No. 1-19-2519 Opinion filed January 30, 2023

First Division

___________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ___________________________________________________________________________ ) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) No. 18 CR 12339 v. ) ) The Honorable VICTOR HUDSON, ) Angela Munari Petrone, ) Judge, presiding. Defendant-Appellant. )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion. Justice Coghlan dissented, with opinion.

OPINION

¶1 A team of officers executed a warrant at the home of several members of the Hudson

family, including Victor Hudson. According to the search warrant, the officers were looking for

Tommie Williams, who they suspected of manufacturing and distributing cannabis. The officers

did not find Williams or cannabis; instead, they found Hudson and a gun. The State charged

Hudson with armed habitual criminal, and a jury found him guilty. The trial court sentenced

Hudson to nine years in prison. No. 1-19-2519

¶2 Hudson challenges his conviction on three grounds: (i) the State failed to prove him guilty

beyond a reasonable doubt, (ii) the trial court committed multiple errors when responding to

questions from the jury, and (iii) the trial court erroneously barred testimony that (a) the officers’

search warrant targeted someone other than Hudson and (b) the officers were not looking for a

gun.

¶3 We agree with Hudson that the evidence against him is weak. To prove Hudson’s guilt,

aside from an unmemorialized confession, which Hudson denied making, the State relied on two

utility bills and a bottle of pills found in the same bedroom as the gun. By contrast, Hudson

presented three witnesses and documentary evidence showing that he lived in the basement, not in

the bedroom where officers found the bottle and gun. At oral argument, the State conceded these

accounts presented “conflicting evidence” that was not “completely overwhelmingly one-sided”

and that required the jury “to make a credibility determination.” The jury had the task of deciding

between these narratives, and their decision to find Hudson guilty was not unreasonable.

¶4 The trial court also committed no error in responding to the jury’s questions about the jury

instructions. We do not assess whether the trial court could have answered the jury’s questions

better, only whether the court answered them adequately. The trial court did so.

¶5 We find error, however, in the trial court’s decision to exclude the contents of the warrant.

In the unique circumstances here, we conclude that the warrant’s contents do not implicate the

hearsay rule because its introduction would have been to provide a full explanation of the police

conduct in executing the warrant. In a similar, though distinct vein, we also are persuaded by

Hudson’s analogy to the completeness doctrine in other contexts and find that, absent a chance to

introduce evidence the warrant targeted a different person and other items, testimony about the

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existence of the warrant here casted a cloud of predetermined guilt over the remainder of the trial

evidence. Accordingly, we reverse and remand for a new trial.

¶6 Observation

¶7 Hudson’s mother was in bed, and without warning, about a dozen armed police officers

burst into her home. Several officers came to her bedroom, guns drawn, shouting profanities.

Meanwhile, officers in the living room held her 17-year-old grandson to the ground with knees in

his back. Hudson entered the living room, and an officer punched his face without warning. The

officers mostly do not dispute applying force.

¶8 The dissent believes we have engaged in fact-finding to arrive at this narrative, but this

testimony comes from the record. Dorothy Hudson testified that officers came into her room

shouting, “everybody get the F up,” and “had the light and gun in [her] face.” She describes hearing

a “boom, boom, boom,” which she learned was police coming through the front door. We learn

that when Hudson entered the living room, she told the officers, “that’s my son,” and “they said

shut the F up; and they hit him.”

¶9 Randy testified that he was sleeping and “hear[d] a big old boom” and saw what he

estimated as “15, 17” officers with “a lot of guns.” Randy adds, “the officer was yelling, like get

the F down,” and Hudson said, “please, get off my son *** and the officer hit him” with a “closed

fist” on his nose. Hudson testified that he heard a “bamming” upstairs and went into the living

room where he saw “Randy, and the police got their knee in his back.” Hudson told the officers to

“hold on” and asked, “what’s happening.” Then the officer “punched [him] in [his] nose.”

¶ 10 The officers agreed that “12 to 15” officers entered the home. They testified that Randy

raised his middle fingers and yelled at them and that Hudson ignored commands to stop walking

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into the living room. Officer Tellez agreed that he “grabbed [Randy] by the wrists” and then “rolled

to the ground and began wrestling” after Randy stiffened his arms. Thus, we reject the dissent’s

groundless assertion that we “cherry-pick[ed]” testimony. Infra ¶ 114. The officers did not dispute

applying force.

¶ 11 In any event, we do not decide between the different narratives. Instead, justice demands

we recognize this unseemly behavior, which exacerbates the climate of distrust toward both law

enforcement and the criminal justice system that prevails among many black and brown residents.

The law enforces a standard of behavior for the actors in our criminal legal system, including

enforcement personnel, prosecutors, defense attorneys, correction and probation officers, and the

courts. When those actors’ behavior offends that standard and endangers members of the public,

the judiciary must not remain silent, else our silence signifies indifference and, in a broader sense,

approval. See People v. Washington,

(Walker, J., dissenting)

(remaining silent leads to wrongful convictions that “can devastate families, foreclose career

opportunities, and undermine the integrity of our justice system”).

¶ 12 Simply put, the behavior the Hudsons described is incompatible with the fair and equitable

administration of justice. Illinois courts have historically commented on misbehavior not an issue

in the case when the record divulges an abuse of office, mistreatment of another, or conduct

otherwise inappropriate. See, e.g., People v. Lewis,

(1979) (“Although

the actions of [the officers] in inflicting the injuries upon defendant were regrettable and although

this court cannot excuse nor condone the excessive force used since it appears to have been

unnecessary to effectuate the arrest, we conclude that *** the force used *** did not result in

defendant giving a statement.”); see also, e.g., People v. Potts,

, ¶ 165

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(finding, “we would not condone *** conduct from the police” even where “we have no authority”

to remedy it); People v. Finklea,

(1983) (court “d[id] not mean to

condone the police conduct in [the] case” even though conduct did not result in reversible error in

defendant’s interrogation). Cf., e.g., People v. White,

(1973) (noting, “we

do not condone the conduct of the prosecutor” where only issue was judge’s consideration of

improper sentencing factor); People v. Foss,

(1990) (“we cannot condone

the prosecutor’s conduct” even though conduct did not amount to error). Consistent with this

precedent, we must speak about what the Hudsons saw and heard.

¶ 13 To say nothing in the face of the treatment of the Hudsons would be incompatible with the

judiciary’s role as a fundamental protector of the citizen against arbitrary or unwarranted conduct

by the State. We write in the hope that “[e]very community resident [can] live, work, and travel

confident in an expectation that interactions with police officers will be fair, operate consistent

with constitutional norms, and be guided by public safety free from bias or discrimination.” U.S.

Comm’n on Civil Rights, Police Use of Force: An Examination of Modern Policing Practices 137

(Nov. 2018) https://www.usccr.gov/files/pubs/2018/11-15-Police-Force.pdf

[https://perma.cc/8CGR-AQQ9].

¶ 14 Our observation has no bearing on the guilt or innocence of Hudson or the issues before

us. Nonetheless, the dissent confuses this observation, this obiter dicta (Latin for “said in

passing”), with a “factual determination.” Infra ¶ 113. It goes so far as to cite cases as if our

observation were binding, including Michigan v. Summers,

(1981), a case

about officer safety, and People v. Mandarino,

, where we affirmed the

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conviction of a police officer for aggravated battery and official misconduct following a traffic

stop.

¶ 15 In an accountable and fair criminal justice system, law enforcement officers treat everyone

with whom they interact the same way they would want themselves and their family members

treated under similar circumstances. See Dean A. Strang, Bryan Stevenson Brings Light to Our

Criminal Justice System’s Darkest Corners, The Progressive Magazine, Dec. 28, 2015,

https://progressive.org/magazine/bryan-stevenson-brings-light-criminal-justice-system-s-darkest-

corners/ [https://perma.cc/7645-5Z7T] (“We don’t need police officers who see themselves as

warriors. We need police officers who see themselves as guardians and parts of the community.”).

¶ 16 Our observation speaks to this: In view of the testimony, is this the way the public should

expect police to behave? To dismiss as business as usual the police officers’ conduct would

dishonor the good men and women of the Chicago Police Department who serve with dignity and

sacrifice so much for the safety and well-being of their community.

¶ 17 Background

¶ 18 A team of 12 to 15 officers executed a search warrant for a Williams, not Hudson. And the

officers were looking for cannabis and related paraphernalia, not a gun. The officers found neither

Williams nor cannabis and related paraphernalia. Still, the police recovered a gun from a back

bedroom and arrested Hudson.

