{ "id": 4301654, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR SCOTT, Defendant-Appellant", "name_abbreviation": "People v. Scott", "decision_date": "2010-05-14", "docket_number": "No. 1\u201408\u20142600", "first_page": "585", "last_page": "602", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 585" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "392 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "76 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983489 ], "year": 1979, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0365-01" ] }, { "cite": "583 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "525", "parenthetical": "\"Faith in the ability of a properly instructed jury to separate issues and reach a correct result is the cornerstone of the jury system\"" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596242 ], "year": 1991, "pin_cites": [ { "page": "376", 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OMAR SCOTT, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE TOOMIN\ndelivered the opinion of the court:\nIn a spark of creativity, appellant maintains that his purported right to choose whether to testify was impeded by the trial judge\u2019s blanket policy of deferring rulings on motions limiting the admissibility of prior convictions. Although we presumed the issue had been laid to rest by our supreme court in Averett , the changing contours of the landscape require that we again weigh in on this resurrected saga. We also address appellant\u2019s additional claim that the trial court erred in admitting irrelevant and prejudicial testimony.\nFollowing a jury trial, defendant, Omar Scott was convicted of first degree murder and aggravated battery with a firearm and sentenced to consecutive terms of 60 years\u2019 and 15 years\u2019 imprisonment, respectively. Additionally, defendant was found guilty of felony unlawful use of a weapon by a felon during a simultaneous bench trial and sentenced to an additional consecutive term of three years\u2019 imprisonment. For the following reasons, we affirm the judgment of the circuit court and correct the mittimus.\nBACKGROUND\nDefendant was charged, inter alia, with first degree murder, aggravated battery with a firearm, and unlawful use of a weapon by a felon. The charges stemmed from a shooting at the Time Out Lounge at 8216 South Vincennes in Chicago on October 2, 2004, wherein Ike Steptore was killed and Gernard Fulton was seriously injured. Prior to trial, the trial court granted defendant\u2019s motion to sever the unlawful use of a weapon by a felon count. Defendant elected to proceed by a bench trial on that count and agreed to have it resolved simultaneously with the jury trial on the remaining counts. The jury returned verdicts finding defendant guilty of first degree murder and aggravated battery with a firearm. Likewise, the trial court found defendant guilty of unlawful use of a weapon by a felon. He was sentenced to 60 years\u2019 imprisonment for first degree murder and a consecutive sentence of 15 years\u2019 imprisonment for aggravated battery with a firearm. The record of proceedings reflects an additional sentence of three years\u2019 imprisonment on the unlawful use of a weapon by a felon conviction. However, this sentence is not clearly delineated in the mittimus. In the instant appeal, defendant does not challenge the sufficiency of the evidence. Therefore, we will review only those facts necessary to an understanding and resolution of the issues raised.\nIke Steptore\u2019s wife, Cordelia, testified as a life/death witness. She explained that Ike had gone to the Time Out Lounge for the birthday party of Roderick Love, her brother. Shortly after 1 a.m., she received a call from her niece concerning Ike. Cordelia immediately went to the Time Out Lounge and found Ike in an ambulance. He was conscious and able to talk. According to Cordelia, Ike referred to her by a nickname and said, \u201cDee Wee, I love you.\u201d She rode in the ambulance to Christ Hospital. Ike underwent surgery, but later died due to his injuries.\nGernard Fulton testified that she met a friend at the Time Out Lounge on the night of October 1, 2004. She and her friend were there to have a drink. Fulton observed a party going on in the back portion of the bar. She also danced one time with Ike Steptore, who introduced himself to her that night. After dancing, as Fulton returned to her seat at the bar she noticed a commotion behind her, which sounded like two men arguing. Fulton did not turn to look at the argument. Instead, she decided to leave the bar. As she was about to put on her jacket, she \u201cfelt a hot sensation in [her] left back area\u201d and fell down, without having heard gunshot. A great deal of commotion and screaming ensued. Fulton\u2019s friend was down on the floor with her as Fulton went in and out of consciousness. She could not feel anything as she laid on the floor and eventually blacked out.\nFulton regained consciousness in the ambulance, but did not open her eyes. She responded to the paramedics\u2019 questions, but was unable to move. She underwent surgery to remove a bullet and for a partially shattered spine, requiring spinal fusion. Following the surgery, Fulton was paralyzed from the neck down. She spent the next 12 days in the hospital, until she was transferred to the Rehabilitation Institute of Chicago (RIC). Fulton remained at RIC for two months receiving therapy to teach her to walk and take care of herself.\nAt this point in Fulton\u2019s testimony, defense counsel sought a side bar and objected to the testimony\u2019s relevance to the charge of aggravated battery with a firearm. Counsel maintained that the nature and extent of treatment were not relevant. The objection was noted, but overruled.