from the Circuit Court of Du Page County. No. 12-CF-225
Honorable Kathryn E. Creswell, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with
opinion. Justices Zenoff and Jorgensen concurred in the
judgment and opinion.
1 Defendant, Daniel J. Olaska, appeals his conviction of
first-degree murder (720 ILCS 5/9-1(a)(2) (West 2012)),
arising from the stabbings of Willie Hayes and Shaun Wild in
downtown Naperville in February 2012. Defendant makes nine
individual contentions of error, most of which fall into the
following broad areas: (1) the sufficiency of the evidence to
support his murder convictions; (2) the adequacy of the jury
instructions on aggravated battery (720 ILCS 5/12-3.05(a)(1)
(West 2012)), which was an uncharged predicate offense for
the charge of felony murder (720 ILCS 5/9-1(a)(3) (West
2012)); and (3) the propriety of the State's examination
of a police officer concerning defendant's postarrest
silence. For the following reasons, we affirm.
2 I. BACKGROUND
3 A. Introduction
4 Among the patrons at Frankie's Blue Room
(Frankie's) in Naperville in the midnight hour of
February 4, 2012, were defendant, Hayes, and Wild. Defendant
had arrived at Frankie's with his friend Steve
Blacksmith, who had since left. Hayes and Wild knew each
other from their time on the football team at North Central
College (NCC). Also present at Frankie's were several
other past or present members of the NCC football team,
including Peter Bulandr, Will Thrun, Bradley Crackel, Jordan
Tassio, Josh Sartori, Scott Skuteris, Andrew Trybula, and
Paul Yuccas. Defendant had not met Hayes or Wild before that
night. Shortly before 1 a.m. on February 4, defendant had a
conversation with Hayes while both were seated in a booth.
Trial witnesses variously described the conversation, but all
agreed that it grew heated. During the verbal escalation,
Wild and several other associates of Hayes's were near
the booth. The encounter culminated in defendant producing a
knife from his pocket and stabbing Hayes in the chest.
Defendant then walked away from the booth. Wild pursued and
caught up to defendant. Their encounter, too, was subject to
conflicting accounts at trial. Defendant stabbed Wild in the
arm and chest before being restrained by Rafael Castaneda,
one of Frankie's bouncers. In his struggle with
defendant, Castaneda received a knife wound to the arm. Hayes
and Castaneda survived but Wild died from his chest wound.
5 In March 2012, a grand jury indicted defendant on 14
counts. Defendant went to trial on 10 counts: 2 counts of
intentional murder (720 ILCS 5/9-1(a)(1) (West 2012)); 3
counts of knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West
2012)), 2 counts of felony murder (720 ILCS 5/9-1(a)(3) (West
2012)) predicated respectively on aggravated battery (Hayes)
(720 ILCS 5/12-3.05(a)(1) (West 2012)) and attempted murder
(Hayes) (720 ILCS 5/8-4(a), 9-1(a) (West 2012)); 2 counts of
attempted murder (Hayes and Castaneda) (720 ILCS 5/8-4(a),
9-1(a) (West 2012)); and 1 count of unlawful use of a weapon
(720 ILCS 5/24-1(a)(8) (West 2012)). Prior to trial, the
State dismissed four counts of armed violence (Hayes and
Castaneda) (720 ILCS 5/33A-2(a) (West 2012)).
6 The defense gave notice of its intent to claim at trial
that the stabbings of Hayes and Wild were in self-defense.
The t rial w as held over several days i n Mar ch 2015. The
evidence consisted of over 30 witnesses, several hours of
video footage from six interior security cameras at
Frankie's, and audio recordings of defendant's phone
conversations with family members while he was in jail
7 The parties presented pointedly different theories of what
motivated defendant to stab Hayes and Wild. The defense
proposed as follows. Defendant was in fear not only of Hayes,
who was seated in the booth across from defendant, but also
of other current or former NCC football players who were
standing near the booth, one of whom (Tassio) physically
prevented defendant from leaving the booth at one point.
Defendant stabbed Hayes defensively, only after Hayes
threatened him with physical violence and lunged across the
table at him. After stabbing Hayes, defendant left to avoid
further danger but in the process was grabbed from behind by
someone whom he thought was Hayes. Out of fear, defendant
stabbed the person, who turned out to be Wild.
8 According to the State's theory, defendant grew sullen
and belligerent at Frankie's after another patron, Sarah
Schwenn, spurned his romantic advances. Defendant became, in
the State's words, a "ticking time bomb." At
one point in the evening, Schwenn danced with another man,
John Reynolds. Defendant later approached Reynolds, displayed
a knife to him, and uttered an apparent threat. Sometime
after this, defendant approached another patron, Gina
Gargaro, and verbally abused her for no apparent reason.
