Opinion filed August 10, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-15-0079 v. ) Circuit No. 14-CF-274 ) ERICK MAYA, ) Honorable ) Daniel J. Rozak, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice McDade concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Erick Maya, appeals following his convictions for first degree murder,

attempted first degree murder, and unlawful use of a weapon by a felon (UUWF). He argues that

the circuit court abused its discretion both by admitting certain evidence of defendant’s prior bad

acts and by failing to provide the jury with an instruction limiting the use of such evidence.

Alternatively, defendant contends that defense counsel was ineffective for failing to request that

jury instruction. As a separate argument, defendant contends that the circuit court abused its

discretion in finding that the transcript of certain Facebook messages qualified for the business

records exception to the rule against hearsay. Finally, defendant argues that the circuit court failed to conduct a satisfactory inquiry under People v. Krankel,

(1984), after

defendant made pro se posttrial claims of ineffective assistance of counsel. We reject defendant’s

evidentiary claims as well as the related claim of ineffective assistance of counsel. However, we

remand the matter so the circuit court may make a proper preliminary inquiry into those separate,

pro se claims of ineffectiveness raised by defendant at the posttrial stage.

¶2 FACTS

¶3 On March 6, 2014, the State charged defendant by indictment with first degree murder

(720 ILCS 5/9-1(a)(1) (West 2014)), attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1)

(West 2014)), and UUWF (720 ILCS 5/24-1.1(a) (West 2014)). The indictment alleged that

defendant shot Briana Valle, causing her death; it also alleged that defendant shot Alicia

Guerrero with the intent to kill her. Defendant’s trial commenced on September 9, 2014. 1

¶4 Guerrero testified that she and her family moved to 342 Emery Avenue in Romeoville in

October 2013. Prior to that, they lived in a Chicago neighborhood by Cicero. Guerrero testified

that her daughter, Briana, was born on July 21, 1998. In the summer of 2012, Guerrero had a

Facebook account for herself under the name of Jessica Guerrero.

¶5 On August 24, 2012, Briana ran away from home. Guerrero immediately began searching

for her and called the police. In her attempt to find Briana, Guerrero searched Briana’s bedroom.

In examining Briana’s computer, Guerrero learned that Briana had been accessing Guerrero’s

own Facebook account. Guerrero saw that a number of messages had been exchanged between

her account and a Facebook account under the name of Pandillero Diciochero. Guerrero had

1 The trial in this matter lasted two weeks, producing a record of approximately 2000 pages. For clarity, we will summarize the evidence in chronological order of the events in question rather than the order in which the evidence was presented at trial. 2 never sent a friend request to that account and had not personally participated in that exchange of

messages.

¶6 Through the messages, Guerrero learned that the owner of the Pandillero Diciochero

account lived in Cicero. Briana had been gone for over a week when Guerrero went to Cicero in

search of her. After driving around for some time, Guerrero spotted a building she recognized

from the Pandillero Diciochero Facebook account. Guerrero called the police. However, after the

police investigated, they informed Guerrero that Briana was not there.

¶7 The next day, Guerrero convinced the building’s superintendent to allow her into the

apartment. Briana was not there. However, soon thereafter, the renters of the apartment arrived.

They told Guerrero that Briana was not there but was located at an apartment a block away.

Guerrero then gave that information to the police and returned home while police investigated.

Later, Guerrero received a phone call from a number she did not recognize. She did not

recognize the male voice on the phone. The individual told Guerrero that he needed to return

Briana and that he would do so as long as Guerrero did not press charges. After that phone call,

Guerrero learned from the Cicero police department that Briana had been found. The date was

September 10, 2012.

¶8 Abisai Ortiz testified that he lived with his girlfriend, Cynthia Avila, and their daughter in

Cicero. Prior to December 2013, Ortiz and Avila lived in an apartment at 1342 South 50th

Avenue in Cicero for “more than four, five years.” At some point during that period, Ortiz’s

brother, Andres, also lived with him and Avila. Andres was friends with defendant, and through

Andres, defendant came to live at 1342 South 50th Avenue with Ortiz, Avila, and Andres for

approximately one year. Ortiz identified defendant in court but indicated that he did not refer to

defendant as “Erick Maya” but instead referred to him as “Little Green.”

3 ¶9 Ortiz identified a photograph of Briana. He recognized her because she had been to the

apartment on 50th Avenue. On September 10, 2012, a woman came to the apartment. Ortiz

learned that she was Briana’s mother and that she was looking for her daughter. Ortiz told

Guerrero that Briana had been in the apartment but that he did not know where she was at that

moment.

¶ 10 Ortiz testified he had a Facebook account and was active on the service. He recognized

an exhibit shown to him by the State as a printout of a Facebook page under the name Pandillero

Diciochero. He recognized the printout because he was friends on Facebook with the Pandillero

Diciochero account. Ortiz testified that that Facebook account belonged to and was used by

defendant. The State also showed Ortiz a printout of a second Facebook account, this one under

the name of Gangero Jente Difiesta. Ortiz was not Facebook friends with this account but

recognized the individual in the profile picture as defendant.

¶ 11 Ortiz also testified that he owned a cell phone and that his phone number was (708) 953-

2118. He shared his phone with defendant, often allowing defendant to borrow it at night. The

phone had internet access and was equipped with the Facebook application. Ortiz further testified

that he exchanged text messages with defendant. From his own phone, Ortiz would send the text

messages to a number of (773) 349-2942, to which defendant would reply.

¶ 12 Avila testified that while she was living at the apartment on 50th Avenue, she met a girl

named Briana, whom defendant had brought to the apartment. Avila met Briana in late August

2012. Defendant was proud and happy when Briana was around. In speaking with Briana, Avila

learned that she had run away from home. Some time after that, a Cicero police officer appeared

at the apartment, looking for Briana. Avila was unable to help because she did not know where

4 Briana was at that particular time. Avila later met Guerrero when she came to the apartment

looking for Briana.

¶ 13 Guerrero testified that Briana could not stop talking about a “Carlos” after she returned

from Cicero. Guerrero told Briana to stop talking about him and confiscated her electronics. As

time passed, Guerrero knew that Briana remained in contact with the individual. Guerrero

testified: “When there’s a will, there’s a way. She’ll find a way. She would sneak anything. She

went to school and used people’s phones. I got calls from him on my phone. I knew it was still

continuing.” Guerrero testified that the individual continued to contact her as well, and she came

to recognize his voice. Guerrero learned from Briana that the individual’s name was actually

Erick Maya.

¶ 14 Guerrero testified that defendant’s phone calls and text messages had been unceasing and

that Briana had seen him around the neighborhood. In March 2013, fearing that defendant would

attempt to influence Briana to leave again, Guerrero applied for an order of protection in Cook

County on behalf of her and her family.

