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).

2015 IL App (3d) 120996-U

Order filed September 15, 2015

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) Appeal No. 3-12-0996
) Circuit No. 07-CF-1308
CHRISTOPHER VAUGHN, )
) Honorable Daniel J. Rozak,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court.

Justices Holdridge and O'Brien concurred in the judgment.

ORDER

¶1 Held: The State’s comments during opening statements and throughout the course of the
trial did not amount to prosecutorial misconduct, where videos of defendant’s
interrogations constituted admissible evidence by which the jury could freely
observe defendant’s demeanor. Posttrial comments attributable to one or more
jurors did not establish that defendant was deprived due process and did not
require trial judge to interview jurors.

¶2 A Will County jury convicted defendant, Christopher Vaughn, of four counts of first-

degree murder. The trial court sentenced defendant to four consecutive terms of life

imprisonment.
¶3 Defendant appeals, claiming the State committed prosecutorial misconduct by, inter alia,

improperly urging the jury to find defendant’s lack of emotion evidence of his guilt and accusing

defense counsel of fabricating a defense. Defendant further contends that his right to an

impartial jury was violated, where it was clear that the jury improperly considered defendant’s

demeanor during his interrogation and trial as evidence of his guilt.

¶4 We affirm.

¶5 BACKGROUND

¶6 On July 25, 2007, a grand jury returned an indictment against defendant on four counts of

first-degree murder. The indictment alleged that on June 14, 2007, defendant shot and killed his

wife, Kimberly Vaughn, as well as his three children, Abigail, Cassandra, and Blake.

¶7 The case proceeded to jury trial in August 2012. In its opening statement, the State

explained that the evidence would show defendant shot and killed his wife, Kimberly (age 34)

his daughters, Abigail (age 12) and Cassandra (age 11), and his son Blake (age 8) because he

wanted to live without obligations in the Canadian wilderness. The State urged the jury to

observe defendant’s demeanor during his interviews with the police regarding the incident,

stating:

“And you, Ladies and Gentlemen, will be able to assess what

his demeanor was like that day. You will be watching hours and

hours of these interviews of the defendant and his interaction and

his reactions that day. And you will be able to judge his demeanor,

his actions in that interview room on each of those days.”

¶8 The defense, on the other hand, explained that the evidence would show Kimberly

committed murder-suicide due to the couple’s marital problems. Furthermore, Kimberly was

2
 taking prescription medications, Nortriptyline (NT) and Topamax (TP), which are known to

cause suicidal behavior.

¶9 In its case-in-chief, the State called numerous police officers and paramedics who

responded to the scene. Their testimony can be summarized as follows.

¶ 10 At approximately 5:15 a.m., on June 14, 2007, Channahon police officers were

dispatched to a wooded area near the I-55 and Bluff Road interchange. First responders

observed a pickup truck and two males, one of whom was defendant. He had blood on his shirt

and pants. The second individual was a passerby and the owner of the pickup truck. Paramedics

treated defendant at the scene, as he was bleeding from his thigh and left wrist. Defendant

displayed no emotion. Officers then discovered a Ford Expedition SUV nearby with an adult

female in the front passenger seat and three children in the rear seat, all of whom had received

apparent gunshot wounds. Paramedics checked those individuals for signs of life, but found

none. They transported defendant to a nearby hospital, where he was treated and released for the

nonlife-threatening wounds to his wrist and thigh. Defendant showed no emotion at the hospital.

Police covered the SUV with a large tarp and transported it by flatbed truck to the Will County

morgue with the victims’ bodies still inside.

¶ 11 The State called a number of other witnesses who testified to events leading up to the

shooting, as well as the defendant’s and Kimberly’s personalities and activities.

¶ 12 Mark Daniels owned a gun store and indoor shooting range in Plainfield. Daniels

testified that defendant signed into the range on June 6, 2007, at 10:25 a.m., and again on June

13, 2007, at 5:30 p.m.

3
¶ 13 Chris Linares, an Illinois State Police (ISP) investigator, read to the jury a number of e-

mails and Internet posts written by Kimberly. These e-mails and posts tended to show generally

that her family and school work kept her busy, and that she was stressed on occasion.

¶ 14 Susan Phillips, Kimberly’s mother, testified that defendant was the type of person who

never showed emotion. Del Phillips, Kimberly’s father, testified that defendant was very

introverted. Todd Andrlik, a neighbor of the Vaughn family, also testified that defendant was

introverted. Reina Carrasco, another neighbor of the Vaughns’ testified that when she met

defendant, he was very quiet and distant. Alyson Mals, the Vaughns’ real estate agent, similarly

testified that defendant was a very quiet person who rarely spoke.