¶ 19 The Officers’ Perspective

¶ 20 One of the officers assigned to execute the search warrant, Carlos Rojas, described the

residence as a single-family home with one floor and an “unfinished basement.” The staircase to

the basement lies immediately to the left in the home’s front vestibule. To the right, one enters a

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combination living and dining room. Off of that, to the left is a bedroom (Bedroom 1); down a

hallway, a bathroom is on the right; and a bedroom is on the left (Bedroom 2). The end of the

hallway leads into the kitchen, with another bedroom off of it (Bedroom 3).

¶ 21 Rojas served as “entry officer,” one of the first inside. When he climbed the front stairs, he

saw the door “wide open” and entered. Three people sat on a pair of sofas in the living room. Five

more people were in the house for a total of eight. Rojas identified one of them as Randy Hudson

(Randy).

¶ 22 Rojas told Randy to raise his hands. As Randy complied, he extended his middle fingers

and said, “f*** y’all; don’t put your hands on me, or I’ll f*** y’all up.” At that moment, Rojas

looked to his left toward the kitchen and saw Hudson walking toward him. Hudson ignored Rojas’s

commands to stop and reached out his hands “in a menacing manner.” Another officer battered

and detained Hudson.

¶ 23 As to Randy, Officer Guillermo Tellez grabbed his wrists and pulled him off the couch.

Randy “stiffened his arms, clenched his fists, [and] continued yelling profanities.” Tellez wrestled

Randy to the ground and “administer[ed] some open [hand] strikes” and “knee strikes” to subdue

and detain him.

¶ 24 Rojas searched several areas and found a gun “laying on top of a jacket *** in the closet

of [Bedroom 3].” He saw the gun “immediately” when he looked down inside the closet. Rojas

continued to search Bedroom 3. He found a pair of pants hanging on the knob of the door and a

wallet. Rojas estimated that the jacket and the pants were adult-sized. He also saw more men’s

clothing in the closet and behind the door. Finally, Rojas found two-month-old pieces of mail on

a dresser addressed to Hudson at the residence— a ComEd bill and a People’s Gas bill. Officers

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eventually took Hudson to the police station. Before leaving, Hudson had medicine with his name

on it retrieved from the top of the dresser in Bedroom 3.

¶ 25 Officer Angel Collazo, who was present during the search, met Hudson at the police station

and read him the Miranda warnings. See Miranda v. Arizona,

(1966). After Hudson

said he understood them, Collazo asked Hudson if he wanted to “share his side of the story as to

what happened.” According to Collazo, Hudson said:

“I’ve lived right there on Karlov for two years with my mother, Dorothy Hudson.

I’ve got six kids, ages 35 to 12. As you can see, that’s my bedroom with my clothes,

hat, and medication. I’ve had that gun for a long time. I forgot it was in my closet.”

Though Collazo did not specify the rest of the statement, he testified that Hudson said the exact

words, “I’ve had that gun for a long time.” Tellez, also present, testified similarly.

¶ 26 Chicago police officer Robert Franks, an evidence technician, testified that he examined

the firearm recovered from Bedroom 3 along with several live rounds and cartridge cases. After

running five separate tests to recover fingerprints, he identified none on the gun, live rounds, or

cartridge cases.

¶ 27 Residents’ Perspective

¶ 28 Dorothy Hudson (Dorothy), Hudson’s mother, testified that she lived at the house for 15

years and Hudson had resided there for most of that time. She explained that her daughter, who

does not live in the home, sometimes stays in Bedroom 1, she sleeps in Bedroom 2, and Randy

sleeps in Bedroom 3. Hudson did not occupy any first-floor bedrooms; he stayed in the basement.

Dorothy could not remember how long Hudson had lived in the basement, other than “for a while.”

Because Dorothy had boarded up the inside access to the basement, the sole access was a set of

stairs outside the back door.

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¶ 29 On the day of Hudson’s arrest, officers came into Dorothy’s bedroom with a “light and gun

in [her] face,” shouting, “everybody get the F up.” She went to the living room, where officers had

Randy restrained. On her way to the living room, she saw Hudson coming from the back. She

heard Hudson tell the officers, “that’s my son,” and the officers responded by hitting Hudson,

saying, “shut the F up.”

¶ 30 Randy testified that he lived and slept in Bedroom 3 with his younger brothers. His older

brother, Victor, occasionally stayed in the room about three days a week. His father did not store

belongings in Bedroom 3, including clothing and medicine. Randy never saw Hudson in Bedroom

3 the day the officers executed the warrant.

¶ 31 When the officers executed the warrant, Randy was asleep with his girlfriend on the living

room couch. He heard a “big old boom” and saw several officers with guns. Officers “slammed”

Randy’s face into the floor. Randy said several officers had their knees on his back, but the trial

court sustained the State’s objection to that portion of his testimony. While on the ground, Randy

saw Hudson running into the house, telling the officers to “please, let go of [his] son.” Randy

watched as the officers hit Hudson in the nose with a closed fist.

¶ 32 Hudson testified in his own defense. He lived in the basement for two years. Hudson’s ID,

voter registration, and application for food stamps indicated he lived in the basement. Hudson

described the basement layout and explained that he entered and left the basement through the

back door, to which he had keys.

¶ 33 On the morning the officers executed the warrant, Hudson “heard a bamming upstairs.” He

went out the back door and upstairs, through the kitchen, and into the front living room. Hudson

saw the police had their knees on Randy’s back, and Hudson asked them what was going on. An

officer then punched Hudson in the nose, sat him down, and handcuffed him. Hudson denied telling

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the officers that he forgot he had a gun in the closet, denied putting items in closets on the main

floor, and denied telling the officers he needed medicine before leaving the house.

¶ 34 Jury Instructions, Deliberation, and Verdict

¶ 35 The State charged Hudson with the offense of armed habitual criminal and, in the charging

instrument, included two possible mental states: “knowingly or intentionally” possessing the gun.

During the jury instruction conference, Hudson’s counsel requested the trial judge give Illinois

Pattern Jury Instructions defining intent and knowledge. See Illinois Pattern Jury Instructions,

Criminal, No. 5.01A (approved Oct. 28, 2016) (defining “Intent”) (hereinafter IPI Criminal No.

5.01A); Illinois Pattern Jury Instructions, Criminal, No. 5.01B (approved Oct. 28, 2016) (defining

“Knowledge—Willfulness”) (hereinafter IPI Criminal No. 5.01B). The trial court denied Hudson’s

request, finding the instructions confusing “legal-ese.” The court explained, however, that it would

give the relevant instructions if the jury asked for them.

¶ 36 During deliberations, the jury sent out a note with four questions on it:

“1. Why were police there? What was the warrant for?

2. Was the gun registered to anyone?

3. If Victor was living or sleeping in bedroom #3 but was unaware of the

gun being in the closet, is he guilty?

4. What does ‘power and intention’ mean in regards to the gun being the

bedroom? Does he have to have knowledge of the gun in order to have intention?”

Before agreeing to an answer on the first question, Hudson’s counsel renewed her argument that

the jury should have been told the target and contents of the warrant. The trial court again rejected

the argument finding the record on that point “very clear.” For the first question, the trial court

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answered: “Police were there with a lawful warrant. What the warrant was for is not in evidence

and should not be considered by you.”

¶ 37 The parties agreed to the court’s answer to the jury’s second question: “Whether the gun

was registered to anyone is not in evidence and should not be considered by you.” The parties also

agreed to the court’s answer to the third question: “The answer to #3 is contained in the instructions

you have received.”

¶ 38 The parties initially agreed to tell the jury that their instructions answered the fourth

question. After further discussion, Hudson’s counsel asked that the definitions of intent and

knowledge be sent to the jury. The court wrote to the jury: “The answer to #4 is contained in the

instructions you have received.” The court also sent additional instructions on intent and

knowledge. Though not entirely clear from the discussion on the record, the instructions in the

common law record suggest the court sent back IPI Criminal No. 5.01A (Intent) and Illinois Pattern

Jury Instructions, Criminal, No. 5.01C (approved Dec. 8, 2011) (“Actual Knowledge”) (hereinafter

IPI Criminal No. 5.01C). Hudson’s counsel had previously requested IPI Criminal No. 5.01B as

the instruction defining knowledge.

¶ 39 After further deliberation, the jury found Hudson guilty of armed habitual criminal. After

the jury poll, the court read a note from the jury: “Although the law is clear, the evidence is

sufficient, the circumstances for Victor are unfair. We would like you to consider this as you

pronounce sentence. Sincerely, the Jurors.”