\nFulton additionally testified that she participated in a study where a robot was used to help her learn to move her limbs. Other therapies involved stretching her legs and \u201cworking [her] out.\u201d She eventually regained some movement in her right arm. Fulton did not regain the ability to walk while she was an inpatient at RIC. Thereafter, she was discharged and continued outpatient therapy for nine months. After extensive physical and occupational therapy lasting about one year, Fulton began to walk again.\nFulton explained how her injuries forced her to move in with her sister because she could no longer access her prior third-floor residence due to the paralysis. She likewise described how she was unable to return to work because of her physical limitations following the shooting. Additionally, as of the time of trial, she had not regained full use of her limbs. When asked what sorts of things she is no longer able to do, Fulton responded, \u201cThat\u2019s a long list of things. But things that I like to do like ride a bike, dance, skate, doing dishes, my hair.\u201d\nRoderick Love was at the Time Out Lounge on the night of the incident for a birthday party for another brother-in-law, Charles Tyler. He and Ike shared a round of drinks. From his position about four to five feet from the dance floor, Love could see Ike arguing with another man. Love did not know what precipitated the argument. The situation escalated and Love approached. Another individual, named Rock, also approached. The men began pushing and shoving, but due to Ike\u2019s size and positioning, Love could not tell who was doing what. Other patrons in the area implored the men to quit arguing.\nAccording to Love, \u201cI asked the other guy to let it go. I told him it was family.\u201d The \u201cother guy\u201d Love referred to was defendant, whom he did not know. Defendant responded, \u201cit\u2019s no dam [sic] family of mine.\u201d Defendant then produced a dark-colored handgun from the right side of his body, possibly from his pocket. Love grabbed his arm and the gun discharged. Defendant continued to try to raise his arm and the gun fired a second time. Then, Love and Rock \u201call came over with [their] full body weight. And the third shot went wild or whatever. And [defendant] came underneath us and he ran for the door.\u201d Love was unable to give chase because he was supporting Ike, who was leaning against him. Love yelled for the bouncers to stop defendant and called to his other brother-in-law that Ike had been shot. The crowd in the bar began stampeding toward the front door. Some of the people were \u201ctrampling\u201d and \u201cjumping\u201d over a woman who fell backwards and had blood coming from her head.\nLove stayed with Ike until the police and paramedics arrived. Ike lifted his shirt to show Love that he had been shot in the stomach. Love remained at the bar after Ike was transported to the hospital. Thereafter, he spoke with investigators, gave a statement to an assistant State\u2019s Attorney, and identified defendant in a lineup.\nChicago police sergeant Dwayne Betts testified that he was at the Time Out Lounge, while off duty in the early morning hours of October 2, 2004. He was invited there to meet another Chicago police officer, then-Sergeant Eddie Johnson. Just as he received his drink order, Betts heard a commotion, consisting of fighting and yelling, coming from the dance floor. He had only been at the bar for about 10 minutes. Simultaneous to the DJ announcing last call, three gunshots rang out in rapid succession. According to Betts, \u201cPandemonium erupted in the lounge\u201d amongst the patrons trying to flee. Betts exited the bar along with the crowd. Once outside, he waited for Johnson to exit. While he waited, Betts asked another patron, Mike Kraft or \u201cShug,\u201d if he knew whom the shooter was.\nBased on Shug\u2019s response, Betts proceeded northbound down Vin-cennes. He saw defendant walking alone at a fast pace, as if speed walking. Betts increased his pace, announced his office, and yelled for defendant to stop. Defendant continued walking away and Betts saw him toss a dark metallic object that he believed to be a handgun to a grassy area by the sidewalk. Thereafter, defendant stopped and Betts got him onto the ground. A uniformed officer arrived, provided handcuffs, and defendant was placed in custody. Betts then located the gun defendant jettisoned in the adjacent grassy area.\nANALYSIS\nDefendant initially claims his constitutional right to testify in his own defense was effectively denied by the trial court\u2019s refusal to rule on his motion in limine to bar the use of prior convictions for the purposes of impeachment. According to defendant, the trial court\u2019s actions were part of a \u201cblanket policy\u201d employed by the judge. Finding that practice problematic, defendant asserts that, \u201cWith no guidance from the trial court as to whether the State would be allowed to use his prior convictions for impeachment, [defendant] elected not to testify before the jury.\u201d In response, the State argues this claim was not properly preserved because defendant did not testify and, regardless, he was neither denied a fair trial nor prejudiced by the trial court\u2019s practice.\nOur review of the record discloses two occasions when the issue arose before the trial court. The first took place over a year before the trial commenced. At the time, the following colloquy took place:\n\u201c[Defense counsel]: *** I have a couple of motions in limine to file on this case. There is a Montgomery motion ***.\nTHE COURT: All right. Under Montgomery, let\u2019s start with that one. Any convictions within the time limit?