¶ 15 On February 14, 2013, Guerrero picked her daughter up from school. Briana was carrying

balloons and flowers. Though Briana told her mother the gifts were from friends, Guerrero

suspected they were from defendant. In September 2013, Guerrero noticed that Briana was

wearing what appeared to be an engagement ring on her finger. The next month, Guerrero moved

her family to Romeoville in an attempt to get away from defendant. Guerrero testified that

Briana adjusted well to her new school and seemed to be making friends. At that time, Guerrero

believed that Briana and defendant were no longer communicating.

¶ 16 In December 2013, Ortiz, Avila, and their daughter moved to an apartment at 5600 West

Park Avenue in Cicero. Defendant moved in with them again. Avila testified that at that time,

5 defendant was still in love with Briana. Later, however, he told Avila that Briana had “broken up

with him because she was actually moving on to somebody else.” Avila observed that defendant

was very mad about the situation. Avila testified: “[H]e wanted to kill her. He would say that he

wanted to kill her because *** she was only supposed to be with him, only with him.” He said

that on more than one occasion. Defendant was also mad at Briana’s mother, blaming her for

Briana moving on. Avila testified that defendant was so angry that he would punch walls.

¶ 17 S.M. testified that she and Briana met and became friends while the two attended

Romeoville high school. S.M. had a cell phone, and Briana once asked S.M. if she could use the

phone to text someone. When S.M. began receiving text messages to her phone from a number

she did not recognize, S.M. labeled that number in her phone as “Briana’s guy.” The phone

number was (773) 349-2942. When S.M. received messages from that number, she would show

them to Briana the next day.

¶ 18 In December 2013, S.M. saw a number of threatening text messages that had come to her

phone from “Briana’s guy.” S.M. met with Romeoville high school resource officer Tom Dorsey

and allowed him to take screen captures of the text messages. S.M. read for the jury a transcript

of a text message conversation between Briana and defendant, in which Briana was using S.M.’s

phone. Because of the relevance of these text messages to the issue that defendant has raised on

appeal, we quote them at length. 2

¶ 19 In those messages, exchanged on December 3 and 4, 2013, defendant explained that he

had been in county jail since October of that year and had missed Briana. Briana told defendant

2 While actual copies of the text messages in question were entered into evidence, for the sake of clarity, we will transcribe S.M.’s reading of the text messages on the witness stand, rather than the text messages themselves. 6 that she missed him as well. As the conversation progressed, defendant began expressing anger

and jealousy. S.M. read:

“[Defendant]: Why are you still talking to niggas for? I keep telling you to stop

and you just won’t listen. Am I not good enough for you that you got to talk and

see other guys? I tell you to have respect for me and you just won’t. I know you

still talk to niggas. I know you have a new boyfriend. I know you cheated on me. I

have a big, strong feeling. *** Stop lying to me and just tell me the niggas you

still talk to and how many niggas have you cheated on me with. ***

***

*** Like I said, once a village hoe, always a village hoe. I’m sick and tired

of telling, begging you please stop, please don’t do that, don’t do this. I’m tired

and fed up. *** One day after you get tired of being the nation hoe, one day after

you get tired of being used, abuse and reused by everyone, you finally realize that

I had it good with Little Capone Erick did love me and now he is gone, out of my

life forever. *** You talking and chillin with niggas, you cheating on me is what I

don’t want. I don’t want to share you with no one. I want you all to myself. You

are the person I want to spend the rest of my life with, but you can’t see that and

obviously don’t want that. You are all I need and I am all you need, but I guess

you are too young and stupid to know that. *** Any nigga don’t matter who it is

would have beat the living fuck out of you. When you killed the baby, they

probably would have killed you and your fuckin mom but I didn’t even though I

thought about it I didn’t lay a finger on you because I love you.”

7 This portion of defendant’s text messages continued in the same tone and substance for 4 pages

of text transcript, 13 pages of trial testimony as read by S.M.

¶ 20 Over the next several days of text messaging, 3 Briana informed defendant that she did

have a new boyfriend but explained that she was not cheating on defendant because defendant

previously ended their relationship. Defendant struck a more conciliatory tone than previously,

telling Briana that he loved her and begging her to get back together with him. In this portion of

the messages, defendant occasionally referenced his memories of Briana, including their sexual

relationship. Occasionally, S.M. responded to defendant’s messages to inform him that she was

not around Briana. On those occasions, defendant asked S.M. about Briana, as well as Briana’s

new boyfriend.

¶ 21 In the late hours of December 9, 2013, Briana said to defendant (S.M. reading):

“Mmm, okay, but I don’t want to have sex anymore, so, no, baby, I mean I don’t

want to be with you. Please understand me, I have a boyfriend. I have been with

him for two months already. He is 17. He goes to my school. I’m moving in with

him next year.”

In reply, defendant described the situation as “bogus as fuck,” and demanded the engagement

ring back. Eventually, S.M. texted defendant herself, encouraging defendant to move on. When

S.M. and defendant began exchanging messages, S.M. asked defendant what his name was, to

which defendant replied: “[M]y name is gangero, cappone, lil green, but my real name is erick u

can call me wat ever u want.”

3 People’s exhibit No. 48, the transcripts of text messages sent from defendant to S.M.’s phone, is 30 pages long. S.M.’s testimony regarding and recitation of the text messages spans 125 pages of trial record. 8 ¶ 22 In another exchange of text messages, beginning late on December 12 and continuing

into the morning hours of December 13, Briana told defendant that she was happy with her new

boyfriend. Defendant responded in part (S.M. reading):

“[J]ust give me my shit back or I will go to your crib and steal everything your

family has, your TVs, your jewelry, your money, everything, like I did before.

I’m glad I did that to you. I made your pussy bleed and made you not walk right. I

raped the shit out of you. Tell your new boyfriend how my dick tastes. On nation.

I’m glad I took that shit whether you wanted it or not. I didn’t let you leave my

folks crib until I had my nut. Woowee crazy. Either you give me my mother

fucking ring back or I will go to your crib and rape you again by gun point. I’ll

rape your mom and I’ll have my folks tripas rape your mom and little brother. I

don’t give a fuck. My folks weasel will rape your brother and mom. He’s been

locked up before for rape. He don’t mind getting some fresh meat you fucking

hoe. You want to fuck behind my back while I’m in the county? It’s cool. Just

give my shit back you whore before I hurt you little hoe ass.”

Later, defendant wrote (S.M. reading):

“I’m a go pick up my ring, so have it ready before I kidnap you and keep you

locked up in a trap and rape you for months. No one will ever find you. So if you

know what’s good for you, you will give me my ring back or else you know

what’s coming. Watch your back because either I get it back or I’m coming for

that flat no good ass.”

S.M. testified that all of the text messages sent from her phone were sent by either herself or

Briana. S.M. did not allow anyone else to send text messages from her phone.