Subsequently, when defendant was with Hayes in the booth,
Hayes's teammates did not attempt to trap defendant in
the booth. Defendant showed no fear of Hayes or his
associates, and at no point was defendant justified in using
deadly force-a stab to the chest-against Hayes. According to
the State, defendant's movements after stabbing Hayes
were an attempt to escape following an unjustified deadly
attack, and therefore defendant was not legally justified in
using deadly force to ward off Wild's attempt to
9 Both parties claimed support for their theories in the
security footage. The State also claimed that the audio
recordings of the jail phone calls showed that defendant, at
the insistence of family members, fabricated his self-defense
10 B. Testimony in the State's Case
111. Defendant's Interaction with Bar Patrons Before
12 Frankie's is a second-floor establishment. There are
two entrances by stairs: the north (or front) entrance and
the south (or rear) entrance. The interior space is arranged
as follows. East of the north entrance is the stage, which is
elevated two steps above the dance floor to the south. On the
west end of the dance floor is a series of booths, numbered
consecutively from north to south. The booths are lined up
against a low wall that separates the dance floor from the
bar area to the west. Defendant stabbed Hayes in one of those
booths, identified at trial as booth No. 4. There are also
tables in the northwest corner of the dance floor. Defendant
stabbed Wild near one of those tables, and Castaneda
restrained defendant in that same area. South of the dance
floor is the DJ booth and the south entrance.
13 Schwenn testified that she and her friend Keli Jepson
arrived at Frankie's about 10:30 p.m. on February 3,
2012. While ordering drinks, they met defendant and
Blacksmith. They also met Emmanuel Valadez. Schwenn danced
with Valadez. Later, while Jepson danced with Valadez,
Schwenn danced with defendant. He touched her more than she
preferred, running his hands up and down her waist and hips.
After Schwenn and defendant danced for 5 to 10 minutes,
Schwenn and Jepson went outside so that Schwenn could have a
cigarette. While they were outside, defendant came out and
spoke on his cell phone. They overhead him say that he was
going to stay at Frankie's and find his own ride home.
When Schwenn and Jepson reentered Frankie's, defendant
followed them. Schwenn and Jepson left defendant and went to
the end of the bar opposite him. Schwenn was no longer
interested in spending time with defendant. While at the
other end of the bar, Schwenn met Reynolds and danced with
him. While she was dancing, defendant approached and placed a
beer in her hand. Schwenn had not asked for the beer.
Defendant then went to booth No. 4 and put his coat down.
Later, while Schwenn was still dancing with Reynolds,
defendant approached and Reynolds walked away. After dancing
with defendant for a minute or two, Schwenn stopped and stood
on the dance floor. Defendant grabbed her and began dancing
with her again. Schwenn thanked defendant for the beer and
said that she just wanted to spend time with her friends.
Defendant walked over to booth No. 4, took his coat, and
walked away. According to Schwenn, this occurred shortly
14 Schwenn stated that, soon after defendant walked away,
Reynolds approached and they danced. After about 10 minutes,
they went to the bar together, holding hands. Schwenn decided
to smoke again outside. After retrieving her coat from booth
No. 4, she went to the bar to get Jepson and saw defendant
talking with Reynolds. Schwenn thought that this was unusual.
When she and Jepson returned from outside, she put her coat
back down in booth No. 4. She saw defendant approach and
walked away. She was on the dance floor shortly before 12:30
a.m. when she saw Jepson seated in booth No. 4 with
defendant. They were on the same bench, with Jepson on the
inside. Schwenn got Valadez's attention and said that
they needed to "rescue" Jepson. They walked over to
the booth. When Valadez invited Jepson to dance, defendant
would not move to let her out of the booth. Jepson had to
climb over defendant to get out. Schwenn, Jepson, and Valadez
then danced. They were about 5 to 10 feet from booth No. 4.
Defendant sat facing them with no emotion on his face.
Schwenn testified that this was "creepy at points"
and made her uncomfortable. She admitted, though, that it was
15 Later, but still before 12:30 a.m., Schwenn's
attention was again drawn to booth No. 4, where she witnessed
defendant arguing with a woman over sports. They raised their
voices and pointed at each other. The argument appeared
genuine and not playful. Not wanting to become involved,
Schwenn and Jepson went to the opposite end of the dance
floor. About 10 minutes later, Schwenn decided to go outside
again to smoke. She went to booth No. 4 and asked defendant
if her coat was beside him. Defendant said that he did not
know. When she asked if he could look, he refused. When she
reached around defendant to grab her coat, he did not move at
all to accommodate her. Schwenn noticed a man seated across
from defendant but did not see them interact. According to
Schwenn, defendant became withdrawn, frustrated, and
unhelpful as the evening progressed. He seemed angry when she
was retrieving her coat.
16 Schwenn stated that, after she smoked, she and Jepson
decided to leave. When they exited the parking ramp, they
observed police cars and ambulances outside Frankie's.
They saw a person carried out on a stretcher and defendant
led out by the police.