\n[Defense counsel]: Yes, there are some convictions within the time limit.\nTHE COURT: Anything that\u2019s outside the time limit obviously would not be introduced.\nNow, what I normally do on Montgomery issues is pursuant to the U.S. Supreme Court case of Luce, L-U-C-E, I decide after the Defendant testifies whether or not I would allow them in based on the Luce case, that the testimony could be something where the convictions wouldn\u2019t bear on his testimony at all. It\u2019s something that should be balanced, the U.S. Supreme Court said in determining whether or not they go in, *** there\u2019s no prejudice if he does testify, and after the testimony I\u2019ll be in all [sic] better position to weigh all the facts, whether or not the probative value is outweighed by any prejudicial value.\nI don\u2019t know what all the convictions are, but, I wouldn\u2019t let any convictions come in for impeachment purposes or some of them, or whatever.\u201d\nThe matter was addressed a second time immediately before jury selection, where this additional colloquy occurred:\n\u201c[Assistant State\u2019s Attorney]: The only other issue I can think of that maybe should be dealt with, there was affirmative defense that was filed in this case, and I\u2019m sure there is a possibility that [defendant\u2019s] going to testify.\nThere\u2019s a provable that fits within the 10-year Montgomery rule, and I don\u2019t know how would you like to deal with that, if that something that\u2019s not timely at this time?\nTHE COURT: You brought that up already.\n[Defense counsel]: I filed a motion, a Montgomery motion, on a previous court date. I don\u2019t remember which one, and I believe the ruling was deferred.\nTHE COURT: What I do, I can\u2019t even think of the case \u2014 Luce, basically, Luce case, the Judge I guess said it couldn\u2019t come in, and then the Appellate Court said we couldn\u2019t \u2014 it was the Supreme Court agreed, we couldn\u2019t evaluate without seeing the testimony.\nI think if you apply that all the way down to the Trial Court, it comes down to that I can\u2019t really do the proper balancing act until I actually hear the testimony, observe the witness testify, then I can do the whole Montgomery balancing act taking in all those criteria.\u201d\nAccording to defendant, the trial court\u2019s approach was problematic because it constituted a \u201cblanket policy\u201d of refusing to rule on such a motion prior to the defendant testifying. Moreover, defendant asserts that his claim should not be barred because of his choice not to testify. He likewise contends a refusal to rule on the merits of his claim \u201cwould violate his right to a remedy under the Illinois Constitution.\u201d Furthermore, defendant claims the precedent relied on by courts to resolve similar issues are not applicable to his case and incorrectly conclude that a defendant forfeits review of a trial court\u2019s \u201crefusal\u201d to rule on a motion in limine by not testifying.\nIn People v. Montgomery, our supreme court considered, and ultimately adopted, the substance of the proposed draft of Federal Rule of Evidence 609. People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971). The draft provided that a witness\u2019s credibility could be attacked based on criminal convictions:\n\u201c \u2018only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.\u2019 \u201d Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698, quoting 51 F.R.D. 391.\nThe court then referenced the committee comments to the proposed rule, focusing upon the methodology and importance of the balancing test required by the rule. Montgomery, 47 Ill. 2d at 517-19, 268 N.E.2d at 699-700.\nThereafter, in Luce, the Supreme Court addressed the question of whether a defendant who did not testify could seek redress from a district court\u2019s denial of a motion to preclude the admission of a prior conviction for impeachment. Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). There, the district court determined Luce\u2019s prior conviction fell within the purview of Federal Rule of Evidence 609, but denied the motion, reasoning that \u201cthe nature and scope of [Luce\u2019s] trial testimony could affect the court\u2019s specific evidentiary rulings.\u201d Luce, 469 U.S. at 39-40, 83 L. Ed. 2d at 446, 105 S. Ct. at 462. The defendant chose not to testify and was convicted by the jury. The Court of Appeals for the Sixth Circuit affirmed the convictions, noting, however, that when a defendant does not testify it would not review the in limine ruling. Luce, 469 U.S. at 40, 83 L. Ed. 2d at 447, 105 S. Ct. at 462.\nAt the outset, the Supreme Court agreed that the defendant\u2019s decision not to testify was integral to the analysis. Had the defendant testified and been impeached by evidence of a prior conviction, there would have been a complete record upon which to review. Luce, 469 U.S. at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463. Yet, as the Court cautioned, \u201cA reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.\u201d Luce, 469 U.S. at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463. In cases postured like Luce, the court cannot perform the balancing required pursuant to Federal Rule of Evidence 609 because \u201cthe court must know the precise nature of the defendant\u2019s testimony, which is unknowable when *** the defendant does not testify.\u201d Luce, 469 U.S. at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463. Moreover, the Court observed:\n\u201cAny possible harm flowing from a district court\u2019s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant\u2019s proffer.