¶ 15 The State called Gary Larson, an ISP sergeant and the lead investigator on the case.

Lawson testified that defendant arrived at ISP Zone 3 headquarters in Lockport at approximately

9:45 a.m., on June 14, 2007. At approximately 10 a.m., Lawson began the interview with

defendant. The interview lasted almost 14 hours until about 1:30 a.m. the next day. Prior to the

interview, Lawson read defendant his Miranda rights, and defendant signed a form waiving

those rights. Lawson, along with special agent Joe Stavola, also interviewed defendant at ISP

Zone 3 headquarters on June 15 and June 17, 2007. All of the interviews were recorded and

shown to the jury.

¶ 16 During the June 14 interview, defendant stated that he and his family were going to a

water park in Springfield. They left around 5 a.m. While traveling south on I-55, Kimberly said

she was going to be sick. She was taking medication for migraines and other conditions that

upset her stomach. They passed a rest stop, but Kimberly did not want to get out of the SUV

there because she was shy. Defendant was not sure where he pulled the SUV over. He exited

the vehicle to check the luggage carrier as it was rattling. He then reentered the vehicle’s driver

4
 side and noticed that his leg was bleeding. He exited the SUV to get help, and found a passerby

with a pickup truck. At the hospital, the doctor informed him he had been shot. Defendant

stated he did not understand how that happened because there was no one around and Kimberly

did not have a gun. After he realized he was injured, he was confused and panicked. He owned

a gun, but it was at his house. He used it for target practice and had fired a few rounds at the

range in Plainfield the previous day.

¶ 17 Defendant then explained that he traveled often for work. He was in Mexico in

December, had a few drinks, and spent the night with some girls. He told Kimberly about the

incident, and the couple had been arguing about it. In addition, Kimberly did not trust him

because he had gone to strip clubs. He was planning to take her on a second honeymoon to

repair the damage he had done to his marriage.

¶ 18 Lawson then informed defendant that Kimberly and the children were dead. Defendant

stated they were not dead and asked what happened. He asked Lawson to bring Kimberly in so

he could talk to her. Lawson repeatedly asked defendant what happened; defendant responded

that he did not know. At some point during the interview, Lawson showed defendant

photographs of his children in order to elicit an emotional reaction from him. Lawson felt that

defendant’s demeanor was not appropriate for someone who had been informed of the death of

his children. Defendant consistently denied killing Kimberly and his children, and eventually

was allowed to leave headquarters.

¶ 19 During the June 15 interview, officers continued to question defendant regarding

mundane family details, as well as the events of June 14. They challenged defendant to confess,

but he did not do so. Defendant stated that after he got back into the SUV, Kimberly shot him.

Defendant stated that at that point, his mind shut off and he ran away. He thought the gun was

5
 probably the one he had at the shooting range the previous night, but could not figure out how

Kimberly obtained it. During the June 17 interview, officers continued asking defendant

questions regarding the Vaughns’ family history and the routine of their daily activities. Officers

allowed defendant to leave after both of these interviews.

¶ 20 Erik Lawrenz, a St. Charles, Missouri, police officer, testified that he arrested defendant

at a St. Charles funeral home, per the ISP’s request, on June 23, 2007.

¶ 21 Nicole Fundell, an ISP forensic scientist, testified that she was a specialist in firearms,

tool marks, and gunshot range determination. She examined the Taurus 9-millimeter handgun,

fired cartridges, and fired projectiles in the instant case. Ten spent cartridge cases, 8 fired

projectiles, and the handgun were recovered from the SUV. One of the projectiles had a piece of

flesh and white and blue fibers on it. Defendant’s jeans had a bullet entrance hole on the left

upper thigh and an exit hole on the left outer seam. According to Fundell, the gun muzzle was

less than six inches from the jeans when it was fired. There were also four bullet holes in

defendant’s jacket. One was above the right front pocket, one was in the back of the jacket, and

two were in the left wrist area. Fundell determined that these holes were consistent with the

passage of a single bullet made when the jacket had been wrapped or layered around the gun

before it was fired.

¶ 22 On cross-examination, Fundell testified she could not definitively rule out the possibility

that the hole in the back of his jacket was not created by a separate shot. During the testing she

performed, she was unable to reproduce the second hole in a single shot.