17 Jepson testified that she and Schwenn arrived at
Frankie's about 10:40 p.m. on February 3. At the bar,
they were introduced to defendant and Blacksmith. They also
met Valadez. Schwenn danced with defendant while Jepson
danced with Valadez. During a smoke break outside, Schwenn
remarked to Jepson that defendant was "clingy"
while they danced. Defendant also came outside and spoke on
his cell phone. Blacksmith left around 11:30 p.m. and
defendant decided to remain at Frankie's. When the three
of them went back inside Frankie's, Jepson and Schwenn
went to the end of the bar opposite defendant. Around
midnight, Jepson was on the dance floor with Valadez and
Schwenn when defendant approached and placed a drink in
Schwenn's hand. Schwenn was already holding a drink, and
Jepson could see that she was annoyed by now having two to
hold. Defendant then left the dance floor. Later, a friend of
Valadez's came onto the dance floor and began dancing
with Schwenn. When Jepson next looked over, Schwenn was
dancing with defendant. Jepson saw Schwenn lean in and speak
to defendant. After this, defendant left the dance floor.
Schwenn continued to dance with Valadez's friend.
Afterward, the four of them went to the bar to order drinks.
A few minutes later, Schwenn and Jepson decided to go outside
for another smoke break. When Schwenn and Jepson returned
from outside, Schwenn placed her coat in booth No. 4. Jepson
sat down in the booth and defendant, who was standing nearby,
sat down next to her. Defendant asked Jepson what his
"place" was regarding Schwenn. Defendant said that
he liked Schwenn. Jepson told defendant that Schwenn wanted
to have a good time and meet people and was not interested in
forming lasting relationships. Defendant said nothing in
18 Jepson testified that, after her conversation with
defendant, Schwenn and Valadez came over and invited her to
dance. Valadez extended his hand to Jepson and she rose to
exit the booth. Defendant, who was on the outside end of the
bench, did not move to let her out. Jepson had to "get
over him to get onto the dance floor." Defendant said
nothing and looked straight ahead. He was calm and showed no
sign of intoxication. Jepson, Schwenn, and Valadez danced
about 8 to 10 feet from booth No. 4. Jepson's attention
was drawn back to booth No. 4 by raised voices. She saw
defendant arguing with a woman. They were shouting and
pointing at each other. Jepson brought it to Schwenn's
and Valadez's attention, and the three of them moved
farther away. Jepson saw a man step between defendant and the
woman. After a time, the argument stopped. Schwenn and Jepson
decided to go for another smoke break. Schwenn went to
retrieve her coat from booth No. 4. Jepson could not see who
was in the booth at the time. While Schwenn and Jepson were
outside, they decided to leave. After they got their car,
they saw ambulances and police cars in front of
Frankie's. They also observed defendant being led out of
Frankie's in handcuffs.
19 Reynolds testified that, on the night of February 3, he
arrived in downtown Naperville in a limousine with a group
that was celebrating Kristen Dewar's birthday. On the way
downtown, Reynolds met Valadez, who was also with the group.
While at Frankie's, Reynolds met and danced with Schwenn.
As they were dancing, defendant approached and "cut in,
" by dancing in front of Schwenn. This occurred around
12 a.m. Reynolds had not met defendant before. Not knowing if
defendant and Schwenn were together, Reynolds walked away.
20 Later on the dance floor, Reynolds asked Schwenn if
defendant was her boyfriend, and she said no. The two went to
the bar to get drinks. When Schwenn left to get her jacket,
defendant walked up to Reynolds. Reynolds told defendant that
he was sorry for dancing with Schwenn if she was
defendant's girlfriend. Defendant took a knife out of his
right pocket with his right hand. Holding the knife across
his chest, he said to Reynolds something like "I have it
covered, or, it will be taken care of." The knife had a
silver blade and a black handle. Reynolds was shocked. He
immediately told a woman standing next to him that defendant
had shown him a knife. The woman was McKala Kruse, another
member of Dewar's birthday group. Shown security video of
that night, Reynolds identified when, from 12:19:11 to
12:19:19 a.m., defendant displayed the knife to him. Reynolds
admitted that the knife is not actually visible on the video,
though he noted that defendant is seen holding his arm at a
90-degree angle, which was the posture Reynolds claimed
defendant had when he showed the knife. Asked if he has a
"giant smile" on his face later, at 12:20:35 a.m.,
Reynolds replied that he could not tell his facial expression
from the video.
21 Reynolds testified that, after speaking to Kruse, he
joined his friends in another part of Frankie's. He did
not see defendant for the remainder of the night. At 12:46
a.m., Reynolds noticed a commotion on the dance floor. He saw
no fighting or arguing but did observe blood on the floor.
The police and paramedics arrived.
22 Reynolds did not see any sign of intoxication in
defendant. Reynolds did not remember how much he himself
drank that night, but he recalled that he did not have a
hangover the next day.
23 Reynolds testified that he did not inform a bouncer or
bartender about the knife, because he "just figured
[that defendant] was acting like a tough guy just defending a
girl that he liked." Reynolds "did not think
anything like that [(i.e., the stabbings of Hayes
and Wild)] was going to happen that night." Reynolds
acknowledged that he told the police in a February 15, 2012,
videotaped statement that the reason he did not tell a
bouncer or call the police after defendant showed the knife
was that he did not consider it a "big deal" at the
time. Reynolds testified that he wished in retrospect that he
had informed Frankie's personnel about defendant.
