Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
People v. Degorski
,
District & No. First District, Fourth Division
Docket No. 1-10-0580
Filed October 17, 2013
Held Defendant’s conviction for multiple counts of first degree murder in the robbery of a restaurant was upheld over his contentions that the trial court ( Note: This syllabus denied defendant a fair trial by allowing a witness to testify that he was constitutes no part of the opinion of the court a circuit court judge but had been an assistant State’s Attorney when he but has been prepared interviewed defendant and that he thought defendant’s confession was by the Reporter of reliable, and by playing a videotape depicting the bodies of the Decisions for the restaurant’s employees being removed from a freezer, since the testimony convenience of the about the reliability of defendant’s confession was not a surprise to the reader. ) jury, and the probative value of the video outweighed any prejudicial
effect. Decision Under Appeal from the Circuit Court of Cook County, No. 02-CR-15430 (01); the Hon. Vincent M. Gaughan, Judge, presiding. Review Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Charles W. Hoffman, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith аnd Lavin concurred in the judgment and opinion.
OPINION
Juan Luna and James Degorski were charged with multiple counts of first degree murder for the 1993 shooting deaths of seven employees of a Brown’s Chicken restaurant in Palatine, Illinois. Following a severed jury trial, Degorski was convicted and sentenced to natural life imprisonment. He argues on appeal that he was denied a fair trial where (1) former Assistant State’s Attorney Michael McHale testified that he was now a Cook County circuit court judge and that he believed defendant’s confession was reliable, and (2) the trial court allowed the State to play a video depicting removal of several of the employees’ bodies from a walk-in freezer. For the reasons that follow, we affirm. BACKGROUND On January 8, 1993, seven Brown’s Chicken employees–Michael Castro, Lynn
Ehlenfeldt, Richard Ehlenfeldt, Guadalupe Maldonado, Thomas Mennes, Marcus Nellsen, and Rico Solis–were shot to death. Defendant was charged with multiple counts of the first degree murder. During his four-week trial, the parties presented dozens of witnesses. A jury found defendant guilty and eligible for the death penalty, but sentenced him to natural life imprisonment. On appeal, defendant raises several evidentiary issues. We summarize those facts necessary to rule on the issues presented. I. State’s Evidence Palatine police officer Ronald Conley testified that he was on duty in the early hours of
January 9, 1993, when he saw a car enter the Brown’s Chicken parking lot. He learned that the driver was looking for his older brother, who worked at the restaurant but had not come home that night. Within a few hours, Conley responded to a radio call about a missing juvenile, who also worked at Brown’s Chicken. After meeting with the juvenile’s family, he proceeded to the restaurant, where he gained entry through an open employee door. Conley *3 saw a bloody mop just inside the doorway and called for backup.
¶ 6 According to Conley, Officer Saxsma arrived, and the two officers entered the restaurant
with guns drawn. Inside, Conley saw a foot and hand protruding from a walk-in freezer on the building’s east side. Upon opening the freezer door, they discovered five bodies. Officer Haas arrived, and the three officers searched the rest of the restaurant, ultimately discovering two more bodies in the walk-in cooler on the building’s west side. All seven appeared to have suffered fatal gunshot wounds. Assistant medical examiners later confirmed this observation. Sergeant Robert Jacobsen testified that he helped remove the bodies from the cooler and
freezer. The only officer to enter the walk-ins, Jacobsen covered his shoes with plastic bags to protect them from blood and to avoid leaving shoe prints. Despite his efforts, the bags and shoes filled with blood, and the bags adhered to the soles of his shoes. At trial, Jacobsen identified shoe prints in the freezer as his own, but forensic comparison of the prints was not possible, as Jacobsen threw his bloody shoes away. He admitted that he never reported or recorded that he had left shoe prints in the freezer. On cross-examination, defendant questioned whether the shoe prints were Jacobsen’s. Consequently, on redirect, the State was allowed to play for the jury a video depicting Jacobsen removing several of the bodies while wearing plastic bags on his shoes. Forensic investigators discovered that the restaurant’s trash cans were empty with the
exception of the remains of a four-piece chicken meal, a paper cup, and napkins. The cash register appeared to have been clоsed and reopened to sell a meal at 9:08 p.m. The receipt was consistent with the meal discovered in the trash can, leading investigators to believe that one of the offenders may have purchased the meal. Investigators also collected extensive trace evidence, including fibers, hairs, blood, and more than 200 fingerprints. On one of the discarded napkins, investigators found a latent fingerprint impression, which was later found to match codefendant’s prints. None of the latent prints matched defendant’s fingerprints. Investigators also determined that two of the chicken bones recovered contained saliva. One of these bones produced two DNA profiles: a major profile consistent with someone eating the chicken, and a minor profile consistent with someone touching the chicken with their hands. The major profile matched codefendant. Defendant was excluded as a contributor to the profiles. Eileen Bakalla testified that she had been friends with defendant and codefendant. On
January 8, 1993, she received a telephone call from defendant, who asked her to meet him and codefendant in a Jewel grocery store parking lot in Carpеntersville, Illinois. Defendant added that they had “done something big.” Bakalla left work at 9:30 p.m. and met defendant and codefendant as planned. In the parking lot, she noticed green rubber gloves in the back of codefendant’s car. The friends drove to Bakalla’s townhouse in her car. En route, she asked the two men about a canvas money bag they had brought with them, and they replied that it contained money from their Brown’s Chicken robbery. At Bakalla’s house, defendant and codefendant split the money, and defendant gave
Bakalla $50 he owed her. The three smoked marijuana and remained at Bakalla’s house for a few hours before Bakalla dropped codefendant back off at his car. She and defendant drove *4 past Brown’s Chicken, where they saw ambulances and squad cars in the parking lot. Defendant told her that codefendant had gone “ballistic and started killing people,” “slit the owner’s throat from ear to ear,” and “put the rest of the employees in the cooler [and] in the freezer.” Defendant said codefendant had shot four people in the cooler and handed the gun to defendant, who shot two people in the freezer. He added that they had worn glоves, mopped the floor afterward, and thrown the gun in the Fox River. Bakalla and defendant then went to defendant’s home, where they spent the night. The following day, Bakalla accompanied defendant as he cleaned codefendant’s car at a Streamwood, Illinois, carwash.