¶ 40 Hudson filed a motion for a new trial and alleged, among other issues, that the trial court

erred when it denied his motion in limine to allow testimony about the target of the search warrant

and the items to be seized. The trial court denied the motion. After a hearing, the trial court

sentenced Hudson to nine years in prison.

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¶ 41 Analysis

¶ 42 Hudson raises four arguments: (i) the evidence was insufficient to find him guilty of armed

habitual criminal, (ii) the trial court erred in denying his motion in limine to introduce testimony

about the target of the search warrant and the items intended for seizure, (iii) the trial court erred

in two of its answers to the jury’s questions, and (iv) alternatively, trial counsel was ineffective for

failing to object to the erroneous answers or to offer the correct responses. We agree with Hudson’s

second argument and reverse and remand for a new trial.

¶ 43 Sufficiency of the Evidence

¶ 44 Hudson first attacks the sufficiency of the evidence on several grounds that all boil down

to one essential point: Hudson did not live in or have control over Bedroom 3. He says we should

ignore his statement to police as it is not memorialized and, therefore, “too thin a basis upon which

to sustain [his] conviction.” On the other hand, the State emphasizes the statement Hudson gave

police, along with the mail and medicine found in Bedroom 3. As for the evidence Hudson lived

in the basement, the State says we should disregard it since the jury heard and had the opportunity

to weigh that evidence. We agree with the State. Though modest, the evidence suffices to prove

Hudson guilty beyond a reasonable doubt when viewed in a light most favorable to the State.

¶ 45 To prove Hudson guilty of armed habitual criminal, the State had to show two elements:

(i) Hudson possessed a firearm and (ii) possession was after having been convicted of two

qualifying offenses. See 720 ILCS 5/24-1.7(a) (West 2018). The parties do not dispute Hudson’s

qualifying criminal history. Rather, they focus on whether the State adequately proved possession.

The State does not argue—nor could it—that Hudson had actual possession of the gun when the

officers executed the search warrant. In its place, the State sought to prove constructive

possession—that Hudson had knowledge of the gun’s presence and “immediate and exclusive”

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control over the area where officers found it (Bedroom 3). E.g., People v. Fernandez,

. We have recognized that constructive possession often involves “entirely

circumstantial” evidence (id.), and when reviewing its sufficiency, we ask whether, after making

all reasonable inferences in the State’s favor, a rational trier of fact could have found the essential

elements of the offense proven beyond a reasonable doubt (id. ¶ 17).

¶ 46 We start with the State’s circumstantial evidence that Hudson lived on the first floor and

slept in Bedroom 3. Officers found ComEd and People’s Gas bills addressed to a “Victor Hudson”

on a dresser in Bedroom 3. The officers also testified that they retrieved medicine from the dresser

in Bedroom 3—at Hudson’s request—before taking him to the police station. We usually will not

uphold a conviction based on constructive possession where the defendant merely has access to

the area containing contraband.

¶ 21 (citing People v. Sams,

).

Even personal effects and mail do not necessarily show control absent additional circumstantial

evidence. For example, in Fernandez, we held the evidence of constructive possession insufficient

even though officers located the defendant’s passport and insurance card in the room where they

spotted a gun. Id. ¶ 20-22. Nonetheless, we would be inclined to reverse if the State’s only evidence

was the mail and medication.

¶ 47 But the State’s conviction in Fernandez fell apart on more than the scant documentary

evidence. The trial evidence showed that the defendant received mail at a different address, and

the State offered no affirmative evidence the defendant had been in the house where police

discovered contraband hidden under a mattress. Id. ¶ 22 (discussing People v. Maldonado,

). While some of Hudson’s documentary evidence specified he lived in the

basement, all the mail and documentary evidence linked Hudson to the address. Moreover, Hudson

was present when officers executed the search warrant, and though witnesses differed on where

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Hudson was coming from, they all testified he came into the living room from the back of the

house. Finally, the police saw the gun in plain view.

¶ 48 Even if, for the sake of argument, we assume this evidence lacking, Hudson cites no

authority to permit disregard of his statement or that the jury should have disregarded it. Instead,

he focuses on the circumstances in which he made the statement. He argues that the officers’

aggressive entry into the home, the “beating and manhandling of his teenage child,” and the

officers punching him in the face render his statement “not trustworthy at all.” Yet, independent

of the officers’ conduct, Hudson does not draw a connection between their behavior and his

statement hours later at the police station. Indeed, he does not claim that the conditions at the

station were coercive or threatening.

¶ 49 Most of Hudson’s other arguments would require drawing inferences in his favor or

reweighing the evidence. For example, the circumstances under which a defendant confesses

generally go to the confession’s weight. People v. Hood,

(1993). Here,

we know from the jury’s second note that the jury perceived “unfair[ness]” in how the police

treated Hudson. Even accounting for that unfairness, the jury found the evidence satisfied the

elements of the offense. Similarly, Hudson emphasizes the evidence he provided, including voter

registration and ID showing his address as the basement. The jury heard that evidence and could

reject it.

¶ 50 We have no basis on which to second guess Hudson’s confession and, taken together with

the State’s other circumstantial evidence, it minimally suffices to sustain his conviction. Hudson’s

path to reversal requires drawing inferences in his favor, discounting evidence the jury properly

considered, or elevating his evidence over the State’s evidence. None of these tasks are proper.

See People v. Cunningham,

(2004) (reversal on sufficiency grounds

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appropriate only where record “compels the conclusion that no reasonable person could accept it

beyond a reasonable doubt”).

¶ 51 Jury Questions and Ineffective Assistance of Counsel

¶ 52 Hudson next challenges two of the trial court’s responses to questions from the jury. First,

he argues the trial court diminished the State’s burden of proof by instructing the jury it “should

not *** consider[ ]” the lack of evidence of gun registration. Second, Hudson argues the trial court

gave the incorrect pattern jury instruction on the mental state of knowledge. Recognizing he

forfeited these claims, he asks for review under the plain error doctrine or, alternatively, claims of

ineffective assistance of counsel.

¶ 53 The State responds that both answers the trial court gave “were responsive to the jury’s

questions, correct on the law, and well within the trial court’s sound discretion.”

¶ 54 Despite excusing Hudson’s forfeiture since the evidence is closely balanced, we still find

the trial court committed no error. As a result, counsel was not ineffective.

¶ 55 We start with forfeiture because it applies to both jury question claims. Generally, to

preserve a claim for review, a party must object when the alleged error occurs and include that

error in a post-trial motion. People v. Mitchell,

. Hudson’s counsel

offered no objection to the trial court’s answer about gun registration. And, though she preserved

her general objection to the motion in limine, denying initial instructions about mental states, she

ultimately acquiesced in the trial court’s final answer to the jury.

¶ 56 We can review forfeited errors in jury instruction under the plain error doctrine where clear

or obvious error occurs in a closely balanced case or where the error itself is so severe as to affect

the fairness of the defendant’s trial. Id. ¶ 40.

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¶ 57 Ordinarily, the first step in a plain error analysis involves determining whether an error

occurred. Id. Our supreme court has reminded us that plain error is a forfeiture doctrine and

considering first whether the evidence is closely balanced avoids commenting on the merits of a

forfeited claim. People v. White,

. Such an approach seems doubly

appropriate here: Hudson raised a side-along claim of ineffective assistance of counsel. Thus, our

analysis under the closely balanced prong of plain error is functionally identical to the prejudice

prong of ineffective assistance claims.

¶ 133 (citing Strickland v. Washington,

(1984)). In short, to excuse Hudson’s forfeiture and proceed to the merits (determine whether

the trial court erred or counsel provided deficient performance), we initially must resolve whether

the trial evidence was closely balanced.

We conclude it was.

¶ 58 The State’s brief argues the trial evidence was “quite overwhelming” in favor of guilt,

focusing on Hudson’s confession to two witnesses, the direction from which Hudson entered the

living room, and the various personal effects acquired in Bedroom 3. The State dismisses Hudson’s

evidence, without much discussion, as “comparatively weak.” The State forgets that our analysis

“does not involve the sufficiency of close evidence but rather the closeness of sufficient evidence.”

People v. Sebby,

. At oral argument, the State made repeated concessions

about the closeness of the evidence, including describing it as a “credibility determination” for the

jury. As we have said, the State’s version of events was sufficient for the jury to reject Hudson’s

version. But that does not mean Hudson’s version was “fanciful,” uncorroborated, or inherently

incredible. See id. ¶ 61.