24 Kruse testified that she and her boyfriend were part of
the group celebrating Dewar's birthday. She met Reynolds
for the first time that night. Shortly before 12:20 a.m., she
was in the bar area of Frankie's when Reynolds told her
that a man had just threatened to stab him because he had
been dancing too close to the man's girlfriend. Reynolds
did not say that the man had taken out a knife. Reynolds
seemed shocked and stunned. They spoke for a minute before
Reynolds walked away. She did not advise Reynolds to tell a
bouncer about the man, because the threat seemed like the
"empty" kind that people make in bars.
25 Kruse stated that, around 12:45 a.m., she noticed a
disturbance. The music stopped, the lights came on, and Kruse
saw people standing around. One person was lying on the
floor, bleeding. Eventually, paramedics arrived.
26 Kruse admitted that, when she spoke to the police on
February 12, 2012, she did not tell them of the threat that
Reynolds reported to her. She explained that, at the time of
the police interview, she had not made a connection between
the threat and the stabbings that same night at
27 Valadez testified that he met Reynolds while traveling to
downtown Naperville to celebrate a birthday. Around 10:40
p.m. in the bar area inside Frankie's, he met defendant
and another man. Later, Schwenn and Jepson arrived. Valadez
spoke with Jepson while defendant spoke with Schwenn. Valadez
danced first with Schwenn and then with Jepson. Around 11:50
p.m., defendant began to dance with Schwenn while Valadez
danced with Jepson. Schwenn and Jepson decided at one point
to go outside to smoke. When they returned, Valadez danced
with them both. Shortly before midnight, while the three were
still on the dance floor, defendant approached Schwenn and
put a drink in her hand. She was already holding a drink.
Later, Reynolds joined Schwenn, Jepson, and Valadez on the
dance floor. Defendant came and started dancing with Schwenn,
and Reynolds stepped away. Defendant and Schwenn danced for a
short time before they stopped and talked. Defendant then
stepped away and Schwenn remained on the dance floor where
she was rejoined by Reynolds.
28 Valadez testified that, after Jepson and Schwenn returned
from another smoke break, he and Schwenn went to the dance
floor while Jepson sat in booth No. 4. Defendant slid onto
the bench next to her. Schwenn and Valadez then invited
Jepson to dance. Valadez extended his hand to Jepson.
Defendant would not move and Jepson had to climb over him to
29 Valadez stated that, later, Schwenn and Jepson decided to
go outside for another smoke break . Valadez watched as
Schwenn went to retrieve her jacket from booth No. 4 where
defendant was still seated. Schwenn said something to
defendant "and then ended up having to reach over and
pull her jacket from behind him." Schwenn and Jepson
left Frankie's for the night and Valadez rejoined the
30 Valadez testified that, around 12:46 a.m., there was a
commotion near booths Nos. 1 and 2. Valadez saw Wild on his
knees. Valadez walked over and saw that Wild was now on his
back. Valadez saw blood, opened Wild's shirt, and applied
pressure to the puncture wound in his chest. Wild was
unresponsive. Paramedics arrived and took Wild out on a
31 Gargaro testified that she came to Frankie's with her
roommate, Megan Gedutis, sometime after 11 p.m. While at
Frankie's, they met Thrun and Bulandr, whom they knew
previously. Gargaro described them both a s " big guys
." Gargaro had an ongoing playful disagreement with
Thrun that night about the Super Bowl. At one point in the
evening, Gargaro was near booth No. 4 with Bulandr and
Gedutis when defendant approached and called her a
"fucking bitch." Gargaro told defendant to leave
her alone and sit down. Shown the security footage, Gargaro
identified herself and defendant pointing at each other.
Gargaro testified that, during her interaction with
defendant, Thrun came over and stepped between them with his
back to defendant. Gargaro had not asked Thrun to intercede.
Defendant continued to yell while Gargaro ignored him and
spoke with Thrun. Defendant pointed at Gargaro over
Thrun's shoulder. Gargaro came back and pointed at
defendant again, telling him to sit down. Gargaro eventually
left and found Gedutis and Bulandr, who were sitting in booth
No. 4. Thrun also came over. After saying goodnight to Thrun
and Bulandr, Gargaro and Gedutis left Frankie's. Gargaro
did not ask Bulandr or Thrun to beat up defendant.
32 Bulandr testified that he was at Frankie's with fellow
NCC football teammates celebrating Trybula's birthday.
Bulandr estimated his height 6 feet, 2 inches and said that
Crackel was taller. Bulandr and Thrun arrived shortly before
11 p.m. They spent most of their time on the dance floor or
in the vicinity of booth No. 4. Around 12:30 a.m., Bulandr
danced with a girl named Sarah. Around the same time, he and
Thrun met Gargaro and Gedutis. Bulandr knew Gargaro through
Thrun. As Bulandr was speaking with Gedutis, he overheard an
argument between Gargaro and defendant. Bulandr paid little
attention to the argument and continued to speak with
Gedutis. Bulandr said nothing to defendant at that time.
Bulandr was shown the security footage and identified Thrun
and himself near defendant and Gargaro when they were
arguing. Also in the vicinity were Tassio and Skuteris.
