SECOND DIVISION June 6, 2023

No. 1-19-0948

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 10748 (01) ) ANTHONY BRADLEY, ) Honorable ) Maura Slattery-Boyle, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County convicting defendant of first degree murder is reversed and the cause is remanded for a new trial; the trial court failed to comply with Illinois Supreme Court Rule 431(b); because the evidence is closely balanced we are required to reverse and remand this case for a new trial.

¶2 The State charged defendant, Anthony Bradley, with first degree murder for the shooting

death of Kenneth Barbour. The matter proceeded to a trial before a jury. Two eyewitnesses to the

shooting identified defendant and testified at trial, and a police detective also testified at trial as

to the eyewitnesses’ identifications, without objection. Defendant’s attorney also elicited

evidence of a possible motive for the killing and failed to call an expert witness in the field of

eyewitness identification. The jury found defendant guilty and the trial court sentenced defendant

to 55 years’ imprisonment. 1-19-0948

¶3 For the following reasons, we reverse defendant’s conviction and remand for a new trial.

¶4 BACKGROUND

¶5 In August 2013, Jade Graham, then 16-years-old, got into a fistfight with her former

friend Ashante Gills, a/k/a Misty, on the street in Chicago in the area of 67th Street and

Champlain. Jade testified that on the day of the fight she lived in the area of 67th and Rhodes and

Misty lived in the area of 65th and Rhodes. After the fight, Jade went home walking westbound

and Misty went in the opposite direction, walking eastbound. Jade testified that as Misty left the

area, Misty said that she was going to get her brother, the defendant in this case. Jade went home

but then went back out to the area of 68th and St. Lawrence, where a number of people were

gathered. Jade testified that when she arrived she saw Barbour and defendant. Jade identified

defendant in court as the person she saw at 68th and St. Lawrence with Barbour. Misty was also

present at that time and standing with defendant. Jade learned later that defendant is Misty’s

brother. Jade testified that she saw that defendant had a gun out, saw Barbour “smack” the gun

with his hand, and saw defendant shoot Barbour. After defendant shot Barbour, defendant and

Misty got into separate vehicles and drove away.

¶6 Jade testified she saw Barbour and Jocelyn at the scene. Jade testified that immediately

after the shooting, after the cars pulled off, she “ran across the street” toward where Barbour was

shot. Jocelyn was with Barbour. Jade testified that two days after the shooting detectives showed

Jade a photo array. Jade testified that she recognized defendant’s photo in the array and that

defendant was the person who shot Barbour. On May 20, 2014, Jade viewed a physical lineup.

At trial, Jade identified defendant in a photo of the lineup she viewed on May 20, 2014. Jade

testified that defendant, the person she identified in the photo of the lineup, was the person who

shot Barbour.

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¶7 At trial, on cross-examination defendant’s attorney asked Jade about detectives’

questioning of her about the fight between Jade and Misty. During that examination, defendant’s

attorney asked Jade the following questions, and received the following answers:

“Q. [Misty] walked away on her own, right?

A. Yes.

Q. You didn’t knock her out?

A. No.

Q. This fight happens and then you tell them [(the police)] about that and

did Misty, do you recall Misty saying anything at that point?

A. Repeat that.

Q. Did Misty say anything after the fight, like peace?

A. She was going to get her brother.

Q. Do you know how many brothers Misty has?

A. At that point I knew about one.

Q. You only knew about one brother, correct?

A. Yes.

Q. My question to you was do you know how many she had?

A. No.

Q. The word brother, right, can have many meanings, is that true?

A. Yes.

Q. One meaning can be someone who is a close friend, that’s my brother,

yes?

A. Yes.

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¶8 On cross-examination, Jade admitted she did not go to the police after the shooting.

When police did speak to Jade, Jade did not initially tell police defendant was the shooter; Jade

learned the shooter’s identity through questioning by police:

“A. They had, they asked me questions. Then when they came with the

pictures, I pointed out or whatever, then that’s when it came out. I didn’t just say

[defendant] did it, no. It didn’t go like that. That was after all the questions was

asked and then the pictures was set down. Then the name came about.”

Jade did not know defendant before police came to her house to interview her. At the time of the

shooting Jade could only view the side of the shooter’s face, in profile, because of where they

were standing relative to each other. Defense counsel elicited testimony that Jade could not

remember what the shooter was wearing, how the shooter’s hair was cut, or whether the shooter

had any facial hair. Jade also admitted to looking at the gun rather than the person holding it.

