gave the following

testimony. Terry Davis testified that on September 22, 2003, at approximately 10 p.m., he was

selling marijuana on the 5700 block of South Lowe Avenue when he heard approximately 10

gunshots coming from several cars parked down the street. Davis then immediately saw a man, who

was later identified as Taylor, running toward him on South Lowe Avenue and being chased by three

vehicles–a 2001 white Chevy Impala (white car), followed by a silver Dodge Stratus (silver car) and

a maroon Tahoe sport utility vehicle (maroon SUV). Davis noticed that Taylor was wearing jeans

and a white jersey with some blood spots on it. As Taylor ran west onto 57th Street, Davis saw the

white car “jump the curb” and hit Taylor, who then fell, stood up and started running again. The

maroon SUV then also struck Taylor. At this point, Davis hid in a “gangway” and saw Taylor run

past him. Davis stated that he lost sight of Taylor after Taylor ran past him, but heard 6 to 8 more



         1
       Counts I to V of the indictment charged both the defendant and Foote with first-degree
murder. Counts VI to VII of the indictment charged the defendant with first-degree murder.
Counts VIII to IX of the indictment charged the defendant with aggravated battery.

                                                    2
1-07-1769


gunshots following the chase. Davis did not see who shot Taylor. Once Davis emerged from the

gangway, he observed Taylor lying on the ground in front of Maurice Fields’ house and noted that

the cars were nowhere in sight.

       Maurice Fields testified that he resided at 5733 South Lowe Avenue. On the evening of

September 22, 2003, Fields was home when he heard three or four gunshots. Fields observed a man,

later identified as Taylor, lying on the ground in front of Fields’ house and being punched by a black

man. However, Fields neither witnessed anyone fire the gunshots nor observed the presence of any

vehicles in front of his home. Fields then walked onto his front porch and yelled at the man to stop

beating Taylor, after which the perpetrator ran away and Fields called the police.

       Sergeant John Ryan (Sergeant Ryan) of the Chicago police department testified that on

September 22, 2003, he responded to a “call of a man shot” on the 5700 block of South Lowe

Avenue. When he arrived at the scene, he saw Taylor sitting on the sidewalk against a fence with

his eyes closed. Sergeant Ryan noticed that Taylor had at least one gunshot wound to his face, was

bleeding from numerous spots on his face, had a large bloodstain on his chest, and had shallow

breathing. Sergeant Ryan testified that when he asked Taylor what had happened, Taylor replied that

“they shot me.” When Sergeant Ryan asked Taylor who shot him, Taylor responded, “Quick and

Little Ride.” Taylor also asked Sergeant Ryan if he was “going to die.” Sergeant Ryan’s

conversation with Taylor lasted less than 30 seconds, after which paramedics arrived to provide

medical treatment for Taylor. Over defense counsel’s hearsay objections, the trial court admitted

Taylor’s statements regarding the identities of the shooters as either an excited utterance or a dying

declaration.

                                                  3
1-07-1769


       Debra Taylor, the mother of the victim Taylor, testified that the defendant’s nickname was

“Little Ride,” and that Foote’s nickname was “Quick.” She stated that she knew these men through

her son, who “started hanging out with them” about a year and a half prior to his murder.

       Tron Johnson testified at trial that on the night of September 22, 2003, he was in the company

of the defendant, Foote, and two other individuals introduced to Johnson as “Cake”2 and “Polo.”

Johnson stated that the defendant, Foote and Taylor rode in a white car, while he and Polo followed

in a separate vehicle. After visiting a restaurant, the five men drove to a concert in downtown

Chicago. However, because the venue was crowded, the men did not stay for the concert and instead

drove around the city. Johnson stated that he was intoxicated that night, and at some point he fell

asleep in the car while Polo drove. He later awoke in the car to “some gunshots being let off by

some guys off the porch.” He stated that by that time, the car in which he was riding was parked on

a neighborhood street near the white car and a truck. Johnson denied seeing the defendant and Foote

fire any weapons, but only saw them standing by the white car. He testified that the defendant and

Foote fled after hearing the gunshots, and that he did not see Taylor at that time.