¶ 23 The State then called Stephen Willott. Willott testified that he lives near Ottawa,

Ontario, Canada, and met defendant on a Web site in 2006. He and defendant had exchanged a

long series of e-mails regarding living in the woods, survival, and camping. Willott had never

6
 met defendant in person. Willott read a series of those e-mails to the jury. The e-mails tended to

indicate that defendant was frustrated with his life, and wanted to live permanently in the

Canadian wilderness. To that end, defendant took a scouting trip to the Yukon Territories in

May 2007 to find a suitable place to reside. Defendant asked Willott to help fake defendant’s

death so Kimberly could get the insurance proceeds, but Willott was uncomfortable with that

plan. In an e-mail dated May 23, 2007, defendant mentioned that he had visited a person named

Maya before he left on his scouting trip and thought that he might like to bring her along on his

next scouting trip. E-mails from defendant to Willott ceased in June 2007.

¶ 24 Maya Drake, an entertainer at a gentlemen’s club, testified that defendant visited the club

about four or five times in 2007. During those visits, defendant informed her that he wanted to

leave his wife and live in the woods in Canada. Drake testified that defendant never asked her to

move to Canada with him. Defendant told Drake that he was going to leave his wife everything,

that she was going to get what she deserved, and she was not going to see it coming.

¶ 25 Chrystal Miller, an entertainer at a different gentlemen’s club, testified that defendant

visited the club in June 2007, and made a strange comment about knowing what was going to

happen in the future. Miller testified that defendant told her he did not have a family life, did not

have children, and had been single for five years. Defendant spent approximately $4,780 over

two visits to the club on June 6 and June 12, 2007.

¶ 26 Dr. Larry Blum, a forensic pathologist, testified as to the autopsies performed. The bullet

wound under Kimberly’s chin was “an angle gunshot wound,” meaning that the gun was in

contact with her chin at the time it was fired. The shot would have incapacitated Kimberly

immediately and caused her death very quickly.

7
¶ 27 Dr. Blum explained that stippling is gunpowder marks on the skin created by close range

gunshots, and that stippling looks like small, dark dots made by a pencil. When a handgun is

fired, stippling will occur when the gun is 18 to 24 inches away from the victim’s skin.

¶ 28 Abigail was shot below the right eyebrow and in the right lower chest. There was

stippling near both of her wounds. The gunshot wound to Cassandra’s head had dense stippling.

The gunshot wound to Blake’s head had sparse stippling. The stippling present on all the

children indicates the gun was, at most, 18 to 24 inches away when it was fired.

¶ 29 On cross-examination, Dr. Blum testified that he could not rule out the possibility that

Kimberly had committed suicide. He also testified that Kimberly had both NT and TM in her

system, and that the level of NT was the low end of the toxic level. There were FDA warnings

for both NT and TM, indicating that these medications can cause suicidal behavior. On redirect,

Dr. Blum testified that the body can redistribute levels of substances in the blood after death, so

that the level of NT in her system may have actually been in the normal therapeutic range.

¶ 30 Kelly Krajnik, an ISP forensic scientist specializing in biology and DNA, testified as to

the source and location of the blood stains found on defendant’s and Kimberly’s clothing, as well

as the front seat area of the SUV. Defendant’s blood was found on his jacket, Kimberly’s

seatbelt and buckle, the passenger side of the center console, the driver’s seat, Kimberly’s shorts

and shirt, the floorboard between Kimberly’s feet, and a book lying on the floorboard between

Kimberly’s feet. Kimberly’s blood was found on the right lower portion of defendant’s jacket,

the right side of the driver’s seat back, the center console, and obviously, on Kimberly’s own

clothing.

¶ 31 The State’s expert in shooting scene reconstruction, Matthew Noedel, testified next.

According to Noedel, the gun found in the vehicle was a semi-automatic with a round in the

8
 chamber. This indicated that the gun had fully cycled after the last shot and was ready to fire. In

order for this to happen, the gun had to have been fully supported through its last firing action.

Noedel explained that in a suicide shot to the head, there is sometimes insufficient support of the

gun after the fatal shot to allow proper cycling in a semi-automatic weapon, causing the gun to

jam. Given that the gun in the instant case had fully cycled and had not jammed, Noedel opined

that the gun was fully supported throughout the firing action.

¶ 32 Furthermore, the blood stains on Kimberly’s right had were inconsistent with “back

splatter,” which is small droplets of blood that have been ejected from a gunshot wound and are

indicative of suicide. In most suicide cases, there are multiple small droplets of blood

encompassing a relatively large area on the hands. Here, Kimberly only had one individual

blood droplet on the left hand. The gun did not have blood droplets consistent with back splatter

and there was no splatter at all on the trigger guard.