¶9 Jade testified the shooter and Barbour were about the same height or the shooter was only

slightly shorter. On cross-examination Jade testified that the two cars that arrived at the scene

came from the same direction, one behind the other. Jade then testified on redirect that the two

cars were already present when she arrived.

¶ 10 Later in the defense cross-examination of Jade, defendant’s attorney asked Jade whether

Jade had ever been shown a cell phone on the day of the shooting. Jade testified that she did not

recall a cell phone being shown to her, or a cell-phone photograph of a person she later identified

as the shooter being shown to her. Jade denied that anyone showed her a photograph of the

person she alleges was the shooter. Jade did not recall talking to an attorney about this case and

indicating to them that someone had shown her a picture of the alleged shooter on a cell phone.

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¶ 11 Jocelyn Solomon was 17-years old at the time of the shooting and Jocelyn knew the

victim. On the night of the shooting Jocelyn saw two cars pull up from opposite directions to

68th Street and St. Lawrence. Jocelyn saw two males exit one vehicle and two females exit the

second vehicle. One of the males had a gun. The male with the gun and Barbour struggled over

the gun and the male who arrived with the gun shot Barbour. Jocelyn identified defendant in

court as the male who had the gun.

¶ 12 Jocelyn met Chicago Police Department Detective Jones on August 14, 2013 at the police

station. On that day, Jocelyn viewed a photo array. Jocelyn identified a photo of defendant as the

person Jocelyn saw shoot Barbour. (Specifically, Jocelyn identified the photo number of that

person in the photo array.) On May 21, 2014, Jocelyn viewed a physical lineup associated with

this case. At defendant’s trial Jocelyn viewed a photograph of the lineup she viewed on May 21,

2014. Jocelyn testified that she identified the “man in the middle as the shooter,” who was

defendant.

¶ 13 Jocelyn did not initiate contact with police; they came to her. Jocelyn testified that after

she arrived at the scene she, Barbour, and Jocelyn’s friend started walking. Then, Jocelyn

testified, two cars pulled up. Jocelyn testified that “two guys got out of one car” and “two

females got out of the other car.” On cross-examination, Jocelyn testified that she did not see

Jade at the scene of the shooting until after an ambulance arrived. Jocelyn also testified that she

never told police before the trial that two girls exited one of the two cars that approached the

intersection prior to the shooting. Jocelyn could not describe the shooter’s height beyond saying

the shooter was shorter than the victim. Jocelyn had never seen the shooter before. Jocelyn stated

on cross-examination that she could not recall whether the shooter had any facial hair, what the

shooter’s hair looked like, or what the shooter was wearing. Also, Jocelyn could not recall which

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hand the shooter held the gun in. Jocelyn testified that when she saw the shooter with a gun,

Jocelyn was looking at the gun. Defense counsel elicited testimony that Jocelyn only saw the

shooter “for a matter of seconds.”

¶ 14 Prior to trial, the State filed a motion in limine to admit evidence of information

contained in a “contact card” by the Chicago Police Department documenting an encounter with

defendant in which defendant gave his home address. The State’s motion argued this evidence

was probative of defendant’s identity, where defendant purported to share an address with his

sister, and the shooting resulted from an altercation between defendant’s sister and the victim’s

friend. The trial court granted the State’s motion finding that the contact card is a “business

record” kept by the Chicago Police Department and that the evidence was probative of how

police linked defendant to the offense. In its oral ruling on the motion, the trial court stated that

the assistant state’s attorney “indicates that she’s not getting into the statement [by defendant’s

sister after the fight] in regards to I’m going to get my brother ***.”

¶ 15 Officer Bruno testified that on June 19, 2013, he was working as a police officer and

encountered defendant. The State asked Officer Bruno whether, during his conversation with

defendant, defendant indicated that he lived in the vicinity of 65th Street and Rhodes in Chicago.

Bruno testified that defendant did so indicate. The purpose of a contact card is to document an

officer’s interaction with an individual. Officer Bruno testified he completed a contact card for

his interaction with defendant. Officer Bruno admitted he would not be able to recognize

defendant.