¶ 59 Two witnesses and documentary evidence (Hudson’s ID and voter registration)

corroborated Hudson’s claim he lived in the basement. The State’s witnesses corroborated

Hudson’s and Randy’s versions of the officers’ entry and treatment of the occupants. But the

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officers preferred circumspection in their description of restraining Randy and Hudson. Nothing

in Randy’s testimony about sharing a bedroom with younger siblings is rebutted by extrinsic

evidence or inherently incredible. As we have already discussed, the documentary evidence linking

Hudson to Bedroom 3 was a thin reed on which to rest the State’s case. True, two officers testified

Hudson made a statement, but Hudson denied making it, and because the officers did not record

the interaction, nothing confirms either account. This was a classic credibility contest (see id. ¶ 63),

and though the jury permissibly resolved that contest in the State’s favor, still it was weak. Because

the evidence was closely balanced, we excuse Hudson’s forfeiture and turn to the merits.

¶ 60 The trial court has a duty to answer jury questions requesting clarification on points of law.

People v. Millsap,

(2000). At the same time, the trial court has discretion

to decline to answer the jury’s question in some circumstances (id.), any answer it gives should be

specific and accurate. People v. Childs,

(1994). We review de novo the

legal accuracy of the trial court’s answers to juror questions. E.g., People v. Jaimes,

.

¶ 61 We begin with the trial court’s answer to the jury’s question about the gun’s registration.

The jury asked: “Was the gun registered to anyone?” The trial court answered: “Whether the gun

was registered to anyone is not in evidence and should not be considered by you.” Hudson does

not contest, nor could he, the accuracy of the first part of the trial court’s answer— there was no

evidence of gun registration. Instead, he argues the last clause, instructing the jury not to consider

the lack of registration evidence, improperly shifted the burden of proof away from the State. The

State responds that the court’s answer, in context of the juror’s other instructions on the burden of

proof, could not reasonably be misconstrued in the way Hudson claims. We agree with the State.

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¶ 62 The State bears the burden of proof in a criminal prosecution, and “it similarly bears the

consequences of any omission of proof.” People v. Murray,

. We do not

believe the trial court’s answer alleviated that burden. The missing registration evidence is

essentially a red herring. Assuming, for the sake of argument, the gun was registered to someone

else, the State still could have sustained its burden of proving Hudson unlawfully possessed it.

Hudson argues that the jurors may have taken the trial court’s answer about gun registration and

applied it as more relevant evidence of guilt. That argument is speculative, mainly because the jury

received the correct instruction about the burden of proof.

¶ 63 As the question of registration involves an issue collateral to Hudson’s guilt or innocence,

we find People v. Sanders,

(1984), on which Hudson relies, is distinguishable.

There, the trial court misstated the issues instruction for attempted first degree murder, leaving the

jury with the implication that the State did not have to prove the defendant intended to commit

murder when he took a substantial step toward that goal.

. Critically, the court in Sanders

distinguished between errors in “mandatory instruction[s]” and errors in “nonmandatory

instruction[s],” the latter of which can be cured by the totality of the other instructions.

.

Here, the trial court properly instructed the jury on the burden of proof before deliberations began.

And unlike Sanders, even if the court’s answer to the gun registration question produced error, the

error was collateral to the main issues and the totality of the other instructions cured any error.

¶ 64 Hudson’s second argument proves more difficult because it involves issues central to guilt

or innocence. The jury asked: “What does ‘power and intention’ mean in regards to the gun being

the bedroom? Does he have to have knowledge of the gun in order to have intention?” In response,

the trial court did two things: (i) wrote to the jury, “the answer to #4 is contained in the instructions

you have received,” and (ii) sent back additional instructions defining intent (IPI Criminal No.

- 18 - No. 1-19-2519

5.01A) and actual knowledge (IPI Criminal No. 5.01C). Hudson argues the trial court should have

sent back IPI Criminal No. 5.01B instead of IPI Criminal No. 5.01C. The State responds that IPI

Criminal No. 5.01C was the correct instruction under its theory of the case; therefore, the trial

court committed no error. We conclude that giving IPI Criminal No. 5.01C did not reduce the

State’s ultimate burden of proof and, thus, does not support grounds on which to grant a new trial.

¶ 65 We start by comparing the relevant text of the two instructions. The trial court gave the

following instruction on Actual Knowledge: “Actual knowledge is direct and clear knowledge,

that is, knowledge of such information as would lead a reasonable person to inquire further.” IPI

Criminal No. 5.01C. Hudson would have preferred the “Knowledge—Willfulness” instruction,

which we quote: “A person knows the nature or attendant circumstances of his conduct when he

is consciously aware that his conduct is of that nature or that those circumstances exist. Knowledge

of a material fact includes awareness of the substantial probability that the fact exists.” IPI Criminal

No. 5.01B(1). Hudson’s preferred instruction, IPI Criminal No. 5.01B, is the statutory default

definition of knowledge. 720 ILCS 5/4-5(a) (West 2018).

¶ 66 The State resists IPI Criminal No. 5.01B on two grounds: (i) the trial evidence better aligns

with proof of actual knowledge and (ii) the definition of actual knowledge “would be simpler and

more straightforward.” Either argument does not convince us.

¶ 67 The State’s focus on the trial evidence misses the mark. First, though the instructions must

be generally relevant to the parties’ theories and the facts supporting those theories, the primary

goal of jury instructions is to help jurors properly apply the law. See People v. Hudson,

(2006). For the offense of armed habitual criminal—a possessory offense—IPI Criminal

No. 5.01B more accurately states the law. The armed habitual criminal statute does not include an

express mental state. 720 ILCS 5/24-1.7 (West 2018). But the Criminal Code of 2012 (Criminal

- 19 - No. 1-19-2519

Code) requires knowledge for possession to amount to a voluntary act (id. § 4-2), and we have

repeatedly held knowledge to be an element of constructive possession. E.g., Fernandez,

. We also have described the element of knowledge consistently with the

Criminal Code’s definition of knowledge which is, in turn, consistent with IPI Criminal No. 5.01B.

See People v. Jackson,

, ¶ 27 (knowledge proven by facts “which

indicate that the defendant knew the contraband existed in the place where it was found”); 720

ILCS 5/4-5 (West 2018) (knowledge defined as “conscious[ ] aware[ness] *** that [relevant]

circumstances exist”); IPI Criminal No. 5.01B (knowledge defined as “conscious[ ] aware[ness]

that *** circumstances exist” or “substantial probability that the fact exists”). In sum, IPI Criminal

No. 5.01B generally will be a more accurate statement of the law in a constructive possession case.

¶ 68 We also disagree with the State that the facts adduced at trial lend themselves to an actual

knowledge instruction. True, Hudson admitted the gun was his, but in the same admission, he told

officers he forgot the gun was in the closet. Hudson’s forgetfulness is inconsistent with the actual

knowledge instruction, which requires “direct and clear knowledge.” See IPI Criminal No. 5.01C.

So, as a legal and evidentiary matter, IPI Criminal No. 5.01B would have been the superior

instruction to provide the jury in response to its question.

¶ 69 We also disagree with the State that IPI Criminal No. 5.01C is “simpler” or “more

straightforward.” The State’s argument seems to be that the multiple bracketed paragraphs in IPI

Criminal No. 5.01B would “offer definitions and theories of knowledge entirely inapplicable to

the facts at trial.” We suppose that would be true if the trial court recited each paragraph. But the

committee note to the instructions expressly admonishes against giving the definition in each

bracketed paragraph and offers the trial courtroom to choose the bracketed material best suited to

the facts. See IPI Criminal No. 5.01B, Committee Note. For this case, the trial court would have

- 20 - No. 1-19-2519

given the jury the instruction in only the first bracketed paragraph, which, as we have explained,

aligns with both the statutory definition of knowledge and the definition of knowledge we have

used in constructive possession cases. When properly limited to the applicable bracketed material,

we think there is no material difference in the ease of understanding between IPI Criminal No.

5.01B and IPI Criminal No. 5.01C, and IPI Criminal No. 5.01B is the more legally correct

instruction here.

¶ 70 We disagree with Hudson, however, that we should grant him a new trial on this basis. On

the face of the instructions, IPI Criminal No. 5.01C puts a more significant burden on the State

than IPI Criminal No. 5.01B. Had we any doubt about our plain reading of the dueling instructions,

People v. Hinton,

(2010), dispels them. Moreover, though it addressed a

different substantive issue, the court confirmed that proof of constructive knowledge (see IPI

Criminal No. 5.01B) fails to carry the State’s burden when actual knowledge is required (see IPI

Criminal No. 5.01C). Hinton,

.