       At this point in the trial, the State impeached Johnson with a prior written statement that

Johnson made to the police and Assistant State’s Attorney Michele Popielewski (ASA Popielewski)

in January 2005. In the written statement, Johnson stated that on the night of the shooting, the five

men drove around the city in separate cars as described above. Johnson fell asleep in the “gray

Buick” while Polo drove, and Johnson was startled awake when Polo suddenly stopped the car. At



       2
           Patrick Taylor’s nickname was “Cake.”

                                                   4
1-07-1769


that point, Johnson noticed that they were parked in a residential neighborhood behind the white car.

Johnson then immediately heard gunfire and saw that “Quick was shooting a semiautomatic handgun

at Taylor outside the white Impala.” Johnson further stated that Quick shot at Taylor between 8 to

12 times, and that “Lil Ride was also out of the [white] Impala [with] a semiautomatic gun in his

hand.” When Polo began steering the gray Buick away from the scene, Johnson noticed “Lil Ride

start to run down the street chasing after [Taylor] and Quick,” and heard “about five more shots.”

At that moment, Johnson saw Lil Ride running “with the gun extended” and shooting at Taylor.

Taylor, who was then about a half a block down the street, fell to the ground in front of a house.

       At trial, Johnson insisted that he was telling the truth on the witness stand and that his prior

inconsistent statement implicating the defendant was only made out of fear that he would also be

charged with the crime. On cross-examination, Johnson testified that he was prompted to lie about

the identities of the shooters in his prior written statement because the police had shown him

“something” with his name on it and that “something” was a “lie.”

       Forensic investigator Joseph Dunigan also testified on behalf of the State. On the night of

September 22, 2003, Dunigan responded to a shooting investigation and found a total of 17 spent

cartridges, an empty gun magazine, and fired bullets from semiautomatic weapons in a trail leading

from the 5600 block to the 5700 block of South Lowe Avenue. Further, he testified that there was

a trail of blood leading southbound from the 5650 to the 5700 areas of South Lowe Avenue.

       Marc Pomerance, a forensics scientist who specialized in firearms, testified that based on the

firearms evidence, at least two different guns were used in the shooting. He determined that it was

unlikely that the shooters fired their weapons while standing still in one location because some of

                                                  5
1-07-1769


the cartridges were found more than 5 to 10 feet apart, which was the typical range of distance a

firearm could eject a cartridge case.

       Chad Meunier, a loss control manager at Enterprise Rent-A-Car, testified that on September

15, 2003, an individual named Sharon Grady rented a white Chevy Impala from the company. Foote

was listed as a second driver on the vehicle. He stated that on September 23, 2004, the vehicle was

returned with damage to the rear left bumper and the “front left quarter panel.”

       By stipulations, the parties agreed that DNA evidence obtained from a baseball cap found

at the crime scene excluded the defendant. The parties also agreed that on September 24, 2003, Dr.

Lawrence Cogan (Dr. Cogan), a medical examiner in the Cook County medical examiner’s office,

performed Taylor’s autopsy. Based on the autopsy, Dr. Cogan opined that Taylor died as a result

of multiple gunshot wounds to his body–including Taylor’s neck, face, back, right upper arm,

abdomen, left buttocks, thighs and genitals. Other injuries also included abrasions, lacerations,

hemorrhaging, and skull fractures. Dr. Cogan concluded that the manner of death was homicide.

       The State then sought to admit Johnson’s prior written statement as substantive evidence,

which the trial court granted, over the objections of defense counsel. Defense counsel then requested

that Johnson be recalled to the witness stand for the purpose of clarifying what the police showed

Johnson during interrogation, which Johnson claimed had prompted him to lie in his written

statement. The trial court denied defense counsel’s request to recall Johnson. The State then rested

and the trial court denied defense counsel’s motion for directed verdict.

       After the State rested, defense counsel requested that a one-day continuance be granted. The

trial court denied the request for a continuance and granted a 10-minute recess.