¶ 33 Abigail, Cassandra, and Blake each suffered one gunshot wound to the torso and one to

the head. These shots came from the front passenger seat area of the SUV. The damage to the

left wrist of defendant’s jacket was consistent with a contact or near contact shot. Like Fundell,

Noedel also testified that the holes in the body of defendant’s jacket were consistent with first

layering the jacket and pressing it against something, then firing the gun. As for defendant’s

thigh wound, the muzzle of the gun had to be very close to the top of the thigh at the time it was

discharged in order for soot to be deposited on the surface of defendant’s blue jeans. After

Kimberly was shot, she slumped to her left. A person other than Kimberly could have then

delivered the shots over her left shoulder toward the back seat. On cross-examination, Noedel

conceded that the physical evidence also fit a scenario in which Kimberly shot defendant, the

children, and herself.

9
¶ 34 The State then called Paul Kish, an expert in bloodstain pattern analysis. Kish testified

that defendant’s blood was found on the center console, Kimberly’s arms, her shorts, the

floorboard between her feet, and her seatbelt. Defendant’s blood was transferred onto

Kimberly’s seatbelt by direct contract, and the seatbelt was then retracted. Defendant’s blood

was deposited in these locations after Kimberly was shot. While Kimberly was still bleeding, an

object altered and wiped away some of Kimberly’s bloodstains on the center console. That

object was then moved away. This was done by someone other than Kimberly and within

seconds to a minute after the blood was deposited on the console. Kish stated the only other

person who could have been in a position to alter those bloodstains was defendant. Further,

defendant’s statements to the police did not properly explain how his blood got onto Kimberly’s

seatbelt, the center console, Kimberly’s shorts, the floor between her feet, or how her blood got

onto the side of his jacket.

¶ 35 In its case-in-chief, the defense called Lucien Haag, an independent criminalist and

forensic firearms examiner. Haag opined that the holes in the body of defendant’s jacket could

have been produced by one shot or by two separate shots. Crime scene technicians took a swab

of the rim of the gun barrel, but it would have been more probative for the investigators to swab

the entire gun barrel to determine whether any biological material was further down inside the

barrel. The swab had a reddish speck that may have been blood. Haag stated that if Kimberly’s

biological material was found well inside the barrel, that would mean the shot that killed her was

the last shot fired, as any further shots would have destroyed that material. The fact that

defendant’s clothes were stuffed together in a bag at the hospital created a possible cross-

contamination problem, as material that was on one item could have transferred to another.

10
¶ 36 The defense’s private investigator, Michelle Palaro, testified as to information about

Kimberly prior to the shootings. Palaro read for the jury e-mails Kimberly had written to various

family members and friends. In an e-mail written to defendant just two weeks prior to the

shootings, Kimberly stated that she had informed her doctor that she was having “a big

personality change and anxiety change.” Other e-mails indicated that Kimberly was

experiencing high blood pressure, migraine headaches, and stress.

¶ 37 Dr. Pradeep Bhatia, a neurologist, testified he was treating Kimberly’s migraines with NT

and TM. During her last appointment on April 11, 2007, he informed her that if she remained

free of headaches for the next three months, he would take her off those medications. On cross-

examination, Dr. Bhatia testified that Kimberly was not seeing him for depression or suicidal

thoughts, and there was no indication she was depressed.

¶ 38 Dr. Richard Steslow, a family doctor treating Kimberly for high blood pressure, testified

that she reported increased anxiety in May 2007. Dr. Steslow had no record or independent

recollection of suicidal or violent ideation in Kimberly.

¶ 39 The defense then called its bloodstain pattern analysis and crime scene reconstruction

expert, Tom Bevel. Bevel concluded that it would have been possible for Kimberly to shoot the

children, defendant, and herself, and that it would also have been possible for defendant to shoot

Kimberly and the children. He determined that the gun barrel was only swabbed up to 1½ inches

from the tip of the barrel, but that if there was blow-back from a self-inflicted would, there could

have been tissue or blood further down into the barrel.

¶ 40 On cross-examination, the State inquired as to whether the physical evidence in the SUV

matched defendant’s statements that he exited the vehicle immediately after being shot. Bevel

conceded that it did not.

11
¶ 41 In its closing argument, the State argued that defendant was the only one who suffered

nonlife-threatening wounds, the evidence found in the SUV was inconsistent with his statements

to the police, and there was no indication that Kimberly was either homicidal or suicidal.

¶ 42 The defense argued that the State’s expert witnesses conceded Kimberly might have been

the shooter, she was taking medications, which can cause suicidal behavior, and defendant’s lack

of emotion proved nothing because he was an introverted person who showed little emotion.

