text:
    Laura GLASER and Leonard Loventhal, Plaintiffs-Appellants, v. The CITY OF CHICAGO, a Municipal Corporation; The City of Chicago Zoning Board of Appeals; Jonathon Swain, Chairman; Sol Flores; Sheila O'Grady; Blake Sercye; Sam Toia ; and Chicago Title Land Trust, No. 8002366263, Defendants,
    (Chicago Title Land Trust, No. 8002366263, Defendant-Appellee).
    No. 1-17-1987
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    Opinion filed: March 16, 2018
    Thomas J. Ramsdell, of Thomas J. Ramsdell & Associates, of Chicago, for appellants.
    Timothy S. Buckley, of Howard & Howard Attorneys, PLLC, of Chicago, for appellee.
   PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiffs, Laura Glaser and Leonard Loventhal, appeal from the judgment of the circuit court of Cook County affirming the order of the City of Chicago Zoning Board of Appeals (Board), which reversed the zoning administrator's decision to deny the application of the defendant, Chicago Title Land Trust, No. 8002366263 (trust), for zoning variations under the Chicago Municipal Code (Code) (Chicago Municipal Code § 17-1-0100 et seq. (added May 26, 2004) ). For the reasons that follow, we affirm.

¶ 2 The following factual recitation is taken from the pleadings, exhibits, and testimony of record.

¶ 3 The plaintiffs live at 3522 North Janssen Street in Chicago, in a three-story residence they constructed in 1999. The trust later purchased the house directly north of the plaintiffs, located at 3528 North Janssen Street, for its beneficiary, Carson Khyl. The Khyl residence was built in 1901, and, like other houses on the block, has a front porch, irregular roof line, and sits on a parcel approximately 50 feet wide and 125 feet deep. A garage is situated in the south corner of the rear yard, abutting an alley, but unlike other properties on the block, the Khyl residence also has a driveway.

¶ 4 The Code contains a zoning ordinance that limits the height of buildings and provides the minimum distances they must be "set back" from property boundaries on each side. See Chicago Municipal Code § 17-2-0300 et seq. (amended April 15, 2015). When the trust acquired the Khyl residence, the house was 35 feet tall and had setbacks of 12.44 feet in front, 1.55 feet on the north side, zero feet on the south side, and 1.46 feet on the rear side. Due to the age of the house, and variations to the setback requirements previously granted by the Board, these dimensions are in legal nonconformity with contemporary regulations. Currently, similar houses in the same zoning district cannot exceed 35 feet in height and require setbacks of 14.85 feet for the front yard, 34.65 feet for the rear yard, 4 feet for each side yard individually, and 10 feet for both side yards combined. See id.

¶ 5 Khyl retained an architect to renovate the house, and the trust filed an application with the City of Chicago Department of Planning and Development for additional height and setback variations in connection with the renovation. The requested variations included (1) maintaining the front yard setback at 12.44 feet, (2) setting the rear yard setback at 2.14 feet, (3) setting the north side and south side setbacks at 2.05 feet and 0.48 feet, respectively, and (4) increasing the allowable height to 38.39 feet for the construction of a three-story addition to the rear of the house, which would also include an attached two car garage, a front porch addition, an unenclosed parking stall, and a raised rear patio.

¶ 6 On May 20, 2015, the zoning administrator denied the trust's variation requests. The trust filed an appeal from the variation denials with the Board, which held a hearing on October 16, 2015.

¶ 7 At the hearing, the Board heard witnesses for the trust and the plaintiffs, who objected to the variations. The Board also received diagrams of the proposed renovations, reports by the parties' land planning experts, and information regarding variations that were granted to the plaintiffs when they built their house. We set forth only the evidence that is relevant to this appeal.

¶ 8 Timothy Barton, the trust's land planning expert, opined that a front setback variation is needed to preserve the Khyl residence's front porch and that a height variation is needed due to the difficulty in "add[ing] to any floor space vertically" under the current zoning rules. Barton also testified that, although the garage would be rebuilt in the same location in the south corner of the rear yard, the rear setback poses a hardship due to the need to preserve an oak tree, construct "screening" for privacy from neighbors, and alleviate the "canyon-like effect" caused by "very large" buildings to the north and south that leave the yard "in shadow much of the time."

¶ 9 According to Barton, the conditions necessitating the setback variations are neither generally applicable to similarly-zoned properties nor created by the trust or Khyl, as the residence predates current zoning rules and the neighboring buildings were developed several years "before the [trust's] interest in the property." Barton denied that the renovations would interfere with light or air, as a 15-foot high wall connecting the residence to the garage would face a wall on the plaintiffs' property. He opined that this layout would "benefit" the neighbors to the north "by maintaining the open space in the north half of the lot." Barton denied that the variations would alter the neighborhood's character and stated that one of the project's "main thrusts" is rehabilitating and reusing the existing house. On cross-examination, he acknowledged that the house, like several others on the block, is rated "orange" by the Chicago Historic Resources Survey, and those residences "have more or less consistent setbacks on the front."

¶ 10 Patrick Murphy, the trust's architect, testified that the zoning ordinance's height limit poses a hardship because the Khyl residence's first floor is approximately "six and a half feet above grade," which reduces the total height available for the upper floors. Therefore, a variation of "a few extra feet" is needed to render the third floor addition "habitable" while maintaining the height of the first and second floors relative to the windows. This plan, according to Murphy, would incorporate low roof lines and preserve "the existing structure and look of the building." Murphy agreed that "the main goal" of the renovation project is to maintain "the historic features of the facade of the home" and stated that no variation to the allowable floor area ratio is necessary.

¶ 11 Khyl testified that he requested the variations in order to "build a nice home for [his] family" while preserving the residence's historic features. He denied that his goal was to "make money."

¶ 12 George Kisiel, the plaintiffs' land planning expert, stated in his report that the proposed renovations would "demolish a significant amount" of the Khyl residence. He testified that "nothing unique" about the property would prevent renovations consistent with the neighborhood's character, and that no hardship would result from maintaining the current setbacks because, based on the renovation plans, "[a]ll * * * existing nonconforming attributes" would be "demolished" and replaced with new construction. According to Kisiel, the requested variations would render the residence "a full story taller and * * * and 50 percent larger than the next largest house on the block." Further, the addition along the south boundary would vary "between 24 feet and 14 feet with the majority of it being over 20 feet," and sit 6 inches from the plaintiffs' property, which has windows on its north side. These changes, according to Kisiel, would reduce "light, air, and privacy" and conflict with the neighborhood's character and orderly development.

¶ 13 Loventhal, one of the plaintiffs, testified that the proposed renovations to the Khyl residence would preserve "[v]ery little" of the original house and produce "a massive, overbearing structure not in character with the rest of our street," with less landscaping than other parcels. He acknowledged that the property has a driveway but stated that, after the renovation, it would still be the only residence with parked cars and a curb cut. Loventhal stated that, with the requested variations, the residence's height and "extended footprint" would interfere with privacy and block "light, air, and views" for neighboring properties, including his own.

¶ 14 Marguerite Tompkins, a neighbor, testified that, together with other long-time residents of the neighborhood, she opposed the requested variations because "oversized homes * * * threaten to fundamentally alter the quality of our neighborhood,"

"dwarf" older residences, and create a "canyon effect."

¶ 15 Following the trust's and plaintiffs' evidence, Alderman Thomas Tunney testified that he did not object to the requested variations. According to Alderman Tunney, the proposed renovations "will enhance the values of the neighbors in the block much more than new construction or a teardown."

¶ 16 On December 2, 2015, the Board issued a written resolution granting each variation requested by the trust. The Board found that, "due to the preservation" of the "orange-rated residence" and oak tree, and the "canyon effect" caused by neighboring buildings, practical difficulties and particular hardships would occur without the variations. These conditions, according to the Board, are not generally applicable to other properties and were not created by the trust. The Board determined that the variations comport with the zoning rules' purpose and intent by preserving the character of the neighborhood. Additionally, the Board found that the variations would enhance property values and not increase congestion, detract from the public welfare or safety, or impair light or air to neighboring properties, including the plaintiffs' property. The Board also noted that the trust "will continue to own" the property and, therefore, whether it could secure a reasonable rate of return absent the variations was inapplicable.

¶ 17 On December 23, 2015, the plaintiffs filed a complaint in the circuit court for administrative review. The circuit court entered a written order affirming the Board's decision on June 28, 2017, and denied the plaintiffs' motion to reconsider on July 12, 2017. This appeal followed.

¶ 18 On appeal, the plaintiffs contend that the Board erred by granting the requested variations based on evidence suggesting they were needed to preserve the Khyl residence, when, per the renovation plans, at least "90%" of the home would be demolished. Therefore, according to the plaintiffs, the Board's decision relied on "misleading testimony and reports," and "no competent evidence" demonstrated that the variations are merited.