¶ 12 Bakalla did not inform police about the murders until they approached her on May 15,
2002. She testified, however, that she informed her husband, Keith Abel, about the murders prior to their 1998 wedding. Abel testified that, in 1998, Bakalla told her that defendant and codefendant had done “something big” and mentioned Brown’s Chicken. Anne Lockett testified that she had been friends with defendant, codefendant, and
Bakalla, and had also dated defendant. She frequently abused drugs and alcohol in 1992 and 1993 and twice attempted suicide. Following one such attempt, she was brought to a hospital, where, on January 9, 1993, she received a telephone call from defendant, who told her to watch the news that night because he had “done something big.” The lead story that night concerned the Brown’s Chicken murders. Following her January 25, 1993 release from the hospital, Lockett met defendant and
codefendant at defendant’s home. Defendant offered to tell hеr about the Brown’s Chicken robbery, noting that they had already told Bakalla because they had to use her as an alibi. Defendant and codefendant than told Lockett that, wearing old clothing and shoes, they had driven codefendant’s car to Brown’s Chicken. There, they had placed a wedge behind the back door to prevent the employees’ escape. Codefendant ordered a chicken dinner, which upset defendant, who was worried that he would leave greasy fingerprints. The two men then went into the bathroom and put on gloves. When they exited the bathroom, an employee tried to exit through the back door, but the
wedge prevented his escape. Defendant and codefendant crowded the employees into the freezer and cooler and shot them. Codefendant slit one woman’s throat, and another employee vomited french fries when shot. Defendant and codefendant then mopped the floor and wiped the area down to remove fingerprints. They later threw their clothes into a dumpster and the gun into the Fox River. They explained to Lockett that they had chosen Brown’s Chicken because codefendant
had worked there, and they сommitted the offense because codefendant wanted to see what it was like to kill someone, and defendant agreed to help. They told Lockett that they would kill her if she told anyone. Lockett further testified that defendant had owned a silver .38- caliber revolver that he kept in his bedroom, but she never saw it after her hospital discharge. On February 17, 1993, police interviewed codefendant because of his previous employment at Brown’s Chicken. Per his request, Lockett accompanied him, posing as his girlfriend. She sat in a waiting room for less than a half-hour. No one spoke to her. In March of 2002, Lockett received a telephone call from a Palatine police officer named King. King was the first law enforcement official she told about her knowledge of the Brown’s Chicken *5 murders. Lockett explained that she had not come forward earlier because she was afraid defendant would kill her if she did.
¶ 18 Police Commander William King testified that he spoke with Lockett in March of 2002.