\u201d Luce, 469 U.S. at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463.\nFurthermore, the Luce Court noted that an accused\u2019s decision whether to testify \u201c \u2018seldom turns on the resolution of one factor.\u2019 \u201d Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 463, quoting New Jersey v. Portash, 440 U.S. 450, 467, 59 L. Ed. 2d 501, 515, 99 S. Ct. 1292, 1301 (1979) (Blackmun, J., dissenting, joined by Burger, C.J.). It is inappropriate, then, to assume that the adverse ruling on the in limine motion motivated a defendant\u2019s decision not to testify. Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 463. Moreover, even if a commitment was made by a defendant to testify if his motion is granted, this is \u201cvirtually risk free because of the difficulty of enforcing it.\u201d Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 463. The Court reasoned:\n\u201cRequiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to \u2018plant\u2019 reversible error in the event of conviction.\u201d Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 464.\nThe Supreme Court thus concluded that a defendant must testify in order to preserve a claim of improper impeachment by a prior conviction. Luce, 469 U.S. at 43, 83 L. Ed. 2d at 448, 105 S. Ct. at 464.\nIn People v. Whitehead, our supreme court considered whether the trial court\u2019s denial of two motions in limine \u2014 one seeking to limit the cross-examination of a defense psychiatric witness and a second aimed at precluding introduction of admissions by the defendant \u2014 prevented defendant from presenting evidence on his behalf. The defense in Whitehead proposed to make an offer of proof as to what defendant\u2019s testimony would be on direct examination, which the trial court declined to accept. Neither the psychiatric expert nor defendant testified at trial. People v. Whitehead, 116 Ill. 2d 425, 442-44, 508 N.E.2d 687, 693-94 (1987). The supreme court determined the defendant\u2019s claim evaded review for this precise reason. Whitehead, 116 Ill. 2d at 443, 508 N.E.2d at 693. The court explained:\n\u201cCounsel must stand on their objections and call the witnesses, thus opening the possibility that an erroneous decision on the scope of examination might occur and require review by a reviewing court, or forgo calling the witnesses and adopt an alternative strategy. But defense counsel may not have it both ways by altering their trial strategy to make the best of the trial court\u2019s order, depriving the reviewing court of a reviewable record, and still maintain that the order was erroneously entered.\u201d Whitehead, 116 Ill. 2d at 443-44, 508 N.E.2d at 693.\nAdhering to the rationale of Luce, the court candidly acknowledged that in the absence of a fully developed record \u2014 i.e., one containing testimony from the defendant or witness \u2014 determining whether the court would ultimately allow the State to use the impeaching matter or if the State would even use it was purely conjectural. Whitehead, 116 Ill. 2d at 444, 508 N.E.2d at 694.\nMore recently, in People v. Averett, the First District reluctantly applied the principle, established by Luce and Whitehead, that a defendant must testify in order to obtain review of a trial court\u2019s \u201crefusal to rule\u201d on a motion in limine. People v. Averett, 381 Ill. App. 3d 1001, 1019-20, 886 N.E.2d 1123, 1139-40 (2008), appeal allowed, 231 Ill. 2d 671, 904 N.E.2d 981 (2009); People v. Averett, 237 Ill. 2d 1 (2010). In Averett, our third division strongly criticized \u201c[the] developing trend in the circuit court of Cook County to refuse to rule on such motions.\u201d Averett, 381 Ill. App. 3d at 1019, 886 N.E.2d at 1139. Nonetheless, the Averett court determined it was constrained by stare decisis to follow Luce and its progeny and thus concluded Averett\u2019s claim was unreviewable. Averett, 381 Ill. App. 3d at 1020, 886 N.E.2d at 1140.\nThe Supreme Court of Illinois next considered this issue in People v. Patrick, 233 Ill. 2d 62, 908 N.E.2d 1 (2009), involving the consolidated appeals of Robert Patrick and Ezekiel Phillips. Defendant Patrick moved in limine to bar the introduction of prior convictions. During a pretrial hearing, the trial judge refused to rule on his motion claiming that to do so would constitute an advisory opinion. Patrick, 233 Ill. 2d at 66, 908 N.E.2d at 3-4. During the defense case, Patrick\u2019s counsel once more sought a ruling on the motion. The trial court again declined to do so without first hearing defendant\u2019s direct examination, stating that this is how he proceeded in \u201c \u2018every single case.\u2019 \u201d Patrick elected to testify and was, in turn, impeached with his prior convictions. Patrick, 233 Ill. 2d at 66, 908 N.E.2d at 4. As to defendant Phillips, the trial court partially ruled on his motion in limine, but deferred passing on the remaining convictions pending the defendant\u2019s testimony. Phillips decided not to testify based on that ruling. Patrick, 233 Ill. 2d at 67, 908 N.E.2d at 4.\nIn analyzing the respective positions of Patrick and Phillips, the supreme court weighed the guiding precedent bearing upon the issue before it as well as the rationale embracing motions in limine:\n\u201cA criminal defendant\u2019s right to testify on his own behalf, or not to testify at all, is rooted in the fifth, sixth, and fourteenth amendments of the United States Constitution. Rock v. Arkansas, 483 U.S. 44, 51-53, 97 L. Ed. 2d 37, 46-47, 107 S. Ct. 2704, 2708-09 (1987). A defendant\u2019s decision whether to testify is an important tactical determination. Brooks v. Tennessee, 406 U.S. 605, 612, 32 L. Ed. 2d 358, 364, 92 S. Ct. 1891, 1895 (1972). A defendant who chooses to testify faces serious risks of impeachment and may open the door to otherwise inadmissible evidence. Brooks, 406 U.S. at 609, 32 L. Ed. 2d at 362, 92 S. Ct. at 1893. The decision to testify ultimately belongs to the defendant but is generally made after consultation with counsel. People v. Medina, 221 Ill. 2d 394, 403 (2006). Making the important decision to testify without an opportunity to evaluate the actual strength of the State\u2019s evidence restricts the defense in planning its case. Brooks, 406 U.S. at 612, 32 L. Ed. 2d at 364, 92 S. Ct. at 1895.