¶ 19 When, as here, an appeal is taken to the appellate court following entry of judgment by the circuit court on administrative review, "it is the decision of the administrative agency, not the judgment of the circuit court, which is under consideration." Provena Covenant Medical Center v. Department of Revenue , 236 Ill. 2d 368, 386, 339 Ill.Dec. 10, 925 N.E.2d 1131 (2010). The parties dispute the applicable standard of review. The plaintiffs claim this appeal presents a mixed question of law and fact, which is reviewed for clear error and exists when the "historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard." Id. at 387, 339 Ill.Dec. 10, 925 N.E.2d 1131. The trust, in contrast, argues that the plaintiffs challenge the evidence underlying the Board's findings and, therefore, raise questions of fact. We agree with the trust.

¶ 20 An agency's factual findings "are held to be prima facie true and correct and will not be overturned unless the agency exercised its authority in an arbitrary or capricious manner or unless its decision is against the manifest weight of the evidence." 1212 Restaurant Group, LLC v. Alexander , 2011 IL App (1st) 100797, ¶ 42, 355 Ill.Dec. 127, 959 N.E.2d 155. A decision is against the manifest weight of the evidence only when the opposite conclusion is clearly evident. Wade v. City of North Chicago Police Pension Board , 226 Ill. 2d 485, 504, 315 Ill.Dec. 772, 877 N.E.2d 1101 (2007). On review, this court "does not weigh the evidence or substitute its judgment for that of the agency." Cinkus v. Village of Stickney Municipal Officers Electoral Board , 228 Ill. 2d 200, 210, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008). "If the record contains evidence to support the agency's decision, it should be affirmed." Abrahamson v. Illinois Department of Professional Regulation , 153 Ill. 2d 76, 88, 180 Ill.Dec. 34, 606 N.E.2d 1111 (1992).

¶ 21 We briefly set forth the regulatory framework relevant to the plaintiffs' argument on appeal. The Code's zoning ordinance controls property development within Chicago. See Chicago Municipal Code § 17-1-0100 et seq. (added May 26, 2004). The purpose and intent of the zoning ordinance includes, inter alia , promoting the general welfare; preserving the quality of life for residents and visitors; protecting the character of established residential neighborhoods; maintaining orderly and compatible development; ensuring adequate light, air, and privacy; and promoting the rehabilitation and reuse of older buildings. See Chicago Municipal Code § 17-1-0500 et seq. (amended Dec. 12, 2012).

¶ 22 Generally, an element of a structure that was lawfully established under previous zoning rules but does not comply with current regulations "may be altered or enlarged as long as the alteration or enlargement does not increase the extent" of the nonconformity. Chicago Municipal Code § 17-15-0403-A (amended Sept. 13, 2006). However, "[w]hen a structure with nonconforming elements is removed or intentionally destroyed, re-establishment of the nonconforming elements is prohibited." Id. § 17-15-0404-A. Notwithstanding, the Board may grant variations from zoning requirements. See Chicago Municipal Code § 17-13-1101-A (amended Dec. 12, 2007).

¶ 23 To grant a variation, the Board must find evidence demonstrating that (1) "strict compliance with the regulations and standards *** would create practical difficulties or particular hardships for the subject property" and (2) the variation "is consistent with the stated purpose and intent" of the zoning ordinance. Id. To determine whether difficulties or hardships exist, the Board must find evidence that (1) the property "cannot yield a reasonable return if permitted to be used only in accordance with" the zoning ordinance, (2) the difficulties or hardships "are due to unique circumstances and are not generally applicable to other similarly situated property," and (3) the variation "will not alter the essential character of the neighborhood." Id. § 17-13-1107-B. Additionally, the Board must consider the extent to which the evidence demonstrates whether (1) the physical condition of the property or its surroundings would cause hardship to the owner, as opposed to inconvenience, if the zoning ordinance was strictly enforced; (2) the conditions premising the petition for a variation are inapplicable to other similarly-zoned property; (3) the variation's purpose "is not based exclusively upon a desire to make more money out of the property"; (4) the difficulty or hardship "has not been created by any person presently having an interest in the property"; (5) the variation will not be detrimental to the public welfare or injurious to other property in the neighborhood; and (6) the variation "will not impair an adequate supply of light and air to adjacent property,"

"substantially increase" congestion on public streets, endanger the public, or "substantially diminish" neighborhood property values. Id. § 17-13-1107-C.

¶ 24 Based on these principles, the Board's decision to grant the variations was not against the manifest weight of the evidence. Turning first to the height and rear setback variations, the trust presented evidence that strict compliance with the zoning ordinance would cause practical difficulties and particular hardships. Murphy testified that the Khyl residence's elevated first floor reduces the height available for the upper floors, and that a variation of "a few extra feet" is needed for the third floor addition to be "habitable." Barton testified that "very large" buildings to the north and south create a "canyon-like effect" that leaves the rear yard in shadow. Additionally, he stated that the rear setback poses a hardship due to the need to create privacy and preserve an oak tree. As both witnesses explained, these considerations are not generally applicable to similarly situated property, and the renovations facilitated by the variations would preserve the building's facade and the neighborhood's character.

¶ 25 The Board's determination that the height and rear setback variations accord with the purpose of the zoning ordinance also is supported by the evidence. Barton opined that the renovations would not impede light or air, as the layout of the rear yard would preserve open space to the north, and a wall to the south would face another wall on the plaintiffs' property. Murphy stated that the design would incorporate low roof lines, preserve "the existing structure and look of the building," and not require a variation to the allowable floor area ratio. Other factors also supported the Board's determination. In particular, Khyl testified that the property was not acquired for purposes of profit, Barton stated that the buildings on either side were constructed several years before the trust obtained its interest in the property, and Alderman Tunney opined that the project would increase property values in the neighborhood.

¶ 26 As the plaintiffs observe, Kisiel and Loventhal testified that, with the renovations allowed by the height and rear setback variations, the Khyl residence would become larger and taller than neighboring houses and interfere with their light, air, and privacy. However, the plaintiffs' evidence does not render the trust's hardship evidence incompetent. Where, as here, the Board is presented with conflicting testimony and evidence exists in the record to support its decision, that decision will be affirmed. See Abrahamson , 153 Ill. 2d at 88, 180 Ill.Dec. 34, 606 N.E.2d 1111 ; see also Weinstein v. Zoning Board of Appeals of the City of Highland Park , 312 Ill. App. 3d 460, 466, 245 Ill.Dec. 208, 727 N.E.2d 655 (2000) (noting that a reviewing court "defer[s] to the Board's resolution of the factual disputes embodied in the evidence presented by each party").

¶ 27 Turning to the north and south side setbacks, we observe that the requested variations of 2.05 feet and 0.48 feet, respectively, are within the property's current nonconforming setbacks of 1.55 feet to the north and zero feet to the south. Similarly, the requested front setback variation is identical to the current nonconformity and, according to Barton, is necessary for retaining the front porch. Therefore, these variations are permissible because they will not increase the extent of the nonconformity in the front yard or either of the side yards. See Chicago Municipal Code § 17-15-0403-A (amended Sept. 13, 2006). To the extent the plaintiffs argue the renovations amount to a "90%" demolition and that the Board was "deceived" regarding the extent to which the nonconforming elements of the residence would be removed and reestablished, we disagree. The Board received the trust's application for variations and renovation plans, along with the report and testimony of the plaintiffs' expert, and is entitled to the presumption that it properly read and considered the evidence. See Watra, Inc. v. License Appeal Comm'n , 71 Ill. App. 3d 596, 601, 28 Ill.Dec. 120, 390 N.E.2d 102 (1979). As such, we will not substitute our judgment on review for that of the Board. See Cinkus , 228 Ill. 2d at 210, 319 Ill.Dec. 887, 886 N.E.2d 1011.

¶ 28 The plaintiffs contend, however, that the trust "created its own practical difficulties" and would not have needed the requested variations had it been "built within" the current nonconforming setbacks. Although Kisiel testified that no hardship would result from adhering to the existing nonconformities, the trust, as we have discussed, adduced evidence regarding the need for extending certain variations. See Weinstein , 312 Ill. App. 3d at 465-66, 245 Ill.Dec. 208, 727 N.E.2d 655 (when hardship exists, the Board's decision to grant a variation is not against the manifest weight of the evidence even if the objecting party presents an alternate plan that "complie[s] with the zoning ordinances"). Where, as here, the issue "is merely one of conflicting testimony and credibility of witnesses, the administrative board's decision should be sustained." O'Boyle v. Personnel Board , 119 Ill. App. 3d 648, 653, 75 Ill.Dec. 177, 456 N.E.2d 998 (1983) ; see also Rodriguez v. Bagnola , 297 Ill. App. 3d 906, 916, 232 Ill.Dec. 332, 698 N.E.2d 170 (1998) (rejecting a claim that an agency's decision was against the manifest weight of the evidence where the parties presented conflicting expert testimony). The plaintiffs' position is, therefore, without merit.

¶ 29 For all the foregoing reasons, we affirm the order of the circuit court of Cook County, which affirmed the order of the Board, which reversed the decision of the zoning administrator to deny the trust's application for zoning variations.

¶ 30 Affirmed.

Justices Cunningham and Connors concurred in the judgment and opinion.