¶ 71 We are not persuaded otherwise by Hudson’s reliance on People v. Brouder,

(1988), and People v. Falls,

(2008). In Brouder, the trial court gave

the jury no instruction defining “knowledge” after it had expressly requested guidance. Brouder,

. The same is true in Falls. Falls,

(“trial court refused

to resolve [the jury’s] confusion, instead referring them to the instruction it had given”). Here the

trial court answered the jury’s legal question and, as we discussed, in a manner that did not reduce

the State’s ultimate burden of proof.

¶ 72 The trial court’s answer about the gun’s registration did not improperly diminish the State’s

burden of proof, and its answer defining knowledge with the “Actual Knowledge” instruction may

have placed a greater burden on the State than was required. Moreover, because the trial court’s

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rulings were not reversible error, trial counsel cannot have been ineffective for failing to preserve

Hudson’s objections for appeal.

¶ 73 Completeness of the Search Warrant

¶ 74 Finally, Hudson argues the trial court erred by limiting the evidence the jury heard relating

to the search warrant. He does not dispute that the trial court properly allowed the State to introduce

evidence that the warrant existed. On the contrary, he argues the State opened the door for him to

introduce evidence that he was not the target of the warrant and the officers were looking for drugs,

not a gun. Hudson argues he “needed this evidence” to avoid leading the jury to infer that “officers

were targeting Hudson for possessing the weapon they found.” As it did in the trial court, the State

responds that any evidence beyond the warrant’s existence would have been inadmissible hearsay.

Considering that the parties dispute centers on the trial court’s application of the law to the facts,

we review the court’s evidentiary ruling for an abuse of discretion. See People v. Risper,

(discussing circumstances when appropriate to apply de novo review

to evidentiary rulings). Because the trial court misapplied well-settled rules of evidence law, the

court abused its discretion. People v. Williams,

(1999) (“Where a trial court’s

exercise of discretion has been frustrated by an erroneous rule of law, appellate review is required

to permit the exercise of discretion consistent with the law.”).

¶ 75 Hudson first argues the warrant’s contents are not hearsay because they are no more than

a continued explanation of the officers’ course of investigation. We agree.

¶ 76 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. E.g.,

People v. Edgecombe,

(2000). We have allowed officers to testify to

detailed conversations they had out of court if their testimony is offered only to explain “the

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circumstances of an investigation” and “to detail the steps leading up to a defendant’s arrest and

indictment.” People v. McNeal,

(1987). And we have distinguished

between the existence of a search warrant and its contents. People v. Rivera,

(1989). But, above all, identifying course-of-investigation evidence must never take the place

of a principled analysis of the specific facts before us. People v. Warlick,

(1998).

¶ 77 While conducting that analysis here, we are mindful that Rivera leads us to the heart of the

course-of-investigation testimony—preventing the jury from drawing improper inferences. Rivera,

(approving trial judge’s goal of “prevent[ing] the inference that the tactical

team acted in *** [an] illegal fashion”).

¶ 78 Testimony about the course-of-investigation serves a nonhearsay purpose because it helps

the jury understand why the police acted the way they did. People v. Jones,

(1992). This means it prevents the jury from assuming the police acted arbitrarily or, as Rivera put

it, in an “illegal fashion.” See Rivera,

. We allow course-of-investigation

testimony, then, to prevent jurors from filling testimonial gaps with improper inferences about

police conduct. We see no reason, and the dissent has offered none, the police should be mandated

as the exclusive benefactors of Rivera’s laudable goal. Fact, not speculation, should underlie juror

inference. Thus, we see no basis for the dissent’s assertion that applying Rivera to the unique facts

here somehow expands this well-settled principle of evidence law (infra ¶ 93).

¶ 79 The dissent demotes Rivera’s rationale to a comment by the trial judge. The desire to

prevent the inference that police acted in an “illegal fashion” may have originated with the trial

judge, but we adopted that reasoning in finding an essential purpose of the course-of-investigation

testimony was to prevent speculation by the jury for an improper purpose. And so, the dissent

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cannot be correct that “no Illinois court” has permitted the course-of-investigation testimony to

eliminate improper inferences. Rivera did. Here, as in Rivera, the warrant’s contents had a relevant,

nonhearsay purpose that supported admission. Rivera,

(affirming trial

court’s decision to permit testimony that warrant authorized search of specific address and “the

defendant’s person”). We do no more than evenhandedly apply Rivera’s reasoning about the nature

of hearsay to the unique circumstances here.

¶ 80 Doing so harmonizes with our longstanding practices. E.g., People v. Hunley,

(2000) (identifying “two-step analysis” trial courts should undertake when asked to admit

course-of-investigation evidence that would otherwise be hearsay). A trial judge should first

determine whether the out-of-court statement, offered for some purpose other than its truth, has

relevance to an issue.

(discussing Warlick,

). If relevant, the trial judge

should then weigh the relevance of the statement against the risk of unfair prejudice and possible

misuse by the jury.

(same); see generally Ill. R. Evid. 403 (eff. Jan. 1, 2011) (“Exclusion of

Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time”). We rest our analysis

of Rivera on Hunley and Warlick. Because the dissent misreads Hunley and Warlick as requiring

the exclusion of the course-of-investigation testimony on relevance grounds (infra ¶ 109), we put

little stock in its assertion that we departed from “well-established law” (infra ¶ 106). Course-of-

investigation testimony is relevant to facts of consequence because it explains why the police acted

in the way they did. Hunley,

; People v. Simms,

(1991)

(finding testimony about out-of-court statement admissible as course-of-investigation testimony

because testimony explained to jury why police continued to question defendant). Given the well-

established relevance of this type of evidence, our analysis proceeds to Hunley’s second step, a

balancing test.

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¶ 81 Here, the disparity between the suspected offense reported in the search warrant and the

offense for which Hudson was ultimately tried favors admitting the warrant’s contents when

balanced against the risk the jury used the warrant’s existence to make an improper inference.

Because the contents of the warrant mention neither Hudson nor a gun, it would be easy to

disaggregate from the jury’s consideration of Hudson’s guilt for the charged offense. Simply put,

there was no risk the warrant’s contents, offered for a purpose other than its truth, would have been

used for anything other than the limited purpose Hudson proposed: explaining the course of the

officers’ investigation. And, by offering the jury a complete picture of the officer’s investigation,

the testimony would have rebutted the baseless, thus improper, inference that the officers had been

investigating Hudson. People v. Thigpen,

(1999) (recognizing course-of-

investigation testimony may need additional context to rebut inferences not based on facts).

¶ 82 Furthermore, we have record evidence—in the form of the jury’s question—that not

admitting the warrant’s contents led to unnecessary confusion and focus on the warrant. A brief

explanation of the warrant’s target and evidence to be seized would have diffused a harmful

distraction without damaging the State’s case.

¶ 83 Because we have affirmative evidence from the jury that they were concerned about the

substance of the warrant, we find hollow the dissent’s concern that the warrant’s contents were

irrelevant. See infra ¶ 109. When evidence that would otherwise be hearsay is admitted to provide

further context for police investigation, this concern becomes the opposite of that expressed by the

dissent. Generally, we admit evidence of police investigative procedures only when it does not

“directly impact[ ] the very essence of the dispute.” People v. Jura,

(2004); see also Hunley, 313 Ill. App. at 34-35 (approving officer testimony explaining

investigatory procedures where otherwise hearsay testimony “did not reference the crimes

- 25 - No. 1-19-2519

charged” and “did not go to ‘the very essence of the dispute’ ”). Here, the evidence Hudson sought

to admit did not refer to the crime charged and did not go to “the very essence” of the parties’

dispute: whether Hudson had constructively possessed a gun.

¶ 84 As the dissent acknowledges, course-of-investigation testimony comes in when

“ ‘necessary and important’ ” to the jury’s understanding. Infra ¶ 96 (quoting Simms,

, citing People v. Hayes,

(1990), and citing People v. Johnson,

(1987)). This case presents that rare case meeting the “necessary and important” threshold.

As we explained, the jury was thinking about the nature of the warrant. Ordinarily, we worry that

out-of-court statements admitted for a nonhearsay purpose will confuse or distract the jury. See

Hunley,

. From the jury’s question, we know that excluding the evidence

Hudson wanted to admit for a nonhearsay purpose led to the jury’s distraction or confusion. The

dissent does not explain, and we fail to see, how the jury could have misused the information that

officers went to the home for an unrelated investigation. Indeed, although the dissent describes the

warrant’s contents as “ ‘hearsay,’ ” (infra ¶ 104 n.2), it fails to identify the “matter asserted” that

Hudson ostensibly offered for its truth. See Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). All the same,

the warrant’s contents did not bear on “the very essence of the dispute,” and admitting its contents

would have focused the jurors on the evidence of Hudson’s guilt or innocence.