\nObviously, defendants benefit from rulings on the admissibility of their prior convictions made before they decide to testify. First, early rulings provide defendants with the information necessary to make the critical decision whether to testify on their own behalf and to gauge the strength of their testimony. See People v. Averett, 381 Ill. App. 3d 1001 (2008). Second, early rulings permit defendants and defense counsel to make reasoned tactical decisions in planning the defense by: (1) informing the jury whether the defendant will testify; (2) portraying the defendant in a light consistent with prior convictions being admitted or not admitted; and (3) anticipatorily disclosing prior convictions during the defendant\u2019s direct examination, thereby reducing the prejudicial effect. [Citation.]\u201d Patrick, 233 Ill. 2d at 69-70, 908 N.E.2d at 5-6.\nAfter consulting similar precedent from other jurisdictions, the Patrick court concluded that, in most cases, the necessary balancing mandated by Montgomery will be possible prior to trial. However, where trial courts are possessed of sufficient information in advance of trial and still do not rule, they commit an abuse of discretion. The court predicted that the pretrial rulings would be possible \u201cin all but the most complicated of cases.\u201d Patrick, 233 Ill. 2d at 73, 908 N.E.2d at 7-8.\nApplying the foregoing analysis to the cases before it, the supreme court concluded that defendant Patrick was entitled to a new trial. It was the sense of the court that \u201cPatrick\u2019s decision to testify was critical because he relied on a theory of self-defense.\u201d Patrick, 233 Ill. 2d at 75-76, 908 N.E.2d at 9. Furthermore, \u201cIf Patrick had known before testifying that his prior convictions were going to be admitted he may have decided not to testify, or at least he could have informed the jury earlier of the prior convictions to lessen the negative impact.\u201d Additionally, the adverse impact of the impeachment was further heightened by the State\u2019s repeated argument that the jury should not believe a three-time convicted felon. Patrick, 233 Ill. 2d at 75-76, 908 N.E.2d at 9.\nConversely, as to defendant Phillips, the court concluded his claim evaded review. Consistent with the holdings of Luce and Whitehead, the court reiterated that a defendant must testify and obtain a definitive ruling on his motion in limine to allow proper review on appeal. Patrick, 233 Ill. 2d at 78-79, 908 N.E.2d at 10-11. The court noted that, \u201c[T]his court ruled in Whitehead that defendants must take the risk and present the testimony for the issue to be reviewable.\u201d Patrick, 233 Ill. 2d at 79, 908 N.E.2d at 11. In so concluding, the court rejected the dissent\u2019s claim that Luce and People v. Thompkins, 161 Ill. 2d 148, 193, 641 N.E.2d 371, 392 (1994), did not control. Patrick, 233 Ill. 2d at 79, 908 N.E.2d at 11; see People v. Thompkins, 161 Ill. 2d 148, 193, 641 N.E.2d 371, 392 (1994) (defendant\u2019s claim of error was forfeited due to failure to testify).\nFollowing in the wake of Patrick, the supreme court issued a per curiam order announcing its decision to allow the consolidated appeals of the appellate court opinions in Averett and People v. Tucker. People v. Patrick, Nos. 104077, 104445 cons. (May 27, 2009) (per curiam order on denial of motion to reconsider denial of petition for rehearing). Specifically, the court granted leave to appeal Averett\u2019s and Tucker\u2019s cases:\n\u201c[T]o consider whether relief might be available to a defendant, even if he chose not to testify, if the trial court had a \u2018blanket policy\u2019 not to rule on the motion in limine in advance of the defendant deciding not to testify. Importantly, in both Averett and Tucker, it was readily discernible that the trial court had such a blanket policy.\u201d Patrick, slip op. at 1-2.\nThereafter, on April 15, 2010, on the eve of oral argument in the case sub judice, the supreme court released its consolidated opinion in Averett. People v. Averett, 237 Ill. 2d 1 (2010). At the outset, the court reiterated its adherence to Patrick \u2014 that a trial court\u2019s use of a blanket policy to defer rulings on this type of motion in limine was an abuse of discretion. Averett, 237 Ill. 2d at 12. The court further explained:\n\u201cThe critical question presented here is whether relief may be available on appeal despite the defendants\u2019 choice against testifying because the trial courts had a \u2018blanket policy\u2019 of not ruling on motions in limine before the defendants testified.\u201d Averett, 237 Ill. 2d at 12.\nIn the instant case, defendant maintains that the trial court\u2019s blanket policy of deferring its ruling constituted a \u201cstructural error,\u201d thereby requiring automatic reversal without a defendant having to demonstrate prejudice. Although the Averett court indeed concluded the error committed in having such a policy was a serious one, the court nonetheless reasoned that it was \u201cnot comparable to the errors recognized by the Supreme Court as structural.\u201d Averett, 237 Ill. 2d at 13. Rather, \u201cit is simply an error within the trial proceedings.