¶ 43 In rebuttal, the State contended that defendant’s demeanor during the police interviews

and his false statements during the interviews, in addition to the physical evidence, all proved his

guilt. The State further argued that the defense had no evidence to support its theory of the case.

¶ 44 Following deliberations, the jury found defendant guilty on all four counts.

¶ 45 Defendant filed a motion for new trial, arguing, inter alia, that it was improper for the

jury to have considered defendant’s lack of emotion during the trial in reaching its verdict. The

trial court denied the motion, and sentenced defendant to four consecutive life sentences.

¶ 46 Defendant appeals.

¶ 47 ANALYSIS

¶ 48 I. Prosecutorial Misconduct

¶ 49 Defendant contends that the State committed prosecutorial misconduct in three separate

instances throughout the course of the trial. Specifically, that: (1) the State improperly urged the

jury to find that defendant’s lack of emotion was evidence of his guilt, where that lack of

emotion was completely irrelevant and nothing more than a manifestation of his bland,

introverted, and low-key personality; (2) the State improperly attacked defense counsel by

accusing counsel of fabricating a defense; and (3) the State improperly asserted the falsity of

12
 defendant’s statements as an evidentiary fact. Such misconduct, defendant argues, amounts to

reversible error.

¶ 50 First, defendant takes issue with the lengthy police interviews shown to the jury, during

which he displayed virtually no emotion. Pointing to various statements made by the State during

both its opening and closing arguments, defendant claims the prosecutor committed reversible

error by urging the jury to consider defendant’s demeanor during his interviews with the police

as evidence of his guilt. Importantly, defendant does not argue that the videotaped interviews

themselves were inadmissible, just that the State’s reference to defendant’s demeanor in the

videos was improper. Some of the State’s comments in this regard include:

“And you, Ladies and Gentlemen, will be able to assess what

his demeanor was like that day. You will be watching hours and

hours of these interviews of the defendant and his interaction and

his reactions that day. And you will be able to judge his demeanor,

his actions in that interview room on each of those days.

***

And you recall the interview and if you look at what the

defendant said throughout the entire interview, we are not talking

about just a part of it, we are going to talk about the things that he

said to the police and the manner in which he acted during that

interview which proves his conclusive guilt in this case.

***

So finally, 1 hour and 11 minutes into that interview, Gary

Lawson tells him, Chris, your wife and kids are dead. And what’s

13
 his reaction? Exactly, there is no reaction. And I mean no reaction

whatsoever. He sits there deadpans [sic].

And what you see next, think about the worst movie you have

ever seen in your life and how bad the acting was. Think about

maybe you went to your son’s or your daughter’s or some young

relative, like their first grade Christmas production, the acting you

saw in that is better than the acting that Chris Vaughn gave to the

Illinois State Police that morning when he was so distraught about

his dead family, he was so distraught about his dead relatives, he

sat there deadpan. I don’t believe that.”

¶ 51 The State contends that defendant failed to properly preserve this issue, where the

defendant either made a general objection (People v. Buie, 238 Ill. App. 3d 260, 274 (1992)

(general objections raise only questions of relevance)), or failed to object at trial and include the

issue in his posttrial motion. See People v. Johnson, 238 Ill. 2d 478, 484 (2010) (citing People v.

Enoch, 122 Ill. 2d 176, 186 (1988)) (When a “defendant fails to object to an error at trial and

include the error in a posttrial motion, he forfeits ordinary appellate review of that error.”).

¶ 52 Forfeiture aside, the State’s comments referencing defendant’s demeanor during the

videotaped interrogations were not improper. We find People v. Theis, 2011 IL App (2d)

091080, instructive. In Theis, defendant was convicted of predatory criminal sexual abuse and

aggravated criminal sexual abuse. On appeal, defendant argued that the trial court erred in

admitting the testimony of the detective regarding defendant’s body language during the

interrogation and that the prosecutor improperly commented on this testimony during closing

argument. Id. ¶ 47. Defendant failed to object to the testimony at trial and did not raise the issue

14
 in his posttrial motion, but asserted that the issue should be reviewed under plain error. Id. The

Theis court rejected this contention, stating: “[i]t is well settled that testimony regarding a

defendant’s silence or nonverbal conduct during questioning subsequent to a valid waiver of

rights is admissible. Id. ¶ 48 (citing People v. Hart, 214 Ill. 2d 490, 514-15 (2005)).

Accordingly, the court found defendant did not establish error, plain or otherwise. Id.

¶ 53 It is important to note that unlike Theis, defendant here does not argue that the trial court

erred in admitting the interrogation videos or Lawson’s testimony regarding the same.