¶ 85 The dissent responds that we cannot read into the jury’s question substantive consideration

of the warrant’s contents during their deliberations. Infra ¶¶ 104-05; see People v. Downs,

(“where a jury question is at issue *** courts should avoid attempting to divine

anything about the jury’s deliberative processes from that question”). Accepting that proposition,

we do not need to speculate about what the jury thought of the warrant; we need only know that

they were thinking about it—a fact apparent from the jury’s questions (“1. Why were police there?

- 26 - No. 1-19-2519

What was the warrant for?”). Those questions require no interpretation of the jury’s deliberative

process. All the same, if, as the dissent believes, the warrant’s contents were irrelevant to the

dispute, the jury would have no reason to care about the warrant at all (whatever they thought

about it). Allowing Hudson to introduce testimony about the warrant’s contents (the target and

items to be seized) would have foreclosed the jury’s self-described need to understand the

warrant—a need likely exacerbated by the trial court instructing the jury the warrant was “lawful.”

¶ 86 We reject as hyperbole the State’s concern that our holding renders it “impossible to

introduce evidence that a search warrant had been obtained at all.” Our holding would not affect

cases where the warrant targets the defendant. See People v. Janis,

(1992). Similarly, our holding would not affect cases where defense counsel candidly admits that

they seek to admit the contents of the warrant to disprove an element the State had to prove. See,

e.g., People v. Nash,

, ¶ 41 (counsel argued contents warrant

admissible to prove that person, other than defendant, possessed drugs found on premises). We

cite Nash, not as precedent (see Ill. S. Ct. R. 23(e) (eff. Apr. 1, 2018)), but as an example of a

category of cases already responsive to the dissent’s purported concern that counsel might mislead

the jury with this evidence. Infra ¶ 104 n.2. Additionally, our holding would not affect cases where

evidence discovered due to a search warrant constitutes a small part of the evidence against a

defendant. (For all these reasons, too, the dissent misplaces its reliance on cases like People v.

Virgin,

(1998).)

¶ 87 We acknowledge that the abuse of discretion standard is among “the most deferential

standard[s] of review in the law.” People v. Jacobs,

, ¶ 77. Still, this

standard requires us to determine “ ‘the legal adequacy of [the] way the trial court reached its

result.’ ” Paul v. Gerald Adelman & Associates, Ltd.,

(2006) (quoting People v.

- 27 - No. 1-19-2519

Ortega,

(2004)). It is not “a rubber stamp.” Jacobs,

. The “trial court must exercise its discretion within the bounds of the law.” Williams,

. Here, the trial court’s decision to exclude course-of-investigation testimony as “hearsay”

was legal error (Simms,

) for the reasons we explained. Thus, we do not

“ ‘substitute’ ” our judgment on this issue for that of the trial court, as the dissent insists. Infra

¶ 110 (quoting People v. Illgen,

(1991)). Nor do we merely disagree with how

the trial court exercised its discretion. Infra ¶ 110. Rather, we reverse the ruling because it violated

the rules of evidence. E.g., People v. Prather,

.

¶ 88 Moreover, the record contains evidence of potential undue prejudice from excluding

evidence completing the warrant’s contents. See North Spaulding Condominium Ass’n v.

Cavanaugh,

(“If a trial court’s decision rests on an error of law,

then it is clear that an abuse of discretion has occurred, as it is always an abuse of discretion to

base a decision on an incorrect view of the law.”). While the circumstances of this case are unique,

not so the legal principles. Hence, its impact will be limited. Again, we reject the dissent’s assertion

that our analysis departs from “well-established law.” See infra ¶ 106. We took the facts and the

law as the parties presented them. Perhaps the dissent’s objection is not that we departed from

well-established law, but that well-established law had an unexpected application. If so, we caution

that “invocation of phrases such as ‘investigative steps’ or ‘police procedure’ or ‘course of the

investigation’ should not *** substitute for principled analysis.” Warlick,

.

Under these facts and longstanding law, the trial court should have granted Hudson’s motion

in limine.

- 28 - No. 1-19-2519

¶ 89 The State argues that excluding the warrant’s contents constitutes harmless error.

Evidentiary errors are harmless where no reasonable probability exists that the jury would have

acquitted absent the error. In re E.H.,

(2006). Put another way, harmlessness

depends on whether the remaining evidence “overwhelmingly supports [a] defendant’s guilt.”

People v. Reid,

(1997). We already have found the evidence closely balanced

and definitionally not overwhelming. The State also conceded as much at oral argument.

Considering the closeness of the evidence, the trial court’s answer to the jury’s question about the

warrant—“What the warrant was for is not in evidence and should not be considered by you”—

could not have cured the error. And, considering the trial court’s invocation to the jury of the

warrant’s contents—“Police were there with a lawful warrant”—we cannot agree with the

dissent’s assertion that the error did not contribute to Hudson’s conviction. Infra ¶ 112.

¶ 90 Having concluded the evidence sufficient to convict Hudson, no double jeopardy bar

applies to retrial. E.g., People v. Davila,

.

¶ 91 Reversed and remanded.

¶ 92 JUSTICE COGHLAN, dissenting:

¶ 93 I agree with the majority that the evidence is sufficient to sustain Hudson’s conviction. I

disagree with the majority’s expansion of the limited police investigatory procedure hearsay

exception for the purpose of preventing “improper inferences” about a defendant’s conduct. Supra

¶ 78. The trial court properly ruled that the contents of the search warrant were not necessary to

explain the officers’ authority to enter Hudson’s residence and had no bearing on his guilt or

innocence. Where, as here, “the trial court has the power of judicial discretion and exercises it

without abuse, and within the scope of the law, such action will not be disturbed by the reviewing

- 29 - No. 1-19-2519

courts.” Whitney v. Madden,

(1948). I respectfully dissent from the majority’s

reversal of a legally sound judgment based on this unprecedented application of existing law.

¶ 94 This court has historically recognized that police investigation testimony “should be

admitted sparingly and only when necessary.” People v. Irwin,

, ¶ 29

(citing People v. Cameron,

(1989) (“ ‘ “The need for the evidence is

slight, the likelihood of misuse great.” ’ ” (quoting Edward W. Cleary, McCormick on Evidence

§ 249, at 734 (3d ed. 1984)))); see also People v. Rice,

(2001) (“If

reviewing courts allowed the mere invocation of the words ‘police procedure’ to preclude further

analysis, this limited exception would effectively swallow the hearsay rule with regard to police

officers.”); People v. Warlick,

(1998) (“The claim that the words

are not being offered for their truth does not foreclose further inquiry.” “The ‘police procedure’

shibboleth has not proved persuasive in other cases.”).

¶ 95 The unfortunate reality is “it will almost always be possible to describe testimony revealing

the content of conversations with the police as evidence offered to shed light on the investigation

of the crime rather than on the crime itself.” Rice,

. Even in those cases

where the State has legitimately elicited the testimony in question for the purpose of “shedding

light on police procedure, that must not be the end of the inquiry.”

. The testimony must

still “be relevant to a fact of consequence in the case.”

We acknowledged in Rice that “ ‘[t]he

explanation for why the police did what they did may add nothing to the determination of the

defendant’s guilt or innocence.’ ”

(quoting 1 Barbara E. Bergman & Nancy Hollander,

Wharton’s Criminal Evidence § 4:47, at 489 (15th ed. 2000)). The majority’s holding that “the

warrant’s contents had a relevant, nonhearsay purpose that supported admission” (supra ¶ 79)

violates established precedent requiring the evidence to be relevant to a “fact of consequence in

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the case.” Regarding my colleagues’ assumption that “the jury was thinking about the nature of

the warrant” (supra ¶ 84), “[m]ere curiosity does not establish relevance.” Warlick,

.

¶ 96 A trial court’s decision on a motion in limine “is addressed to the trial court’s inherent

power to admit or exclude evidence.” People v. Williams,

(1999). Hearsay

evidence is generally not admissible. Ill. R. Evid. 802 (eff. Jan 1, 2011). Under the hearsay

exception for course of police investigation testimony, “a police officer *** may describe the

events leading up to the defendant’s arrest” only “where such testimony is necessary and important

to fully explain the State’s case to the trier of fact.” People v. Simms,

(1991)

(citing People v. Hayes,

(1990), and citing People v. Johnson,

(1987)); see also In re Jovan A.,

(“[A]n officer may not testify

to information beyond what is necessary to explain his or her actions.” (citing People v.

