People v. Colon ( 2007 )

Docket No. 102003.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DANNY COLON, Appellee.
Opinion filed March 22, 2007.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Defendant, Danny Colon, pleaded guilty in the circuit court of
Cook County to one count of aggravated unlawful use of a weapon
(720 ILCS 5/24–1.6 (West 2002)) and was sentenced to 12 months’
probation (730 ILCS 5/5–6–2(b)(2) (West 2002)). Subsequently, the
State charged defendant with unlawful use of a weapon by a felon
(720 ILCS 5/24–1.1 (West 2002)) and filed a petition to revoke his
probation (730 ILCS 5/5–6–4 (West 2002)). At defense counsel’s
request, the trial court consolidated defendant’s bench trial on the
unlawful use of a weapon charge with his probation revocation
hearing. The court found defendant not guilty of unlawful use of a
weapon by a felon, but determined that he violated his probation. In
a posttrial motion, defense counsel argued that requesting
consolidation of the proceedings constituted ineffective assistance of
counsel. The trial court denied the motion and sentenced defendant
to 20 months’ imprisonment. Defendant appealed, and the appellate
court reversed and remanded with one justice dissenting. No.
1–04–2778 (unpublished order under Supreme Court Rule 23). For
the reasons that follow, we reverse the judgment of the appellate court
and affirm the judgment of the circuit court.
BACKGROUND
On February 19, 2004, defendant pleaded guilty to one count of
aggravated unlawful use of a weapon (720 ILCS 5/24–1.6 (West
2002)) and was sentenced to 12 months’ probation (730 ILCS
5/5–6–2(b)(2) (West 2002)). On April 19, 2004, defendant was
placed under arrest after a police officer allegedly saw him in
possession of a handgun. He was subsequently charged with unlawful
use of a weapon by a felon (720 ILCS 5/24–1.1 (West 2002)) and
with violating his probation (730 ILCS 5/5–6–4 (West 2002)).
When defendant appeared in court on July 8, 2004, defense
counsel informed the court that defendant was prepared to proceed
simultaneously with his bench trial on the unlawful use of a weapon
charge and his probation revocation hearing. The State consented to
consolidation, and the court allowed the parties to proceed.
The State called Sergeant Charles Glynn and Officer Scott Blasz
of the Chicago police department to testify. Sergeant Glynn stated
that he had been a Chicago police officer for 18 years. On April 19,
2004, at approximately 1:45 a.m., he was approaching a building at
2803 North Kedzie Avenue in Chicago to use its porch for
surveillance purposes. As Sergeant Glynn approached the building,
he saw defendant standing in the building’s archway with a black,
semiautomatic pistol in his right hand. Sergeant Glynn was
approximately 10 feet away from defendant when he made this
observation, and the surrounding area was well lit. While he could not
see the pistol’s handle, he could see its barrel.
According to Sergeant Glynn, when he saw the pistol, he drew his
weapon, announced that he was a police officer, and ordered
defendant to drop the pistol. Defendant turned and faced him and fled
out of the archway onto Kedzie Avenue. Sergeant Glynn chased
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defendant. While in pursuit, he described defendant and his direction
of flight over the police radio.
Defendant ran through a gangway and into an alley, at which
point he hopped over a waist-high fence and entered another
gangway. Sergeant Glynn was unable to pursue defendant over the
fence, but he watched defendant enter the gangway from a distance
of approximately 20 feet. Under the alley lighting, which extended
into the gangway, he saw defendant hold up the gun and depress the
magazine release. The magazine fell to the ground, and defendant
continued to flee.
Sergeant Glynn subsequently recovered the magazine and
determined that it contained nine-millimeter rounds. Shortly
thereafter, he was notified over the police radio that defendant had
been apprehended. The pistol was never recovered.
Officer Blasz testified that on April 19, 2004, he was in a squad
car with his partner Mark DuBose when they received the description
of defendant and his direction of flight over the police radio. After
driving a short distance, they passed an alley and saw a person fitting
the description they received over the radio. When the person,
defendant, began to run, they cut him off with their squad car and
placed him under arrest. At that point, Sergeant Glynn arrived on the
scene.
Following Officer Blasz’s testimony, the parties stipulated that
defendant was convicted of aggravated unlawful use of a weapon on
February 19, 2004. The State and the defense then rested.