Moreover, defendant conceded in argument on his posttrial motion that the jury could properly

consider defendant’s demeanor during his interrogation, stating: “[n]ow, the jury can consider

Mr. Vaughn’s reactions at the time he was interrogated by the Illinois State Police, that is proper

for the jury to consider.”

¶ 54 The State was free to comment on defendant’s demeanor during the interviews. The

defense not only could, but did argue that the evidence supported the notion that defendant has a

very flat affect. The jury was free to make whatever reasonable inferences it chose to make

based upon the evidence. Indeed, Theis unequivocally stands for the proposition that the videos

constituted admissible evidence, and that it is well within the province of the jury to make

inferences from the testimony regarding defendant’s nonverbal conduct and demeanor. We

agree. We see no reason to depart from that rationale here. The State’s comments did not rise to

the level of prosecutorial misconduct.

¶ 55 As part of the second subsection of his prosecutorial misconduct claim, defendant

contends that the State improperly accused defense counsel of fabricating a defense.

15
¶ 56 Near the end of its closing argument, the State said, “your verdict must be based on the

evidence *** not possibilities, not speculation, not conjecture, not things that are just plain made

up.”

¶ 57 During the State’s rebuttal argument, the prosecutor stated:

“I’m not going to ask you to consider anything that’s not

proven and supported by the evidence, and I’m not going to stand

up here and just plain make things up, either.”

At a later point during rebuttal argument, the prosecutor stated:

“And for anyone to come in here and say that [Kimberly]

murdered those children, that is not only offensive, it’s ludicrous

and unthinkable, and more importantly not supported by the

evidence, none whatsoever, provides a motive for Kim Vaughn to

kill her kids.”

¶ 58 Defendant argues these remarks were not only improper personal attacks on the integrity

of defense counsel, but also improper accusations that counsel had fabricated a defense. See

People v. Emerson, 97 Ill. 2d 487, 497 (1983); see also People v. Willis, 2013 IL App (1st)

110233, ¶ 110.

¶ 59 The State contends that defendant failed to object to any of the comments he now takes

issue with on appeal.

¶ 60 Our review of the record indicates that while defendant failed to object to the State’s first

comment, he did make a general objection to the State’s argument that “your verdict must be

based on the evidence *** not possibilities, not speculation, not conjecture, not things that are

16
 just plain made up.” The defendant also included these issues in his posttrial motion; thus, we

consider the merits of defendant’s arguments.

¶ 61 It is well established that “the prosecution may not accuse defense counsel of attempting

to create reasonable doubt by confusion, misrepresentation, or deception.” Willis, 2013 IL App

(1st) 110233, ¶ 110. Unless supported by the evidence, statements by prosecutors during closing

arguments that assert that defense counsel fabricated a defense are therefore improper because

they shift the focus of the jury away from the elements of the crime to the objectives of defense

counsel. Emerson, 97 Ill. 2d at 947-98.

¶ 62 Here, defendant’s citation to the prosecutor’s comment takes the statement out of context.

The entirety of the comment reads as follows:

“The defense has asked you to focus on what evidence is not

there. What isn’t there or which piece of the puzzle is missing, but

your verdict must be based on the evidence, based on the evidence

that’s been presented, not possibilities, not speculation, not

conjecture, not things that are just plain made up.”

¶ 63 The prosecutor did not refer specifically to defense counsel, nor did the prosecutor state

that defense counsel actively concocted a theory or evidence. Rather, when viewed in light of

the State’s theory of the case, the prosecutor was alluding to defendant’s dubious explanation for

what happened to his family that day. This is a far cry from the impermissible comments in

Emerson, where the State’s Attorney stated to the jury that defense counsel had laid down a

smokescreen “composed of lies and misrepresentations and innuendoes,” and that the defense

attorneys tried to “dirty up the victim” to distract the attention of the jury from the defendant’s

crime. Emerson, 97 Ill. 2d at 497.

17
¶ 64 Moreover, this comment was in direct response to defense counsel’s closing argument in

which he stated:

“That is a piece of the puzzle that is actually here that you can

consider. And we have missing pieces and we have pieces that are

present and some pieces carry more weight than others you’ll see.”

¶ 65 As any defense counsel would, he attempted to call into question the State’s theory of the

case, pointing out that Kimberly took certain medications that could make her suicidal and

alluding that there may have been some type of suicide note. However, it is well established that

the during closing argument, the prosecution may properly comment on the evidence presented

or reasonable inferences drawn from that evidence, respond to comments made by defense

counsel that invite a response, and comment on the credibility of witnesses. People v. Burman,

2013 IL App (2d) 110807, ¶ 25. When a defendant’s own closing argument attacked the

prosecution’s case and its witnesses, the prosecution is entitled to respond thereto in its rebuttal

closing argument, particularly when that response is invited. People v. Nieves, 193 Ill. 2d 513,

532 (2000).