                                                 6
1-07-1769


       Following the 10-minute recess, the defendant testified on his own behalf. He stated that on

September 22, 2003, he and Taylor were passengers of a white Chevy Impala driven by Foote. The

three men were accompanied by Johnson and Polo, who drove behind them in a separate car. The

defendant testified that the group purchased liquor before heading to a concert, but did not stay for

the concert because it was too crowded. Subsequently, the men drove to a gas station for some

“blunts.” While at the gas station, the defendant noticed an orange SUV and decided to rob it.

Consequently, the group, still driving in two separate vehicles, followed the SUV to a residential

neighborhood. The defendant stated that once the SUV stopped and parked, the group parked about

a block away. At that point, the defendant, Foote and Taylor exited the white car. According to the

defendant, Taylor, armed with a gun, started approaching the SUV with the defendant and Foote

following. According to the defendant, neither he nor Foote was armed. As the three men

approached the SUV, gunshots rang out. The defendant stated that he fled on foot and eventually

hitched a ride with a gentleman in exchange for $50. The defendant stated that he did not see Taylor

get killed and denied having any arguments with Taylor on the night of the murder.

       The trial court then found the defendant guilty of first-degree murder. Subsequently, the trial

court denied the defendant’s motion for a new trial and sentenced the defendant to 45 years in prison.

On June 22, 2007, a notice of appeal was filed before this court. On August 22, 2007, the trial court

issued an order granting a motion to amend the notice of appeal to “reflect the correct judgment date”

of June 1, 2007. Subsequently, an amended notice of appeal was filed before this court.

                                            ANALYSIS

       We determine the following issues: (1) whether Taylor’s statement to Sergeant Ryan was

                                                  7
1-07-1769


properly admitted as a dying declaration or an excited utterance; (2) whether Johnson’s prior

inconsistent statement was properly admitted as substantive evidence and whether the defendant’s

request to recall Johnson was properly denied; (3) whether the trial court properly refused the

defendant’s request for a one-day continuance; (4) whether the defendant was denied effective

assistance of counsel; and (5) whether the defendant’s guilt was proven beyond a reasonable doubt.

          We first determine whether Taylor’s statement to Sergeant Ryan, which identified the

shooters as “Quick and Little Ride,” was properly admitted as a dying declaration or an excited

utterance exception to hearsay evidence. The defendant argues that Taylor’s statement identifying

his shooters was not a dying declaration because the evidence suggested that Taylor did not believe

death was imminent and that it was uncertain whether Taylor had sufficient mental faculties to

provide an accurate statement about the circumstances of his death.

          Deference is given to a trial court’s determination to admit a statement as a dying declaration

exception to hearsay, and a reviewing court will not overturn the decision unless it is “palpably

against the manifest weight of the evidence.” People v. Graham, 

, 

 (2009), quoting People v. Gilmore, 

, 

 (2005). Such a finding is against the manifest weight of the evidence if the opposite

conclusion is clearly evident. People v. Stiff, 

, 

(2009).

          “A dying declaration qualifies as a hearsay exception because it is considered trustworthy

where the likelihood of fabrication is minimal due to the declarant’s belief that death is imminent.”

Graham, 

, 

; Stiff, 

, 

                                                   8
1-07-1769


1179. A statement is admitted as a dying declaration when it is shown beyond a reasonable doubt

that: “(1) the declaration pertains to the cause or circumstance of the homicide; (2) the declarant must

believe that death is imminent; and (3) the declarant must possess mental faculties sufficient to give

an accurate statement about the circumstances of the homicide.” People v. Georgakapoulos, 

, 

 (1999).

       The parties do not dispute that the first prong of the dying declaration requirements is

satisfied because Taylor’s statement regarding the identities of his shooters pertained to the cause

or circumstance of the murder.

       The second prong requires that the declarant believe death is imminent. The defendant

argues that Taylor lacked the belief that death was imminent because Taylor asked Sergeant Ryan

at the crime scene whether he was going to die. The defendant also points out that the trial court,

in listing the requirements for a dying declaration, erroneously stated that it must be demonstrated

that the declarant was cognizant of the fact that he may be dying. The State, on the other hand,

argues that the second prong was established because Taylor was shot multiple times and bleeding

to death, and that Taylor’s question about whether he was going to die highlighted Taylor’s belief

of impending death. We agree.