¶ 16 Officer Bruno testified that the contact card for Officer Bruno’s interaction with

defendant states that the officer was not able to verify the name of the individual because the

individual did not have identification. Defense counsel asked Officer Bruno whether he knew if

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the person he had contact with was in fact defendant, and Officer Bruno testified that he did not

recall defendant. Officer Bruno testified that other officers on the scene would have checked

police databases for warrants for the individual involved in the contact. Police can access

photographs of people who have been previously arrested with a name and date of birth. Officer

Bruno testified police would not allow the individual to leave until police verified the name the

individual gave them. Officer Bruno admitted he cannot verify where an individual lives without

going to the location and he otherwise has no way to verify an address an individual gives him.

¶ 17 Detective Jones of the Chicago Police Department testified that he met with Jade on

August 11, 2013 and showed Jade a photo array. Detective Jones did not testify that Jade

identified anyone when Detective Jones showed Jade the photo array. Detective Jones testified

that after he showed Jade the photo array, he issued an “investigative alert” for defendant. (An

investigative alert is a means by which the Chicago Police alert members of the department that

detectives wish to interview an individual.)

¶ 18 Detective Jones testified that he met with Jocelyn Solomon that same day (August 11).

Detective Jones had learned that Jocelyn was a witness to the shooting. Detective Jones testified

that Jocelyn identified a photograph of defendant from the photo array as the person who shot

and killed Barbour on August 9, 2013. The detective identified defendant in court as the person

in the photograph. Detective Jones also testified that on August 14, at the police station, Jocelyn

identified defendant from a separate photo array as the person who shot and killed Barbour.

¶ 19 On May 20, 2014, Detective Jones learned that defendant was in custody. As a result,

Detective Jones wanted Jade and Jocelyn to view a physical lineup. Detective Jones testified that

Jade viewed a physical lineup in the evening of May 20, 2014, and Jade identified defendant as

the person who shot and killed Barbour on August 9, 2013. Detective Jones testified that Jocelyn

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viewed a physical lineup the next day, May 21, 2014, and that Jocelyn identified defendant as the

shooter who killed Barbour.

¶ 20 The parties entered a stipulation that on November 29, 2017, Jade met with an assistant

state’s attorney and during that meeting, Jade told the ASA that people had gathered to talk and

what happened shortly after the shooting. During that time someone showed Jade a picture of

defendant on a cell phone. When Jade saw defendant’s picture on the cell phone Jade recognized

defendant as the shooter.

¶ 21 The jury found defendant guilty of first degree murder. The trial court sentenced

defendant to a 55-year term of imprisonment.

¶ 22 This appeal followed.

¶ 23 ANALYSIS

¶ 24 Defendant first argues the trial court denied defendant the right to a fair and impartial

trial when the court failed to ensure that potential jurors understood and accepted the principle

that a defendant’s failure to testify cannot be held against them and that the potential jurors

would abide by that principle. Defendant admits his trial counsel failed to preserve this issue for

review but asks this court to review the matter for plain error under the first prong of plain error

review. The State agrees the trial court erred when it “failed to ensure that prospective jurors

understood and accepted that defendant’s decision not to testify could not be held against him.”

Nonetheless, the State responds first-prong plain error review is not warranted in this case;

therefore, defendant forfeit this claim for review.

¶ 25 Whether the trial court complied with its obligations under Rule 431(b) is a question of

law we review de novo. People v. Joseph,

(citing People v.

Belknap,

). Whether a claimed error is subject to review under the first

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prong of the plain error rule is also a question we review de novo. People v. Mudd,

; People v. Lozano,

. We find that the trial court

erred in failing to ask potential jurors whether they understand and accepted the principle that a

defendant’s choice not to testify cannot be held against them. We also find that this error is

subject to review under the first prong of the plain error rule.

¶ 26 Our supreme court codified its decision in People v. Zehr,

(1984), in

Illinois Supreme Court Rule 431(b) (eff. Jul. 1, 2012). People v. Birge,

.

Rule 431(b) reads, in pertinent part, as follows:

“(b) The court shall ask each potential juror, individually or in a group,

whether that juror understands and accepts the following principles: (1) that the

defendant is presumed innocent of the charge(s) against him or her; (2) that before

a defendant can be convicted the State must prove the defendant guilty beyond a

reasonable doubt; (3) that the defendant is not required to offer any evidence on

his or her own behalf; and (4) that if a defendant does not testify it cannot be held

against him or her; however, no inquiry of a prospective juror shall be made into

the defendant’s decision not to testify when the defendant objects.” IL S. Ct. R.