Edgecombe,

(2000))).

¶ 97 The admissibility of evidence is within “the sound discretion of the trial court, and its ruling

should not be reversed absent a clear showing of abuse of that discretion.” People v. Ward,

(1984). In considering whether an abuse of discretion occurred, “[t]he question

is not whether the reviewing court would have made the same decision if it were acting as the

lower tribunal.” People v. McDonald,

. An abuse of discretion only occurs

“where the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no

reasonable person would agree with it.” People v. Rivera,

.

¶ 98 After considering applicable case law and the arguments of counsel, the trial court

reasonably ruled that “the existence of the search warrant and the address to be searched” was

relevant to explain the officers’ legal authority to enter the premises, but testimony regarding the

- 31 - No. 1-19-2519

contents of the warrant “would be inadmissible hearsay.” See People v. Virgin,

(1998) (improper admission of hearsay evidence undermined the fundamental fairness of

the trial where the State elicited testimony over defense objection as to the actual contents of the

warrant, rather than simply the fact the warrant was issued); see also Warlick,

(“Most recently, we held admission of the words of a search warrant was reversible error,

rejecting a claim the evidence was necessary to explain why the police arrested the defendant for

illegal possession of cocaine.” (citing Virgin,

)).

¶ 99 The record establishes that the trial court’s conscientious judgment was consistent with

recognized principles of law. See In re Marriage of Lee,

(1979) (“In

determining whether the trial court abused its discretion, the question is *** did the trial court in

the exercise of its discretion act arbitrarily without the employment of conscientious judgment or,

in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of

law so that substantial injustice resulted.”). While the existence of the warrant explained “the

officers’ authority to enter” Hudson’s residence, evidence that he was not the target of a narcotics

investigation went beyond what was “necessary and important to fully explain the State’s case to

the trier of fact.” (Emphasis added.) Simms,

. The trial court did not abuse its

discretion in barring evidence that “did not meet the threshold requirement of relevance.” Irwin,

.

¶ 100 Other than the majority opinion in this case, no Illinois court has ever held that the existence

of a search warrant casts “a cloud of predetermined guilt” over trial evidence or that course-of-

investigation evidence is admissible to eliminate improper inferences against a defendant. Supra

¶¶ 5, 79. On the contrary, in Simms, our supreme court clarified that “[t]estimony describing the

progress of the investigation is admissible even if it suggests that a nontestifying witness

- 32 - No. 1-19-2519

implicated the defendant.” Simms,

. Similarly, in People v. Janis,

(1992), we recognized that “a reference to the fact that a judge signed a warrant does

not per se place a judicial imprimatur of guilt on defendant.” This is true “even if a logical

inference may be drawn that the officer took subsequent steps as a result *** of that conversation.”

People v. Jones,

(1992).

¶ 101 Relying on People v. Rivera,

(1989), the majority “see[s] no reason

*** the police should be mandated as the exclusive benefactors of Rivera’s laudable goal” of

“prevent[ing] jurors from filling testimonial gaps with improper inferences about police conduct.”

Supra ¶ 78. The reason is that precedent limits our review to determining whether the trial court’s

evidentiary ruling was “arbitrary, fanciful, or unreasonable to the degree that no reasonable person

would agree with it.” (Internal quotation marks omitted.) People v. Lerma,

.

The trial court’s failure to foresee that an “unexpected application” of the police investigatory

hearsay exception would be reached by the majority in this case was not unreasonable. Supra ¶ 88.

¶ 102 Our holding in Rivera does not support the majority’s novel theory that course of police

investigation testimony is admissible to prevent jurors from drawing “improper inferences” against

a defendant. Supra ¶¶ 77, 79. The trial judge in Rivera did “not permit the contents of the search

warrant to be read to the jury.” Rivera,

. The evidence was limited to the

existence of a warrant for “defendant’s person” for the purpose of showing “the officers’ legal

authorization to conduct such a search” and to prevent the inference that the police acted in an

illegal fashion.

On review, we held that “[t]he evidence was properly admitted for the limited

purpose of explaining the conduct of the police officers.” (Emphasis added.)

The majority’s

reliance on Rivera in proposing that “an essential purpose of the course-of-investigation testimony

[is] to prevent speculation by the jury for an improper purpose” is misplaced. Supra ¶ 79.

- 33 - No. 1-19-2519

¶ 103 “[T]he circuit court is not *** free to disregard binding authority.” In re R.C.,

(2001). Since the majority acknowledges that “Rivera’s laudable goal” has not previously

been applied to prevent “improper inferences” about a defendant’s conduct (supra ¶¶ 78-79), it is

impossible to reasonably conclude that the trial court erred by failing to do so here.

¶ 104 Under the majority’s reasoning, a jury note 1 asking about the warrant constituted

“affirmative evidence *** that they were concerned about the substance of the warrant” and that

“[a] brief explanation of the warrant’s target and evidence to be seized would have diffused a

harmful distraction.” Supra ¶¶ 82, 83. First of all, as stated above, mere curiosity of the jury does

not establish relevance. Warlick,

. Additionally, the fact that “the jury asked

for guidance during deliberations merely indicates that the jury took its job seriously and

conscientiously worked to come to a just decision.” People v. Minniweather,

(1998). Furthermore, courts “routinely bar evidence because it is irrelevant or unreliable.”

Decker v. Libell,

(2000). 2

¶ 105 Regarding the majority’s speculation that “the jury used the warrant’s existence to make

an improper inference” (supra ¶ 81), a court of review “is not permitted to speculate on the jury’s

thought process.” People v. Fisher,

(1996) (citing People v. Collins,

(1985)); see also People v. Allen,

(2006) (Speculation is

completely irrelevant and “has no place in this court’s review, which must be based solely on the

1 One of the notes sent out during the jury’s deliberations asked: “Why were the police there? What was the warrant for?” 2 The majority “fail[s] to see, how the jury could have misused the information that officers went to the home for an unrelated investigation.” Supra ¶ 84. However, the trial judge recognized the problem immediately, stating: “If you think there’s case law that says *** it is relevant because you want to argue that it really belonged to John Smith because he was the target, isn’t that kind of accepting a hearsay statement that John Smith was the target *** for the truth of the matter asserted?”

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facts of record.”). In any event, the trial judge properly instructed the jury that they were not to

consider “[w]hat the warrant was for” in their deliberations. On review, we “must presume, absent

a showing to the contrary, that the jury followed the trial judge’s instructions in reaching a verdict.”

Simms,

.

¶ 106 The majority concedes that the excluded evidence did not “refer to the crime charged” or

go to “ ‘the very essence’ of the parties’ dispute: whether Hudson had constructively possessed a

gun.” Supra ¶ 83. In other words, my colleagues admit that the excluded evidence was not relevant

to the charges against Hudson. Relevant evidence is evidence that makes “the existence of any fact

that is of consequence to the determination of the action more probable than it would be without

the evidence.” People v. Harvey,

(2004). As a matter of well-established law,

“[r]elevance is a threshold requirement that must be met by every item of evidence”; “ ‘[e]vidence

which is not relevant is not admissible.’ ” People v. Dabbs,

(2010) (quoting

Ill. R. Evid. 402 (eff. Jan 1, 2011)). The majority fails to explain how excluding irrelevant evidence

constitutes “legal error” or “violate[s] the rules of evidence.” Supra ¶ 87.

¶ 107 The majority erroneously cites Simms in support of their theory that “course-of-

investigation testimony comes in when ‘necessary and important’ to the jury’s understanding” of

any issue, regardless of relevance. (Internal quotation marks omitted.) Supra ¶ 84. To clarify, in

Simms, our supreme court held that “a police officer may recount the steps taken in the

investigation of a crime, and may describe the events leading up to the defendant’s arrest, where

such testimony is necessary and important to fully explain the State’s case to the trier of fact.”

Simms,

. Here, testimony that Hudson was not the target of an illegal narcotics

investigation was not “necessary and important to fully explain the State’s case to the trier of fact”

(i.e., that Hudson illegally possessed a gun). See

The majority’s holding that the contents of a

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search warrant are admissible if the contents do not “bear on ‘the very essence of the dispute’ ” is

contrary to the established law of this state. Supra ¶ 84.