After brief closing arguments, the trial court reviewed the
differing burdens of proof for the substantive charge and the
probation violation. The court determined that the State had failed to
prove beyond a reasonable doubt that defendant had committed the
offense of unlawful use of a weapon by a felon, but that the State had
met its burden of proving by a preponderance of the evidence that
defendant had possessed firearm ammunition in violation of the terms
of his probation. Accordingly, the court set a date to sentence
defendant for his probation violation.
On September 7, 2004, prior to sentencing, defense counsel
presented an oral posttrial motion arguing that his request to
consolidate the bench trial with the probation revocation hearing
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constituted ineffective assistance of counsel. Defense counsel asserted
that if he had not requested consolidation, the court’s probation
violation finding would have been barred by principles of collateral
estoppel and double jeopardy, because it would have been
impermissible to relitigate the same issue of fact decided in a bench
trial on the substantive charge at a subsequent probation revocation
hearing.
During the course of the hearing on defendant’s posttrial motion,
the following colloquy occurred:
“COURT: Is it not the State’s election as to whether they
want to proceed–you make that argument as if you had the
benefit of choosing to go to the underlying case or to the
probation violation. And, in fact, you do not. It’s the State’s
choice.
DEFENSE COUNSEL: But in this case, the State choose
[sic] to go on the main case, and I said[,] your Honor, why
don’t we just try them together. We could get a transcript and
see that’s what happened. That’s what happened.
COURT: Did the State elect on the underlying case?
STATE: I think we had–let me check. The State had
elected on the case in chief.
COURT: I agree with you. And we don’t have the
transcript because nobody got it?
DEFENSE COUNSEL: As to that portion of it, nobody
got it.”
Ultimately, the court denied defendant’s posttrial motion and
sentenced him to 20 months’ imprisonment.
Defendant appealed, and the appellate court reversed the
judgment of the circuit court with one justice dissenting. No.
1–04–2778 (unpublished order under Supreme Court Rule 23).
Initially, the appellate court majority rejected defendant’s argument
that the evidence presented at trial was insufficient to prove that he
violated his probation by unlawfully possessing firearm ammunition
as a felon. The majority held that, based on the observations of
Sergeant Glynn, an 18-year veteran of the Chicago police department,
it was reasonable for the trial court to infer that the nine-millimeter
rounds ejected from the semiautomatic pistol defendant was carrying
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were “firearm ammunition” as defined by section 1.1 of the Firearm
Owners Identification Card Act (430 ILCS 65/1.1 (West 2002)).
Next, the majority rejected defendant’s argument that the trial
court’s finding that he violated his probation was barred by principles
of collateral estoppel and double jeopardy based on his acquittal of
the substantive charge. Citing this court’s decision in People v.
Grayson, 58 Ill. 2d 260, 265 (1974), the court noted that Grayson
prohibits the relitigation of an issue in a probation revocation hearing
that has been litigated in a previous trial, regardless of the differences
in the burdens of proof in the two proceedings. The court observed,
however, that where a defendant’s trial and probation revocation
hearing are consolidated, concerns of collateral estoppel and double
jeopardy do not arise, and the defendant may be acquitted of the
substantive charge but still be found to have violated the terms of his
probation. Accordingly, the court held that because defendant’s trial
and probation revocation hearing were consolidated, the trial court’s
finding that defendant violated his probation was not barred by
principles of collateral estoppel and double jeopardy.
Finally, the appellate court addressed defendant’s argument that
defense counsel provided ineffective assistance of counsel by
requesting consolidation of the bench trial and probation revocation
hearing. The court noted that if defendant had been acquitted of the
substantive charge in an earlier, separate proceeding, instead of in a
consolidated proceeding, Grayson would have barred the trial court’s
violation-of-probation finding. Accordingly, the court determined that
there was a reasonable probability that, but for defense counsel’s
request for consolidation, the outcome would have differed for
defendant. The court acknowledged that there was nothing in the
record to indicate that defense counsel was aware prior to his request
for consolidation that the State had elected to try defendant on the
substantive charge before proceeding with his probation revocation
hearing. However, the court found this fact immaterial to the
ineffectiveness inquiry, reasoning that the possibility the State would
have proceeded first on the substantive charge was sufficient to
support defendant’s ineffective assistance of counsel claim. In
addition, the court declined to characterize defense counsel’s decision
to consolidate the proceedings as a matter of trial strategy. In light of
these considerations, the court concluded that defense counsel’s
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request to consolidate the proceedings amounted to ineffective
assistance of counsel, because it fell below an objective standard of
reasonableness and was prejudicial to defendant. The court reversed
the judgment of the trial court and remanded the cause for a new
probation revocation hearing.