       “Belief in the imminence of death may be shown by the declarant’s own statements or from

circumstantial evidence, such as the nature of the wounds or statements made in his presence.”

Georgakapoulos, 

, 

. “Proof of such a belief can be

established by any adequate method of communication, whether by words or signs.”

Georgakapoulos, 

, 

. In People v. Lawson, the victim was

                                                   9
1-07-1769


shot nine times and was lying in a ravine when police arrived. People v. Lawson, 

, 

 (1992). The victim made statements such as, “ ‘Help me, I’m

dying. I’ve been shot in the back. Get me out of here. You need to get me out of here’ ” and “

‘Bryan Lawson did this to me.’ ” Lawson, 

, 

. In

challenging the admission of the victim’s statement identifying the defendant as the perpetrator, the

defendant argued that the victim’s “get me out of here” statements showed that “he had not given

up hope for his survival nor despaired of life.” Lawson, 

, 

.

The reviewing court upheld the admissibility of the statement as a dying declaration, finding that it

was reasonable to conclude that the victim “knew of the seriousness of his condition” because the

victim was shot nine times with “powerful handguns” and was bleeding to death at the time he made

the statement. Lawson, 

, 

. Further, the reviewing court

held that the mere fact that the victim had some “nebulous rays of hope” of recovery did not negate

the victim’s belief of imminent death. Lawson, 

, 

; see also

People v. Davis, 

, 

 (1981) (where the victim was shot

four times, once in the head, and mentioned that he was dying, victim had an imminent belief of

death despite repeatedly asking the driver to run the red lights en route to the hospital).

       Here, it was reasonable to conclude that Taylor knew of the seriousness of his condition

because he was shot multiple times with at least two semiautomatic weapons, resulting in gunshot

wounds to vital areas of his body such as his neck, face, back, and abdomen. Evidence also

suggested that Taylor was struck by two vehicles during the chase. When Sergeant Ryan arrived at

the scene, Taylor was sitting on a sidewalk, bleeding, and leaning against a fence with his eyes

                                                 10
1-07-1769


closed. Under these circumstances, we find that it was reasonable for the trial court to find that

Taylor believed death was imminent, and the mere fact that he asked Sergeant Ryan if he was going

to die did not negate such belief. It is unlikely that a person who did not believe he was dying would

pose such a question to anyone. But cf. Stiff, 

, 

 (burn victim

did not believe death was imminent where the victim walked to seek help, was never told of his slim

chance of survival, and was hospitalized for over seven weeks before succumbing to his injuries).

Thus, we find that Taylor believed death was imminent and the second prong of the dying

declaration requirements was met.3

       The third prong requires that the declarant possess mental faculties sufficient to give an

accurate statement about the circumstances of the homicide. The defendant argues that the extent

of Taylor’s injuries called into question his ability to speak coherently to Sergeant Ryan. The

defendant also argues that defense counsel should have introduced Taylor’s medical records and the

testimony of Taylor’s treating paramedics at trial in order to provide more information to the trial

court regarding Taylor’s physical condition. The State, however, argues that Taylor possessed

sufficient mental faculties to establish the third prong of the dying declaration requirements because

Taylor was able to answer Sergeant Ryan’s open-ended questions in a coherent manner. The State

further contends that accepting the notion that a seriously injured victim could not be sufficiently

lucid for the purpose of a hearsay analysis would lead to the absurb result that no dying declaration



       3
         We recognize that the trial court could have been clearer in listing the second
requirement of a dying declaration. However, we need not address this issue in light of our
finding that Taylor believed death was imminent.

                                                 11
1-07-1769


exceptions would ever apply. We agree.

       In determining whether a declarant possessed mental competency to give an accurate

statement, a trial court may consider whether he was able to answer questions about the incident.

See People v. Rhoads, 

, 

 (1982); Davis, 

, 

 (declarant had sufficient mental faculties where he was able

to answer questions promptly and accurately, despite suffering from four gunshot wounds and having

substantial levels of morphine and alcohol in his blood). Moreover, questions requiring “more than

a simple yes or no answer” may be a factor in assessing whether a declarant possessed sufficient

mental faculties. See People v. Barnes, 

, 

 (1983).