      The Chicago Historic Resources Survey is a database of historic buildings produced by the City of Chicago. Properties classified as "orange" have "some architectural feature or historical association that made them potentially significant in the context of the surrounding community." Chicago Historic Resources Survey , City of Chicago, http://webapps.cityofchicago.org/landmarksweb/web/historicsurvey.htm (last visited Mar. 2, 2018).

      Three Board members approved and one dissented, but the resolution does not include a written dissent.

      The City of Chicago, the Board, and its members, Jonathon Swain, Sol Flores, Sheila O'Grady, Blake Sercye, and Sam Toia did not file a brief on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Rosa CASTANEDA, as Independent Administrator of the Estate of Rufino H. Sanchez, Deceased; and Jesus Sanchez, as Special Administrator of the Estate of Rufino H. Sanchez, Deceased, Plaintiffs, v. William INGRAM and M & M Transport Services, Inc., Defendants-Appellees,
    (Rosa Castaneda, Plaintiff-Appellant).
    No. 1-17-0065
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    March 16, 2018 Rehearing denied May 17, 2018
    Dean J. Caras, of Caras Law Group, of Chicago, for appellant.
    James P. McCarthy and Patricia M. Kelly, of Gunty & McCarthy, and Paul V. Esposito and Melinda S. Kollross, of Clausen Miller P.C., both of Chicago, for appellees.
   JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 This is an appeal from a circuit court order denying a posttrial motion for a new trial on a survival claim following an unfavorable jury verdict on the estate's survival action brought against defendants William Ingram and M & M Transport Services, Inc., pursuant to the Survival Act ( 755 ILCS 5/27-6 (West 2012) ). The survival claim arose out of a fatal rear-end collision where a truck driven by Ingram crashed into the rear end of an SUV driven by decedent, while the SUV was stopped in traffic.

¶ 2 The appeal raises a number of arguments seeking to show that the circuit court erred in denying the motion for a new trial on the survival claim. However, for the reasons that follow, we find that we lack jurisdiction over this appeal and dismiss it.

¶ 3 BACKGROUND

¶ 4 On May 20, 2013, the decedent's son, Jesus Sanchez, as special administrator of his father's estate, filed suit against defendants in the law division of the circuit court of Cook County, seeking relief under the Wrongful Death Act ( 740 ILCS 180/0.01 et seq. (West 2012) ) and the Survival Act ( 755 ILCS 5/27-6 (West 2012) ) (case No. 2013 L 5241). Sanchez had not yet opened a probate estate, and the law division appointed him special administrator. Defendants initially denied liability, but on June 16, 2016, they admitted liability and agreed to try the case on damages only.

¶ 5 In July 2016, a probate estate for the decedent was opened (case No. 2016 P 4266), and on July 14, 2016, Rosa Castaneda was appointed independent administrator of the estate to prosecute the survival claim. Sanchez prosecuted the wrongful death claim as special administrator.

¶ 6 On July 26, 2016, a jury returned a verdict in favor of estate on the wrongful death action, but returned a verdict in favor of defendants on the survival claim. The circuit court law division entered judgments on the jury verdicts.

¶ 7 Castaneda died on August 15, 2016, before the filing of any posttrial motions. On August 24, 2016, Castaneda's attorney filed a posttrial motion in her name, as independent administrator, requesting a new trial on the survival claim. However, the attorney failed to report Castaneda's death to the circuit court of the law division or to defendants. On December 6, 2016, the circuit court denied the posttrial motion.

¶ 8 On January 5, 2017, Castaneda's attorney filed a notice of appeal in her name as independent administrator, asking our court to reverse the circuit court's order of December 6, 2016. Once again, Castaneda's attorney failed to report her death to the circuit court of the law division or to defendants.

¶ 9 On January 17, 2017, after the due date for the notice of appeal expired, Sanchez moved in probate court to be appointed successor independent administrator of the decedent's estate. The probate court granted the motion on January 25, 2017. On April 26, 2017, defendants filed a motion to dismiss the appeal for lack of appellate jurisdiction. On May 10, 2017, a motion judge from this court denied the motion to dismiss, without explanation. This appeal followed.

¶ 10 ANALYSIS

¶ 11 As an initial and dispositive matter, and contrary to appellant's contentions, we agree with defendants that we lack jurisdiction to review the circuit court's order of December 6, 2016, denying the posttrial motion for a new trial on the survival claim. Appellant contends that the notice of appeal filed on January 5, 2017, was sufficient to vest our court with jurisdiction to consider the circuit court's order. Appellant asserts that the notice of appeal was timely, that it was valid because it apprised defendants of the judgment that was being appealed, and that, therefore, the notice was sufficient to vest our court with jurisdiction to consider the circuit court's order. We must disagree.

¶ 12 We find that the notice of appeal is a nullity and confers no jurisdiction on our court. Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) provides that the filing of a notice of appeal is jurisdictional. Secura Insurance Co. v. Illinois Farmers Insurance Co. , 232 Ill. 2d 209, 213, 327 Ill.Dec. 541, 902 N.E.2d 662 (2009). At the time the notice of appeal was filed on January 5, 2017, Castaneda, the independent administrator, had been dead for approximately four months.

¶ 13 The attorney's representation of Castaneda during her lifetime did not give him the authority to act on behalf of the estate following her death. An estate is not a natural or artificial person and it lacks the legal capacity to sue or be sued. Therefore, any action must be brought by the executor or representative of the estate. Mareskas-Palcek v. Schwartz, Wolf & Bernstein, LLP , 2017 IL App (1st) 162746, ¶ 32, 418 Ill.Dec. 305, 90 N.E.3d 463. The death of Castaneda, the independent administrator, terminated the authority of the attorney to act further on behalf of the estate. See, e.g. , In re Estate of Simmons , 362 Ill. App. 3d 944, 946, 299 Ill.Dec. 302, 841 N.E.2d 1034 (2005) ("the attorney-client relationship terminates on the death of the client, and thereafter, the attorney must obtain authorization from the decedent's personal representative in order to pursue the interests of the decedent").

¶ 14 The notice of appeal filed by the attorney on January 5, 2017, was a nullity and conferred no jurisdiction on this court to review the judgment of the circuit court. Castaneda's death terminated the attorney-client relationship. At the time the notice of appeal was filed, the attorney had not filed a motion to substitute Sanchez as administrator of the estate in place of Castaneda pursuant to section 2-1008(a) of the Code of Civil Procedure ( 735 ILCS 5/2-1008(a) (West 2014) ) or under Illinois Supreme Court Rule 366(a)(2) (eff. Feb. 1, 1994).

¶ 15 As a result, we find that we lack jurisdiction to review the circuit court's order of December 6, 2016, denying the posttrial motion for a new trial on the survival claim.

¶ 16 For the foregoing reasons, this appeal is dismissed.

¶ 17 Appeal dismissed.

Justices Lampkin and Rochford concurred in the judgment and opinion.

      "[O]nly the administrator or executor of a decedent's estate, and not the decedent's survivors, can maintain an action on behalf of the decedent under the Survival Act." Wilmere v. Stibolt , 152 Ill. App. 3d 642, 646, 105 Ill.Dec. 631, 504 N.E.2d 916 (1987) ; Cushing v. Greyhound Lines, Inc. , 2012 IL App (1st) 100768, ¶ 100, 358 Ill.Dec. 736, 965 N.E.2d 1215. And "a person does not have standing to bring a survival claim until he is appointed as executor or administrator of the decedent's estate under the Illinois Probate Act." See Hollowell v. St. Clair County Jail , No. 13-cv-00744-JPG, 2013 WL 4478871, at *1 (S.D. Ill. Aug. 20, 2013) (citing section 9-4 of the Probate Act of 1975 (755 ILCS 5/9-4 (West 2010) ) ).

      Section 2.1 of the Wrongful Death Act (740 ILCS 180/2.1 (West 2012) ) authorizes a circuit court to appoint a special administrator for purposes of prosecuting a wrongful death claim, if a probate estate has not been opened. See Cushing , 2012 IL App (1st) 100768, ¶ 104, 358 Ill.Dec. 736, 965 N.E.2d 1215 ; Brooks v. McLean County Unit District No. 5 , 2014 IL App (4th) 130503, ¶ 17, 380 Ill.Dec. 661, 8 N.E.3d 1203; see also Baez v. Rosenberg , 409 Ill. App. 3d 525, 533, 350 Ill.Dec. 762, 949 N.E.2d 250 (2011) ("the plain terms of section 2.1 of the Wrongful Death Act do not permit, in situations involving the absence of letters of administration, a special administrator to prosecute a wrongful death claim with other causes of action").

      Section 2-1008(a) provides in part that, after a substitution of a party, the cause or proceeding carries on "with or without a change in the title of the cause." 735 ILCS 5/2-1008(a) (West 2014). Illinois Supreme Court Rule 366(a)(2) (eff. Feb. 1, 1994) allows for substitution of parties by reason of death.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donzell EPHRAIM, Defendant-Appellant.
    No. 1-16-1009
    Appellate Court of Illinois, First District, FIRST DIVISION.
    March 19, 2018
    Michael J. Pelletier, Patricia Mysza, and Patrick F. Cassidy, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Donzell Ephraim was found guilty of armed habitual criminal (AHC) ( 720 ILCS 5/24-1.7(a) (West 2012) ), aggravated fleeing or attempting to elude a peace officer ( 625 ILCS 5/11-204.1(a)(4) (West 2012) ), and three counts of aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012) ). The court sentenced defendant to concurrent prison terms of 12 years for AHC, 6 years for the AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace officer. On appeal, defendant contends that the State failed to prove him guilty of AHC because his conviction was predicated on his prior conviction for aggravated battery to a peace officer, which is not a qualifying offense for AHC. He therefore requests we reverse his AHC conviction. We reverse defendant's conviction for AHC.