¶ 66 We, therefore, find that the State’s comments in rebuttal closing argument were not

improper and did not rise to the level of prosecutorial misconduct.

¶ 67 Finally, defendant argues that the State’s prosecutorial misconduct in this case was not

limited to its rebuttal argument. According to defendant, the State also improperly elicited

testimony from its expert witness and a defense expert witness that defendant’s statements to the

police contained falsehoods regarding his actions following the shootings.

¶ 68 Defendant specifically takes issue with the State’s bloodstain pattern analysis expert Paul

Kish, who testified on direct examination that defendant’s statements to the police did not

18
 properly explain how his blood got onto Kimberly’s seatbelt, the center console, Kimberly’s

shorts, the floor between her feet, or the side of defendant’s jacket. During its cross-examination

of Tom Bevel, defendant’s expert in bloodstain pattern analysis and crime scene reconstruction,

the State elicited testimony that the physical evidence in the SUV did not match defendant’s

statements that he exited the vehicle immediately after being shot. Defendant contends that these

statements constituted an improper invasion of the province of the jury to determine for itself

whether defendant’s statements were false.

¶ 69 Defendant concedes that this issue may not be properly preserved, but urges this court to

consider it under the constitutional issue exception, where prosecutorial misconduct can rise to

the level of a constitutional due process violation. Greer v. Miller, 483 U.S. 756, 765 (1987)

(recognizing that prosecutorial misconduct may “ ‘so infec[t] the trial with unfairness as to make

the resulting conviction a denial of due process’ ” (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974))). That did not happen here. We find the issue forfeited.

¶ 70 Notwithstanding forfeiture, we fail to see how the testimony of expert witnesses can be

classified as prosecutorial misconduct in this instance, thereby negating defendant’s argument in

its entirety. The issue is an evidentiary one where the trial judge has broad discretion in

determining the admissibility of expert testimony. People v. Cardamone, 381 Ill. App. 3d 462,

500 (2008). As the State correctly notes:

“Generally, an individual may testify as an expert if his or her

qualifications display knowledge that is not common to laypersons

and if the testimony will aid the trier of fact in reaching its

conclusion. [Citation.] An expert witness may provide an opinion

on the ultimate issue in a case. [Citation.] The test is whether the

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 opinion will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Id.

¶ 71 Here, experts Kish and Bevel provided testimony that would aid the jury in determining

the timeline of events, i.e., whether the defendant’s blood could have been deposited on

Kimberly before she was shot. Indeed, defendant’s theory of the case, that Kimberly was the

shooter, raised a factual issue as to the timeline. That the State was able to elicit from the

defense’s own witness that defendant’s explanation for what happened did not comport with the

physical evidence does not serve to transform this into prosecutorial misconduct. Bevel did not

opine that defendant shot the victims. This is further supported by the well-established principle

that a trier of fact is not required to accept the expert witness’s conclusion, thus such testimony

cannot be said to usurp the province of the jury. See Richardson v. Chapman, 175 Ill. 2d 98,

107-08 (1997); see also People v. Kando, 397 Ill. App. 3d 165, 196 (2009).

¶ 72 In essence, the State asked its expert on direct and defendant’s expert on cross whether

the evidence matched the scenario presented by defendant to police. Neither the questions nor

the responding testimony constituted error. See generally, People v. Terrell, 185 Ill. 2d 467,

496-97 (1998).

¶ 73 Accordingly, we find that neither the expert witnesses’ testimony nor any of the State’s

comments during the course of the trial rose to the level of prosecutorial misconduct.

¶ 74 II. Impartial Jury

¶ 75 Defendant also contends that the jury improperly considered defendant’s lack of emotion

as evidence of his guilt, thus violating his constitutional right to an impartial jury. He further

asserts that the trial court erred in denying is motion for a new trial without interviewing any of

the jurors regarding this alleged misconduct.

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¶ 76 A criminal defendant’s right to due process in the form of an unbiased jury is a

substantial and fundamental right provided for by both the Illinois and federal constitutions.

U.S. Const., amends. V, VI, XIV § 1; Ill. Const. of 1970, art. I, §§ 2, 8. A jury that considers

matters not in evidence violates the defendant’s right to an unbiased jury. People v. Szymanski,

226 Ill. App. 3d 115, 121 (1992). Evidence includes any means by which an alleged matter of

fact is proved or disproved, such as witness testimony, documents, exhibits and physical objects.