       In the instant case, Taylor was able to answer all of Sergeant Ryan’s open-ended questions

at the crime scene. When asked what had happened, Taylor replied that “they shot me.” When

Sergeant Ryan asked who shot him, Taylor responded, “Quick and Little Ride.” Although there was

testimony to suggest that Taylor may have been drinking on the night of the shooting, evidence

showed that Taylor understood all of Sergeant Ryan’s questions and answered them promptly.

Further, Sergeant Ryan testified that Taylor’s answers to his questions were coherent. We disagree

with the defendant’s argument that Taylor’s medical records and testimony of the paramedics were

necessary to establish the sufficiency of Taylor’s mental competency. The paramedics arrived at the

scene after Taylor’s statements were made to Sergeant Ryan and treated Taylor for approximately

15 minutes before transporting Taylor to the hospital. Testimony by the paramedics would not

necessarily have been accurate to reflect Taylor’s mental faculties minutes earlier when he spoke

with Sergeant Ryan. Because it is reasonable to conclude that the condition of a seriously injured

                                                12
1-07-1769


victim could dramatically change within minutes, we do not find that the absence of testimony by

the paramedics or Taylor’s medical records regarding Taylor’s condition at the time of the arrival

of the paramedics provided a basis for a claim of ineffective assistance of counsel.

       Moreover, as the State argues, accepting the notion that a seriously injured victim could not

be sufficiently lucid for the purpose of a hearsay analysis would lead to the absurb result that no

dying declaration exceptions would ever apply since these statements are always made after the

declarant has been seriously injured and the circumstances are such that death is likely imminent.

Thus, although Taylor was seriously wounded, we find that the trial court could find beyond a

reasonable doubt that Taylor possessed sufficient mental faculties to give accurate statements to

Sergeant Ryan about the circumstances.

       The defendant also argues that the police report produced following the incident did not

indicate that Taylor claimed “Little Ride” was responsible for the shooting; rather, it stated that

“Quick and Lil Red” shot Taylor.

       We disagree that this discrepancy automatically called into question the defendant’s

involvement in the crime, in light of the evidence presented at trial. Sergeant Ryan testified that

Taylor named “Quick and Little Ride” as the shooters. Both Foote and the defendant–namely, Quick

and Little Ride–were in the company of Taylor on the night of the murder. Moreover, the police

report was not prepared by Sergeant Ryan, who had first-hand knowledge of Taylor’s statements.

Thus, we find that Taylor possessed the mental faculty sufficient to give an accurate statement about

the circumstances of the homicide and the third prong of the requirements was satisfied.

       Therefore, we find the trial court’s admission of Taylor’s incriminating statement against the

                                                 13
1-07-1769


defendant as a dying declaration exception to the hearsay rule was not against the manifest weight

of the evidence. Moreover, the admission of Taylor’s dying declaration did not violate the

defendant’s rights to confrontation under the sixth amendment. See Graham, 

, 

; Gilmore, 

, 

; see also People v.

Ingram, 

, 

 (2008).

       Because we hold that Taylor’s statement identifying the defendant as one of his shooters was

properly admitted as a dying declaration exception to hearsay evidence, we need not address whether

that statement was also properly admitted as an excited utterance.

       We next determine whether Johnson’s prior inconsistent statement was properly admitted

as substantive evidence at trial and whether the defendant’s request to recall Johnson to the witness

stand was properly denied.

       The defendant argues that Johnson’s prior written statement implicating the defendant as one

of the shooters should not have been admitted because Johnson denied having any knowledge of the

murder until he provided the written statement at issue to the police, and the trial court improperly

limited defense counsel’s cross-examination by refusing to allow the defense to recall Johnson to

the witness stand. We disagree.