Bulandr denied that he and his teammates decided to
"take care" of defendant or discussed him at all.
Bulandr noted that the security footage shows defendant and
Skuteris conversing immediately after defendant's
argument with Gargaro. Bulandr observed that defendant and
Skuteris appear to have their arms around each other's
shoulders and exchange high-fives.
33 Bulandr eventually sat in booth No. 4, which was then
unoccupied, and conversed with Gedutis as she stood in front
of the booth. Thrun and Gargaro were standing nearby.
Defendant approached and asked Bulandr to get out of the
booth. Bulandr could not recall the exact words defendant
used or whether the request was more like an order. Bulandr
exited the booth. He made no threat to defendant. Bulandr
remained in the vicinity of booth No. 4, speaking with
Gedutis. After she and Gargaro left Frankie's, Bulandr
returned to the dance floor, closer to booth No. 3 than booth
No. 4. At some point, Hayes came over and sat in booth No. 4,
where defendant was still seated. Bulandr did not bring Hayes
to booth No. 4 or tell Hayes that he needed to take care of a
problem in booth No. 4. Bulandr spoke with Hayes while Hayes
was seated in booth No. 4, and he did not hear Hayes threaten
34 Later, Bulandr heard a commotion in the stage area and saw
Wild slumped over. Bulandr's attention was then drawn
back to booth No. 4, where he saw Hayes slouched in his seat
and holding his chest. There was blood on Hayes's hands.
Bulandr laid Hayes back on the bench and applied pressure to
his chest wound. Paramedics eventually arrived.
35 2. The Stabbings of Hayes and Wild
36 Hayes testified that he and Trybula came to Frankie's
at 11 p.m. They had walked from Trybula's apartment,
where they and others were celebrating Trybula's
birthday. Other NCC football players and coaches were at
Frankie's. Hayes testified that he drank before and
during his time at Frankie's and was intoxicated when he
encountered defendant in booth No. 4. Hayes testified that,
in February 2012, he was 5 feet, 11 inches tall and weighed
210 to 215 pounds.
37 Hayes stated that he spent most of his time at
Frankie's on the dance floor. At one point, he went to
booth No. 4 and sat across from defendant, who was already
seated there. Hayes could not recall why he chose booth No. 4
in particular. He could not recall if someone spoke to him
about defendant before he sat down. When Hayes sat down, he
and defendant shook hands and introduced themselves.
Initially, they did not have much contact. Hayes drank,
watched his friends on the dance floor, and spoke to them as
they came to set their drinks on the table. A blonde woman
also came and reached across the table to retrieve a coat.
She said something to defendant that Hayes could not recall.
38 Hayes testified that he and defendant eventually
conversed, but he could not recall what they talked about. He
could not recall any reference to the fit of his shirt or to
what defendant was drinking out of the wine glass he was
holding. The tone of the conversation became uncomfortable
for Hayes and he felt that he should leave. At one point,
defendant stood and waved his arms. He seemed "very
aggressive, " which made Hayes uneasy. As they spoke,
Hayes's friends, including Wild, were walking back and
forth between booth No. 4 and the dance floor. Hayes denied
that defendant was ever prevented from leaving the booth.
Hayes testified that he ultimately decided to leave the booth
and stood up. At the time, Wild was the only one of
Hayes's friends nearby. Hayes could not recall how Wild
was positioned or if he said anything to Hayes. When Hayes
reached out to shake defendant's hand, Hayes "felt
like [he] had been punched." Wild was standing next to
Hayes when Hayes felt the punch. Hayes began having trouble
breathing and put his hand on his chest. When he looked at
the hand, he saw blood on it. He sat back down in booth No.
4. Bulandr came over and applied pressure to Hayes's
chest wound as he lay back on the bench. Hayes's football
coach also came over to assist. Hayes felt extreme pain in
his left chest below the nipple. Paramedics arrived and
transported Hayes to Edward Hospital, where he had surgery.
39 Hayes was shown the roughly six minutes of security
footage from Hayes's arrival at booth No. 4 to
defendant's stabbing of Hayes (12:40 to 12:46 a.m.).
Hayes was asked about several aspects of the footage. He
noted that, after he sits in the booth, he converses with
several individuals, including Bulandr. Hayes could not
recall if he was talking about defendant with Bulandr and the
others. Tassio (Hayes mistakenly identifies him as Skuteris)
approaches and interacts with Hayes and defendant. Hayes
could not recall what Tassio and defendant said to each
other. Eventually, Hayes stands and, placing his hands on the
table, leans toward defendant. Hayes remains standing for the
next minute, until the stabbing occurs. Hayes could not
recall leaning toward defendant, and he denied that he could
have been threatening defendant. Hayes explained,
"That's not the type of person I am." Hayes
claimed that he stood up because he wanted "to relieve
[him]self from the situation." Hayes could not recall
what prevented him from leaving once he stood up. On the
video, after Hayes stands up, defendant speaks to Crackel,
who is standing nearby with Wild. As he speaks, defendant
points to Hayes. Hayes could not recall what defendant said
to Crackel, but he admitted that it was "possible"
that defendant was trying to get Crackel to help calm Hayes
down. After Crackel turns away, defendant gets his attention
again. Hayes admitted that it was "possible" that
defendant was attempting again to get Crackel to calm Hayes
down. The footage shows Wild then stepping over to Hayes and
placing his left arm on Hayes's shoulder. Hayes could not
recall what Wild's intentions were at this point.