In dissent, Presiding Justice Quinn concluded that defense
counsel’s request for a consolidated proceeding was a matter of trial
strategy. No. 1–04–2778 (unpublished order under Supreme Court
Rule 23) (Quinn, P.J., dissenting). In addition, he criticized the
majority for relying on a poorly formulated rule of decision – i.e., that
“any defense attorney who requests a consolidated hearing will
receive a second bite at the apple upon appeal of any finding of
violation of probation as all such requests constitute per se ineffective
assistance of counsel.” (Emphasis in original.) Justice Quinn
characterized this rule as “clearly wrong.”
The State filed a petition for leave to appeal with this court, which
we allowed. 210 Ill. 2d R. 315.
ANALYSIS
The State challenges the appellate court’s determination that
defense counsel provided ineffective assistance by requesting the
consolidation of defendant’s bench trial with his probation revocation
hearing. Defendant maintains that the request for consolidation
constituted ineffective assistance and argues in the alternative that the
evidence presented to the trial court was insufficient to prove that he
violated his probation. We first address whether defendant was
denied the effective assistance of counsel.
I. Ineffective Assistance of Counsel
In determining whether a defendant was denied the effective
assistance of counsel, we apply the familiar two-prong test set forth
in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052 (1984), and adopted by this court in People v. Albanese, 104
Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of
counsel, a defendant must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the defendant.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064
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(1984). More specifically, the defendant must demonstrate that
counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,
104 S. Ct. at 2068. A reasonable probability that the result would
have been different is a probability sufficient to undermine
confidence in the outcome of the proceeding. Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The failure to satisfy
either prong of the Strickland test precludes a finding of ineffective
assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at
699, 104 S. Ct. at 2069.
The State articulates two reasons why defendant was not denied
the effective assistance of counsel. Initially, the State claims that
defense counsel’s decision to request the consolidation of the bench
trial and the probation hearing was a valid strategic choice. The State
points out that, pursuant to Strickland, a defendant must overcome a
strong presumption that defense counsel’s actions were motivated by
strategic considerations. Here, argues the State, there were three
possible outcomes to the consolidated proceeding. First, defendant
could have been acquitted of the substantive charge and found not to
have violated his probation, in which case he would have suffered no
prejudice as a result of the consolidation and would have benefitted
from the quicker, and possibly less costly, disposition of the
proceedings. Second, defendant could have been convicted of the
substantive charge and found to have violated his probation, in which
case he also would have suffered no prejudice and would have
benefitted in the same manner described above. Third, as occurred in
the instant case, defendant could have been acquitted of the
substantive charge but found to have violated his probation. The State
argues that the latter scenario, “where the evidence falls into the
interstices between preponderance and beyond a reasonable doubt,”
is comparatively rare and difficult to reasonably anticipate. Thus, “in
terms of percentages ***, a defense counsel whose client is facing
both substantive and [violation-of-probation] charges has clear
strategic considerations in favor of consolidation.”
Next, the State contends that defendant cannot demonstrate that
he was prejudiced by the consolidation of the bench trial and the
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probation revocation hearing. According to the State, to show
prejudice, defendant must demonstrate that if he had objected to
consolidation, the trial court would likely have sustained his
objection. The State reasons that defendant cannot make such a
showing because there is nothing inherent in consolidation itself that
is prejudicial to a defendant, as principles of double jeopardy and
collateral estoppel have no application in the context of a
consolidated proceeding. Moreover, even if defense counsel had
objected to consolidation and the trial court had sustained his
objection, the State could still have elected to proceed with the
probation revocation hearing before the bench trial on the substantive
charge. In that case, the finding that defendant violated his probation
would not have been problematic.
In addition to arguing that defendant cannot meet either prong of
the Strickland test, the State asserts that the appellate court’s rationale
in this case invites defense counsel to seek out consolidation, either
by requesting it or by not objecting to it, and then argue their own
ineffectiveness if the defendant is acquitted of the substantive charge
but found to have committed a probation violation. The State suggests
that, under the approach taken by the appellate court, defense counsel
has a strong incentive to intentionally provide ineffective assistance
of counsel, which “perverts the salutary principles established in
Strickland.”