       An evidentiary ruling will not be disturbed by a reviewing court absent an abuse of

discretion. People v. Franklin, 

, 

 (1990). Section 115-10.1 of

the Code of Criminal Procedure of 1963 (Code) states in pertinent part:

                       “In all criminal cases, evidence of a statement made by a

               witness is not made inadmissible by the hearsay rule if

                                                 14
1-07-1769


                      (a) the statement is inconsistent with his testimony at the

              hearing or trial, and

                      (b) the witness is subject to cross-examination concerning the

              statement, and

                      (c) the statement--

                               ***

                               (2) narrates, describes, or explains an event or

                               condition of which the witness had personal

                               knowledge, and

                                      ***

                                      (B) the witness acknowledged under oath the

                                      making of the statement either in his

                                      testimony at the hearing or trial in which the

                                      admission into evidence of the prior statement

                                      is being sought, or at a trial, hearing, or other

                                      proceeding.” 725 ILCS 5/115-10.1 (West

                                      2006).

       Here, the defendant does not dispute that subsections (a) and (c)(2) of section 115-10.1 were

satisfied. Rather, he argues that the cross-examination portion under subsection (b) was not met.

The record shows that Johnson testified that on the night of the murder, he awakened to the sound

of gunshots from a neighborhood porch, but denied seeing the defendant fire any weapons. At that

                                                15
1-07-1769


point in the trial, the State impeached Johnson with a prior written statement, in which Johnson

stated that he saw the defendant chase Taylor while pointing a semiautomatic weapon at Taylor. The

record shows that defense counsel then cross-examined Johnson, during which Johnson claimed that

his prior written statement was false and that he lied about the identities of the shooters for fear that

he would also be charged with the crime. On re-cross-examination, Johnson stated that the assistant

State’s Attorneys were “trying to persuade me about something that I knew wasn’t true” and stated

that he lied in the prior written statement under police coercion. At no point did the trial court

restrict the scope of defense counsel’s cross-examination and re-cross-examination of Johnson.

Further, the record shows that during a pretrial hearing, the trial court clearly stated that Johnson’s

prior inconsistent statement could be used for substantive or impeachment purposes, and thus, we

must assume that defense counsel knew or should have known the law and was on notice that the

evidence could have been used by the State for either or both of those purposes. Thus, because

defense counsel had the opportunity to fully cross-examine and re-cross-examine Johnson regarding

the prior inconsistent statement and had notice that such statement could be used for impeachment

or substantive purposes, the defendant cannot now claim that the trial court limited his right to cross-

examination. Therefore, we find that the cross-examination requirement under section 115-10.1 was

met and the trial court did not abuse its discretion in admitting the prior inconsistent statement as

substantive evidence.

        Nevertheless, the defendant argues that the State’s “delay” in waiting until the end of its case-

in-chief to introduce Johnson’s prior written statement warranted the recall of Johnson for the

purpose of developing his testimony regarding the circumstances that induced him to lie. We

                                                   16
1-07-1769


disagree.

       It is within the trial court’s discretion to determine whether to allow a witness to be recalled.

See People v. Lewis, 

, 

 (2006).

       Here, Johnson had already testified on the witness stand two hours prior to defense counsel’s

request to recall him. According to the State, Johnson was already on his way back to the

correctional facility where he was being detained for an unrelated crime. As discussed above,

because defense counsel had already been given unlimited latitude to cross-examine and re-cross-

examine Johnson regarding what prompted him to lie about the identities of the shooters in the prior

written statement, any further questioning on the issue would have been repetitive. See People v.

Morando, 

, 

 (1988) (trial court has the discretion to

prevent repetitive cross-examination). We also note that it was within the State’s tactical purview

to seek admission of Johnson’s prior written statement during any point in its case-in-chief, and the

defendant has provided no authority to support his argument that it was improper for the State to

seek admision of the evidence at the end of its case-in-chief. Therefore, we find that the trial court

exercised proper discretion in denying the defendant’s request to recall Johnson.

       We next determine whether the trial court properly refused the defendant’s request for a one-

day continuance.

       The defendant argues that the trial court did not properly balance the defendant’s right to call

witnesses on his own behalf against the interest of judicial economy when it denied the defendant’s

request for a continuance to secure witnesses.