9 ¶ 23 Dorsey, the Romeoville high school resource officer, testified that he met with Guerrero

and Briana after reading the text messages sent to S.M.’s phone. Later, Dorsey placed a phone

call to the number from which the texts had been sent. When no one answered, Dorsey left a

message in which he explained that he was conducting an investigation regarding that phone

number. Dorsey eventually received a return phone call. The individual who called Dorsey

identified himself as Erick Martinez and admitted to sending the text messages in question. In his

investigation, Dorsey acquired a photograph of defendant.

¶ 24 Kelley Henson, a detective with the Romeoville police department, testified that she

received permission from Guerrero to take control of her Facebook account. Henson was then

able to retrieve a number of messages that had been sent to Guerrero’s Facebook account from

the account bearing the name of Pandillero Diciochero. Henson read for the jury a series of

messages that the Pandillero Diciochero account sent to the Jessica Guerrero account on

December 24, 2013. In the messages, defendant apologized to Briana, told her that he loved her,

and wished her a merry Christmas. Defendant ended the messages by writing “8-24-12 always n

for ever :) erick and briana always n forever for eternity <3.”

¶ 25 Henson further testified that she executed search warrants for the Facebook account

bearing the name of Gangero Jente Difiesta. A portion of a January 26, 2014, conversation

between the Difiesta account and an account bearing the name of Brian Lopez was published to

the jury. The defense took exception to the Difiesta-Lopez Facebook transcripts coming into

evidence through Henson’s testimony. The State maintained that the transcripts satisfied the

business records exception to the rule barring hearsay. In support, the State filed a certificate of

authentication, in which an authorized custodian of records for Facebook averred that “[t]he

records provided were made and kept by the automated systems of Facebook in the course of

10 regularly conducted activity as a regular practice of Facebook. The records were made at or near

the time the information was transmitted by the Facebook user.”

¶ 26 In the conversation, the Difiesta account asked Lopez if he had a gun. Lopez replied that

he did and sent pictures of two guns to the Difiesta account. The Difiesta account agreed to pay

$250 for one of the guns. The two then set up a time to meet each other. The Difiesta account

told Lopez that his phone number was (708) 953-2118.

¶ 27 Jasmeet Atwal testified that he had met defendant years earlier on MySpace. The two

would talk online, as well as exchanging phone calls and text messages. Some time in late 2013,

Atwal told defendant that he had stolen a gun. Atwal testified that defendant had reacted

excitedly upon hearing that news. In January and February 2014, Atwal and defendant

exchanged numerous text messages.

¶ 28 Atwal identified People’s exhibit No. 40 as a transcript of text messages exchanged

between himself and defendant beginning on January 5, 2014, and continuing through the early

morning hours of February 13, 2014. The transcripts, which were distributed to the jury for the

duration of Atwal’s testimony on the topic, showed that on January 24, defendant wrote to

Atwal: “let me borrow dat thang ill pick it up next week.” On February 1, defendant inquired: “u

think I can get that thang 2day give it back by tuesday.” The parties then had the following

exchange on February 8:

“[Atwal]: My boy is asking around right now.

[Defendant]: I thought he already had it.

[Atwal]: Its from his cousin he said if his cousin dont have that fifty then

we can get a nine Or a 45.”

11 Atwal explained at trial that the “thing” or “thang” to which he and defendant were referring to

was a gun. Defendant picked up the pistol at Atwal’s apartment on February 1 or 2, 2014.

¶ 29 J.S. testified that when she was a sophomore in high school, she maintained a Facebook

account. In December 2013, she received a Facebook friend request from the account of Gangero

Jente Difiesta. Though she did not recognize the name, she accepted the request and began

exchanging messages with that account. Those messages continued through February 2014. J.S.

identified People’s exhibit No. 3 as a printout of the Gangero Jente Difiesta Facebook account

with which she communicated and confirmed that the main profile picture was a photograph of

the individual related to the account that she would eventually meet in person.

¶ 30 J.S. testified that the individual with whom she was messaging identified himself as

Carlos. She met Carlos for the first time after school on January 15, 2014. She identified

defendant as the individual she met that day. After that meeting, J.S. continued messaging

defendant through Facebook and met with him again two weeks later. At the second meeting,

J.S. met defendant’s roommates, who she described as a male, female, and a small child.

¶ 31 J.S. identified People’s exhibit No. 54 as a transcript of Facebook messages exchanged

between herself and the Gangero Jente Difiesta Facebook account. J.S. read a message that was

sent from the account on the night of February 9, 2014: “Whatever happens I need you to always

be with me. Don’t cheat and lie. And if one day I disappear, wait till I come back. If I go to jail

or really long time, wait till I come [out].” In further messages, J.S. implored defendant not to do

anything that might result in his going to jail; defendant continued to insist that J.S. wait for him

if he went to jail.

¶ 32 After that exchange of messages, J.S. met with defendant again on February 11, 2014.

She and a friend walked from school to defendant’s apartment, arriving just after 8 a.m.

12 Defendant, however, was not home. Defendant arrived an hour later, explaining to J.S. that he

had been “[p]icking up some money.” That day at defendant’s apartment, defendant and J.S. had

a similar conversation in which defendant requested that she wait for him. She never saw

defendant again after that meeting.

¶ 33 Stephen Sanders testified that he was working for Morton Taxi in February 2014. On the

morning of February 11, 2014, Sanders accepted a call to pick up an individual in Cicero and

drop him off in Romeoville. At approximately 6 a.m., he arrived at the pick-up address, where

defendant entered the cab. When Sanders dropped defendant off, he gave defendant a Morton

Taxi business card with his personal phone number on the back. Defendant called Sanders later

that morning to inquire about being driven back to Cicero, but Sanders had already left the area.

¶ 34 On the morning of February 13, 2014, Sanders received a call on his personal phone from

defendant. At 6 a.m., Sanders picked up defendant from the same place in Cicero as he had two

days earlier. Upon picking defendant up, Sanders noticed that he was “stressed out” and anxious.

Defendant was wearing dark clothing. Sanders recalled that defendant spoke of a girl in

Romeoville during the drive, but Sanders could not remember the details. Sanders drove

defendant to Romeoville, dropping him off, at an address he recalled as being 320 Emery Lane,

at approximately 6:45 a.m. Days later, Sanders identified defendant in a photographic lineup as

the individual he twice drove to Cicero.

¶ 35 An audio recording of a phone call was played in court. That phone call was made on

February 11, 2014, at 5:13 a.m. from Ortiz’s phone to Morton Taxi, which recorded the call. In

the recording, a man, who identifies himself as Carlos, requests a cab to pick him up at 5618

West Park Avenue in Cicero and drop him off at 320 Emery Avenue in Romeoville. Ortiz, who

13 had listened to the recording of the phone call earlier, identified defendant as the individual

making the call. Ortiz was familiar with defendant’s voice from years of living with him.