See People v. Foss, 201 Ill. App. 3d 91, 94-5 (1990). A defendant’s demeanor, other than while

testifying, cannot prove or disprove any alleged matter of fact and is therefore not evidence.

People v. Bowen, 298 Ill. App. 3d 829, 837 (1998). The question of whether jurors have been

influenced and prejudiced to such an extent that they would not, or could not, be fair and

impartial involves a determination that must rest in sound judicial discretion. People v. Runge,

234 Ill. 2d 68, 104 (2009). That discretion extends into the trial court’s initial decision of

whether or not to interrogate the jurors based on an allegation of impartiality. Id. at 105.

¶ 77 Defendant claims that the comments made by jurors to local news media outlets

following the verdict clearly demonstrate that the jury improperly relied on defendant’s lack of

emotion following his arrest and during his trial. Defendant states that in one such report, a juror

indicated that defendant’s lack of emotion was an important factor in the case. Defendant also

contends that the foreman indicated that the jury considered defendant’s lack of emotion

following his arrest and during trial in determining that he was guilty. Specifically, the jury

foreman stated that “[a]nother thing that we talked about *** Christopher Vaughn’s reaction ***

not only when he first was located but throughout the course of the trial even.”

¶ 78 Notably, defendant does not argue that the jury’s consideration of his lack of emotion

during his interrogations alone denied him a fair trial. Nor does defendant argue that the jury’s

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 consideration of his demeanor at trial alone denied him a fair trial. He argues it was both.

However, as previously established in Theis (supra ¶ 52) and conceded by defendant in his

posttrial motion, the jury was free to consider defendant’s demeanor in the properly admitted

videotaped interviews. See People v. Theis, 2011 IL App (2d) 091080, ¶ 47. To the extent that

the jury may have considered defendant’s demeanor at trial, it was cumulative and insignificant

in comparison to the hours of videotaped interviews the jury had already witnessed. In light of

the overwhelming evidence of defendant’s guilt—physical evidence and bloodstain pattern

analysis, expert testimony that defendant’s story did not jive with the physical evidence and, in

particular, evidence of defendant’s demeanor when interrogated—any error by the jury in

considering defendant’s demeanor at trial is harmless beyond a reasonable doubt. This

conclusion is further bolstered by the holding of Bowen, where the court found the trial judge’s

comment on defendant’s demeanor at trial where did defendant did not testify was improper, but

harmless. Bowen, 298 Ill. App. 3d at 837. Like Bowen, defendant failed to demonstrate how the

statements constituted a material factor in the outcome of his trial. Id.

¶ 79 Defendant’s claim must also fail where it does not take into consideration the well-

established rule that a jury verdict may not be impeached by the testimony of the jurors. People

v. Holmes, 69 Ill. 2d 507, 511 (1978). “It is well settled that a statement by a juror taken after the

jury has rendered its verdict, has been polled in open court, and has been discharged will not be

admitted to impeach the jury’s verdict.” People v. Hobley, 182 Ill. 2d 404, 457 (1998). This rule

prevents consideration of posttrial juror testimony showing “the motive, method or process by

which the jury reached its verdict.” (Internal quotation marks omitted.) People v. Sullivan, 2011

IL App (4th) 100005, ¶ 21 (citing Hobley, 182 Ill. 2d at 457). An exception to this rule is made

in situations where proof of improper external influence on the jury is shown. See Holmes, 69

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 Ill.2d 507, 510-11(concerning a jury’s independent investigation and gathering of evidence not

presented during trial); see also Hobley, 182 Ill.2d at 458-59 (involving, inter alia, nonjuror

communication with jurors during deliberations). However, even in cases where jurors may

testify as to the nature of outside influences, evidence of the effect of those influences on the

mental processes of the jurors is inadmissible. Holmes, 69 Ill. 2d at 514.

¶ 80 Here, defendant does not allege that the jury was subject to any outside influence. Nor

did defendant present any juror affidavits alleging juror misconduct, or that jurors were

intimidated by nonjurors during their deliberations, as was the case in Hobley. Hobley, 182 Ill.

2d at 456. Defendant argues only that, based on snippets from news reports, the jurors may have

considered his demeanor at trial after the fact. These are precisely the types of comments that go

to the motive, method, and process by which the jury reached its verdict, and are thus

inadmissible. Sullivan, 2011 IL App (4th) 100005, ¶ 26.

¶ 81 We therefore find that the jurors’ posttrial comments did not impeach the verdict, and the

trial court did not err in denying defendant’s motion for a new trial on that same basis.

¶ 82 CONCLUSION

¶ 83 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 84 Affirmed.

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