431(b).

¶ 27 The trial court erred when it failed to question potential jurors on whether they

understood and accepted the fourth Zehr principle, that defendant’s decision not to testify could

not be held against defendant. People v. Magallanes,

(2011) (“error

clearly occurred here because the trial court did not question each venireperson as to whether he

or she understood and accepted the fourth Zehr principle”). See also

at 736 (citing People v.

Glasper,

(2009)).

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¶ 28 Defendant failed to preserve this issue for review by not objecting at trial and including it

in a posttrial motion. People v. Jackson,

(“We have long held that, for a

criminal defendant to preserve an issue for review on appeal, the defendant must object at trial

and raise the issue in a written posttrial motion.”). Therefore, we must assess the claimed error

for plain error review.

“The conviction of an innocent person due to an error during the pretrial

or trial proceedings would be a miscarriage of justice; therefore, a reviewing court

may consider the forfeited error under the first prong of the plain error rule when

the evidence is closely balanced.

In other words, errors reviewable under the

first prong of the plain error rule are the type of errors that are subject to harmless

error analysis, and a defendant must establish prejudice resulting from the error to

excuse his forfeiture of such an error. [Citation.]

In contrast, under the second prong of the plain error rule, the reviewing

courts are not concerned with “prejudicial” error. [Citation.] Instead, the concern

under the second prong of the plain error rule is addressing unpreserved errors

that undermine the integrity and reputation of the judicial process regardless of

the strength of the evidence or the effect of the error on the trial outcome.”

Jackson,

.

¶ 29 The first step in applying the plain error rule is to determine whether a clear or obvious

error occurred, which we have done.

¶ 30 Our supreme court has held that a trial court’s failure to comply with Rule 431(b) is not a

“structural error” that undermines the integrity and reputation of the judicial process. People v.

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Birge,

(“a violation of Rule 431(b) is not a second-prong, structural error

that requires automatic reversal under a plain-error analysis” (and cases cited therein)).

“[A] defendant with an unpreserved Rule 431(b) claim must demonstrate

first-prong plain error—that is, that the trial evidence was closely balanced.

[Citation.] Whether the evidence was closely balanced is not a sufficiency

analysis but ‘a qualitative, commonsense assessment of the totality of the

evidence within the context of the case,’ including evidence of witness credibility.

[Citation.]” People v. Rodriguez,

.

¶ 31 Generally, “[w]here judgment rests solely on the credibility of witnesses at trial, the

evidence is closely balanced.” People v. Jackson,

(citing People

v. Steidl,

(1997)). Our supreme court has addressed situations in which the

question was whether the evidence was closely balanced when the defendant does not present

any evidence and found that it can be. In People v. Piatkowski,

(2007), the

defendant presented no alibi and no evidence whatsoever, other than calling the detective who

interviewed the witnesses to testify (and, from the court’s recitation of the facts who was called

to highlight inconsistencies in those witness’s statements (see Piatkowski,

)).

The Piatkowski court held that the fact the defendant presented no alibi and no evidence was not

fatal to the question of whether the evidence was nevertheless closely balanced. Piatkowski,

. See also People v. Othman,

(citing

Piatkowski,

) (expressly rejecting dissenting view that the case was not closely

balanced because the defendant presented no evidence).

¶ 32 As our supreme court later explained in People v. Sebby,

, “[i]n

determining whether the evidence adduced at trial was close, a reviewing court must evaluate the

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totality of the evidence and conduct a qualitative, commonsense assessment of it within the

context of the case. [Citations.]” Sebby,

. In that case, where the trial court

failed to ask potential jurors whether they understood and accepted any of the Zehr principles

(see Sebby,

), our supreme court examined the evidence as to each element

of the offense to determine whether the evidence was closely balanced. Id. ¶¶ 54-59.

¶ 33 In Sebby, the defendant did present evidence. See id. ¶¶ 54-59. Nonetheless, our supreme

court refused to rely on the defendant’s argument that the evidence was closely balanced

“because both parties presented plausible versions of events.” Id. ¶ 60. The Sebby court stated

clearly that the issue was not “the sufficiency of close evidence but rather the closeness of

sufficient evidence.” Id. (citing Piatkowski,

). Instead, the Sebby court relied on

the fact that “[a]s in [People v.] Naylor, [

(2008),] the outcome of this

case turned on how the finder of fact resolved a “contest of credibility. [Citation.]” Sebby,

.