¶ 36 On the morning of February 13, 2014, Briana woke Guerrero around 6:50 a.m. Guerrero

put on shoes and a jacket over her pajamas as Briana got ready for school. The two then went out

to Guerrero’s car, which was parked in the driveway. Guerrero got into the driver’s seat while

Briana got into the front passenger’s seat. Guerrero was putting her seatbelt on when she heard a

pop. Guerrero testified:

“I remember thinking someone knocked on my window so hard and I was so

angry, and I remember turning and looking at my daughter. And first I saw glass

all over the floor and I was like oh, my God, why did they have to hit my window

so hard. When I looked she wasn’t moving, she was slouched sideways towards

me.”

¶ 37 Guerrero then saw a male standing outside the front passenger window. The individual

was wearing a black hooded sweatshirt with some “orange rusty color” on it and holding a

revolver. In the moment, Guerrero was not able to make out any other distinguishing

characteristics. As Guerrero begged the individual to stop, he shot her in the shoulder. Guerrero

testified:

“I jumped back and I just remember seeing blood gushing out of me and I thought

I was going to die and no one was going to find my daughter, so I pushed my horn

and I started screaming for my husband to come out but he couldn’t hear me, so I

just kept putting my horn and then I grabbed my alarm system keypad and I

pushed the panic button.”

14 ¶ 38 Alejandro Valle testified that he was married to Guerrero. He testified that he had lived in

Romeoville with Guerrero and their son. Briana, was his daughter. Alejandro testified that he

returned home from work at approximately 5 a.m. on the morning of February 13, 2014. He fell

asleep before Briana left for school that morning. He went outside later that morning to see

Guerrero screaming and crying. He saw Briana, and she was unresponsive. Alejandro testified:

“There was blood all over.” On February 15, 2014, doctors at Loyola Hospital told Alejandro

that Briana was brain dead.

¶ 39 A number of neighbors and emergency personnel testified regarding the scene at 342

Emery Avenue on the morning of February 13, 2014. Neighbors described hearing pops, bangs,

or gunshots, followed by screaming. First responders testified that Guerrero was screaming and

bleeding from her neck, while Briana was slumped over in the front passenger’s seat. The front

passenger window was shattered.

¶ 40 Shelie Jones testified that she was living at 344 Emery Avenue on February 13, 2014.

She lived at the home with her daughter, Triana James. Shelie testified that the sound of gunshots

caused her to look through her front window that morning. Shelie saw an individual running

toward 135th Street, in a direction away from 342 Emery Avenue. The individual was wearing a

black hooded sweatshirt. James testified that she saw an individual dressed in dark clothing run

past her house. James described the individual as “pretty small with a small build.” She also

described the individual as “[p]retty lean.” The individual was wearing a hood over their head.

The individual was running in a direction from 342 Emery Avenue and toward 135th Street.

¶ 41 On February 13, 2014, at approximately 7:12 a.m., Dorsey was called to the scene of a

shooting at 342 Emery Avenue. Upon arriving at the scene, Dorsey was informed that the

victims were Alicia Guerrero and Briana Valle. Recognizing those names from his December

15 investigation, Dorsey returned to the police station to print his previous report. Dorsey also

printed copies of the photograph of defendant and distributed those to officers upon returning to

the scene between 8 and 8:30 a.m.

¶ 42 Dylan Somma testified while in the custody of the Illinois Department of Corrections

(IDOC) based on three felony convictions. He testified that prior to entering IDOC custody, he

lived at 332 Emery Avenue in Romeoville in February 2014. Somma testified that his mother,

knowing that he had warrants out for his arrest, woke him that morning to tell him that there

were “police *** everywhere.” Somma thought that the police were in the vicinity to raid his

mother’s house, so he ran. He left the house through the back door and ran through his own

backyard. Somma testified that he was trying to get to his friend’s house, elsewhere in the

neighborhood.

¶ 43 While running, Somma jumped over a fence, cutting his right hand in the process.

Somma eventually made it to his friend’s house, but no one responded to his knocks on the front

door. As he moved to the back door, he saw a police officer in the adjacent yard. Somma began

running again, this time onto Hickory Avenue, two streets away from Emery Avenue. Somma

was eventually apprehended by police officers in the backyard of a house on Hickory Avenue.

Somma testified that he had no knowledge at that point that there had been a shooting. He did

not know any people by the names of Briana Valle or Alicia Guerrero.

¶ 44 On cross-examination, Somma testified that he is Hispanic with long brown hair. He

testified that he was wearing a black hooded sweatshirt and blue pants while he was running

from the police on February 13, 2014. He wore a grey sweatshirt under the hooded sweatshirt.

Somma’s hands were not tested for gunshot residue nor was the wound on his right hand ever

photographed. He testified that he had never held a gun before.

16 ¶ 45 Jonathan Allen of the Romeoville police department testified that on the morning of

February 13, 2014, he arrived at 342 Emery Avenue with a police dog named Spike. After

receiving initial information from officers on the scene, Allen began patrolling the area with

Spike. While in his squad car, Allen received a call that an individual wearing dark clothing had

been seen jumping over fences. Allen proceeded to Hickory Avenue where he observed the same

and immediately moved to cut the individual off. Allen proceeded on foot, jumping over fences

in pursuit of the individual. Allen eventually entered the backyard of 328 Hickory Avenue,

where other officers had detained Somma.

¶ 46 After Somma was taken into custody, Allen continued to patrol the neighborhood. He

was on foot with Spike searching for a weapon when he reentered the backyard on Hickory

Avenue in which Somma was taken into custody. Upon entering the yard, Spike began to growl.

Allen turned in the direction that Spike was growling and observed a leg protruding from

underneath a porch. Allen drew his weapon and advised officers via radio that he had a subject at

gunpoint. Other officers came to the yard and placed the individual under arrest. Allen had

previously been shown a picture of the shooting suspect, and the individual placed under arrest

matched that picture. In court, Allen identified that individual as defendant.

¶ 47 Michael Ryan of the Romeoville police department testified that he met with other

officers at 342 Emery Avenue to discuss a plan of investigation. After learning that defendant

was a possible suspect, Ryan was assigned to visit two addresses in Cicero. Ryan arrived at 5600

West Park Avenue in Cicero at approximately 5 p.m. Upon arriving at that apartment, Ryan

made contact with Avila. Avila told Ryan that defendant had been staying in the apartment.

When Ryan asked Avila what defendant used for transportation, Avila provided Ryan with the

business card for Morton Taxi. A phone number was handwritten on the back of the card.

17 ¶ 48 On February 16, 2014, three days after the shooting, Ryan assisted in the search for a

weapon. During the search, Ryan found a handgun in the snow between two fences, on the south

side of 135th Street between Hale Avenue and Hickory Avenue. The gun was collected by

evidence technician Brandon Helton. Helton noted that the gun contained three unfired bullets,

and the casings of three fired bullets. He described the gun as a pearl-handled revolver, and

identified a photograph of the gun. Viewing the same photograph, Atwal testified that the gun in

the photograph was the same gun that he had given to defendant.