\u201d Averett, 237 Ill. 2d at 14. Moreover, analytical hindsight demonstrated that the error of deferring in limine rulings could be quantified, which was confirmed by the analysis of harmless error undertaken by the court in Patrick. Consequently, the court concluded there was no structural error in deferring rulings on motions in limine and, therefore, automatic reversal was not required. Averett, 237 Ill. 2d at 14-15.\nThe defendant further asserts that the trial court\u2019s policy violated his constitutional right to testify. However, the Averett court found no merit to the claim of any constitutional violation. Averett, 237 Ill. 2d at 14-15. Notably, the court determined that the trial judge\u2019s approach did not prevent the defendants from testifying. Rather:\n\u201cThey were required to weigh the possibility of being impeached with their prior convictions along with other factors in determining whether to testify. The defendants\u2019 constitutional right to testify was not violated by any deterrent effect on their testimony due to the risk of being impeached with their prior convictions.\u201d Averett, 237 Ill. 2d at 16.\nSimilarly, the blanket policy did not deny the defendants the \u201c \u2018guiding hand of counsel.\u2019 \u201d Averett, 237 Ill. 2d at 17. Therefore, defendants did not present issues of constitutional error \u201csubject to review on appeal despite their choice against testifying at trial.\u201d Averett, 237 Ill. 2d at 17.\nThe Averett court likewise considered the defendants\u2019 argument that plain-error analysis would permit review of their claims of error. In rejecting this assertion, the court observed, \u201cWhile the plain-error rule may be applied to bypass normal forfeiture principles, it cannot be applied here because defendants\u2019 decisions not to testify go beyond normal forfeiture.\u201d Averett, 237 Ill. 2d at 18. The court harkened back to that portion of the Patrick decision holding that a defendant\u2019s failure to testify rendered the issue unreviewable. Averett, 237 Ill. 2d at 18, citing Patrick, 233 Ill. 2d at 79, 908 N.E.2d at 11. Relying on well-settled precedent, the court reasoned that, without testimony from a defendant, courts of review would be left to speculate about the nature and content of the testimony, as well as the prosecution\u2019s cross-examination. Averett, 237 Ill. 2d at 18, citing Patrick, 233 Ill. 2d at 78-79, 908 N.E.2d at 10-11, quoting Whitehead, 116 Ill. 2d at 443-44, 508 N.E.2d at 693. In accordance with prevailing standards, \u201cDefendants must testify and obtain a definitive ruling on their motions for the issue to be reviewable on appeal.\u201d Averett, 237 Ill. 2d at 19, citing Patrick, 233 Ill. 2d at 79, 908 N.E.2d at 11.\nThe court also rejected Averett\u2019s claim that he did not forfeit his challenge to the trial court\u2019s in limine ruling by virtue of his testimony at a pretrial motion to suppress evidence. Averett, 237 Ill. 2d at 20. Again, the court relied on the speculative nature of this assertion. Specifically, the court expressed concern over questions such as whether the trial court would allow impeachment, whether any prior convictions would be used by the prosecutor, or if the State would argue for defendant\u2019s conviction based on the prior convictions. Averett, 237 Ill. 2d at 20-21. Notably, the approach adopted by the court mirrored the observations in Luce, thus cautioning against defendants \u201c \u2018hav[ing] it both ways\u2019 by altering trial strategy to make the best of the order [as to motions in limine] and then, if the trial strategy proves unsuccessful, claiming on appeal that the order was erroneously entered.\u201d Averett, 237 Ill. 2d at 21, citing Patrick, 233 Ill. 2d at 79, 908 N.E.2d at 10-11, quoting Whitehead, 116 Ill. 2d at 443-44, 508 N.E.2d at 693.\nLastly, we address defendant\u2019s argument that denying review of his claim is violative of article I, section 12, of the Illinois Constitution. In reliance upon this provision, defendant claims he is entitled to a remedy for the wrong sustained by virtue of the trial court\u2019s error. Yet, in Averett, the supreme court noted the court\u2019s long-held position that article I, section 12, \u201conly expresses a philosophy *** and does not require a certain remedy in any specific form.\u201d Averett, 237 Ill. 2d at 22. Because this provision is \u201caspirational,\u201d there is no requirement that defendants find a remedy for the trial court\u2019s error. Averett, 237 Ill. 2d at 22.\nIn sum, the Averett court recognized the use of a blanket policy, which constituted an abuse of discretion, was the basis for both Averett\u2019s and Tucker\u2019s decisions not to testify. Averett, 237 Ill. 2d at 22. Nonetheless:\n\u201cIn our view, Tucker and Averett were in the same position faced by Phillips prior to trial. Each was required to wait for a ruling on the admissibility of prior convictions for impeachment purposes until after testifying. Thus, each of them faced the same strategic and tactical decisions and the same uncertainty over whether they would be impeached with their prior convictions if they chose to testify. Therefore, in accordance with our decision in Phillips\u2019 case, we conclude that the trial courts\u2019 decisions to defer ruling on the defendants\u2019 motions under a blanket policy is unreviewable on appeal because the defendants chose not to testify at trial.\u201d Averett, 237 Ill. 2d at 23.