¶ 34 Notably, the Sebby opinion does not state or imply that its holding is necessarily

dependent upon the defendant’s presentation of a credible competing version of events. In

refuting the dissent’s arguments, the majority in Sebby noted that the question was whether a

Rule 431(b) violation is reversible error under the first prong of the plain error analysis “where

the defendant demonstrates that the trial evidence was close.” Id. ¶ 78. The answer to that

question involved “the quantum of evidence presented by the State against the defendant.”

(Internal quotation marks omitted.) Id. ¶ 78 (quoting People v. Herron,

(2005)).

¶ 35 In Piatkowski, on which Sebby relied for its rule as to what constitutes “closely balanced”

evidence (see id. ¶ 60), the defendant “presented no alibi and no evidence whatsoever” other than

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the testimony of a police detective who interviewed the State’s witnesses. Piatkowski,

. The Piatkowski court also noted that the State “presented no physical evidence to connect

[the] defendant to the shooting, and no inculpatory statements by [the] defendant were admitted.”

The quantum of evidence in Piatkowski largely mirrors the quantum of evidence in this case.

In this case, the State presented only the testimony of two alleged witnesses to the shooting,

despite the undisputed presence of a large number of people; and the State adduced no physical

evidence linking defendant to the shooting and defendant did not make any inculpatory

statements.

¶ 36 In Piatkowski, the alleged error “related to how the jury would assess the reliability of

[the State’s] eyewitness testimony.”

The Piatkowski court held that it must “consider whether

the evidence presented on the reliability of the eyewitness testimony rendered this case one that

is closely balanced.”

The Piatkowski court reviewed the evidence as to each Biggers factor to

assess the reliability of the identification testimony.

. The Piatkowski court found that

after “carefully examining [the] defendant’s argument in relation to the facts in the record, ***

the evidence presented on these five factors did not overwhelming [sic] favor the State, and we

believe that [the] defendant has met his burden to show that the evidence was sufficiently closely

balanced so as to require a remand for a new trial.” Piatkowski,

.

¶ 37 Again notably, the Piatkowski court did not hold that it had to consider whether the

defendant presented a credible version of events. See

. The court based its decision on

the fact the “case turned on the credibility of the witnesses’ identification testimony and the

erroneous instruction involved how the jury would weigh and evaluate such identification

testimony. See

.

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¶ 38 This case also turns on the credibility of the witnesses. Here, the error involves the

credibility of the witnesses weighed against the absence of contrary testimony by the defendant

and how the jury would consider that circumstance. Under the foregoing authority, we look to

“the quantum of evidence presented by the State against the defendant” (Sebby,

) in the context of how the alleged error impacts the jury’s assessment of that evidence or the

case (Piatkowski,

) by conducting “a qualitative, commonsense assessment of

[the evidence] (Sebby,

). Thus, in this case, we must consider whether the

evidence presented by the State in the absence of an instruction that the jury may not use

defendant’s silence against him “rendered this case one that is closely balanced.” See Piatkowski,

.

¶ 39 As to the alleged error, in Sebby our supreme court found that “[a]n instructional error

may not bear upon the evidence yet may still affect the verdict because it relates to ‘the manner

in which a jury was instructed to evaluate that evidence.’ [Citation.]” ---- Sebby,

. The Sebby court found that:

“a Rule 431(b) violation may affect the verdict. If jurors do not understand and

accept that the defendant is presumed innocent, then credibility contests could

lean in the State’s favor, which could tip the scales of justice against the

defendant in a close case. Or if jurors do not understand and accept that the State

bears the burden of proof beyond a reasonable doubt, then, again, credibility

contests could lean in the State’s favor, which also could tip the scales of justice

against the defendant in a close case. A jury that does not understand and accept

those principles may weigh the evidence in favor of the State or render a guilty

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verdict on insufficient proof, again tipping the scales against the defendant in a

close case.” - - - -

. Sebby,

¶ 40 As to the evidence in this case, after performing a qualitative, commonsense analysis of

the evidence, considering the evidence in relation to the alleged error in this case, we find that

the evidence “was sufficiently closely balanced so as to require a remand for a new trial.” See

Piatkowski,

(“After carefully examining defendant's argument in relation to the

facts in the record, we find that the evidence presented on these five factors did not

overwhelming favor the State, and we believe that defendant has met his burden to show that the

evidence was sufficiently closely balanced so as to require a remand for a new trial.”). Here, the

State’s case relied entirely on the credibility of its two eyewitnesses. The defense strategy was

clearly to attack the lack of physical evidence and the quality of the police investigation, but also

to attack the credibility of the witnesses’ identifications. In closing argument, defendant’s

attorney argued, in part, as follows:

“[W]hat were [Jade’s] words about what she said that the shooter looked

like? What did she tell them [(the police)]? She said that he was dark-skinned and

that he was tall and thin ***.