       The State argues that the issue is forfeited to the extent the defendant argues that the trial

                                                  17
1-07-1769


court erred in denying his continuance to “secure witnesses,” because the defendant’s motion for a

new trial only alleged the trial court’s failure to grant the defendant a continuance to “locate and

recall [Johnson].”

       For the reasons discussed above, the defendant was not entitled to a continuance to locate and

recall Johnson. We also find that the defendant has forfeited review of this issue as it relates to

securing other testifying witnesses because he failed to raise this claim in a posttrial motion. See

People v. Woods, 

, 

 (2005). However, the plain error

doctrine gives a narrow and limited exception to a reviewing court to consider certain forfeited

errors. People v. Herron, 

, 

 (2005). The plain error doctrine

allows this court to review unpreserved issues when either:

                       “(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 occurs and that error is so serious

               that it affected the fairness of the defendant’s trial and challenged the

               integrity of the judicial process, regardless of the closeness of the

               evidence.” People v. Piatkowski, 

, 

 (2007).

The first step in a plain error analysis is to determine whether an error occurred at all. People v.

Hudson, 

, 

 (2008).

       Absent a clear abuse of discretion, a reviewing court will not disturb a trial court’s ruling to

                                                  18
1-07-1769


grant or deny a continuance. People v. Walker, 

, 

 (2009).

Section 114-4(f) in the Code states that “a reasonably brief continuance may be granted to either side

in the interests of justice” after trial has begun. 725 ILCS 5/114-4(f) (West 2006). No “mechanical

test” exists to determine when the denial of a continuance for judicial economy violates a

defendant’s right to defend. Walker, 

, 

. Factors a court may

consider include “the movant’s diligence, the defendant’s right to a speedy, fair and impartial trial

and the interests of justice.” Walker, 

, 

. “Other relevant factors

include whether [defense counsel] was unable to prepare for trial because he or she had been held

to trial in another cause (725 ILCS 5/114-4(b)(2) (West 1994)), the history of the case (People v.

Coleman, 

, 

 (1990)), the complexity of the matter

(People v. Nickols, 

, 

 (1976)), the seriousness of the

charges (People v. Hamilton, 

, 

 (1974)), as well as

docket management, judicial economy and inconvenience to the parties and witnesses.” Walker, 

, 

.

       Here, the defendant requested a continuance after the State had rested and the trial court had

denied the defendant’s motion for a directed finding. We note that the defendant did not initially

specify why he wanted a continuance. Defense counsel did not inform the trial court that he was

unprepared for trial nor that despite due diligence he was unable to secure the presence of defense

witnesses. In fact, it was only after the trial court asked how many defense witnesses would be

testifying did defense counsel say that the defendant would be the defense’s only witness. The trial

court then correctly stated that it would not delay the proceedings, and pointed out that a demand for

                                                 19
1-07-1769


trial “means you’re ready.” Without much information provided regarding the alleged potential

defense witnesses, the trial court could well have concluded that the defendant’s request was an

unreasonable delay in the trial proceedings. Thus, we find that the trial court did not err in denying

the defendant’s request for a continuance and the plain error doctrine does not apply to reach the

forfeited issue.

        Next, we determine whether the defendant was denied effective assistance of counsel.

        The defendant argues that defense counsel was acting under a conflict of interests by

representing both the defendant and Foote during the pretrial proceedings. Specifically, he argues

that defense counsel’s dual representation impeded the State from making a plea offer that would

have benefitted one defendant against the interest of the other.

        To successfully establish a claim of ineffective assistance of counsel, the defendant: (1) must

prove that the attorney’s performance fell below an objective standard of reasonableness so as to

deprive him of the right to counsel under the sixth amendment (performance prong); and (2) that this

substandard performance resulted in prejudice (prejudice prong). Strickland v. Washington, 

, 

, 

 (1984). To prove prejudice,

the defendant must show that “ ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’ ” People v. King, 

, 

 (2000), quoting People v. Haynes, 

,

 (2000). A reasonable probability is one that sufficiently undermines confidence

in the outcome. King, 

, 

. The defendant must satisfy both

prongs to prevail on his claim of ineffective assistance of counsel. However, a reviewing court may

                                                  20
1-07-1769


analyze the facts of the case under either prong first, and, if it deems that the standard for that prong

is not satisfied, it need not consider the other prong. People v. Irvine, 

,

 (2008).