¶ 49 Woodsman Jones of the Romeoville police department testified that on the morning of

February 13, 2014, he was dispatched to the area of 328 Hickory Avenue to assist in the

apprehension of a suspect in a shooting that had occurred that morning. When Jones arrived at

the scene, the suspect, who Jones identified as defendant, had already been taken into custody.

Jones was tasked with transporting defendant to the police station. Jones testified that defendant

was wearing a black zip-up hooded sweatshirt with red writing on the front and a red lining in

the hood. He was also wearing blue jeans and “an ankle bracelet.” Upon arriving at the police

station, Jones collected defendant’s clothing as evidence. The zip-up sweatshirt would later be

transported to the Illinois State Police crime lab.

¶ 50 The parties stipulated that defendant had been convicted of a felony offense in Cook

County on October 4, 2013. The parties further stipulated that defendant’s ankle bracelet

recorded when defendant left and returned to 5600 West Park Avenue but did not record GPS

locations. Monitoring records would show that defendant left his residence at 5:36 a.m. on

February 11, 2014, and returned home at 9:11 a.m. Those same records would show that

defendant left his residence at 6:01 a.m. on February 13, 2014.

18 ¶ 51 Mary Wong testified that she was a forensic scientist with the Illinois State Police,

specializing in gunshot residue. Wong explained that the series of explosions that create a

gunshot produce a small cloud of gas, which cools to form gunshot residue particles. Samples

taken from the backs of defendant’s hands tested negative for gunshot residue particles.

¶ 52 Wong also tested the zip-up sweatshirt that was removed from defendant. She tested the

right and left cuff areas of the sweatshirt. Gunshot residue particles were found on the right cuff,

from which Wong concluded that the right cuff of defendant’s sweatshirt “either was in the

vicinity of a discharged firearm or it came in contact with a primer gunshot residue-related item.”

She also found “consistent particles” in testing portions of defendant’s pants, which led her to the

same conclusion.

¶ 53 After each party had presented its case-in-chief, the court and parties discussed the

proposed jury instructions. Neither party proposed an instruction limiting the purposes for which

bad acts evidence could be considered. No such instruction was thus delivered to the jury, either

orally or in the packet of jury instructions.

¶ 54 In defense counsel’s closing argument, he insisted that the Romeoville police department

had rushed to judgment against defendant once it suspected him of the charged offenses. In so

arguing, the defense repeatedly referenced Somma. In fact, the defense argued:

“Dylan Somma, ladies and gentlemen, we will talk a lot about because it’s

our position that not only did the prosecution not prove beyond a reasonable

doubt that [defendant] committed these offenses, but I would submit to you even

though we don’t have a burden of proof, we proved to you beyond a reasonable

doubt that the killer was Dylan Somma.”

The jury found defendant guilty on all counts.

19 ¶ 55 On October 8, 2014, defendant filed a pro se motion for a new trial in which he alleged

that defense counsel had been ineffective. At a hearing held six days later, defense counsel told

the court that defendant wished to withdraw his pro se motion. Defendant confirmed that he was

voluntarily withdrawing his motion. Defense counsel subsequently filed a motion for a new trial

on defendant’s behalf, which was denied. The presentence investigation report listed defendant’s

date of birth as July 9, 1990. On October 20, 2014, the court sentenced defendant to terms of

imprisonment of 72, 39, and 11 years, to be served consecutively.

¶ 56 On December 30, 2014, defendant filed a pro se motion for reduction of sentence. In that

motion, defendant listed 33 separate grounds on which he alleged counsel had provided

ineffective assistance. One such allegation read: “Defendant’s counsel threatened him that if he

did not withdraw his motion for ineffectiveness of counsel he would testify against him and

make sure he would never get an appeal by fabricating false statements against him.” The court

held a hearing on defendant’s motion but did not allow defendant to argue any of his

ineffectiveness claims. The court ultimately denied the motion.

¶ 57 Defendant filed another pro se motion for new trial on January 29, 2015. In that motion,

defendant reiterated his previous claims of ineffective assistance of counsel. The court did not

address the motion.

¶ 58 ANALYSIS

¶ 59 Defendant raises a number of independent arguments on appeal. The majority of those

arguments relate to the admission of what he describes as “large amounts of highly prejudicial

other crimes and bad acts evidence.” Primarily, defendant contends that the circuit court abused

its discretion by admitting such evidence at trial. He also argues that the court subsequently erred

by not issuing Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter,

20 IPI Criminal 4th No. 3.14), which limits the purposes for which such evidence may be

considered. Defendant also argues that defense counsel was ineffective for failing to request that

instruction. Finally, defendant contends that certain evidence should have been barred as hearsay

and that the circuit court abused its discretion in determining that the evidence qualified for the

business records exception.

¶ 60 Alternative to his trial-based arguments, defendant contends that the circuit court failed to

conduct a proper preliminary inquiry into his many posttrial, pro se claims of ineffective

assistance of counsel. He maintains that the circuit court, under Krankel,

, was

obligated to inquire as to the factual basis for defendant’s allegations in order to determine if

there had been possible neglect of the case. For the reasons set forth below, we reject defendant’s

evidentiary arguments and affirm his conviction, but remand the matter so that the circuit court

may conduct a proper inquiry into defendant’s claims of ineffective assistance of counsel.

¶ 61 I. Admission of Other Crimes and Bad Acts Evidence

¶ 62 Defendant identifies three groups of evidence which he claims were prejudicial to him:

(1) the publication and recitation of Facebook messages exchanged between J.S. and defendant,

(2) the publication and recitation of Facebook messages exchanged between Brian Lopez and

defendant, and (3) the publication and S.M.’s recitation of text messages involving Briana,

defendant, and S.M. 4 Defendant does not argue that the circuit court abused its discretion in

4 As a technical matter, all of the Facebook messages in question were sent to or from the account labeled “Gangero Jente Difiesta,” while the text messages in question were sent from a phone number labeled in S.M.’s phone as “Briana’s guy.” At certain points in his brief, defendant seems to concede that he participated in those communications, describing “correspondence between Defendant and other individuals” or “Facebook correspondence and text messages between Defendant and two of the State’s witnesses.” At other points, however, defendant implies that there is an open question concerning who actually wrote those messages, referring to messages sent by “a person alleged to be Defendant” or “an individual who was purportedly Defendant.” The record shows that the State thoroughly and exhaustively proved that defendant owned and operated the Gangero Jente Difiesta Facebook account and that he 21 admitting, individually, each of those groups of evidence. Instead, defendant argues that those

three groups of evidence, when combined, amounted to “overkill.” See People v. Bedoya,

(2001). In other words, defendant contends that the cumulative effect of all of

the evidence cited was unduly prejudicial and that the circuit court abused its discretion in

admitting that amount of evidence.