After that conversation, he spoke with codefendant at his Carpentersville home on April 3, 2002. Codefendant agreed to a buccal swab, which King later submitted for analysis. King also spoke with defеndant at the Palatine police station on April 27, 2002. Defendant denied involvement in the murders and provided fingerprints and a buccal swab. On May 7, 2002, King learned that the major DNA profile from the four-piece chicken
dinner matched codefendant. On May 16, 2002, King and Detective Briscoe met defendant in Indianapolis, Indiana, and drove him to Palatine. Defendant returned voluntarily. They did not discuss the case during the four-hour drive. En route, Palatine’s police chief called King and told him that the station was surrounded by reporters and they should proceed to the Streamwood police station instead. After defendant waived his Miranda rights, King told him he believed he was involved
in the Brown’s Chicken murders. Defendant responded that he was sorry for what happened. He stated that he and codefendant had driven to Brown’s Chicken in codefendant’s Ford Tempo, and defendant brought his .38-caliber handgun. They chose Brown’s Chicken because codefendant had worked there. They entered the restaurant, ordered a meal, and ate it. After the meal, they announced a robbery. A young employee mopping the floor offered the men money, but they told him to put it away and go to the back of the store. Codefendant then shot a woman. They ran out of the rеstaurant, drove away, and disposed of the gun. Defendant’s share of the robbery proceeds was approximately $800. After a break, King returned to the interview room with Assistant State’s Attorney (ASA)
Michael McHale. McHale explained that he was a prosecutor and advised defendant of his Miranda rights. McHale and defendant spoke for approximately one hour before McHale exited the interview room, complaining that he felt ill and was going to rest. After defendant used the washroom, he asked to speak to King alone. After King
readvised defendant of his Miranda rights, they spoke for approximately two hours. Defendant again told King that he and codefendant had planned to rob Brown’s Chicken because codefendant used to work there. They went at closing time because they thought fewer employees would be there. Defendant brought a .38-caliber revolver and a knife with a brass-knuckle handle. They drove to the restaurant in codefendant’s Ford Tempo, parked in the mall parking lot, and sat in the car while a young lady loaded “two crippled kids” into a van. After she left, they entered the restaurant and were surprised to find seven employees working. They ordered a meal, which codefendant ate before throwing the remnants in the garbage. Defendant then handed a set of green rubber gloves to codefendant, and they announced a robbery. A young, skinny kid who was mopping the floor offered them money, but defendant told
him to put it away and get in the back. Defendant fired a warning shot and told the employees to move to the back of the store. In the west walk-in cooler, defendant found two older men, kneeling, facing the wall. He shot them in the back and then in the head. Defendant reloaded and handed the weapon to codefendant, who was yelling at a female employee. Defendant *6 mopped the floor, and codefendant turned off the lights. Codefendant then slit the female employee’s throat, shot her and the other employees, and placed money in a cloth bag.
¶ 24 The two men left Brown’s Chicken and drove to the Carpentersville Dam, where
defendant threw his gun, knife, and casings into the Fox River. They met Bakalla in a Jewel parking lot in Carpentersville and proceeded to her house, where defendants split the money, and defendant gave Bakalla $50 he owed her. They dropped codefendant back off at his car, which he had left in the Jewel pаrking lot, and defendant and Bakalla drove toward Palatine. Along the way, defendant told Bakalla about the robbery. They drove past Brown’s Chicken, where they saw several ambulances and squad cars. The following day, defendant and Bakalla took codefendant’s car to a car wash. Defendant further told King that Lockett was the only other person defendant told about
the offense. Codefendant was mad that he told “the girls.” Defendant added that the restaurant employees were nice. King asked why he would kill them if they were nice. Defendant replied, “because [we] wanted to do something big.” Following his interview with King, defendant spoke with ASA McHale for approximately three hours. Former ASA McHale testified that he was a Cook County circuit court judge, but
previously served as an assistant State’s Attorney and, in that capacity, had interviewed defendant. His initial interviews with defendant were slow-going, and he learned only that defendant and codefendant had robbed the Brown’s Chicken with a silver gun and that a young employee had been mopping the floors. Following the first interview, McHale, who was ill that evening, slept while King interviewed defendant. McHale later returned to the interview room, and defendant described the offense in greater detail. Defendant told McHale that he and codefendant had driven to Brown’s Chicken in
codefendant’s Ford Tempo with bullets, rubber gloves, a .38-caliber revolver he had purchased from Matt Wzientek, and a knife with a brass-knuckle handle. They entered at around closing time when no other customers were present. Codefendant ordered a chicken dinner, ate some of it, and threw the rest in the trash. The two men then put on rubber gloves, and defendant handed the knife to codefendant. Defendant fired a warning shot and told the employees to go to the back of the restaurant. A young man offered him cash, but defendant told him to go to the back of the store. Defendant shot two men in the walk-in cooler, reloaded, and handed the gun to
codefendant. As defendant mopped the floor to remove footprints, codefendant yelled at a female employee, punched her, cut her with a knife, and then shot her and the other employees. They then exited through a rear door. The men drove to the Fox River, where they discarded the gun and knife. They then drove to the Jewel in Carpentersville, where they met Bakalla. The three drove to Bakаlla’s house, where they smoked marijuana and split the money. Defendant’s share was between $700 and $800. He also gave Bakalla a small amount of money. Bakalla and defendant dropped codefendant off at his car, which was still in the Jewel
parking lot, and drove past Brown’s Chicken, where they saw ambulances. Although defendant had already told Bakalla that they had robbed Brown’s Chicken, he now informed her that they had also shot the employees. Bakalla dropped defendant off at home, and *7 defendant threw his clothes in a dumpster. Defendant also informed McHale that he had told Lockett about the murders shortly after she was released from the hospital. McHale asked defendant if he wished to memorialize his statement, but defendant declined because he was tired and wanted to sleep.
Matt Wzientek testified that he sold a .38-caliber revolver and a box of round-nose bullets to defendant in 1992.
Medical Technician Alicia Hines testified that she spoke with defendant on May 19, 2002, after he had suffered a broken jaw. Hines learned that defendant had been arrested for the Brown’s Chicken murders and asked him how he could kill seven people and whether he had been drunk or high at the time. Defendant responded that he had been sober, and the murders were “just for fun.” Hines did not document this conversation.