¶ 108 The majority relies on Warlick,

, in cautioning that “identifying

course-of-investigation evidence must never take the place of a principled analysis of the specific

facts before us.” Supra ¶ 76. I agree. In Warlick, the trial judge allowed a police officer to testify

that he received a radio call of a burglary in progress and proceeded to investigate. Warlick,

. This court held that the trial judge erred in admitting the radio call because it

served no relevant purpose to help the jury decide the case.

. We explained, “[t]here was

no issue concerning the officers’ reason or motive for going to the recycling center. It simply did

not matter. It would have been enough for the officer to testify he received a radio message, then

went to the recycling center.”

As we recognized in Warlick,

“[t]he trial judge first must determine whether the out-of-court words, offered for some

purpose other than their truth, have any relevance to an issue in the case. If they do, the

judge then must weigh the relevance of the words for the declared nonhearsay purpose

against the risk of unfair prejudice and possible misuse by the jury.”

.

See also People v. Hunley,

(2000) (unless the trial judge first determines

that the out-of-court words are relevant to an issue in the case, the second step of Warlick analysis

is not conducted).

¶ 109 Applying our analysis in Warlick to the facts of the instant case, it is clear that the out-of-

court words (i.e., substance of the search warrant) had no relevance to the charges against Hudson.

“It was enough for the officers to testify” that they were at Hudson’s home pursuant to a search

warrant. See Warlick,

. There was “no good reason why the jury had to

know” that Hudson was not the target of the search warrant or that the police were investigating

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illegal narcotics, not guns. See

It simply did not matter. Based on Warlick, the trial court

properly determined that the sole relevance of the search warrant was to explain the legal authority

of the officers to enter Hudson’s residence.

¶ 110 Abuse of discretion is “the most deferential standard of review available with the exception

of no review at all.” (Internal quotation marks omitted.) People v. Coleman,

(1998). It will be found “only when the trial court’s decision is arbitrary, fanciful, or unreasonable

to the degree that no reasonable person would agree with it.” (Internal quotation marks omitted.)

Lerma,

, ¶ 32. At the risk of stating the obvious, it cannot be said that “no

reasonable man would take the view adopted by the court” in this case. In re Leona W.,

(2008). Conversely, it is inherently unreasonable to reverse a legally sound judgment

based on a novel interpretation of existing law. Although my colleagues obviously disagree with

the court’s decision, a reviewing court “may not simply substitute its judgment for that of the trial

court on a matter within the trial court’s discretion.” People v. Illgen,

(1991).

Such action is contrary to Illinois law and is incompatible with our standards of review.

¶ 111 Even assuming, arguendo, that the court’s evidentiary ruling was erroneous, such error was

harmless. “An error can be harmless (i) where the error did not contribute to defendant’s

conviction, (ii) where the other evidence overwhelmingly supports defendant’s conviction, or (iii)

where the excluded evidence would have been duplicative or cumulative.” People v. Brakes,

. I do not agree with my colleagues that the evidence was “closely

balanced and definitionally not overwhelming.” Supra ¶ 89. Regardless, “a finding of

harmlessness under either of the three approaches suffices.” Brakes,

. It follows that overwhelming evidence is not required to find an evidentiary error harmless.

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See id. ¶ 30 (finding the evidentiary error harmless “even though the evidence was not

overwhelming”).

¶ 112 The evidence introduced at trial was clearly sufficient to prove Hudson guilty of possessing

a gun beyond a reasonable doubt. The sole relevance of the warrant was to explain why the police

were in the home. The facts “of consequence to the determination” of Hudson’s guilt included the

gun recovered in his bedroom closet, utility bills in his name found in the bedroom, his request

that police officers retrieve his medication from the bedroom, his presence in the bedroom area

when the police arrived, and his confession that he had forgotten about placing his gun in the

bedroom closet. See Harvey,

. Since the contents of the warrant were irrelevant

to the charges against Hudson, excluding that evidence did not contribute to his conviction.

¶ 113 Concerning the majority’s factual determination that the police engaged in “unseemly

behavior” (supra ¶ 11), I do not believe that it is appropriate to comment on issues that were not

raised, briefed, or argued by the parties. The “standard[s] of behavior” cited in the majority’s

“observation[s]” also apply to appellate courts. Supra ¶¶ 11, 14. “It is the responsibility of the trier

of fact to ‘fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’ ” People v. Toy,

(2011) (quoting Jackson v. Virginia,

(1979)). None of the cases relied upon by

the majority to justify condemning “misbehavior [although] not an issue in the case” suggest that

it is appropriate for a reviewing court to assume this responsibility, which belongs to the fact finder.

Supra ¶ 12.

¶ 114 A fact finder may “accept or reject as much or as little of a witness’s testimony as it

pleases.” People v. Sullivan,

(2006). In order to justify their unsolicited

“observation[s],” the majority cherry-picks “testimony [that] comes from the record.” Supra ¶¶ 8,

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14. In doing so, the majority confuses testimony with facts, resolves conflicts in the testimony in

favor of the Hudsons, and “step[s] over the line from neutral jurist to that of an advocate.” People

v. Givens,

(2010).

¶ 115 The record clearly shows that the Hudsons’ testimony is disputed. Officer Tellez testified

that while he was executing the search warrant, Randy was admonished, “Chicago Police

Department, search warrant, show me your hands, lay on the ground.” Randy “raised both hands,

flipped [him] off, said, “[F]*** y’all b***, don’t touch me or I will f*** you up.” Tellez repeated

his verbal command to “lay on the ground and comply.” When Randy again failed to comply,

Tellez grabbed “a hold of him and attempted to detain him.” Randy responded by stiffening his

arms, clenching his fists, and yelling profanities at the officers. The officers then “rolled him to

the ground and began wrestling.” During the struggle, Tellez delivered “open strikes” with his

hands and “knee strikes” to Randy until Tellez was able to detain him.

¶ 116 While attempting to detain Randy, Officer Rojas saw an individual later determined to be

the defendant, Hudson, “coming out of the kitchen and walking towards [his] location *** quite

rapidly.” Hudson demanded to know why he was in the house, “got really close” to him with “his

hands extended out in a menacing manner,” and had to be “pushed back by his face.” Rojas

explained that “sometimes during the execution of a search warrant, people get upset” and “police

officers are trained on how to de-escalate,” a strategy he utilized during this encounter. Hudson

was ultimately handcuffed and detained before the officers began searching the house.

¶ 117 As our United States Supreme Court observed in Michigan v. Summers,

, 702-

03 (1981), “[T]he execution of a warrant to search for narcotics is the kind of transaction that may

give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to

both the police and the occupants is minimized if the officers routinely exercise unquestioned

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command of the situation.” In this appeal, the record is insufficient to determine whether the

officers acted reasonably in attempting to “deescalate” or “exercise unquestioned command of the

situation.”

¶ 118 Similarly, as the author of the majority opinion is this case recognized in People v.

Mandarino,

, ¶ 48:

“The officer ‘is justified in the use of any force which he reasonably believes to be

necessary to effect the arrest and of any force which he reasonably believes to be necessary

to defend himself or another from bodily harm while making the arrest.’ [720 ILCS 5/7-

5(a) (West 2006)]. *** In Graham [v. Connor,

,

,

(1989)], the Supreme Court applied a reasonableness standard—‘the

“reasonableness” inquiry in an excessive force case is an objective one: the question is

whether the officers’ actions are “objectively reasonable” in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation.’

. ‘Relevant circumstances include “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.’ Small v. McCrystal,

(8th Cir. 2013) (quoting Graham,

).”

¶ 119 The reasonableness of the force utilized by the officers in executing the search warrant in

this case was not raised in the trial court or on appeal. As cogently explained by our United States

Supreme Court in Greenlaw v. United States,

(2008),

“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait

for cases to come to us, and when they do we normally decide only questions presented by

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the parties. Counsel almost always know a great deal more about their cases than we do

***.” (Internal quotation marks omitted.)

“[A]n appellate court should not, and will not, consider different theories or new questions, if proof

might have been offered to refute or overcome them had they been presented at the trial.” (Internal

quotation marks omitted.) Hux v. Raben,

(1967).

¶ 120 “[T]he appellate court *** is not a fact-finding tribunal.” Simmons v. Union Electric Co.,

(1984). Our role is to decide the merits of cases based on the record of

proceedings. Gratuitously resolving issues unnecessary to the resolution of this appeal is unfair to

the officers, whose conduct is being condemned without notice and an opportunity to be heard,

and inconsistent with our standards of review.

¶ 121 For these reasons, I would affirm the judgment of the circuit court.

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People v. Hudson,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-12339; the Hon. Angela Munari Petrone, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Deepa Punjabi, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Daniel Piwowarczyk, and Justin Erb, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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