Alternatively, the State urges us to overrule People v. Grayson, 58
Ill. 2d 260, which makes it impermissible for the State to proceed
with a probation revocation hearing after a defendant has been
acquitted of the substantive charge in a separate trial. The State
argues that Grayson is out of step with more recent United States
Supreme Court decisions that clarify that an acquittal in a criminal
case does not preclude the government from relitigating an issue in
a subsequent action governed by a lower standard of proof. According
to the State, these decisions call into question the continuing viability
of Grayson.
In response, defendant, represented by the same counsel who
represented him at trial and before the appellate court, emphasizes
that if defense counsel had understood the applicable law, he would
not have requested consolidation of the bench trial with the probation
revocation hearing. Defendant’s brief candidly states that “[a]lthough
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counsel is very experienced and usually fully researches controlling
issues, here, he did not do sufficient research, and hence, he made an
error.” Specifically, defense counsel “did not realize that Grayson
only applied when the case-in-chief and the violation of probation
[are] tried separately and did not control where the cases are tried
together.” Defendant maintains that defense counsel knew the State
intended to proceed with its case in chief before proceeding with the
probation revocation hearing. In light of this fact, and considering that
defendant was ultimately acquitted of the substantive charge but
found to have violated his probation, defendant claims that defense
counsel acted ineffectively in requesting consolidation of the
proceedings.
Defendant further argues that the appellate court’s rationale does
not encourage the purposeful injection of error into a case by defense
counsel. According to defendant, it is well known that lawyers go to
great lengths to avoid accusations of ineffectiveness, and this in itself
is an adequate safeguard against the intentional ineffectiveness
posited by the State.
We first address the State’s invitation to overrule People v.
Grayson, as the rationale of Grayson lies at the root of defendant’s
ineffective assistance of counsel claim. In Grayson, the defendant
pleaded guilty to armed robbery and was sentenced to five years’
probation. Grayson, 58 Ill. 2d at 261. Subsequently, he was indicted
for another armed robbery and acquitted in a bench trial. Grayson, 58
Ill. 2d at 261. The State then filed a petition to revoke the defendant’s
probation, alleging the second armed robbery as the basis for the
revocation. Grayson, 58 Ill. 2d at 262. Based on evidence that was
substantially the same as the evidence presented at the bench trial, a
different trial court determined that the defendant violated his
probation and sentenced him to a term of three to eight years’
imprisonment on the original armed robbery conviction. Grayson, 58
Ill. 2d at 262. The appellate court affirmed. Grayson, 58 Ill. 2d at 262.
This court reversed the judgments of the appellate court and the trial
court. Grayson, 58 Ill. 2d at 265.
In arguing that his probation revocation should be reversed, the
defendant relied on Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469,
90 S. Ct. 1189 (1970). There, the United States Supreme Court
determined that it was a violation of the principle of collateral
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estoppel embodied in the fifth amendment guarantee against double
jeopardy to try the defendant for the separate armed robberies of two
participants in a poker game. Grayson, 58 Ill. 2d at 262-63, citing
Ashe v. Swenson, 397 U.S. at 445-47, 25 L. Ed. 2d at 476-77, 90 S.
Ct. at 1195-96. The Court reasoned that, based on the evidence
presented, the jury’s verdict in the defendant’s first trial amounted to
a finding that the defendant was not one of the robbers. Grayson, 58
Ill. 2d at 262-63, citing Ashe v. Swenson, 397 U.S. at 445-47, 25 L.
Ed. 2d at 476-77, 90 S. Ct. at 1195-96.
This court accepted the defendant’s contention that, as in Ashe,
the defendant’s initial acquittal on the charge of armed robbery
amounted to a determination that he was not one of the robbers.
Grayson, 58 Ill. 2d at 265. The court acknowledged that, in a criminal
trial, the State must prove the defendant guilty beyond a reasonable
doubt, while in a probation revocation hearing, the State must only
prove the probation violation by a preponderance of the evidence.
Grayson, 58 Ill. 2d at 264. However, the court was “not persuaded
that the difference in the burden of proof between a criminal trial and
a probation revocation proceeding should dictate the result” of the
case (Grayson, 58 Ill. 2d at 264), as “those differences cannot fairly
serve to permit relitigation of the identical issue upon the same
evidence” (Grayson, 58 Ill. 2d at 265). The court noted its concern
that “[a]lthough proceedings may be civil in form, they may be
criminal in nature [citation], and the individual facing probation
revocation may lose his liberty just as swiftly and surely as a
defendant in a criminal case.” Grayson, 58 Ill. 2d at 265. Applying
the rationale of Ashe, the court concluded that “[o]nce the ultimate
and only disputed fact of identity had been determined by a final and
valid judgment, the State could not constitutionally hale defendant
before a new court in a criminal proceeding or a probation revocation
proceeding and litigate that issue again.” Grayson, 58 Ill. 2d at 265,
citing Ashe, 397 U.S. at 446, 25 L. Ed. 2d at 477, 90 S. Ct. at 1195.