¶ 2 At trial, Chicago police officer Matthew Mellett testified that, on August 16, 2013, at about 10:22 p.m., when he was on patrol in his squad car, he heard gunshots in the area of "5741 South Laflin." At that location, people told Mellett, "they were shooting," pointing to a "green Buick Le Sabre." Mellett turned on his lights and sirens and pursued the vehicle, which went through two red lights and did not stop. The vehicle eventually stopped because it "spun out" after it tried to turn. Mellett went to the vehicle and observed defendant in the driver's seat.

¶ 3 Chicago police officer Steven Hefel testified that, at about 10:22 p.m., on August 16, 2013, he and his partner were alerted to a "police pursuit," so they went to a location where they could observe it. At Hefel's parked location, he saw a police car following a "green Buick La Sabre [sic ]" and, as the vehicle approached Hefel's car, the driver, identified as defendant, stretched his arm outside the driver's side window and "released" a "blue steal [sic ] handgun."

¶ 4 After the police cars passed him, Hefel went to the location where he saw the gun drop and identified it as "blue steel 357 revolver." He stayed with the gun until the evidence technician arrived at the scene to recover it. Hefel then went to the location where the car chase ended and identified the Buick LeSabre as the vehicle he saw drive by him. Later, he went to the police station and identified defendant as the person he saw drop the gun.

¶ 5 The State presented a stipulation that Chicago police officer Philip Ryder, the evidence technician, recovered a "Ruger Blackhawk handgun" and "6 expended shell casings" from that firearm. The court admitted into evidence a certified record from the Illinois State Police showing that defendant had never been issued a Firearm Owner's Identification (FOID) card.

¶ 6 The court also admitted into evidence certified copies of defendant's prior convictions. People's Exhibit No. 7 was a conviction, in case No. 98-CR-0977701, for aggravated battery to a peace officer, and People's Exhibit No. 8 was "a conviction under case number 08-CR-0640501 for the offenses of unlawful use of a weapon by a felon, two counts of that, and three counts of aggravated unlawful use of a weapon by a felon."

¶ 7 The court found defendant guilty of AHC, aggravated fleeing or attempting to elude a peace officer, and three counts of AUUW. The court denied defendant's motion for a new trial and sentenced him to prison terms: 12 years for AHC, 6 years for the AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace officer. The court stated that "Count Two, Three, Four," the AUUW convictions, would "merge into Count One," the AHC conviction, and the aggravated fleeing or attempting to elude a peace officer would be served concurrently with the "merged" AUUW and AHC.

¶ 8 Defendant contends, and the State concedes, that the State did not prove him guilty of AHC because his conviction was based on his prior conviction for aggravated battery to a peace officer, which is not a qualifying offense under the AHC statute. Defendant requests we vacate his AHC conviction and correct the mittimus to show the six-year sentence for the AUUW convictions. Defendant does not challenge his convictions for AUUW or aggravated fleeing or attempting to elude a peace officer.

¶ 9 On appeal, when we review the sufficiency of the evidence, the question is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State must prove "every essential element of the crime beyond a reasonable doubt." People v. Lozano , 2017 IL App (1st) 142723, ¶ 30, 412 Ill.Dec. 511, 75 N.E.3d 491.

¶ 10 To prove defendant guilty of AHC, the State had to prove that he possessed a firearm after having been convicted of two or more of the following offenses:

"(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated vehicular hijacking; aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05; intimidation; aggravated intimidation; gunrunning; home invasion; or aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05; or
(3) any violation of the Illinois Controlled Substances Act [ ( 720 ILCS 570/100 et seq . (West 2012) ) ] or the Cannabis Control Act [ 720 ILCS 550/1 et seq . (West 2012) ) ] that is punishable as a Class 3 felony or higher." 720 ILCS 5/24-1.7(a) (West 2012).

See People v. Crosby , 2017 IL App (1st) 121645, ¶ 12, 415 Ill.Dec. 403, 82 N.E.3d 607.

¶ 11 The information charging defendant with AHC cited two predicate felony convictions for the charge: a 1998 conviction for aggravated battery to peace officer and a 2008 conviction for unlawful use of a weapon by a felon (UUWF) ( 720 ILCS 5/24-1.1 (West 2008) ). At trial, the State presented certified copies of defendant's prior convictions for aggravated battery to a peace officer in 1998 and UUWF in 2008. The parties do not dispute that defendant's AHC conviction was based on these prior two convictions.

¶ 12 The offense of aggravated battery to a peace officer is not an enumerated offense described in subsection (a)(2) or (a)(3) of the AHC statute. Therefore, to qualify as predicate offense for AHC, the prior aggravated battery to a peace officer conviction must be a "forcible felony" under section 2-8 of the Criminal Code of 2012 (Code) ( 720 ILCS 5/2-8 (West 2012) ). See People v. White , 2015 IL App (1st) 131111, ¶ 28, 399 Ill.Dec. 570, 46 N.E.3d 889 (domestic battery was not expressly enumerated in the AHC statute so it had to constitute a "forcible felony" to be a qualifying offense for AHC).

¶ 13 Section 2-8 defines "[f]orcible felony" as

"treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2012).

¶ 14 We conclude that defendant's conviction for aggravated battery to a peace officer without proof that the underlying battery resulted in great bodily harm or permanent disability or disfigurement does not qualify as a forcible felony under section 2-8. Aggravated battery to a peace officer is not specifically enumerated in section 2-8 as a forcible felony. See Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607. "[A]ggravated battery resulting in great bodily harm or permanent disability or disfigurement" is an enumerated offense in the forcible felony definition. 720 ILCS 5/2-8 (West 2012) ; see Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607. The offense of aggravated battery can be based on the status of the victim without proof that the battery resulted in great bodily harm or permanent disability or disfigurement. ("A person commits aggravated battery when, in committing a battery, other than by discharge of a firearm, he or she knows the individual battered to be * * * (4) [a] peace officer * * *." 720 ILCS 5/12-3.05(d)(4) (West 2012).) However, there is nothing in the record that shows, and the parties do not argue otherwise, that defendant's prior conviction for aggravated battery to a peace officer resulted in "great bodily harm or permanent disability or disfigurement" to a peace officer. Thus, because the prosecution did not prove beyond a reasonable doubt that defendant's prior conviction for aggravated battery to a peace officer resulted in "great bodily harm or permanent disability or disfigurement," it is not an enumerated offense in the forcible felony definition. (Internal quotation marks omitted.) Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607.

¶ 15 Further, defendant's conviction for aggravated battery to a peace officer does not qualify as an offense in the "residual clause" of the forcible felony definition, which includes "any other felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 2012) ; see White , 2015 IL App (1st) 131111, ¶ 40, 399 Ill.Dec. 570, 46 N.E.3d 889 (referring to this clause in the forcible felony definition as a "residual clause"). As this court explained in People v. Schmidt , 392 Ill. App. 3d 689, 695, 338 Ill.Dec. 472, 924 N.E.2d 998 (2009), "by using the word 'other' after listing 14 specific felonies, the legislature clearly intended the residual category to refer to felonies not previously specified." Thus, "[w]here the statute specifically enumerated aggravated battery resulting in great bodily harm or permanent disability or disfigurement, 'other felony' must refer to felonies other than aggravated battery." Schmidt , 392 Ill. App. 3d at 695, 338 Ill.Dec. 472, 924 N.E.2d 998.

¶ 16 Looking to the history of the statute, Schmidt noted that, before the legislature amended the forcible felony statute in 1990, the "statute provided that all aggravated batteries constituted forcible felonies." (Emphasis in original.) Schmidt , 392 Ill. App. 3d at 696, 338 Ill.Dec. 472, 924 N.E.2d 998. But when the legislature amended the statute, it "added the phrase 'resulting in great bodily harm or permanent disability or disfigurement' after 'aggravated battery,' " thus expressing its "intent to limit the number and types of aggravated batteries that would qualify as forcible felonies." Schmidt , 392 Ill. App. 3d at 696, 338 Ill.Dec. 472, 924 N.E.2d 998 (quoting Pub. Act 86-291 (eff. Jan. 1, 1990) (amending 720 ILCS 5/2-8 ) ).