Firearms expert Peter Striupaitis testified that round-nose bullets were recovered from the scene, and they had been fired from a .38-caliber revolver. He never received a gun for forensic analysis.
Debbie Medow testified that, on January 8, 1993, she took two developmentally challenged persons from the residential home where she worked to Brown’s Chicken. They remained at the restaurant until it closed at 9:00 p.m. The restaurant had no other customers, and she did not notice any other cars in the parking lot.
Defendant’s former coworker, Walter Hanger, testified that, in early May of 2002, defendant asked him, “if you killed somebody, would God forgive you?”
II. Defense Evidence James Bell, former coordinator of the Brown’s Chicken Task Force, testified that a man named Jonathan Simonek made several incriminating statements in 1998 and gave a videotaped confession in August of 1999. He testified to the content of Simonek’s 1999 confession.
Palatine police officer Keith Kirkpatrick testified that he took Simonek’s videotaped confession on August 5, 1999. Simonek claimed in his statement that hе and Todd Wakefield committed the murders. Simonek’s statement was played for the jury.
Simonek testified at defendant’s trial that he confessed to the murders because police were harassing him and his parents. At the station, police told him that he would not be allowed to leave or make a telephone call until he told them what they wanted to hear. He told them things that he had read in the newspapers and made up other details. When he provided an incorrect detail, detectives would say, “that’s not what happened,” and he would change his story. Simonek testified that he had was not involved in the Brown’s Chicken murders.
Casey Haefs, a former cashier at Brown’s Chicken, testified that, after being harassed by police, she gave a false statement implicating Simonek and Wakefield. She further stated that Officer Jim Bell pressured her into giving that statement.
Forensic analyst Charles Principe testified that he was responsible for photographing, recovering, and preserving footwear impressions at the scene. He stated that he was unaware *8 of any bloody impressions in either the freezer or the cooler, but noted that he photographed only impressions that had evidentiary valuе and would not have photographed prints left by police.
Forensic analyst Mark Acree testified that the mop handle found in Brown’s Chicken had a fingerprint suitable for comparison, but it did not match defendant’s prints. Acree did not compare the print to those of the seven employees.
Several witnesses testified that a dive team failed to recover a gun in the Fox River. Jessica Mogilinski, defendant’s former neighbor, and Mark Mogilinski, defendant’s former employer, testified to defendant’s reputation for nonviolence.
The parties stipulated that defendant’s DNA profile did not match the profiles recovered from the Brown’s Chicken trash can.
III. Verdict and Sentence The jury found defendant guilty of seven counts of first degree murder. Although the jury also found defendant death-eligible, they declined to impose the death penalty, and defendant was sentenced to life imprisonment. Defendant now appeals.
ANALYSIS Defendant argues on appeal that he was denied a fair trial where (1) former Assistant State’s Attorney Michael McHale testified that he was now a Cook County circuit court judge and that he believed defendant’s confession was reliable, and (2) the State played a videо depicting the removal of bodies from a walk-in freezer. We affirm.
I. Michael McHale’s Testimony At trial, defendant argued that the only evidence tying him to this offense was his false confessions to Bakalla, Lockett, King, and McHale. He now contends that this theory was unfairly undermined when McHale testified that he is now a judge and that he believed defendant’s confession was reliable. We disagree.
A. McHale’s Judgeship Defendant moved in limine to bar “[u]se of the title ‘Judge,’ or any other reference to the fact that he is a sitting Cook County Judge when referring to former Assistant State’s Attorney Michael McHale.” He argued that McHale’s occupation improperly bolstered his credibility. The State responded that McHale’s judgeship was relevant to his credibility. The trial court denied defendant’s motion, but cautioned the State, “I don’t want you constantly every other word saying, Judge, Judge, Judge. You can establish it then move on.”
At trial, the State asked McHale two questions about his occupation: “Q. [State]: Sir, would you please tell us your name and spell your last name for the record?
A. [McHale] Michael McHale, M-c-H-a-l-e.
Q. Sir, what do you do for a living?
A. I’m a Judge with the Circuit Court of Cook County.
Q. And where are you assigned as a judge?
A. I’m currently assigned to the domestic violence courthouse.” On cross-examination, defendant asked, “So from the time that you became a licensed attorney tо the time that you left the office to become a judge, you were always a prosecutor?” McHale answered affirmatively. Later, during closing argument, the State contended, “Assistant State’s Attorney, now Judge McHale, gave [defendant] a choice” of how to memorialize his statement. McHale’s occupation was not otherwise mentioned during the proceedings. Defendant maintains on appeal that McHale’s judgeship was irrelevant and its prejudicial
effect outweighed its probative value. The State contends that McHale’s occupation was relevant to his credibility. Alternatively, the State argues that any error was harmless beyond a reasonable doubt. Initially, the parties disagree about the standard of review. The State argues that we
should review the trial court’s denial of defendant’s motion
in limine
for an abuse of
discretion. Defendant agrees that evidentiary rulings in general, and the denial of a motion
in limine
in particular, are normally reviewed for an abuse of discretion. See
People v.