        We find that this issue is not appropriate for resolution in the context of this direct appeal.

Rather, this issue should be appropriately raised in a postconviction proceeding in which the

defendant could submit affidavits and present extrinsic evidence at a hearing to determine whether

a conflict of interests existed in his trial representation. This is exactly the type of issue that the

postconviction proceedings, set forth in case law and statutory provisions, is intended to address.

Thus, we will not address the issue of a conflict of interests any further.

        The defendant also makes a number of other arguments to support his claim for ineffective

assistance of counsel. To the extent that these arguments relate to defense counsel’s failure to

challenge Taylor’s mental faculties and the discrepancy in the police report, we find that the

performance prong under Strickland was not satisfied, for the reasons discussed above. Likewise,

the defendant’s argument that defense counsel was ineffective for failing to present any witnesses

at trial is also without merit. Here, the defendant testified on his own behalf at trial, giving his

version of the events that occurred on the night at issue. The defendant has not shown how defense

counsel’s performance fell below an objective standard by not presenting more witnesses,

particularly where the State carried the burden of proof. Therefore, we find that neither prong was

satisfied under Strickland and the defendant did not establish the necessary facts to support his

claims of ineffective assistance of counsel.

        Finally, we determine whether the defendant’s guilt was proven beyond a reasonable doubt.

                                                   21
1-07-1769


       The defendant argues that there was insufficient evidence to support his conviction for first-

degree murder because eyewitnesses to the crime were unable to identify the perpetrators and the

only evidence against the defendant were Taylor’s statement to Sergeant Ryan and Johnson’s

recanted prior written statement.

       When the sufficiency of the evidence is challenged on appeal, we must determine “ ‘whether,

after viewing the evidence in the light most favorable to the [State], any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.)

Graham, 

, 

, quoting Jackson v. Virginia, 

, 

, 

 (1979). It is within the trier of fact’s province “to

assess the credibility of the witnesses, determine the appropriate weight of the testimony, and resolve

conflicts or inconsistencies in the evidence.” Graham, 

, 

.

A criminal conviction will not be reversed “unless the evidence is so improbable or unsatisfactory

that it creates a reasonable doubt as to the defendant’s guilt.” Graham, 

, 

.

       In the case at bar, Taylor’s statement to Sergeant Ryan, which was appropriately admitted

as a dying declaration, was singly sufficient to convict the defendant of first-degree murder. Further,

Taylor’s statement was corroborated by Johnson’s prior written statement to the police, which stated

that the defendant chased Taylor with a semiautomatic weapon in hand. The trails of blood and

spent cartridges found at the crime scene also corroborated witness testimony of the chase. In

reviewing the evidence, the trial court was free to believe Johnson’s prior inconsistent statement and

Taylor’s dying declaration, rather than Johnson’s recanted statement and the defendant’s denial at

                                                  22
1-07-1769


trial. Therefore, we find that the evidence was more than sufficient to establish the defendant’s guilt

and support the defendant’s conviction.

       As a final note, because the condition of the State’s brief fell so far below compliance with

Supreme Court Rules 612 (210 Ill. 2d R. 612), 341 (210 Ill. 2d R. 341) and 6 (145 Ill. 2d R. 6), that

we feel compelled to comment on this violation of a mandatory requirement. Both the State’s and

the defendant’s briefs inappropriately contained numerous improper citations, including the use of

“supras.” However, the State’s brief compounded the problem by using a condensed, small font

which made the brief extremely difficult to read. As the assistant State’s Attorney was admonished

in oral argument, we reiterate that the supreme court rules regarding appellate practice are not mere

suggestions, but are mandatory rules from which parties must not deviate. We caution that parties

who violate these rules will run the risk of having their briefs stricken and sanctions imposed.

       Affirmed.

       HOFFMAN and THEIS, JJ., concur.




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