¶ 17 In People v. Smith , 2016 IL App (1st) 140496, 401 Ill.Dec. 828, 51 N.E.3d 21, this court agreed with the reasoning in Schmidt , finding that the "legislature intended the residual category of the forcible felony statute to refer to felonies not previously specified in the preceding list of felonies contained within that section." Smith , 2016 IL App (1st) 140496, ¶¶ 10-11, 401 Ill.Dec. 828, 51 N.E.3d 21. Applying Schmidt , Smith concluded that, because the defendant's aggravated battery to a peace officer conviction was not based on great bodily harm or permanent disability or disfigurement, it did not meet the definition of a forcible felony. Smith , 2016 IL App (1st) 140496, ¶ 11, 401 Ill.Dec. 828, 51 N.E.3d 21.

¶ 18 More recently, in Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607, following Schmidt and Smith , this court concluded that, because the defendant's conviction for aggravated battery of a peace officer was not based on "great bodily harm or permanent disability or disfigurement," it was not considered an "other felony" under section 2-8 and therefore did "not satisfy the definition of forcible felony." (Internal quotation marks omitted.) The Crosby court therefore concluded that the defendant's conviction could not serve as a predicate offense to support the AHC conviction. Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607.

¶ 19 Following Schmidt , Smith , and Crosby , we find that, because defendant's prior conviction for aggravated battery to a peace officer was not proven to be based on a finding of "great bodily harm or permanent disability or disfigurement," his conviction does not meet the definition of a "forcible felony" under section 2-8 as it is not an enumerated offense in the definition and does not qualify as an "other felony" in the residual clause. Accordingly, because defendant's conviction for aggravated battery to a peace officer is not an enumerated offense in the AHC statute and does not meet the definition of forcible felony in section 2-8, it cannot serve as a predicate offense to support his AHC conviction. See Crosby , 2017 IL App (1st) 121645, ¶ 13, 415 Ill.Dec. 403, 82 N.E.3d 607. We, therefore, reverse and vacate defendant's conviction for AHC.

¶ 20 Defendant also argues, and the State concedes, that remand for resentencing is unnecessary because the court already sentenced him to six years in prison for the three AUUW convictions. Although the mittimus only reflects defendant's 12-year sentence for AHC and 3year sentence for aggravated fleeing or attempting to elude a peace officer, defendant asserts the sentence the trial court issued prevails over the sentence provided in the mittimus. He therefore argues that, in addition to vacating his AHC conviction, we should issue an amended mittimus to reflect his six-year sentence for AUUW.

¶ 21 We agree that remand for resentencing is unnecessary because the record shows the court already issued concurrent sentences on defendant's convictions for AUUW and aggravated fleeing or attempting to elude a peace officer. As previously noted, at sentencing, the court orally sentenced defendant to prison terms for his convictions: 12 years for AHC, 6 years for the three AUUW convictions, and 3 years for aggravated fleeing or attempting to elude a peace officer, to be served concurrently with the "merged" AUUW and AHC counts.

¶ 22 Although the trial court sentenced defendant to six years in prison for the AUUW convictions, the mittimus only reflects defendant's sentences for AHC and aggravated fleeing or attempting to elude a peace officer. Because the trial court's oral pronouncement controls ( People v. Jones , 376 Ill. App. 3d 372, 395, 315 Ill.Dec. 15, 876 N.E.2d 15 (2007) ), pursuant to our authority under Illinois Supreme Court Rule 615(b), we order the clerk of the circuit court to correct the mittimus to reflect that the circuit court sentenced defendant to six years in prison for the three AUUW convictions.

¶ 23 For the reasons stated above, we reverse and vacate defendant's AHC conviction and order the mittimus corrected to show a six-year sentence of imprisonment on the AUUW counts.

¶ 24 Reversed in part; mittimus corrected.

Justices Harris and Simon concurred in the judgment and opinion.

      Schmidt noted, " '[a]lthough we believe our interpretation is what the legislature intended, we would welcome further clarification by the legislature.' " Schmidt , 392 Ill. App. 3d at 696, 338 Ill.Dec. 472, 924 N.E.2d 998 (quoting People v. Jones , 226 Ill. App. 3d 1054, 1056, 168 Ill.Dec. 779, 590 N.E.2d 101 (1992) (in which the court concluded that the definition of forcible felony included "any aggravated battery that involved the use of physical force or violence against an individual") ).


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Corey ANDERSON, Defendant-Appellant.
    No. 1-15-0931
    Appellate Court of Illinois, First District, SECOND DIVISION.
    March 20, 2018
    Michael J. Pelletier, Patricia Mysza, and Patrick F. Cassidy, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, Matthew Connors, and Riebana E. Sachs, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 On May 12, 2010, Corey Anderson and several companions (including codefendants Jabriel Anderson, no relation to Corey, and Jason Burns) went looking for Tomaras Qualls to fight him. The group saw a silver Monte Carlo pull up nearby, and Jabriel said, "That was them." Burns fired several times at the Monte Carlo. Qualls was not in the car, but Adam Martinez, Brian Lawson, and Robert Alvarado were, and Martinez was fatally shot.

¶ 2 The State sought to hold Corey accountable for the shooting based upon allegations that (i) the gun used in the shooting belonged to Corey, (ii) Corey threatened Qualls's mother earlier that evening, and (iii) when Jabriel pointed out the Monte Carlo, Corey reached for his gun before Burns grabbed it and fired. Following a jury trial, Corey was found guilty on an accountability theory of the first degree murder of Martinez, the attempted murder of Lawson and Alvarado, and aggravated discharge of a firearm at Lawson and Alvarado. Corey was sentenced to 95 years' imprisonment.

¶ 3 On appeal, Corey argues that he was denied a fair trial because (i) the State failed to prove up its assertion that Corey threatened Qualls, upon which it relied heavily in its argument to the jury, and (ii) the State improperly used prior consistent statements to bolster the credibility of Marquell Carter, the only witness who testified that Corey had a gun. We agree and reverse and remand for a new trial.

¶ 4 BACKGROUND

¶ 5 On the evening of May 12, 2010, Xavier Smith was hosting a party at his home in Park Forest. Also present were Jabriel, Qualls, and Carter. Jabriel and Qualls got into an argument that escalated into a fistfight. Qualls left the party. He returned 10 to 15 minutes later with two friends and tried to convince Jabriel to come outside and fight them. Jabriel refused, whereupon Qualls and his friends left and did not return.

¶ 6 Jabriel made a phone call to his friend Raymond Darden, asking Darden to come pick him up. Later that evening, six individuals in two cars arrived, including Darden, who was accompanied by Corey (whose nickname was "Lord"), Burns, Cortez Robinson, Darden's girlfriend Latoya Kelly, and Burns's girlfriend Jasmine Johnson. The women stayed in the cars while the four men exited. Carter saw a gun in Corey's waistband. Jabriel ran outside to meet the group and told them about his earlier fight with Qualls. Then Jabriel, Corey, Burns, Darden, and Robinson walked to Qualls's house. At trial, Darden testified that he intended to mediate the conflict by talking to Qualls's brother, but in his earlier sworn testimony before the grand jury and at Burns's trial, he stated that the group went to fight Qualls.

¶ 7 According to Darden, when the five of them reached Qualls's house, Jabriel knocked on the door, and Qualls's mother answered. Darden claimed not to remember the conversation that followed. The State attempted to impeach him with his prior sworn testimony before the grand jury and at Burns's trial. Darden admitted stating before the grand jury that Jabriel said, "Tell your son I am going to f*** him up." The State then tried to elicit testimony about what Corey said:

"Q. Do you recall being asked this question on cross examination [during Burns's trial] and giving this answer: Question: 'When they were in front of the door, Lord [Corey] said to B.D. [Jabriel ], quote, Get out of the way. I am going to fan their ass.' Answer: 'Yes.'
Do you remember being asked that question at the prior testimony on June 20th of 2012?
A. Yes."

On cross-examination, the defense also asked Darden about what Corey said:

"Q. Now, you testified that although you don't recall, in that prior proceeding in 2012 and at the police station, you said something to the effect about Corey stating he was going to fan their ass or something to that effect, do you remember that?
A. I don't recall."

¶ 8 After their confrontation with Qualls's mother, the five men left and walked back to Smith's house. As they neared Smith's house, a silver Monte Carlo drove past them and parked. Carter, standing in the doorway of Smith's house, heard someone say "That's the people? Is that them?" Carter saw Corey reach toward the gun in his waistband, but Burns snatched the gun from him and fired at the Monte Carlo.

¶ 9 Three days after the shooting, on May 15, 2010, Carter went to the Park Forest Police Department and identified Corey and Burns in photo arrays. On direct examination, the prosecutor presented Carter with the photo arrays and asked:

"Q. Did you make a notation, did you actually physically write something next to the photograph of Jason Burns?
A. Yes.
Q. And what did you write?
A. 'This is the person I saw get the gun from Lord and shot at the Monte Carlo.' "

The prosecutor then showed Carter the photo array in which he identified Corey and asked:

"Q. And can you tell the jury, what did you write on this photo array?
A. 'This is the person I know as Lord. He told me his name was Lord. I saw a gun in his waistband. The other guy took the gun from Lord and shot at the Monte Carlo.' "

The State displayed the photo arrays with Carter's annotations on a video screen for the jury to view, and Carter reconfirmed his handwritten statements about Corey and Burns.