Morgan
, 197 Ill. 2d 404, 455 (2001) (evidentiary issues are reviewed for an abuse of
discretion);
People v. Illgen
,
consequences of a guilty plea and applied New York law instead.
Id.
at 373-74. Our supreme
court found that the trial court had not “exercise[d] its discretion within the bounds of the
law,” and therefore
de novo
review was appropriate.
Id.
at 369. The Illinois Supreme Court
later clarified that the
Williams
court held only that “reviewing courts should defer to trial
court’s evidentiary rulings even if they involve legal issues unless [the] ‘trial court’s exercise
of discretion has been frustrated by an erroneous rule of law.’ ”
People v. Taylor
, 2011 IL
110067, ¶ 27 (quoting
Williams
,
of well-established Illinois law, here, the law regarding whether a judge may testify to his or
her occupation where he or she is called to testify regarding a nonjudicial matter is not well
*10
established. Defendant cites no authority that supports his allegation that the evidentiary
matter here was outside of the court’s discretion or that the trial court acted outside of the
bounds of the law. We therefore apply the abuse-of-discretion standard. See
People v.
Hansen
,
allowing McHale to testify that he is a judge.
People v. Jordan
,
because the State merely wanted to “qualify Telander as a sort of expert on credibility,
coloring the jurors’ perception both of what Telander himself had to say and what [the
defendants] supposedly admitted to him” and that “the ‘prestige and prominence’ of his
рosition as an associate judge *** artificially enhanced his credibility in the eyes of the jury.”
Id.
at 120-22. The appellate court rejected the defendant’s argument and held that the trial
court had not abused its discretion because the jury was “entitled to know that Brian Telander
was now employed as an associate judge in Du Page County *** [where a] witness’
occupation and related background is of value to the jury in determining the credibility of the
witness and his testimony.”
Id.
at 121. The court further held that neither the State’s repeated
reference to “Judge Telander” nor its alleged insinuation that Telander was a more believable
witness due to his position improperly bolstered his credibility.
Id.
at 122-23. See also
Ginsberg v. McIntire
,
assistant State’s Attorney there, interrogated defendant and obtained a confession. Prior to
trial, he left the State’s Attorney’s office to serve as a circuit court judge. Defendant, like the
defendant in that cаse, moved
in limine
to bar evidence that McHale was now a judge. The
trial court denied defendant’s motion, but cautioned the State, “I don’t want you constantly
every other word saying, Judge, Judge, Judge. You can establish it then move on.”
We agree with the
Jordan
court. The trial court here did not abuse its discretion in
denying defendant’s motion
in limine
. Occupation is an ordinary part of the background
information elicited from any witness. While a judge’s occupation may lend an air of
credibility to his or her testimony, the jury is still free to disbelieve the witness. There was
less of a danger of unfairness in this case than in
Jordan
. Here, defendant concedes that the
*11
State complied with the court’s ruling, referring to McHale as “judge” only three times–twice
during direct examination, once in closing. The State in
Jordan
referred to Telander as
“judge” no less than 11 times.
Jordan
,
rather, that
Jordan
was wrongly decided. Specifically, according to defendant, the
Jordan
court relied solely on
People v. Crane
,
People v. Gray
,
a different result. The Grisset court held that the trial court in that case did not abuse its discretion in sustaining the prosecution’s objection when defense counsel asked the defendant, “Are you employed now?” on direct examination. Id. at 631-32. The court held that defendant’s occupation in that case was irrelevant and, even if it were relevant, defendant failed to demonstrate that he had suffered prejudice as a result. Id. at 632. The Grisset court did not hold that a defendant’s or a witness’s occupation is never relevant, or *12 that the trial court in that case would have abused its discretion had it overruled the prosеcution’s objection. Id. at 631-32. Therefore, Grisset is unavailing.