After this court decided Grayson, the appellate court was
presented with the question of whether Grayson’s rationale was
applicable where the substantive charge against a defendant and the
defendant’s alleged probation violation were addressed in a single
proceeding. See In re N.R.L., 200 Ill. App. 3d 820 (1990); People v.
Motta, 223 Ill. App. 3d 182 (1991).
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In N.R.L., the appellate court held that principles of double
jeopardy and collateral estoppel did not bar the trial court from
determining in the same proceeding that the evidence was insufficient
to adjudicate the minor respondent delinquent for committing
aggravated battery but sufficient to find that the respondent violated
the terms of his probation by committing aggravated battery. N.R.L.,
200 Ill. App. 3d at 824-25. In distinguishing Grayson, the appellate
court noted that, in Grayson, “the State attempted to prove at a
second proceeding what it had failed to prove at the first proceeding,”
whereas, “[i]n the case at bar, there simply was no second attempt to
prove the facts.” N.R.L., 200 Ill. App. 3d at 826.
Motta, decided shortly after N.R.L., rejected the defendant’s
argument that once a jury determined he was entrapped, and was
therefore not guilty of possession of a controlled substance with the
intent to deliver, the doctrines of double jeopardy and collateral
estoppel barred the trial court from finding that he violated his
probation. Motta, 223 Ill. App. 3d at 184. Citing N.R.L., the appellate
court stated that “[w]here the criminal trial and the revocation hearing
are held simultaneously, double jeopardy and collateral estoppel
concerns do not arise and the defendant may be acquitted of the
criminal charge but still be found to have violated the terms of his
probation.” Motta, 223 Ill. App. 3d at 184. The court determined that
Grayson was inapplicable, because, there, the probation revocation
hearing took place after the jury had acquitted the defendant of the
substantive charge. Motta, 223 Ill. App. 3d at 184.
The appellate court’s interpretation of Grayson in N.R.L. and
Motta set the stage for the type of ineffective assistance of counsel
claim at issue in this case, which was first addressed in People v.
Porter, 241 Ill. App. 3d 116 (1993). In Porter, the defendant pleaded
guilty to unlawful possession of heroin with intent to deliver and was
sentenced to 30 months’ probation. Porter, 241 Ill. App. 3d at 116.
Subsequently, he was charged with committing the offense of
unlawful delivery of cocaine within 1,000 feet of school property, and
the State filed a petition to revoke his probation. Porter, 241 Ill. App.
3d at 116. When the State requested that the jury trial on the
substantive charge and the hearing on the petition to revoke probation
be heard at the same time, defense counsel did not object. Porter, 241
Ill. App. 3d at 116.
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Following the defendant’s trial, the jury retired to deliberate, and
the court indicated it would rule on the petition to revoke after the
jury delivered its verdict. Porter, 241 Ill. App. 3d at 116-17. The jury
returned a verdict of not guilty for the offense of unlawful delivery of
a controlled substance within 1,000 feet of school property. Porter,
241 Ill. App. 3d at 117. After the jury was excused, the trial court
found that the State had proved by a preponderance of the evidence
that the defendant violated the terms of his probation. Porter, 241 Ill.
App. 3d at 117.
On appeal, the defendant argued that his trial counsel was
ineffective for failing to object to the consolidation of the jury trial
with the probation revocation hearing. Porter, 241 Ill. App. 3d at 117.
The appellate court agreed and reversed the order of the trial court
revoking the defendant’s probation. Porter, 241 Ill. App. 3d at 119.
According to the appellate court, the jury must have determined
that the defendant did not deliver the cocaine, because that was the
only material issue of fact in dispute. Porter, 241 Ill. App. 3d at 118.