¶ 10 On cross-examination, Carter admitted that on the day of the shooting, he was smoking marijuana, drinking, and taking ecstasy. The day after the shooting, Carter met with detectives and told them, falsely, that he did not know any of the people who came to reinforce Jabriel. Carter told the detectives that he saw a person with short hair shooting at the Monte Carlo (i.e. , Burns), but he did not tell them that Corey had a gun. The next day, May 14, Carter returned to the police station and said that he knew Darden and Robinson and that he saw a gun in Corey's waistband.

¶ 11 Carter appeared before the grand jury on May 17, but he asserted his fifth amendment right not to testify because he was on juvenile probation, and smoking and drinking violated the terms of his probation. On June 9, Carter appeared before the grand jury again and testified in exchange for immunity from prosecution for the probation violation.

¶ 12 Darden also testified about the shooting but claimed not to remember many of the details of what occurred. He was impeached with his prior sworn testimony, in which he said that when the Monte Carlo drove past, Jabriel said "That was them" and "Give me the cappa, give me the cappa" (i.e. , the gun). Around the same time, Darden saw Corey tugging at the waistband of his pants "as if he did have a pistol." At trial, Darden testified that he never actually saw Corey with a gun.

¶ 13 The Monte Carlo parked in the lot directly behind Smith's house. The group headed toward the car: Darden and Corey went around the right side of the house, while Jabriel, Burns, and Robinson took a more direct route through a gangway. Corey then reversed direction and went through the gangway with the others. Darden heard several gunshots and ran back to his car. The others came running back as well, and they got back in their vehicles and drove away. During the drive, Jabriel told Darden that Corey and Burns "let them n***** have it."

¶ 14 Jasmine testified that, as they drove away, she saw the black handle of a gun protruding from Burns's waistband. A few days after the shooting, Jasmine and Burns went to Corey's house, and Burns handed the same gun to Corey. On cross-examination, Jasmine stated that she saw Burns with that gun on one occasion prior to the shooting, when Burns put it under his mattress in his house.

¶ 15 Qualls was not in the silver Monte Carlo on the night of the shooting. Instead, the occupants were a group of friends who were not involved in the earlier fight between Jabriel and Qualls. Martinez was driving, Lawson was in the front passenger seat, and Alvarado and Andre Johnson were in the back. They were planning to go to Martinez's girlfriend's house, but first, they were planning to purchase marijuana from a friend in Park Forest. After Martinez parked the car, Alvarado noticed a group of individuals staring at them. "Who that?" he said. Lawson said, "I don't know who that is. Let's get out of here." Martinez put the car into reverse. Immediately, gunshots rang out, shattering the passenger-side window. Lawson crouched down with his head between his knees. He shook Martinez's leg, saying, "Why aren't we moving? Why are we still here?" Martinez did not respond. Lawson looked up and saw Martinez bleeding profusely from a wound in the side of his head.

¶ 16 Lawson, Alvarado, and Andre fled the car on foot. Lawson ran to a nearby house and asked the people inside to call the police. Police and paramedics responded to the scene, and Martinez was brought to the hospital, where he died. An autopsy revealed that the cause of death was a gunshot wound to the head.

¶ 17 After the State rested, the defense moved for a directed verdict, which the trial court denied. The defense then stated:

"DEFENSE COUNSEL: Judge, I just have one thing to address before. The State has failed to perfect the impeachment as to the statement of Raymond Darden about Corey allegedly saying 'I'm going to fan their ass.' It was neither in the stipulation for the prior proceeding nor did they play the video where that was. It's not in the grand jury transcript. It was never perfected.
THE COURT: He admitted to it.
DEFENSE COUNSEL: Okay.
THE COURT: That's why they didn't play it, because he admitted it."

¶ 18 During closing arguments, the prosecutor emphasized Corey's culpability in "bring[ing] a gun to a fistfight," reminding the jury that Corey allegedly threatened to "fan their ass" and saying: "[T]hat statement in and of itself is evidence that this defendant did have the firearm in his waistband. Tough Guy wants to go up to somebody's home that he doesn't know who these people are, and he wants to fan their ass." The prosecutor also argued that Corey's threat "just tells his participation. It just tells letting everyone know I brought a gun to a fistfight. It's right here if anyone needs it, and I'm prepared to use it. That is what makes him legally accountable under our laws."

¶ 19 The jury found Corey guilty of the first degree murder of Martinez, the attempted murder of Lawson and Alvarado, and aggravated discharge of a firearm at Lawson and Alvarado. Corey, whom the trial court permitted to represent himself at sentencing, was sentenced to 45 years' incarceration for first degree murder and 25 years for each of the attempted murders of Lawson and Alvarado, imposed consecutively for a total of 95 years.

¶ 20 ANALYSIS

¶ 21 Corey argues that his conviction must be reversed because (i) the State failed to prove up its assertion that he threatened Qualls's mother and (ii) the State improperly bolstered Carter's credibility with his prior consistent statements regarding Corey's possession of a gun. We consider these contentions in turn.

¶ 22 Corey's Alleged Threat

¶ 23 In establishing Corey's accomplice liability, one of the State's key assertions was that when Corey and his companions went to Qualls's house and confronted his mother, Corey threatened to "fan their ass." Corey argues that the State failed to present evidence to substantiate this assertion, thereby denying him a fair trial. Corey also argues that the State exacerbated this error by falsely asserting in closing argument that Darden reported Corey's threat to the grand jury and to police, neither of which is supported by the record.

¶ 24 The right to a fair trial includes the right to a verdict based solely on the evidence actually introduced at trial. Turner v. Louisiana , 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) ; see also Jordan v. Hepp , 831 F.3d 837, 846 (7th Cir. 2016) ("a prosecutor may not urge a jury to base its decision on information known to the prosecutor but not presented at trial"). This requirement "goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury." Turner , 379 U.S. at 472, 85 S.Ct. 546. Thus, it is improper for the State to ask a witness questions that presume facts not in evidence unless the State later substantiates those facts. People v. Williams , 333 Ill. App. 3d 204, 211, 266 Ill.Dec. 542, 775 N.E.2d 104 (2002). In particular, if a party attempts to impeach a witness with a prior inconsistent statement and the witness denies making the statement, claims that he cannot remember making it, or otherwise equivocates, "then it is incumbent on the examining party to offer evidence of the statement." People v. Evans , 2016 IL App (3d) 140120, ¶ 33, 406 Ill.Dec. 175, 60 N.E.3d 77.

¶ 25 After Darden testified that he did not recall whether Corey said anything to Qualls's mother, the prosecutor attempted to impeach him with his prior sworn testimony at Burns's trial:

"Q. Do you recall being asked this question on cross examination and giving this answer: Question: 'When they were in front of the door, Lord [Corey] said to B.D. [Jabriel], quote, Get out of the way. I am going to fan their ass.' Answer: 'Yes.'
Do you remember being asked that question at the prior testimony on June 20th of 2012?
A. Yes."

A plain reading of this testimony reflects that Darden admitted being asked a question about Corey's statement but he did not admit what, if anything, he answered . This is consistent with his testimony on cross-examination, when he claimed not to remember this testimony. Thus, it was incumbent on the State to present evidence of Darden's answer ( Evans , 2016 IL App (3d) 140120, ¶ 33, 406 Ill.Dec. 175, 60 N.E.3d 77 ; Williams , 333 Ill. App. 3d at 211, 266 Ill.Dec. 542, 775 N.E.2d 104 )-which the State never did.

¶ 26 The State argues that requiring it to provide evidence of Darden's testimony at Burns's trial is "unduly formalistic" and relies on a "hyper-technical reading of the record." We disagree. It requires no undue formalism to give effect to the plain meaning of Darden's testimony-i.e. , that he did not admit making a prior statement as to what Corey may have said at Qualls's house. Moreover, this error did not go unnoticed by the parties: after the State rested, the defense raised an objection to the State's failure to perfect the impeachment of Darden on this point, but was overruled by the trial court. The trial court's ruling that Darden admitted the testimony at issue was unsupported by the record and was therefore an abuse of discretion. Doe v. Chand , 335 Ill. App. 3d 809, 814, 269 Ill.Dec. 543, 781 N.E.2d 340 (2002) (trial court abuses its discretion when its factual determination is unsupported by the record).

¶ 27 The State additionally compounded its error by stating in closing argument:

"[W]hat does Raymond Darden, his friend, admit to the police, to the grand jury of Cook County , and under oath at a prior proceeding? That at that point when Jabriel says to [Qualls's] mother 'I'm going to f*** your son up,' [Corey] starts reaching in his waistband area, that would be the waistband where he had the gun that Marquell Carter saw, and said to [Jabriel], 'Get out of the way. I'm going to fan their asses.' " (Emphasis added.)

Here, the State not only emphasized its unproven assertions regarding Corey's threat, but it gratuitously added to them by claiming that Darden spoke about the alleged threat to the grand jury and to the police. In fact, Darden never testified to the grand jury about Corey's alleged threat, nor was there any evidence at trial that he spoke about it to police.