***

Jade Graham is half a block away where she says that she sees the sisters

come out of the car and talk about ‘shoot him, shoot him,’ but you heard from the

woman who that [sic] was there, Jocelyn, right? Jocelyn told you that they—when

she was originally interviewed in the case, that the sisters never came out [(of the

second car).] Then we know that she gave sworn testimony that she indicated the

sisters didn’t step out.

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The same way she raised her hand, I am going to tell the truth, nothing but

the truth, and then she got up here and told you a different truth. What does that

make her? A liar. The State wants you to believe in a liar. The State wants you to

believe that that person is telling you the truth about what they saw, and that

person who was allegedly two to three feet away from the individual involved

described the individual as being medium height and brown skin.

Well, we know, based upon the testimony that you heard, that the two

individuals [(the victim and the shooter)]—one was six feet tall *** and then you

had the officer tell you that [defendant] was five foot eleven. It is an inch

difference. That’s not going to appear to be too much taller or shorter. Going to be

pretty much someone of the same size.

***

[W]e are looking to determine what actually happened because we already

know from the beginning we have two different descriptions of the same person

who is allegedly the shooter. Completely different. One is short, brown. One is

dark-skinned and tall.

This isn’t a situation where there was some sort of cross-cultural

identification issue. This was an African American woman looking at an African

American man, and I would find it very hard to believe that they can’t distinguish

between what is a light-skinned brother versus a medium-complected brother

versus a dark-skinned brother, but yet she was very certain he is dark-skinned,

and both of them were clear that they didn’t know who he was. They had never

met him before.

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***

In addition, ladies and gentlemen, when they talked about how the cars

came, one version is the cars come in two different directions toward each other.

In the other situation they are going one behind the other.

Now, I don’t know how it is that now they can give testimony that defies

logic.

***

We were told that we have two people that we need to believe in. Did the

police even bother to check phone records to see if people were there, do anything

to see if there is any truth to it? They said they see a video of a fight. Okay. Is

there anything there?

***

What’s even more telling *** is that the woman who comes up with the

whole fight theory, she tells you that she there [sic] on the scene. What did her

friend Jocelyn say? I didn’t see her. When did she come by? She came by after

the ambulance came. How long did the ambulance take. One says 20 minutes. The

other says five minutes. Really? You are going to screw up that much time?

She doesn’t even know that the neighbor has come out to give this young

man a towel. How are we to believe these individuals? Because that’s what this

case is about. Because we don’t have anything in terms of the police

investigation, in and of itself, that corroborates what was said.

***

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Who did they have to say that [defendant] was in that area at all? Two

people that told two conflicting stories.

The problem is that the State, no matter what they say—they get the last

word *** but what are the things they can’t change? Number one, that Jocelyn is

a liar. Can’t change that.

[N]either one of these ladies could give you any description other than

what we have. Couldn’t remember clothing. *** There was none of that. Not one

piece of that happen [sic], and those are easier things to see than the details of a

human face.

Couldn’t describe hair, whether it was a natural, whether it was shaven,

whether there were dreads. Nothing. Nothing, and on all of this emptiness, the

State’s response is always going to be, but, ladies and gentlemen, they didn’t tell

you once, they didn’t tell you twice, they told you three time [sic].

Here is the problem. A lie is a lie is a lie. If you are wrong, you are wrong,

and the fact that you repeat the same mistakes over and over again doesn’t make it

true. The problem with this case, ladies and gentlemen, is that you dealt with two

witnesses who, talking about the same event, couldn’t give any type of

description.

***

That’s the other thing. Did either of these witnesses come to the police:

oh, my God, let me tell you what I say, what happened? No. It didn’t happen that

way. The best friend of ten years, oh, no. I just left. Didn’t even go to the hospital.

Just left.