¶ 63 In other portions of his brief, defendant identifies other possible examples of prejudicial

other crimes or bad acts. Specifically, defendant points to evidence that Briana ran away from

home and was found in Cicero with defendant, evidence of the orders of protection obtained by

Guerrero against defendant, and that defendant was wearing an ankle bracelet related to another

offense. Defendant raises these pieces of evidence only in the context of his ineffective

assistance of counsel argument, citing them as proof that counsel should have requested a

limiting jury instruction. See infra ¶¶ 92-98. At no point does defendant argue that the circuit

court abused its discretion in admitting these particular pieces of evidence. Accordingly, for the

purposes of defendant’s primary evidentiary argument, we only consider those three groups of

evidence listed in the paragraph above.

¶ 64 A. Legal Principles

¶ 65 Rule 404(b) of the Illinois Rules of Evidence is titled “Other Crimes, Wrongs, or Acts.”

Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). The rule provides that, with certain exceptions not

relevant here,

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith *** [citations]. Such

evidence may *** be admissible for other purposes, such as proof of motive,

regularly used the phone number (773) 349-2942. Accordingly, for the remainder of this opinion, we will simply refer to Facebook and text messages written and sent by defendant. 22 opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.”

As summarized by our supreme court prior to the adoption of the Illinois Rules of Evidence,

“Evidence regarding other crimes is generally inadmissible to demonstrate propensity to commit

the charged crime ***.” People v. Donoho,

(2003).

¶ 66 The restriction on the use of other crimes or bad acts evidence is primarily based upon the

tendency of such evidence to cause unfair or undue prejudice to a defendant. See People v.

Ward,

. Of course, all evidence is prejudicial, in that it is intended to

persuade the finder of fact in one direction or the other. E.g., People v. Gordon,

. In this context, as with the rules of evidence generally, the concern is with

prejudice which is undue or unfair, the type of prejudice that “speaks to the capacity of some

concededly relevant evidence to lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged.” Old Chief v. United States,

(1997). With other crimes or bad acts evidence, the possibility arises that juries will prejudge

defendant based on their unrelated bad acts, or find them to be a “a bad person deserving

punishment,” independent of the evidence of the charged offense presented. People v. Lindgren,

(1980); see also Ward,

.

¶ 67 Still, Rule 404(b) provides that such evidence is admissible for a number of other

purposes besides propensity. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Where such evidence is

admissible for another purpose, it is subject to the standard test applied to all evidence. Donoho,

.

¶ 68 Rule 404(b) thus contemplates a two-part inquiry. First, a court must determine if the

evidence is offered for a purpose other than propensity; in other words, does the evidence tend to

23 prove or disprove that the defendant committed the charged offense. Ill. R. Evid. 404(b) (eff.

Jan. 1, 2011); see also Black’s Law Dictionary 1397 (10th ed. 2014) (defining “probative”). If

the proffered evidence is not probative of anything except the defendant’s propensity to commit

crimes or engage in bad acts, it is inadmissible. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). If the

evidence is relevant—in proving, for example, motive or intent—the court must then determine

if that probative value is substantially outweighed by the danger of unfair prejudice. Ill. R. Evid.

403 (eff. Jan. 1, 2011).

¶ 69 Rule 403, in addition to setting forth the test for admissibility of prejudicial evidence,

also prohibits the “needless presentation of cumulative evidence.”

“Evidence is considered

cumulative when it adds nothing to what was already before the jury.” People v. Ortiz,

, 335 (2009).

¶ 70 The prohibition of the needless presentation of cumulative evidence is closely related to

the rule that evidence must be relevant or probative to be admissible. Ill. Rs. Evid. 401, 402 (eff.

Jan. 1, 2011). As more identical evidence is presented to a jury, it stands to reason that the

probative value of any such evidence will continue to diminish. E.g., Underwood v. Elkay

Mining, Inc.,

(4th Cir. 1997) (“There is a point of diminishing returns and a

point at which additional evidence provides almost no value.”). Moreover, as the probative value

of each subsequent piece of cumulative evidence diminishes, the prejudicial effect, if there is

any, remains the same, increasing the chances that the danger of undue prejudice will come to

outweigh the probative value. Ill. Rs. Evid. 401, 402 (eff. Jan. 1, 2011).

¶ 71 In the context of other crimes or bad acts evidence, courts are especially wary of

accumulation, given the high danger of undue prejudice inherent in such evidence. In People v.

Nunley,

(1995), the defendant was charged with murder. The defendant had

24 been arrested and taken to the police station for allegedly stabbing his mother and killing her

dog.

. It was in the police interrogation room that the defendant confessed to a murder

he had committed years prior, the offense for which he would ultimately be charged.

Though

the circuit court noted the possibility “the fact that some jurors may consider the killing of a dog

more depraved than that of an individual,” it allowed the State to present full evidence regarding

the stabbing and the killing of the dog as part of a continuing narrative.

At trial, detailed

testimony was provided by the arresting officer; in closing, the State referenced defendant’s

“reign of murder.”

.

¶ 72 The Nunley court agreed that some evidence of defendant’s other crimes was relevant in

demonstrating the voluntariness of his confession.

. However, the court held that “the

detail and repetitive manner in which the evidence was presented greatly exceeded what was

required to accomplish this purpose [citation] and subjected defendant to a mini-trial over

conduct far more grotesque than that for which he was on trial.”

Similarly, in Bedoya,

, where seven witnesses testified regarding earlier, uncharged shootings, the

court found that “[t]he detail and repetition presented to the jury had nothing to do with the

purported purpose of the evidence—proof of Bedoya’s intent and the absence of accident.”

Reversing the defendant’s conviction, the court referred to that amount and repetition of other

crimes evidence as “overkill.”

.

¶ 73 B. Messages Exchanged Between J.S. and Defendant

¶ 74 The first group of evidence to which defendant takes exception is the publication and

recitation of the Facebook messages exchanged between himself and J.S. In those messages,

defendant repeatedly implored J.S. to wait for him if he should one day go to jail for a long time.

See supra ¶¶ 31-32.

25 ¶ 75 It is unclear how this series of messages constitutes evidence of “Other Crimes, Wrongs,

or Acts.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). Though defendant argues that the messages (in

concert with the other identified groups of evidence) should have been inadmissible under Rule

404(b), he makes no effort to explain what “other” crime, act, or even wrong is implicated by the

evidence. It was not a crime for defendant to ask J.S. to wait for him to return from jail nor was

that an inherently bad act. 5 Though the messages give rise to an inference that defendant was

contemplating committing a crime, the only actual crime or bad act that can be tied to that

inference is the murder that occurred four days later. Of course that is not an “other” crime;

rather, it is the actual offense defendant was charged with. In sum, the messages between

defendant and J.S. do not constitute other crimes evidence under Rule 404(b) and show no

apparent danger of undue prejudice.

¶ 76 C. Messages Exchanged Between Brian Lopez and Defendant

¶ 77 Defendant next takes exception to the publication and recitation of the Facebook

messages between himself and Brian Lopez, claiming that those messages “added to the

prejudicial weight of the other crimes evidence.” Those messages detailed defendant’s attempts

to purchase a gun from Lopez.