¶ 28 Thus, the State's argument was clearly in error. See People v. Jackson , 2012 IL App (1st) 102035, ¶¶ 16-20, 363 Ill.Dec. 456, 975 N.E.2d 258 (reversing conviction where the prosecutor misstated the evidence to the jury in closing argument). Under the circumstances, the State's error substantially prejudiced Corey by magnifying the State's unproven allegations about Corey's threat. The potential for prejudice is particularly high because Darden testified on three different occasions-at Corey's trial, at Burns's trial, and before the grand jury-and the details to which he testified were different on each occasion. A reasonable juror might remember the substance of Darden's testimony but be uncertain as to what exactly he said on which occasions. Such a juror might therefore be influenced by the State's forceful and uncontradicted assertion that Darden admitted to Corey's threat on three separate occasions.

¶ 29 The State argues that Corey has forfeited these issues because he failed to object to the State's closing argument and failed to argue in his posttrial motion that the State failed to prove up its assertions regarding Corey's threat. People v. Thompson , 238 Ill. 2d 598, 611-12, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010). Corey acknowledges his forfeiture, but he argues that we may still review this issue as plain error because the evidence of Corey's intent to facilitate the shooting was closely balanced and because the State's use of evidence outside the record implicates a fundamental aspect of the right to a jury trial. People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) (plain error doctrine allows review of unpreserved errors when either the evidence is so closely balanced that the error threatened to tip the scales against the defendant or the error "is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process"). Corey additionally argues that his trial counsel was ineffective for failing to preserve these issues for appellate review. People v. Patterson , 2014 IL 115102, ¶ 81, 388 Ill.Dec. 834, 25 N.E.3d 526 (citing Strickland v. Washington , 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶ 30 We find that the closely balanced prong of the plain error doctrine has been satisfied. In order to prove Corey guilty on a theory of accountability, the State was required to show that Corey had "the intent to promote or facilitate" Burns's criminal actions. 720 ILCS 5/5-2(c) (West 2010) (definition of legal accountability). The State's evidence was not strong. Carter was the only witness who claimed to see Corey with a gun, and his credibility was attacked on multiple grounds: (i) he admitted smoking marijuana, drinking, and taking ecstasy on the day of the shooting, in violation of his juvenile probation; (ii) at the time of trial, Carter had a pending criminal charge for aggravated unlawful use of a weapon and was under house arrest; and (iii) the day after the shooting, when questioned by detectives, Carter falsely stated that he did not know any of the people accompanying Jabriel. It was only later that Carter changed his story and told police that Corey had a gun, and even then, Carter refused to testify before the grand jury until he was given immunity from prosecution.

¶ 31 Additionally, Carter's testimony was contradicted by Darden, who denied seeing Corey with a gun on the day of the shooting. Jasmine's testimony as it related to ownership of the gun was conflicting; although she testified that Burns gave the gun to Corey a few days after the shooting, she also testified to seeing the gun in Burns's possession prior to the shooting, when he put the gun under his mattress in his house.

¶ 32 Thus, the State's allegations regarding Corey's threat were central to establish both that Corey had a gun on the day of the shooting and that he was willing to use it. This is underscored by the State's closing argument, in which the prosecutor asserted that Corey's threat "in and of itself is evidence that this defendant did have the firearm in his waistband. Tough Guy wants to go up to somebody's home that he doesn't know who these people are, and he wants to fan their ass." The prosecutor also argued that Corey's threat established his guilt as an accomplice, stating: "It just tells his participation. It just tells letting everyone know I brought a gun to a fistfight. It's right here if anyone needs it, and I'm prepared to use it. That is what makes him legally accountable under our laws. " (Emphasis added.)

¶ 33 The State argues that Corey's willing participation was also established by the fact that he reached for his gun before Burns snatched it and fired. But Carter is the only one who testified to this version of events, and as discussed, Carter's credibility was attacked at trial. Although Darden in his prior testimony stated that he saw Corey tugging at the waistband of his pants, Darden recanted that testimony at trial. Darden also agreed with defense counsel that Corey was wearing "the pants like all the young guys wear" that "sometimes have a hard time staying up."

¶ 34 In light of the conflicting evidence regarding Corey's role in the shooting, as well as the credibility issues regarding the State's key witness, it would not have been irrational for the jury to conclude that the State failed to prove Corey's intent to assist Burns. Accordingly, there was a substantial probability that the State's heavy reliance on Corey's alleged-but-unproven threat influenced the jury's guilty verdict.

¶ 35 Carter's Statements to Police

¶ 36 Corey additionally contends that the State improperly bolstered Carter's credibility by introducing his prior consistent statements made to police three days after the shooting. Specifically, Carter identified Burns in a photo array and wrote next to his picture, "This is the person I saw get the gun from Lord and shot [sic ] at the Monte Carlo." He also identified Corey in a photo array and wrote, "This is the person I know as Lord. He told me his name was Lord. I saw a gun in his waistband. The other guy took the gun from Lord and shot at the Monte Carlo." Carter's handwritten statements on the photo arrays were displayed to the jury during Carter's testimony and again during the State's closing argument. The State contends that these statements were properly admitted as prior identifications under section 115-12 of the Code of Criminal Procedure ( 725 ILCS 5/115-12 (West 2012) ). Although we have already concluded that Corey is entitled to a new trial, we address this issue because it is likely to recur on remand.

¶ 37 Generally, a party may not bolster the credibility of its own witness on direct examination by introducing his prior consistent statements. People v. Dupree , 2014 IL App (1st) 111872, ¶ 42, 384 Ill.Dec. 395, 16 N.E.3d 788. "The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve." (Internal quotation marks omitted.) People v. Johnson , 2012 IL App (1st) 091730, ¶ 60, 373 Ill.Dec. 1, 993 N.E.2d 1. But it is well established that "this rule does not apply to statements of identification." People v. Temple , 2014 IL App (1st) 111653, ¶ 34, 383 Ill.Dec. 339, 14 N.E.3d 622. Under section 115-12 of the Code of Criminal Procedure, "[a] statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him." 725 ILCS 5/115-12 (West 2012). Such statements are admissible as substantive evidence. People v. Williams , 193 Ill. 2d 306, 359, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000).

¶ 38 The parties do not dispute that the first two elements of section 115-12 are met: Carter testified at Corey's trial and was subject to cross-examination concerning his statements to police. The issue is whether Carter's statements to police constitute statements of identification. Our supreme court has defined "statements of identification" broadly to encompass "the entire identification process." People v. Tisdel , 201 Ill. 2d 210, 219, 266 Ill.Dec. 849, 775 N.E.2d 921 (2002) (trial court properly permitted evidence of witnesses' nonidentification of perpetrator in prior lineups composed of individuals with features similar to defendant's). Nevertheless, section 115-12 does "not allow the admission of every discussion between a [witness] and a police officer, only those pertaining to identification of a person made after perceiving him." People v. Newbill , 374 Ill. App. 3d 847, 853, 313 Ill.Dec. 784, 873 N.E.2d 408 (2007).

¶ 39 The parties do not cite, nor has our research disclosed, any Illinois cases explicitly addressing the extent to which the prior identification exception encompasses the declarant's statements regarding what he observed the identified person doing. We find the following discussion by the Texas Court of Appeals to be persuasive:

"The Illinois Supreme Court, in construing a statutory exclusion to the hearsay rule substantively identical to Federal Rule 801(d)(1)(C) and Texas Rule 801(e)(1)(C), rejected an interpretation that would limit admissible testimony under the statute solely to the 'actual identification' of a person, reasoning instead that 'construing "statements of identification" to include the entire identification process would ensure that a trier of fact is fully informed concerning the reliability of a witness' identification, as well as the suggestiveness or lack thereof in that identification.' [Citations.] Similarly, the District of Columbia Court of Appeals has held, under its substantively identical exception, that although 'detailed accounts of the actual crime' are not admissible, the declarant's 'description of the offense itself is admissible under this exception only to the extent necessary to make the identification understandable to the jury.' " Delacerda v. State , 425 S.W.3d 367, 390-91 (Tex. Ct. App. 2011) (quoting Tisdel , 201 Ill. 2d at 219, 266 Ill.Dec. 849, 775 N.E.2d 921 and Brown v. United States , 840 A.2d 82, 89 (D.C. 2004) ).

See also Porter v. United States , 826 A.2d 398, 410 (D.C. 2003) ("Some limited reference in the identification to the criminal act is permissible."); Johnson v. United States , 820 A.2d 551, 559 n. 4 (D.C. 2003) ("To be understandable and therefore probative, an identification must have context, and the circumstances of Heard's identification which the jury learned about from his prior statement were relevant to the identification.")

¶ 40 Both Delacerda and Brown examined how much context is admissible under the prior identification exception. Delacerda was a murder case that arose out of a drive-by shooting from a pickup truck. Delacerda , 425 S.W.3d at 374. Cruz testified for the State that he was lying in the back of the truck and that defendant, a passenger in the cab of the truck, was the shooter. Id. at 376. An officer testified, over defense objection, that one of the victims identified Cruz in a photospread as the one he saw lying in the back of the truck. Id. at 391-92. The Texas Court of Appeals found that this testimony was admissible as a prior identification-not just the victim's identification of Cruz but also what he saw Cruz doing (lying in the back of the truck). The court explained:

"We agree with the rationale of the Illinois Supreme Court and the District of Columbia Court of Appeals that limiting admissible testimony under the identification exclusion to the hearsay rule solely to the declarant's naming of the identified individual and not allowing testimony regarding what the declarant identified the individual as doing is unduly restrictive." Id. at 392-93 (citing Tisdel , 201 Ill. 2d 210, 266 Ill.Dec. 849, 775 N.E.2d 921 ).