Hayes's intent was to leave, but he admitted that nothing
kept him from leaving at this point. Several seconds later,
Hayes takes one or two steps back from the booth, and Wild,
now facing Hayes, places his right arm on Hayes's left
shoulder, as if to guide him away. Hayes quickly throws
Wild's arm off and steps back toward the table. He then
leans over toward defendant, resting his hands on the table.
According to Hayes, he intended at this point to shake
defendant's hand. Hayes could not recall throwing off
Wild's arm and lunging at defendant. Hayes testified:
"Q. And when [Wild] put his arm on you to guide you out
of the booth when you intended to leave, you knocked his arm
off and you lunged at the defendant, didn't you?
A. No sir.
Q. Now you remember that you didn't do that?
A. I wouldn't lunge. That's not the type of person I
Q. Are you the kind of person that would knock Mr. Wild's
hands off of you so you could get back at the defendant?
A. No, sir.
Q. Well, you did it, didn't you?
recognized that, in the footage, defendant walks away,
followed by Wild. Hayes denied that he said anything to Wild
as he left.
40 Hayes was asked about his statements to the police. He did
not recall talking to the police before his surgery on
February 4, 2012. Consequently, he did not recall telling
them on that date that he was seated at a booth at
Frankie's when a person he had not met before started an
argument with him; or that he wanted to get up and leave
because he had a bad feeling about that person; or that he
told the person to stop running his mouth and talking about
Hayes's friends. Hayes recalled speaking to the police at
his home on February 6, 2012. He did not recall telling them
on that date that one of his friends told him while he was on
the dance floor at Frankie's that defendant said that his
shirt was too tight; that he confronted defendant about this
remark and commented to him that he was drinking beer out of
a wine glass; or that he ultimately stood up to remove
himself from the booth.
41 Crackel testified that, in February 2012, he and Wild were
close friends. They went to Frankie's together on the
night of February 3 because they heard that a group would be
there celebrating Trybula's birthday. They arrived
shortly after 11 p.m. and recognized several members of the
NCC football team. Crackel and Wild spent time walking
throughout Frankie's and mingling. Sometime after 12:30
a.m., Crackel and Wild were conversing near booth No. 4.
Hayes and defendant were sitting across from each other in
the booth. At one point, defendant tapped Crackel on the arm,
pulled him over, and asked him a question. Defendant was
pointing at Hayes. Defendant appeared calm and confident but
somewhat angry. Crackel could not recall the question, but he
remembered that defendant did not ask for help or say that he
felt threatened by Hayes. After defendant asked the question,
Crackel returned to his conversation with Wild. Crackel could
hear defendant and Hayes conversing. Their voices were raised
above the level of the music. Defendant said something about
Hayes's shirt being too tight, and Hayes replied that
defendant was drinking beer out of a wine glass. Since
defendant and Hayes were getting angry with each other,
Crackel and Wild drew closer to the booth and "beg[an]
mediating the situation." They were trying "[n]ot
necessarily" to calm Hayes down, but to convince him to
go elsewhere in Frankie's. Crackel admitted telling the
police at Frankie's that he and Wild were attempting to
calm Hayes down.
42 Crackel heard defendant and Hayes repeat their comments
about Hayes's shirt and defendant's drink. Hayes
stood up. Wild faced Hayes and placed his hand on his
shoulder, trying to escort him away. Crackel was standing
behind Wild and facing Hayes. Crackel was about two feet away
from defendant and was not blocking him from exiting the
booth if he wished. As Wild was placing his hand on Hayes,
defendant said "fuck you" and "proceeded to
reach across the table and stab [Hayes] in the chest."
Crackel was not facing defendant at the time and saw the
motion out of the corner of his eye. Crackel initially
thought that the motion was a tap on the side or shoulder,
but then he saw defendant "holding the knife that he
just stabbed [Hayes] with in front of his face as he stared
at [Hayes]." Defendant then slowly closed the knife.
When Crackel made these observations, he was about one foot
43 Crackel testified that, after defendant closed the knife,
he left the booth and walked toward the stage area and the
north entrance. Wild then passed Crackel, walking in the same
direction as defendant. Sartori was in the area, but Crackel
could not recall what he was doing. After Wild left, Hayes
was still standing and Crackel had him sit down in the booth.