¶ 78 Again, defendant asserts that the evidence in question was “other crimes” evidence but

gives no explanation as to how or why that is the case. We surmise that defendant’s messages

might be construed as an attempt to commit the criminal offense of unlawful possession of a

weapon by a felon. In any event, Rule 404(b) is broader than “other crimes,” incorporating bad

acts or wrongs, so we will assume, arguendo, that one’s efforts to illegally obtain a firearm

constitutes a “wrong.” Id.

5 We note that the circuit court properly exercised its discretion in prohibiting all references to any sort of romantic relationship between defendant and J.S. 26 ¶ 79 Defendant’s messages to Lopez were probative of defendant’s intent to commit and

preparation for the charged murder. Between the messages and Atwal’s testimony, the State

showed that defendant was looking for a gun for a period of time before Briana was murdered. It

was also a key piece of the State’s timeline, falling between the threats of December 2013 and

the shooting in February 2014. On a more basic level, evidence that a defendant is searching for

a gun is of clear probative value where that defendant is charged with shooting a person. Further,

in those messages to Lopez, defendant, through the Gangero Jente Difiesta Facebook account,

told Lopez that his phone number was (708) 953-2118. This bolstered the State’s case in

connecting defendant, his Facebook account, and defendant’s use of Ortiz’s phone.

¶ 80 The Lopez messages were thus probative of a number of elements rather than on

defendant’s propensity to commit crimes or wrongs. That evidence would not be automatically

barred by Rule 404(b). Further, we find that the risk of undue prejudice arising from those

messages was low. Defendant was charged with first degree murder and attempted first degree

murder. It is highly unlikely that the jury’s verdict would conclude that defendant was a “bad

person deserving punishment” because he tried to procure a gun. Lindgren,

.

Accordingly, we find that the circuit court did not abuse its discretion in admitting this evidence.

¶ 81 D. Messages Exchanged Between Briana, S.M., and Defendant

¶ 82 Finally, defendant takes exception to the publication and recitation of the text messages

exchanged between himself, Briana, and S.M. In that lengthy exchange of messages, defendant

exhibits jealousy toward Briana, then anger, as he repeatedly threatens to rob, rape, murder, or

kidnap Briana or her family members. The messages also included multiple references to the

sexual relationship between defendant and Briana.

27 ¶ 83 First, we note that the messages in question were significantly probative with respect to

the charged offenses in a number of ways. On a simple level, defendant’s threats to harm Briana

were probative of his intent and probative of his identity as the shooter. Defendant’s history with

Briana and anger toward her make him much more likely to be the shooter than Somma. Further,

defendant’s severe jealousy upon learning that Briana had a new boyfriend was probative of his

motive for killing her. Defendant’s inclusion of Briana’s family in his series of threats was

probative of his preparation or plan, given that he was also charged with the attempted first

degree murder of Guerrero. More broadly, the messages from December 2013, in conjunction

with the State’s evidence from the next two months, further demonstrate the timeline of

defendant’s preparation; that is the evidence allows the inference that defendant decided to kill

Briana sometime in December 2013. And again, each of these factors were themselves probative

of identity, which the defense brought into issue by so extensively arguing about Somma.

¶ 84 Though the messages in question had great probative value, they also carried a danger of

unfair prejudice on a number of grounds. Primarily, the messages contained some graphic

references to the sexual relationship between defendant and Briana. Given the ages of defendant

and Briana, the existence of a sexual relationship between the two constituted defendant’s

commission of criminal sexual assault. The messages also included threats made by defendant

and were rife with defendant’s use of vulgar language, either of which might lead the jury to

conclude that defendant is a person of bad character. See Ward,

.

¶ 85 Importantly, the number of explicit references to the sexual nature of defendant’s

relationship with Briana in the messages in question was somewhat few, especially when

considered relative to the total length of the messages. To be sure, those references were there,

but it was defendant’s jealousy, not the sexual relationship itself, that was the main thrust of the

28 messages. In other words, defendant’s criminal offense was never the focus of that presentation

of evidence. See People v. Perez,

(“When weighing the

prejudicial effect of admission, a court should consider whether the other-crimes evidence will

become the focus of the trial ***.”). Further, while demonstrating defendant’s anger and jealousy

was vital to the State’s case, showing jealousy without some reference to the existence of a

romantic relationship would be almost impossible and quite confusing for the jury.

¶ 86 Defendant’s threats and vulgar language carried less danger of undue prejudice. While

we agree with defendant that evidence of such threats and use of vulgar language may convince a

jury that a defendant is of bad character, that effect must necessarily be less than when evidence

is presented that a defendant committed an actual criminal offense. Indeed, the prejudicial effect

of other crimes, acts, or wrongs evidence must include a consideration not only of the

seriousness of the other crime or wrong but also the gravity of the charged offenses. The Nunley

court alluded to this principle when it pointed out that the defendant had been subjected “to a

mini-trial over conduct far more grotesque than that for which he was on trial.” Nunley,

.

¶ 87 The Nunley court’s conclusion was logical: where the other crime or wrong is worse—or

“far more grotesque”—than the charged offense, the possibility of undue prejudice is especially

high.

The inverse is also true. By way of example, where a defendant is charged with

misdemeanor disorderly conduct, and evidence is presented showing that he committed an

unrelated murder, that evidence is likely to be prejudicial. On the other hand, where a defendant

is on trial for murder and evidence is presented showing that he tended to use vulgar language, it

is far less likely that such evidence will play any role in the jury’s decision-making process. See

also, e.g., People v. Carter,

(“[E]vidence that defendant wished

29 to escape from jail and acquired various items of contraband including hacksaw blades to do so

was unlikely to inflame the passions of the jury. This is especially true when compared with the

strong evidence of the relatively more heinous offense of attempted murder.”).

¶ 88 In sum, the messages exchanged between defendant, Briana, and S.M., certainly

contained some elements that risked undue prejudice against defendant. However, the messages

were also highly probative in numerous ways. Given this great probative value, the circuit

court’s ruling that the probative value was not substantially outweighed by the danger of undue

prejudice was not “arbitrary, fanciful, or unreasonable.” People v. Caffey,

(2001) (providing definition of “abuse of discretion”).

¶ 89 We also conclude that the admission of all of the evidence cited by defendant on appeal

did not, collectively, amount to an abuse of discretion. The J.S. messages did not even constitute

other crimes or wrongs evidence (see supra ¶¶ 74-75), and the Lopez messages carried little

danger of undue prejudice (see supra ¶¶ 77-80). While the messages on S.M.’s phone certainly

present a closer case, if the risk of prejudice there is not enough to constitute an abuse of

discretion, the other messages in question do little more for defendant’s case.

¶ 90 Furthermore, we find that the evidence presented in this case does not run afoul of Rule

403 or the “overkill” doctrine. See supra ¶¶ 69-72. The evidence in question added a great deal

to what was before the jury, bolstering the State’s case with respect to defendant’s motive, intent,

preparation, and, ultimately, his identity. Obviously each bit of identity evidence was important,

given that the defense’s closing argument was premised on Somma being the actual shooter.