\nIn the case sub judice, defendant maintains that his right to knowingly exercise \u201chis constitutional right to choose whether to testify\u201d was unnecessarily impeded by the trial court\u2019s blanket policy of deferring its ruling on in limine motions. Understandably, defendant has not favored us with any authoritative precedent supportive of his argument. In People v. Rosenberg, our supreme court recognized that defendants are often faced with difficult decisions when weighing the pros and cons of testifying at trial. Yet, the necessity of making those decisions does not inevitably deprive defendants of any constitutional rights. People v. Rosenberg, 213 Ill. 2d 69, 81, 820 N.E.2d 440, 448 (2004). Notwithstanding the peril faced by defendants through impeachment with prior convictions, the court reasoned, \u201cThat a defendant may decide not to testify in a given case *** does not give rise to a constitutional violation.\u201d Rosenberg, 213 Ill. 2d at 81, 820 N.E.2d at 448. The Averett court likewise concluded that the defendants\u2019 claims did not involve constitutional error subject to review on appeal despite their choice against testifying at trial. Averett, 237 Ill. 2d at 17.\nThe fact remains that in the proceedings below defendant did not testify. Established precedent guides us to the conclusion that this fact, standing alone, is sufficient for us to abstain from reviewing defendant\u2019s claim of error. The reason is manifest. If defendants were permitted to substantively pursue claims of error on any matter that did not take place during trial, the dual objectives of finality of judgments and judicial economy would be seriously frustrated. Moreover, defendant\u2019s attempts to remove his case from the firm grasp of precedent are unavailing. Our position is entirely consistent with the abiding principle reiterated by our supreme court in Averett. See Aver- ett, 237 Ill. 2d at 19 (\u201cOur decision in Patrick makes clear that a defendant\u2019s choice not to testify in these circumstances goes beyond normal forfeiture. The rationale of Patrick does not allow the defendants to \u2018have it both ways\u2019 by altering their trial strategies to make the best of the trial courts\u2019 deferrals of their rulings and later maintain on appeal that they are entitled to new trials because the deferrals of the rulings were erroneous\u201d).\nNext, defendant argues the admission of certain testimony by Ike Steptore\u2019s widow and victim Gernard Fulton denied him a fair trial. It is, however, well recognized that the admission of evidence is left to the sound discretion of the trial court. People v. Phillips, 392 Ill. App. 3d 243, 272, 911 N.E.2d 462, 489 (2009). We will not disturb a trial court\u2019s decision on the admissibility of evidence unless it constitutes an abuse of discretion. People v. Robinson, 217 Ill. 2d 43, 62, 838 N.E.2d 930, 941 (2005). To preserve evidentiary issues for review, defendants must object contemporaneously as well as in a posttrial motion. People v. Lewis, 234 Ill. 2d 32, 40, 912 N.E.2d 1220, 1225 (2009); see also 725 ILCS 5/116 \u2014 1 (West 2006).\nGenerally, the failure to object results in forfeiture of claims on appeal; however, forfeiture is not an absolute bar to our review. Instead, forfeiture presents limitations on the parties, not reviewing courts. People v. Davis, 213 Ill. 2d 459, 470, 821 N.E.2d 1154, 1161 (2004). Furthermore, Supreme Court Rule 615(a), which codifies the plain-error doctrine, provides an exception affording review for those issues otherwise subject to procedural default. Lewis, 234 Ill. 2d at 42, 912 N.E.2d at 1226-27; 134 Ill. 2d R. 615(a). Our supreme court explained the doctrine\u2019s operation in People v. Piatkowski:\n\u201c[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007), citing People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005).\nIt is axiomatic that \u201cAny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.\u201d 134 Ill. 2d R. 615(a). \u201cEssentially, the fairness of the trial must be undermined.\u201d People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 910 (1995). It is upon the defendant to satisfy the burden of persuasion as to either prong of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593, 893 N.E.2d 653, 659 (2008). Where a defendant cannot establish plain error, we must honor the procedural default. Keene, 169 Ill. 2d at 17, 660 N.E.2d at 910.\nThe threshold of our analysis necessarily focuses upon whether an error in fact occurred. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227, citing People v. Walker, 232 Ill. 2d 113, 124-25, 902 N.E.2d 691, 697 (2009). We, therefore, consider the substance of each claim of error. Walker, 232 Ill. 2d at 125, 902 N.E.2d at 697; Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.\nAt a pretrial hearing, the defense stated its opposition to the proposed testimony of Cordelia Steptore. Over the defense\u2019s objection, the trial court permitted the State to offer Cordelia\u2019s testimony about her final conversation in the ambulance with Ike Steptore. During the trial testimony, though, the defense did not interpose an objection to the testimony. In his brief, defendant asserts that this testimony was offered \u201cover objection.\u201d This contention is marginally misleading. A careful review of the record clarifies that the issue was addressed in the pretrial hearing, it was not addressed contemporaneously with the testimony, but was alleged in defendant\u2019s supplemental motion for a new trial. Interestingly, the posttrial motion alleges, in part, \u201cThe Court erred when it allowed the witness Cordelia Steptore to testify to Ike Steptore\u2019s last words to her. (Trans 1/9/08 pg 31 line 20 \u2014 pg 32 line 1) (Objected to by defense on 1/8/08 pg. 20, line 19).\u201d Clearly, the objection was not contemporaneous. The subsequent parenthetical references are at best confusing and at worst utterly misleading as to whether there was an objection to the testimony as it was being offered.