Crackel then walked toward the stage area and saw Wild on his
knees holding his stomach. Crackel went to the rear entrance
and began to call 911 but did not complete the call. He
returned to the stage area. Wild was now standing, but
Crackel saw him fall back. Crackel did not see defendant
during this time. The police and paramedics arrived. Crackel
told the police what he had seen and, at their request, went
to identify defendant, who was now sitting on the front
44 Sartori testified that he and his roommates went to
Frankie's because of the birthday celebration for
Trybula. They arrived about midnight. After spending time on
the dance floor, Sartori went toward the line of booths. He
was standing between booth Nos. 3 and 4 when Hayes, who was
seated in booth No. 4, called him over. They spoke, but
Sartori could not recall about what. Sartori saw defendant
seated across from Hayes in booth No. 4. After talking to
Hayes, Sartori returned to where he had been standing,
between booth Nos. 3 and 4. After a time, booth No. 3 became
unoccupied and Sartori sat there with his roommate, Alison
Muser. Sartori's bench was contiguous to the bench on
which defendant was seated and his back was to defendant.
Sartori sat with his legs up on the bench, facing the dance
floor. He was texting his girlfriend with his cell phone. He
noticed Crackel and Wild standing next to booth No. 4.
Sartori looked over at booth No. 4 when he heard Hayes and
defendant raise their voices. He heard Hayes say, "[H]ey
man, you're drinking beer out of a wine glass."
Hayes made this remark two or three times. Sartori could not
hear what defendant said. Hayes stood up, followed by
defendant. Sartori then stood up and "went
directly" to Hayes. At that point, Wild was in front of
Sartori, facing Hayes. As Sartori approached, Wild turned and
walked past him toward the stage area. Sartori had not seen
defendant leave the booth area. Sartori turned toward Hayes
and saw him holding his right hand to his left chest area.
There was blood on his hand and chest. Hayes told Sartori to
"go get that guy." Sartori did not see anything in
defendant's hands when he was at booth No. 4. Sartori
could not recall Wild placing his hand on Hayes's
shoulder or Hayes leaning or lunging toward defendant.
45 Sartori turned and went north toward the stage. He saw
Wild and defendant facing each other near the stage. One of
Frankie's bouncers was immediately behind defendant.
Defendant lunged at Wild, who then started going backward.
The bouncer grabbed defendant and pulled or pushed him toward
the stage. Defendant pushed against the bouncer. During this
struggle, a knife fell to the floor at their feet. Sartori
picked it up. The bouncer yelled for Sartori to hand it to
him. Once the bouncer had the knife, he threw it toward the
stage. Sartori then went into the bathroom and dialed 911.
When he returned, he saw defendant sitting on a bench, in the
presence of the bouncer. Wild was on his back on the floor in
front of booth No. 2. As the police arrived, the bouncer left
defendant, who then started to go down the stairs to the
north entrance. Defendant told a police officer that the
person who stabbed Wild was leaving. The officer, accompanied
by a colleague, pursued defendant down the stairs. Sartori
followed and saw the officers apprehend defendant and make
him sit on the stairs. Later, at the officers' request,
Sartori identified defendant as the perpetrator.
46 Yuccas arrived at Frankie's about 11 or 11:30 p.m. At
12:45 a.m., while standing near booth No. 2, Yuccas heard a
commotion behind him. He turned toward the dance floor and
saw defendant lunging at Wild. A bouncer intervened and
seized defendant. Wild fell to his knees. He tried to stand
but collapsed backward. Wild was bleeding and several bar
patrons approached to give him aid. After several minutes,
the police and paramedics arrived.
47 Castaneda testified that he and David Atwood were working
security at Frankie's. When the stabbings occurred,
Castaneda was stationed near the stage and Atwood by the DJ
booth. Castaneda was wearing his security T-shirt, which bore
the logo of Features, Frankie's sister venue that was
located on the first floor of the building. Around 12:45
a.m., Castaneda was looking toward the bar area when the
shattering of glass drew his attention to the dance floor.
The glass "explod[ed] kind of high in the air."
Castaneda looked over and saw defendant and Wild. Castaneda
judged by their postures that defendant had just smashed a
glass on Wild's upper shoulder and neck area. Castaneda
did not see the actual blow, but he saw defendant's hand
just above Wild's body, in apparent recoil from the blow.
After calling for backup on his headset radio, Castaneda went
to intervene. As he approached, he saw Wild walking away and
defendant following him. Judging defendant to be the
aggressor, Castaneda grabbed defendant, spun him around, and
pushed him against a railing. Defendant pushed back at
Castaneda and swore at him. Defendant accused Castaneda of
injuring him and said that the police would arrest Castaneda
when they found defendant's blood on him. While
restraining defendant, Castaneda saw Wild "going down to
the ground." Castaneda also heard someone yell that a
knife was on the floor. Castaneda spotted the knife. Both he
and defendant lunged for it. Castaneda seized it first and
threw it onto a part of the stage that was not in use. Before
he threw it, Castaneda noticed spots of blood on the knife.
The front of defendant's shirt was also bloody, but
Castaneda saw that defendant was not bleeding. Castaneda
himself was bleeding from his left arm and wrist. When Atwood
came over to assist, Castaneda went to the bathroom to wash
off the blood and make a compress out of paper towels. When
Castaneda exited the bathroom, he saw defendant seated on a
bench near the steps to the stage.
48 Castaneda testified that he was taken by ambulance to
Edward Hospital, where he noticed three holes in the front of
his security T-shirt. The holes were not there before he
seized defendant that night. There were no marks on the
thermal shirt that Castaneda wore under his security T-shirt.