Further, the “overkill” doctrine, as explained in cases such as Nunley and Bedoya, contemplates

trials in which another offense by a defendant becomes the focus of the trial. Here, evidence was

presented that alluded to certain other criminal offenses committed by defendant as well as

30 certain “wrongs,” such as making threats or using vulgar language. However, not one of those

other crimes or wrongs ever became the focus of the trial, such that a “mini-trial” arose relating

to that other conduct. See Nunley,

. Nor was evidence presented regarding

any of those crimes or wrongs in needless detail and repetition. See Bedoya,

. Overall, the risk that the jury found defendant guilty in part because it found him to be a

“bad person deserving punishment” (Lindgren,

) is especially low in light of the

great amount of compelling evidence the State presented.

¶ 91 E. Jury Instructions

¶ 92 Defendant also argues that IPI Criminal 4th No. 3.14 should have been delivered to the

jury in conjunction with the admission of other crimes or wrongs evidence. He contends first that

the circuit court itself erred in failing to give that instruction sua sponte. Alternatively, he

contends that defense counsel was ineffective for failing to request the instruction.

¶ 93 IPI Criminal 4th No. 3.14 informs jurors that when evidence of a defendant’s other

crimes or wrongs had been admitted, it may only be considered for certain purposes. That

instruction thus ensures that such evidence will not be considered as character or propensity

evidence, as barred by Rule 404(b). Because the State presented evidence of other crimes or

wrongs committed by defendant, this instruction would have been appropriate if given.

¶ 94 Initially, neither party in the present case requested that the circuit court deliver IPI

Criminal 4th No. 3.14. The defense was certainly on notice that evidence warranting the

instruction would be presented but did not request the instruction pretrial, nor did it do so in a

jury instruction conference. The circuit court itself does not have a duty to sua sponte deliver IPI

Criminal 4th No. 3.14. People v. Mullen,

(1980). Accordingly, we

31 proceed directly to defendant’s argument that counsel was ineffective for failing to request the

instruction.

¶ 95 Claims of ineffective assistance of counsel are analyzed under the two-part framework set

forth in the seminal case of Strickland v. Washington,

(1984). See People v.

Manning,

(2011). To prevail on such a claim, “[a] defendant must show that

counsel’s performance fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”

In order to satisfy the prejudice prong, a defendant must prove a

reasonable probability exists that, but for counsel’s deficient performance, the outcome of the

trial would have been different. People v. Smith,

(2000). It is well-settled

that courts “may resolve ineffectiveness claims under the two-part Strickland test by reaching

only the prejudice component, for lack of prejudice renders irrelevant the issue of counsel’s

performance.” People v. Coleman,

(1998).

¶ 96 Defendant’s ineffectiveness claim fails because there is no reasonable probability that the

outcome of his trial would have been different had counsel procured the delivery of IPI Criminal

4th No. 3.14. The evidence at trial showed that defendant was infatuated with Briana but became

jealous and enraged when the relationship ended. He repeatedly threatened to kill her. Soon

thereafter, defendant attempted to procure a firearm. Just days before the shooting, defendant

was apparently contemplating an act that would result in him going to jail for a long time.

Defendant eventually did receive a gun from Atwal, who identified the gun he gave defendant as

the one found by police blocks away from the scene of the crime.

¶ 97 The State showed that defendant took two cab rides from his home in Cicero to an

address in Briana’s neighborhood. The second of those cab rides occurred on the morning of the

32 shooting. Multiple neighbors testified that an individual generally matching defendant’s

description fled past their house after they heard gunshots. Defendant was arrested two streets

over from the scene of the crime. The sweatshirt he was wearing at the time was later found to

have gunshot residue particles on the right cuff.

¶ 98 The jury concluded that defendant was guilty of murdering Briana and shooting Guerrero

because the evidence presented allowed for no other conclusion. The circuit court’s delivery of

IPI Criminal 4th No. 3.14 would not have affected the outcome. Thus, we reject defendant’s

argument that defense counsel was ineffective for failing to request that instruction.

¶ 99 II. Business Records

¶ 100 Within his other crimes arguments, defendant raises the independent and distinct

argument that the Facebook messages exchanged between himself and Lopez should not have

been admissible because they constitute hearsay. While those messages were admitted under the

business records exception, defendant claims that ruling was an abuse of discretion. Though

defendant failed to include this point in the “Issues Presented for Review” section of his brief,

the State fully responds to the argument. Accordingly, we will consider defendant’s contention

that the Facebook posts were “not made to record any business event, nor are they made by any

business during the regular course of business.”

¶ 101 Defendant’s argument is directly contradicted by the certificate of authentication filed by

the State accompanying the evidence in question. Rule 803(6), commonly known as the business

records exception, provides that certain hearsay evidence is admissible where it constitutes

“[a] memorandum, report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses, made at or near the time by, or from

information transmitted by, a person with knowledge, if kept in the course of a

33 regularly conducted business activity, and if it was the regular practice of that

business activity to make the memorandum, report, record or data compilation, all

as shown by the testimony of the custodian or other qualified witness, or by

certification that complies with Rule 902(11).” Ill. R. Evid. 803(6) (eff. Jan. 1,

2011).

¶ 102 The certificate of authenticity provided by a Facebook authorized custodian of records

and filed by the State indicated that “[t]he records provided were made and kept by the

automated systems of Facebook in the course of regularly conducted activity as a regular practice

of Facebook. The records were made at or near the time the information was transmitted by the

Facebook user.” The certificate of authenticity complied with Rule 902(11), and thus provided

the necessary foundation contemplated by Rule 803(6). The circuit court did not abuse its

discretion in admitting the evidence.

¶ 103 III. Pro Se Claims of Ineffective Assistance of Counsel

¶ 104 Finally, defendant argues that the circuit court failed to conduct an adequate inquiry into

defendant’s multiple pro se claims of ineffective assistance of counsel made in his

postsentencing motion. The State confesses error and concedes that the matter should be

remanded so that the circuit court may make the proper inquiry into defendant’s claims.

¶ 105 When a defendant makes a pro se claim of ineffective assistance of counsel, the circuit

court must examine the factual basis of that claim, appointing new counsel if the allegations

show “possible neglect of the case.” People v. Moore,

(2003). After he was

sentenced, defendant filed a pro se motion explicitly setting forth 33 claims of ineffective

assistance of counsel. The court, however, made no inquiry into those claims, refusing to allow

defendant to argue those points. We therefore accept the State’s confession of error and remand

34 the matter for the limited purpose of an inquiry into defendant’s pro se claims of ineffective

assistance of counsel.

¶ 106 CONCLUSION

¶ 107 The judgment of the circuit court of Will County is affirmed in part and remanded with

instructions.

¶ 108 Affirmed in part and reversed in part; cause remanded.

35