¶ 65 Nor do we believe that the prejudicial effect of McHale’s judgeship outweighed its
probative value. Although circuit court judges hold positions of great authority and influence,
see
People v. Willis
,
we would find that any error was harmless. The State did not argue that McHale was more
credible because he was a judge. See
People v. Williams
,
murder of the employees to Bakalla in great detail, including how many employees they shot, codefendant’s act of slitting the owner’s throat “from ear to ear,” forcing the employees into the freezer, sharing a gun with codefendant, and throwing the gun in the Fox River. Bakalla even saw defendant and codefendant split the money and accompanied defendant the following day when he washed codefendant’s car. Defendant’s explanation of the offense to Lockett contained even greater detail, noting that they wedged the back door shut, codefendant upset defendant by eating part of a greasy chicken dinner, they entered the bathroom to put on gloves, an employee’s escape was foiled by the wedge at the back door, codefendant slit a woman’s throat, they crowded the employees into the cooler and freezer, they shot the employees, one employee vomited french fries upon being shot, they mopped the floor and wiped the area for fingerprints, and threw the gun into the Fox River. These are not generic descriptions that defendant could have garnered from the news, but a thorough account of the offense. Defendant’s confessions to Lockett and Bakalla were bolstered by testimony that he
owned a .38-caliber revolver, Hines’ testimony that defendant told her the murders were “just for fun,” as well as the question he posed to Hanger: “if you killed somebody, would God forgive you?” Even though no physical evidence connected defendant to this offense, both DNA and fingerprint evidence inculpated codefendant, defendant’s best friend, with whom he was seen almost immediately after the offense. Viewing this evidence in addition to defendant’s multiple, detailed confessions over the course of nearly decade, we believe that any error in mentioning the word “Judge” was harmless beyond a reasonable doubt. B. Testimony Regarding Degorski’s Confession Defendant next claims that McHale improperly testified that he had found defendant’s confession to be reliable. At trial, defense counsel cross-examined McHale about obtaining *13 a reliable confession, attempting to draw a sharp distinction between ideal interrogation practices and defendant’s interrogation. He eventually focused on whether defendant had been shown any crime scene photograрhs or diagrams that could have led to a false confession. To one of the questions, McHale responded, “his statement to me was reliable.” Defendant did not object to McHale’s testimony, but later moved for a mistrial, arguing that McHale had improperly volunteered his personal opinion that defendant’s confession was reliable and truthful. The State contended that McHale was merely responding to defense counsel’s questions. The trial court denied defendant’s motion. As he did at trial, defendant now argues that McHale improperly volunteered his personal
opinion that defendant’s confession was reliable and truthful. According to defendant, McHale’s opinion was unsolicited, unresponsive, and highly prejudicial. The State again contends that McHale’s answers were responsive to defense counsel’s questions and adds that McHale’s testimony was not his present opinion of defendant’s guilt, but rather a statement of his opinion at the time of the interrogation. The parties agree that the admission of this evidence should be reviewed for an abuse of
discretion.
People v. Becker
,
examination, not during the State’s direct examination:
“Q. [Defense] I’m asking you if that night or that day you asked Jim Degorski whether he had been shown photos?
A. [McHale] I have already told you, no, other than the photo [of Juan Luna] that I showed him.
Q. And you didn’t ask him if he had seen photographs or diagrams of the scene? THE COURT: That’s been asked and answered. Move on. *** Q. And those things would be important, wouldn’t they?
A. I don’t know what you mean, they would be important. What do you mean by that?
Q. Well, when you talk about getting a statement that’s reliable and truthful, you want a statement that is not contaminated by someone having information from outside; right?
A. I suppose that’s true, but his statement to me was reliable .” (Emphasis added.) We agree with defendant that McHale’s answer was unresponsive. Defendant asked a general question: whether McHale sought statements uncontaminated by outside information. This was not an attempt to elicit McHale’s opinion regarding the reliability of defendant’s statement. McHale’s answer–“his statement to me was reliable”–was therefore not a direct *14 response to defendant’s question. Defendant did not object, however, that McHale’s testimony was unresponsive or
improper opinion testimony. Instead, he chose to continue to question McHale about his opinion:
“Q. That’s your judgment?
A. You got it. It sure is.
Q. Based on your time that you spent with Mr. Degorski?
A. Based on a three hour, face-to-face conversation where he detailed how he murdered seven people, yes, and I believed him, Counsel .
Q. So you want Mr. Degorski to be convicted?
A. I don’t–I want this jury to decide what the right thing to do is. I’m just telling you what happened despite a lot of the insinuations that you’re making. I’m telling you what I did that night truthfully, and this is for a jury to decide.
Q. Mr. McHale, you just felt the need to give us your opinion about whether Mr. Degorski’s statement to you [objection overruled] *** was believable or not? A. You asked me the question if it would be reliable, and I told you why I believed
it was reliable
, yes.” (Emphases added.)
McHale’s follow-up answers–“I believed him, Counsel” and “I told you why I believed
[defendant’s confession] was reliable”–were direct responses to defendant’s questions. As
to these follow-up questions, we do not believe that defendant should reap the benefit of an
error he created.
In
People v. Tolbert
,
that the trial court allowed lay opinion testimony that he was guilty of murder. The appellate
court noted that defense counsel, not the State, elicited that opinion.
Id.
at 805. The court
held that defendant was barred from complaining about that testimony, because he “opened
the door to the line of inquiry.”
Id.
at 806; see also
People v. Payne
,
112588. There, the State elicited the defendant’s wife’s testimony that, at the time of the offense, she believed her husband had committed the act, but no longer harbored that belief. Id. ¶ 35. The defendant argued on appeal that this constituted improper opinion testimony. Id. ¶ 43. The Chaban court disagreed and applied Hanson , finding that his wife’s statements were not opinion testimony, but rather a statement about her belief at the time of the offense. Id. ¶ 48. This cases resembles Hanson and Chaban . McHale expressed an opinion regarding
defendant’s guilt, but like the witnesses in
Hanson
and
Chaban
, it was not his present
opinion. Rather, he testified in the past tense in both his solicited and unsolicited testimony:
“his statement to me
was
reliable”; “I
believed
him, Counsel”; and “I told you why I
believed
it was reliable.” (Emphases added.) McHale was referring to his belief at the time of the
interrogation, not his belief at the time of trial. But there is a difference between the instant
case, on the one hand, and
Hanson
and
Chaban
, on the other. In those cases, the opinions
expressed were those of the defendants’ family members–in
Hanson
, his sister; in
Chaban
,
his wife.