Castaneda stated that he did not see defendant holding a
knife that night. He also did not see defendant stab, punch,
or kick Wild.
49 Atwood testified that, around 12:46 a.m., while he was
watching the dance floor from his station near the DJ booth,
Castaneda radioed that there was a problem and that he needed
help. Atwood looked in Castaneda's direction and saw him
"hand fighting" with defendant and trying to get
control of him. Defendant's hands were visible and Atwood
could see that he was holding something. When Atwood crossed
the dance floor, he saw Castaneda holding defendant against a
railing. Defendant was "covered in blood." Atwood
asked what happened, and defendant replied, "he stabbed
me." Atwood could see no injuries on defendant and asked
where he was stabbed. Atwood could not recall defendant's
reply. Castaneda, who was bleeding, went to the bathroom to
treat himself. Defendant tried to walk away but Atwood made
him sit on a bench near the steps to the stage. Atwood stood
facing defendant. At one point, Atwood's attention was
diverted to the area where Wild had fallen. During that
momentary span, defendant attempted to head down the stairs
to the front door. Defendant was not running but was
"moving pretty quick." Atwood followed and saw that
two police officers were already with defendant on the
landing of the stairs. Atwood told the officers that
defendant had stabbed someone.
50 Samantha Doti testified that she and her boyfriend came to
Frankie's about 12:30 a.m. After about 15 minutes in the
bar area, Doti walked to the dance floor to see friends. As
she approached booth No. 1, she saw Wild, who was her friend.
Wild was walking toward the stage area behind defendant. Wild
was reaching toward defendant. Before Wild made contact with
defendant, defendant "quickly turned and pounced at
[Wild]." After shaking Wild several times, defendant
walked toward the stage area, where he was grabbed by another
man. Doti did not see defendant after this. Doti looked
toward Wild, who was hunched over. He fell to his knees. He
was helped to his feet but then fell straight back. She saw
blood and knew that Wild was injured. Doti also saw Hayes
lying injured in booth No. 4. Paramedics eventually arrived.
51 Jason Farrell (Jason) testified that he came to
Frankie's about 11:40 p.m. He was meeting two friends who
were there for a birthday party. Around 12:46 a.m., he was on
the dance floor facing east when he heard "elevated
noise" and "was pushed on [his] back from the area
around Booth 2." The force pushed him a step forward.
Jason looked over his shoulder and saw defendant and Wild
"in grasp with each other." Defendant's left
hand was grasping Wild's right wrist. With his right
hand, defendant was thrusting upward toward Wild's right
arm. A bouncer pulled defendant away. Wild held his right arm
and said to defendant, "Man, you cut me." Defendant
had blood on the front of his shirt but appeared calm and
collected. Defendant claimed that he had been cut, but the
bouncer replied that defendant was the one who cut Wild. The
bouncer was holding a knife.
52 Naperville police officer Teresa Stock testified that she
was dispatched to Frankie's and arrived there about 12:50
a.m. Officer Kevin Fasana arrived about the same time. Both
entered Frankie's through the north entrance. Upon
arriving, they were approached by Atwood and Sartori, who
told them that the offender was trying to leave. They pointed
to defendant, who Stock saw was moving quickly toward the
stairs down to the north entrance. Stock and Fasana pursued.
Defendant ignored Fasana's commands to stop and continued
down the stairs. Fasana and Stock caught up to defendant on
the stairs and handcuffed him. Stock saw that the front of
defendant's shirt was bloody. Stock found Sartori and
brought him to defendant for a show-up identification.
Sartori identified defendant as the perpetrator.
53 Fasana testified similarly to Stock as to defendant's
apprehension at Frankie's. After arresting defendant,
Fasana drove him to the police station and booked him. In the
following exchange, the State asked Fasana whether defendant
asked particular questions while in Fasana's presence:
"Q. [F]rom the time you were at Frankie's when you
first encountered the defendant on the stairs until the point
[(at the police station)] he was issued [a] jumpsuit and his
clothing was removed, did he ask you why he was being
detained or arrested?
A. No, he did not.
Q. At any point during your contact with the defendant, did
he ask you about the condition of Shaun Wild? A. No, he did
MR. DI BENEDETTO [defense attorney]: Objection.
THE COURT: What is your objection?
MR. KENDALL [defense attorney]: That he didn't even know
who Shaun Wild was at that point, fact not in evidence.
THE COURT: Overruled.
THE WITNESS: No.
DEMOPOLOUS [assistant State's Attorney]:
Q. Did he ask you about the condition of Rafael Castaneda?
A. No, he did not.
Q. Did he ask you about anybody's condition?
A. No, he did not."
point, defense counsel requested a sidebar and, outside the
jury's presence, objected that the State's questions
impinged on defendant's right to remain silent. After a
recess, the trial court agreed with defense counsel that the
questions were improper. The court offered to admonish the
jury not to consider defendant's silence as commented on
by Fasana. Defense counsel accepted the offer of an
admonishment but, to preserve the issue for appeal, moved for