\nOur review of the record persuades us that this testimony was not admitted in error. The circumstances and substance of it were not such as would be expected to arouse the jury\u2019s passion or prejudice. Ike Steptore\u2019s affectionate words to his wife were simply compatible with the nature of their relationship as husband and wife. There was nothing about those words that was unexpected or outrageous in any fashion. We are reminded of our supreme court\u2019s observations in People v. Harris: \u201c \u2018 \u201c[cjommon sense tells us that murder victims do not live in a vacuum and that, in most cases, they leave behind family members.\u201d [Citation.]\u2019 \u201d People v. Harris, 225 Ill. 2d 1, 31, 866 N.E.2d 162, 180 (2007), quoting People v. Hope, 116 Ill. 2d 265, 275-76, 508 N.E.2d 202, 206 (1986). The supreme court in Harris observed the testimony of family members admitted by the State in that case \u201cdid nothing to make it appear material to establishing guilt or innocence.\u201d Harris, 225 Ill. 2d at 32, 866 N.E.2d at 180. The same is true in the present case. If nothing else, Cordelia\u2019s recounting of the conversation confirmed the connection between the victim and the person who testified as a life/death witness on his behalf. Importantly, we presume that jurors consider only relevant evidence and follow the instructions given them. See People v. Illgen, 145 Ill. 2d 353, 376, 583 N.E.2d 515, 525 (1991) (\u201cFaith in the ability of a properly instructed jury to separate issues and reach a correct result is the cornerstone of the jury system\u201d), citing People v. Foster, 76 Ill. 2d 365, 378, 392 N.E.2d 6, 11 (1979).\nEven were we to conclude it was error to permit this testimony, the plain-error doctrine would not operate to overcome the forfeiture of the claim. The evidence in the present case was not closely balanced and we cannot conclude the fairness of the proceedings was undermined by the admission of this testimony. See Piatkowski, 225 Ill. 2d at 564-65, 870 N.E.2d at 411. Thus, we fail to discern the applicability of either prong of the doctrine to the instant claim. Naylor, 229 Ill. 2d at 593, 893 N.E.2d at 659. Since defendant cannot establish plain error, it is required that we enforce the procedural default. Keene, 169 Ill. 2d at 17, 660 N.E.2d at 910.\nDefendant invokes a similar claim of error as to the testimony of Gernard Fulton concerning \u201cher injury, rehabilitation process, and the ways in which her life has changed since the shooting.\u201d Defendant did object to this testimony at trial in a side bar conference. The trial judge noted the objection, but overruled it finding the testimony was relevant to Fulton\u2019s injuries and the extent of them. Unquestionably, Fulton\u2019s condition at the time of trial coupled with the efforts undertaken to achieve it are inextricably linked with the initial gunshot wound. To sustain the charge of aggravated battery with a firearm, the State was required to prove the defendant, \u201cin committing a battery, knowingly or intentionally by means of the discharging of a firearm (1) causes any injury to another person.\u201d (Emphasis added.) 720 ILCS 5/12 \u2014 4.2(a) (West 2004).\nFulton\u2019s testimony to be sure was more extensive than that of Cordelia Steptore. However, the distinction to be drawn between the two is at once apparent. The injury to Ike Steptore was fatal and final. The injury to Fulton was a continuing one. The injury she suffered, the progress she made, and the related changes in her life were all linked to one another and equally caused by defendant. Just as the fact that Fulton was apparently totally paralyzed immediately after the shooting would be relevant to establish \u201cany injury,\u201d the fact that the nature and consequences of her injury changed over time is equally relevant. Consequently, we conclude the trial court did not abuse its discretion in allowing this testimony.\nAlthough the issue was not addressed by either party, we note an error in the mittimus, which lists concurrent sentences for counts III and iy each charging defendant with first degree murder, and further provides that these two counts merge. Moreover, the mittimus omits any reference to the conviction of unlawful use of a weapon by a felon and resulting three-year sentence. In order to clarify the mittimus, and consistent with our powers pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we vacate the sentence indicated for count IV and order the mittimus corrected to reflect the merger of count IV into count III, with a single sentence imposed on count III. Likewise, we order the mittimus further corrected to include the consecutive sentence for unlawful use of a weapon by a felon on count XIII. In all other respects, the judgment of the circuit court is affirmed.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County and order the mittimus to be corrected.\nAffirmed.\nFITZGERALD SMITH and HOWSE, JJ, concur.\nPeople v. Averett, 237 Ill. 2d 1 (2010).", "type": "majority", "author": "PRESIDING JUSTICE TOOMIN" } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, and David T. Harris, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Samuel Shim, and Peggy Ann Gill-Curtin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR SCOTT, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201408\u20142600\nOpinion filed May 14, 2010.\nMichael J. Pelletier, Patricia Unsinn, and David T. Harris, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Samuel Shim, and Peggy Ann Gill-Curtin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0585-01", "first_page_order": 601, "last_page_order": 618 }