Hanson
,
Attorneys,
People v. Moore
,
authority figures interrogating a defendant. McHale, like the witnesses in Hanson , Chaban , and Moore , testified not to his present opinion of the guilt, but to his belief at the time of defendant’s interrogation that defendant’s confession was reliable. We find no reason to part from the Moore decision. Defendant seeks to distinguish Hanson and Chaban on additional grounds, but in doing
so strays from those courts’ improper-opinion-testimony analyses and into their relevance
*16
and hearsay analyses. Because this case does not present a hearsay problem and because
defendant did not raise relevance as an issue in his briefs, we will not address these issues.
See
Hanson
,
Defendant relies on three cases:
People v. Henderson
,
People v. Crump
, and
People v.
Munoz
.
Henderson
is readily distinguishable. The interrogating detective in
Henderson
extensively commented on a video of the defendant’s interrogation as it was played for the
jury, noting the defendant’s body language, vague responses, and profusе sweating.
People
v. Henderson
, 394 Ill. App. 3d 747, 750-51 (2009). The appellate court held that this
testimony was improper opinion testimony, stating, “An investigator’s testimony should be
presented only to communicate what was said during an interrogation.”
Id.
at 753. The
detective’s State-led play-by-play analysis of the defendant’s “indicators of deception”
amounted to the detective’s present opinion of the defendant’s confession. In contrast, the
testimony here–“his statement to me was reliable”–was brief, not a present opinion, and not
elicited by the State.
In
People v. Munoz
,
repeatedly testified that he told the defendant that he did not believe him and “he did not
believe that ‘the defendant ever told [him] the truth.’ ” The appellate court held that the last
statement invaded the province of the jury and was an impermissible comment on the
ultimate issue of the defendant’s credibility.
Id.
at 488. In
People v. Crump
, 319 Ill. App. 3d
538 (2001), the prosecution asked an investigating officer, “ ‘Through the course of your
investigation, Officer, did you have reason to believe that the defendant in this case
committed this offense?’ ”
Id.
at 540. The officer replied, “ ‘Yes, I did.’ ”
Id.
The appellate
court held that this constituted improper lay opinion testimony, noting that a police officer
is an authority figure, “whose testimony may be prejudicial if the officer informs the jurors
that they should believe a portion of the prosecution’s case.”
Id.
at 542, 544. The court added
that opinion testimony by a lay witness is “especially improper and prejudicial when it goes
to the ultimate question of fact that is to be decided by the jury.”
Id.
at 542 (citing
People v.
McClellan
,
recognize the distinction the
Hanson
court drew between present and past opinions. See
Hanson
,
asked, “ ‘Through the course of your investigation, Officer, did you have reason to believe
that the defendant in this case committed this offense?’ ”
Crump
,
defendant’s guilt, and not elicited by the State in an attempt to prejudice defendant, we hold that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial. Even if we agreed with defendant that McHale’s single, unsolicited statement constituted improper opinion testimony, we would find the error harmless beyond a reasonable doubt. The State never mentioned or relied on McHale’s brief testimony in its closing argument. Moreover, defendant’s conviction did not rest solely on McHale’s recitation of defendant’s confession. Rather, defendant made similar statements to King, Lockett, and Bakаlla, as well as a less extensive admission to Hines. Even though no physical evidence connected defendant to this offense, both DNA and fingerprint evidence inculpated codefendant, defendant’s best friend, with whom he was seen almost immediately after the offense. In light of this evidence, McHale’s comment would not have changed the outcome at trial. This is especially true given that McHale’s testimony that defendant’s confession was reliable was not a great revelation to the jury. The State’s case, from opening statement through closing argument, relied on the multiple confessions as its centerpiece. It was clear that the position of the State’s Attorney’s office was that the confessions were reliable and truthful. The State urged the jury to find McHale’s testimony and, in turn, defendant’s confession reliable. McHale’s single sentence simply made explicit what the State repeatedly contended. Former Assistant State’s Attorney McHale’s past belief in the reliability of defendant’s confession was therefore no surprise to the jury. While we do not wish to minimize the potential danger of improper opinion testimony, the testimony in this case was not improper, and the potential danger given the evidence and the State’s arguments was slight. Thus, any error would have been harmless beyond a reasonable doubt.