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What’s most telling *** is that when you do not have consistent versions,

that is doubt. When you listen to this evidence, there is no way that you can

determine who the person was that was involved in this shooting. *** The

witnesses just compound the mess that is this case.

¶ 41 After reviewing the evidence we find that the State’s case is based entirely on the jury’s

assessment of the credibility of the State’s witnesses. Considering that at the conclusion of the

case the jury did not understand and accept that it may not hold defendant’s silence against him,

the quantum and the quality of the State’s evidence is not so overwhelming such that in the

absence of the instruction the jury viewed the State’s evidence less skeptically and/or weighed

the State’s evidence more heavily than it otherwise would and it is possible that the jury might

find defendant guilty based on insufficient evidence; accordingly, we find the evidence in this

case is closely balanced. Sebby,

. See also People v. Othman,

(“Othman has a constitutional right not to present evidence and not

testify. The evidence can be closely balanced where the evidence comes from unreliable

witnesses who offer conflicting accounts or from prosecution witnesses who provide evidence

favorable to Othman. Even when the defense presents no evidence, the case can still be closely

balanced.”).

¶ 42 The defendant has demonstrated error and the State has conceded error in a case where

we find the evidence is closely balanced. The “question here is whether a clear Rule 431(b)

violation is reversible error under the first prong [of the plain error rule,] where the defendant

demonstrates that the trial evidence was close.” Sebby,

. As in Sebby, “we

conclude that, because the evidence was so closely balanced, the trial court’s clear instructional

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error alone may have tipped the scales in favor of the State. We choose to err on the side of

fairness and remand for a new trial.”

¶ 43 Defendant’s remaining issues on appeal are that (1) he was denied due process by the

erroneous admission of evidence of prior consistent statements of identification of defendant in

the form of testimony that Jade and Jocelyn identified defendant in a photo array and in a

physical lineup; and (2) numerous allegations defendant received ineffective assistance of

counsel by defense counsel’s (a) failure to call an expert in the field of eyewitness identification,

(b) eliciting evidence prejudicial to defendant, and (c) failure to object to prior consistent

statements of identification and introduction of prejudicial identification evidence; and (3) the

trial court allowed the State to present inadmissible hearsay evidence in the form of testimony

about a Chicago Police Department “contact card.”

¶ 44 If the State does retry this defendant, this court can only speculate as to what evidence the

State will present, how it will present it, and for what purpose. Nor can we state accurately

whether or when defense counsel will object and on what, if any grounds. Given that the

remainder of defendant’s issues involve matters that may or may not recur at retrial, under the

circumstances we decline to address those remaining issues, as doing so would amount to an

advisory opinion. State by Raoul v. Hitachi, Ltd.,

(“Because we

have determined that the trial court properly granted summary judgment in this case, we will not

go on to provide an advisory opinion or consider abstract questions as to the notice requirements

that are not necessary to our resolution of this appeal. [Citation.] (‘As a general rule, courts of

review in Illinois do not *** render advisory opinions, or consider issues where the result will

not be affected regardless of how those issues are decided. [Citation.] This court will not review

cases merely to establish a precedent or guide future litigation.’ (Internal quotation marks

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omitted.)”)). See also Business & Professional People for Public Interest v. Illinois Commerce

Comm’n,

(1989) (“Any decision on our part would be premature, as the

issue may not recur upon remand.”); People v. Jones,

(1985) (“The parties

have briefed and argued a number of questions, but in view of our conclusion that the judgment

must be reversed and the cause remanded for a new trial, we need not consider those which are

unlikely to arise on retrial.”); In re Marriage of Birt,

(1987) (“we need

not address most of the other issues raised by respondent which generally involve discretionary

rulings or depend on evidentiary facts which may not be present in a retrial.”).

¶ 45 Without expressing any opinion as to defendant’s guilt or innocence, we find that the

evidence presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt;

therefore, there is no double jeopardy impediment to retrial upon remand. People v. Cox,

(“As the evidence presented at trial was sufficient to establish that Cox

was guilty of murder on a theory of accountability beyond a reasonable doubt, his retrial on these

charges presents no double jeopardy impediment. Again, this finding is only for purposes of

double jeopardy, and we reach no conclusions as to Cox’s guilt that are binding on retrial.”).

¶ 46 CONCLUSION

¶ 47 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

the cause remanded for a new trial.

¶ 48 Reversed and remanded.

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