¶ 41 Brown , 840 A.2d 82, is also instructive. Brown was charged with multiple counts of child sexual abuse. An officer testified that one of the victims, S.T., came to the police station and identified Brown as having beaten and sexually abused her. The D.C. Court of Appeals held that, under the prior identification exception, "[t]he trial court correctly ruled that the officer could provide a summary of S.T.'s statements, but not any unnecessary details." Id. at 89. More questionable was the trial court's admission of detailed out-of-court statements by another victim, who discussed when the abuse began, how often it occurred, and the locations where it occurred. Id. at 90. The D.C. Court of Appeals stated that these details arguably went beyond those necessary to make the identification understandable, but it ultimately found that another hearsay exception applied (the medical diagnosis exception). Id.

¶ 42 In agreement with Delacerda and Brown , we hold that, when admitting a prior identification as substantive evidence under section 115-12, the testimony may include a description of the offense "only to the extent necessary to make the identification understandable to the jury," but it may not go beyond that to provide "detailed accounts of the actual crime." (Internal quotation marks omitted.) Id. at 89. This is in keeping with how Illinois courts have interpreted the prior identification exception. For instance, in People v. Tayborn , 254 Ill. App. 3d 381, 193 Ill.Dec. 849, 627 N.E.2d 8 (1993), defendant was charged with attempted murder in connection with a shooting at Murchinson's home. At trial, an officer testified that when he interviewed Murchinson the day after the shooting, "Murchinson identified defendant as one of the men who carried a Tech-9 automatic weapon and shot into Murchinson's home." Id. at 390, 193 Ill.Dec. 849, 627 N.E.2d 8. We held that Murchinson's out-of-court statement was properly admitted as a statement of identification under section 15112. Id. ; see also Temple , 2014 IL App (1st) 111653, ¶ 41, 383 Ill.Dec. 339, 14 N.E.3d 622 (in prosecution for drive-by shooting, witnesses' prior consistent statements identifying the defendant as the shooter and describing the car in which defendant was riding were admissible under section 115-12).

¶ 43 Under this standard, Carter's verbal testimony regarding his prior identifications of Corey and Burns was properly admitted. In a police interview three days after the shooting, Carter identified Corey as the person who was carrying a gun and Burns as the person who took the gun from Corey and shot at the Monte Carlo-i.e. , the minimum detail necessary to make the identifications intelligible to the jury. Indeed, Carter's identifications closely parallel the identification admitted in Tayborn , except that in Tayborn , defendant both carried and fired a gun, whereas in this case, Corey carried the gun and Burns fired it.

¶ 44 Corey nevertheless argues that this case is analogous to People v. Randolph , 2014 IL App (1st) 113624, 380 Ill.Dec. 330, 8 N.E.3d 500, and People v. McWhite , 399 Ill. App. 3d 637, 339 Ill.Dec. 611, 927 N.E.2d 152 (2010), both of which held a witness's prior consistent statements inadmissible. Both cases are distinguishable, since neither of them dealt with the admissibility of a prior identification under section 115-12.

¶ 45 In Randolph's trial for possession of cocaine, the State elicited testimony regarding the arresting officers' police report. Randolph , 2014 IL App (1st) 113624, ¶ 5, 380 Ill.Dec. 330, 8 N.E.3d 500. According to the report, the officers were patrolling a "high narcotic area" when Randolph saw the officers, immediately crossed the street, and dropped an object. One of the officers recovered the object, which was found to contain cocaine. We held that introducing the report as substantive evidence was reversible error. Id. ¶ 18. But the State did not argue that the report was admissible as a prior identification. Moreover, even if the State had done so, the report went beyond the level of detail necessary to make the identification understandable to the jury. The officers could properly have testified that, in their report, they identified Randolph as the person who dropped the object that the officers recovered. But the additional information in the report-the fact that defendant was in a "high narcotic area" and crossed the street as soon as he saw the officers-was not necessary as context for the identification and was therefore not permissible under section 115-12.

¶ 46 McWhite , another narcotics case, is similarly inapposite. At trial, the State introduced evidence of an officer's prior consistent statements at a preliminary hearing and in multiple arrest reports. McWhite , 399 Ill. App. 3d at 640, 339 Ill.Dec. 611, 927 N.E.2d 152. According to the officer's statements, the officer saw a barbeque grill at the base of a tree in a vacant lot. Defendant opened the grill, removed a cigarette box, and retrieved suspected drugs from the box. McWhite held that the trial court abused its discretion in allowing these prior consistent statements as substantive evidence. Id. at 642, 339 Ill.Dec. 611, 927 N.E.2d 152. But, as in Randolph , the State did not argue that the complained-of statements were admissible under section 115-12, and in any case, the officer's prior statements contained more detail than necessary to make his identification of defendant understandable to the finder of fact.

¶ 47 Accordingly, we hold that the trial court properly allowed Carter to testify that, three days after the shooting, he identified Corey to police as the one who was carrying a gun and Burns as the one who took the gun from Corey and fired.

¶ 48 Corey additionally argues that, even if Carter could properly testify regarding what he said to police, it was improper for the State to display Carter's handwritten statements on the photo arrays because doing so served to unfairly emphasize those statements. We agree. As discussed, under the prior identification exception, the witness's description of the offense is limited to that which is necessary "to make the identification understandable to the jury." (Internal quotation marks omitted.) Brown , 840 A.2d at 89. Carter's verbal testimony was sufficient for that purpose. The fact that Carter wrote the statements on the photo array was irrelevant to their admissibility, but the fact that Carter wrote the statements down was used by the State to bolster their trustworthiness. Displaying Carter's handwritten statements did not provide any further necessary context for the jury and, therefore, did not enhance the jury's understanding of the identification. The only purpose it served was to reiterate Carter's statements-once when the State put the photo arrays on a video screen for the jury to see, a second time when the State asked Carter to confirm that he wrote the statements displayed on the screen, and a third time during the State's closing argument when the State displayed the photo arrays again. In doing so, the State unnecessarily and improperly emphasized Carter's written out-of-court statements in the eyes of the jury. As this court has previously observed, "[p]eople tend to believe that which is repeated most often, regardless of its intrinsic merit." (Internal quotation marks omitted.) Johnson , 2012 IL App (1st) 091730, ¶ 60, 373 Ill.Dec. 1, 993 N.E.2d 1.

¶ 49 The State's use of Carter's out-of-court statements essentially as a demonstrative exhibit was particularly prejudicial due to the closeness of the evidence. As discussed, Carter was the only witness who claimed that Corey had a gun; Darden testified that he did not see Corey with a gun on the day of the shooting. But the State arguably elevated Carter's testimony over Darden's by repeatedly displaying Carter's handwritten statements-and, in doing so, may have impermissibly affected the outcome of the trial. Thus, on remand, although the State may present testimony as to Carter's identification of Burns and Corey three days after the shooting, we hold that Carter's handwritten statements on the photo arrays may not be shown to the jury.

¶ 50 Finally, although we find that Corey is entitled to a new trial, we comment briefly on an error the State concedes occurred after trial. During proceedings on posttrial motions, Corey informed the court that he was "looking into hiring new counsel." On the next court date, Corey presented a pro se motion alleging ineffective assistance of counsel, stating that he no longer wanted to be represented by his trial counsel but "wasn't able to retain" alternative counsel. The trial court then allowed him to proceed pro se . This was erroneous for two reasons. First, Corey did not unequivocally request to proceed pro se ; on the contrary, the record reflects that he wanted a lawyer but was unable to retain one. Second, the trial court did not admonish Corey pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984)-which, notably, requires the court to inform the defendant "that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." See People v. Jiles , 364 Ill. App. 3d 320, 329, 301 Ill.Dec. 79, 845 N.E.2d 944 (2006) (compliance with Rule 401(a) is required at the time a defendant chooses to waive counsel). Thus, there was no valid posttrial waiver of counsel.

¶ 51 CONCLUSION

¶ 52 The State's use of unsubstantiated assertions regarding Corey's alleged threat to Qualls's mother deprived Corey of a fair trial and constituted plain error in light of the closeness of the evidence. The State also improperly bolstered Carter's otherwise admissible statements of identification by repeatedly showing the jury the photo arrays on which Carter had written those statements. We therefore reverse Corey's convictions and remand for a new trial.

¶ 53 Reversed and remanded.

Justices Pucinski and Hyman concurred in the judgment and opinion.

      The jury was not told that Darden was a witness at Burns's trial, merely that he testified in a "prior proceeding."

      Although Corey was also charged with aggravated discharge of a weapon and the attempted murder of Andre, the Monte Carlo's fourth occupant, the State evidently elected not to proceed on those charges, as they were not presented to the jury.