¶ 89 II. Video Depicting Body Removal
¶ 90 Defendant argues that the trial court erred in admitting a video depicting removal of
several Brown’s Chicken employees’ bodies from the walk-in freezer. To resolve this issue, we must provide some additional facts. The defense theory at trial was that defendant’s statements to Lockett, Bakalla, King,
McHale, and Hines were false, and codefendant Juan Luna acted not with defendant, but with another, unknown partner. In pertinent part, defendant argued that several bloody shoe prints left on the east freezer floor must have been left by codefendant’s unknown accomplice. Defendant presented Charles Principe, who recovered, photographed, and preserved shoe print impressions at the scene. Principe was never told about bloody shoe prints in the east freezer. He testified that he would have photographed those prints had they been brought to his attention. The State argued that the shoe prints belonged to Detective Jacobsen, who helped remove
the bodies. Jacobsen testified that, on Jаnuary 9, 1993, he removed all seven bodies from the freezer and cooler. Prior to entering the freezer, he placed plastic grocery bags over his shoes to protect them and to avoid leaving shoe prints. Jacobsen further testified that, despite his efforts, his shoes and the plastic bags became “saturated with blood.” According to Jacobsen, his shoes then began leaving prints because “there was so much blood it was actually adhering to the sole of my shoe, and it would actually leave the shoe impression in blood as I was walking because it was formed up inside my shoes.” He stated that he was the only officer inside the freezer and identified the shoe prints in the freezer as his. Jacobsen threw out his blood-soaked shoes that night. Jacobsen conceded on cross-examination that he did not recall telling anyone that he had
contaminated the crime scene and did not include this fact in a police report. He later admitted that he never told anyone that the shoe prints were his until the week of trial. He stated that it was inevitable that he would leave shoe prints. He again asserted that the shoe prints in the photographs were his and he was the only officer inside the freezer. He further stated that, while shoe prints may be recovered and compared, that was not done here. Following cross-examination, the prosecution complained that defendant had “created the impression that the removal of the bodies is not documented, but it is in fact documented by approximately a two-minute video.” The prosecution argued that, because defendant opened the door, it should be allowed to publish the video to the jury on redirect examination. Defendant objected that the video was graphic and its prejudicial effect outweighed its probative value. The trial court agreed with the State that “there was an impression on outstanding cross-examination that there was no documentation of this.” The State played the video for the jury during Jacobsen’s redirect examination. The video was later allowed into the jury room during deliberations. Defendant contends on appeal that the trial court abused its discretion in admitting the
video. Specifically, he argues the video was gruesome and irrelevant, its prejudicial effect outweighed its probative value, and its introduction deprived him of his rights to due prоcess and to a fair and impartial jury trial. The State responds that the trial court properly exercised its discretion, because the video was relevant and rebutted defendant’s implication on cross- *19 examination that Jacobsen’s claim that he left bloody footprints was undocumented and untrue. Alternatively, the State argues that any error was harmless. The parties agree that we should review the trial court’s decision for an abuse of
discretion. See
People v. Scott
,
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable than it would be without the evidence.
People v. Lewis
,
“Q. [Defendant] You’re tеlling the ladies and gentlemen of the jury that as you’re involved in the body removal process you’re paying enough attention to your feet that you know that those specific shoe prints in that freezer are from your shoes? A. [Jacobsen] They are from my shoes.
***
Q. The truth is those prints in that freezer are not your prints?
A. They are my shoes.” The issue, therefore, is whether the video was relevant to rebut defendant’s claim that the shoe prints were not Jacobsen’s. We hold that it was. The video shows Jacobsen removing bodies from the blood-soaked floor of a freezer
while wearing plastic bags on his shoes. While this is not definitive proof that the shoe prints were Jacobsen’s, it has a tendency to make the existence of this fact more probable than it *20 would be without the video. The video was therefore relevant to rebut defendant’s claim on cross-examination that the shoe prints were not Jacobsen’s. Accordingly, we reject defendant’s first contention. Defendant next contends that, even if the video was relevant, its prejudicial effect
outweighed its probative value. See
Maldonado
,
¶ 101 We agree that the video may have been difficult for some jurors to watch. The 2-minute
and 33-second segment is actually several clips edited together, each depicting police officers removing a different body from the freezer and placing it in a body bag. In the foreground, three police officers–one inside the freezer, two outside–lift decedents into the bags. Decedents’ arms are extended, either frozen or stiffened by rigor mortis. In some instances, blood and bullet wounds are visible.
¶ 102 We do not agree, however, that the video had little probative value. The video
corroborated Detective Jacobsen’s testimony that the shoe prints in the freezer were his. The video also undermined defendant’s theory that the shoe prints belonged to codefendant’s unknown accomplice. The video shows Jacobsen walking in and out of the freezer, helping to pass the bodies to his fellow officers. As he testifiеd, the floor was covered in blood, and he was wearing plastic bags on his shoes. Although it is difficult to determine from the video whether he was leaving shoe prints, or if other shoe prints existed prior to his entry, the video has considerable probative value as to both parties’ theories at trial. Nor was the video cumulative of any other evidence presented at trial. Accordingly, we hold that the trial court did not abuse its discretion in admitting the video, because the video’s prejudicial effect did not substantially outweigh its probative value. Even if the video had been erroneously admitted, that error would be harmless beyond
a reasonable doubt. As we explained above, defendant’s conviction rested on his statements to McHale, King, Lockett, and Bakalla, as well as a less extensive admission to Hines. Even though no physical evidence connected defendant to this offense, both DNA and fingerprint evidence inculpated codefendant, defendant’s best friend, with whom he was seen almost immediately after the offense. Had the trial court barred admission of the video, the result would have been the same. CONCLUSION For the foregoing reasons, we affirm defendant’s conviction and sentence. Affirmed.