Thus, the trial court’s determination that the defendant did deliver the
cocaine amounted to a “differing determination on the same issue of
ultimate fact.” Porter, 241 Ill. App. 3d at 118. Applying Grayson, the
appellate court reasoned that “had the instant defendant been
acquitted of the underlying offense first, the proceeding concerning
the probation revocation would have been barred by the principle of
collateral estoppel.” In light of this consideration, if defense counsel
had objected to the consolidation of the two proceedings, there was
a reasonable probability that the result would have differed. Porter,
241 Ill. App. 3d at 118. The appellate court also rejected the State’s
argument that defense counsel’s decision not to object was a matter
of trial strategy. Porter, 241 Ill. App. 3d at 118. Accordingly, the
court concluded that defense counsel was ineffective. Porter, 241 Ill.
App. 3d at 118.
The appellate court was again presented with a Grayson-based
ineffective assistance of counsel claim in In re A.V., 285 Ill. App. 3d
470 (1996). There, under analogous circumstances, a divided
appellate panel held that defense counsel, consisting of two law
students and two supervising attorneys from a law school clinic,
provided ineffective assistance in failing to object to the State’s
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motion to consolidate the minor respondent’s delinquency and
probation revocation hearings. A.V., 285 Ill. App. 3d at 471.
In A.V., the respondent was adjudicated delinquent and sentenced
to two years’ probation for trespassing into and possessing a stolen
vehicle. A.V., 285 Ill. App. 3d at 471. Subsequently, he was charged
in a delinquency petition with five criminal offenses arising from a
shooting incident, and the State filed a petition to revoke his
probation. A.V., 285 Ill. App. 3d at 471. The trial court granted the
State’s motion to consolidate the hearings on the delinquency petition
and the probation violation without objection from defense counsel.
A.V., 285 Ill. App. 3d at 471. Subsequently, the court found the
respondent not guilty of the charges alleged in the delinquency
petition, but found that the State had proved by a preponderance of
the evidence that the respondent violated the terms of his probation.
A.V., 285 Ill. App. 3d at 471.
On appeal, the respondent argued that he received ineffective
assistance of counsel when defense counsel failed to object to the
consolidated hearing. A.V., 285 Ill. App. 3d at 472. The respondent
relied on Porter, which a majority of the appellate court found
persuasive. A.V., 285 Ill. App. 3d at 472-73. The majority concluded
that defense counsel’s failure to object to consolidation fell below an
objective standard of reasonableness. A.V., 285 Ill. App. 3d at 473. In
that regard, the majority emphasized that defense counsel (1)
admitted they were unaware of the “preponderance of the evidence”
burden of proof in a probation revocation proceeding, (2) conceded
they would have called additional alibi witnesses and called the
respondent to testify on his own behalf if they had been aware of the
burden of proof, and (3) failed to call additional witnesses to
corroborate the testimony of the respondent’s father. A.V., 285 Ill.
App. 3d at 473. In addition, the majority determined that there was a
reasonable probability that, but for defense counsel’s performance,
the result would have been different. A.V., 285 Ill. App. 3d at 475.
The majority explained that if defense counsel had objected to
consolidation, the State would have had to elect to proceed on either
the delinquency petition or the petition for revocation of probation.
A.V., 285 Ill. App. 3d at 475. If the State had elected to proceed on the
former and the respondent was acquitted, as he was in the
consolidated proceeding, then, pursuant to Grayson, the State would
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have been prevented from relitigating the same issues in a later
probation revocation proceeding. A.V., 285 Ill. App. 3d at 475. The
majority rejected the State’s argument that it could simply have
elected to proceed first on the petition to revoke the respondent’s
probation, in which case it would not have been precluded from
proceeding against the respondent on the delinquency petition. A.V.,
285 Ill. App. 3d at 475. According to the majority, the State’s
argument assumed in hindsight that it would have elected to proceed
first with the probation revocation hearing, and the majority was
unwilling to accept this assumption, given that “[o]ne could just as
easily argue to the contrary and reach an opposite conclusion.” A.V.,
285 Ill. App. 3d at 475. For these reasons, the majority concluded that
the respondent received ineffective assistance of counsel and
remanded the cause for a new hearing. A.V., 285 Ill. App. 3d at 475.
The dissent disagreed with the majority’s reliance on Porter,
opining that the Porter court did not intend “to set the stage for
purposeful stratagems that would degrade the salutary principles
established in Strickland.” A.V., 285 Ill. App. 3d at 476 (Wolfson, J.,
dissenting). Reviewing the transcript of defense counsel’s closing
arguments, the dissent concluded that counsel’s comments did not
reflect a lack of understanding about the standards of proof that
applied to the consolidated charges. A.V., 285 Ill. App. 3d at 477
(Wolfson, J., dissenting). Rather, it appeared that defense counsel’s
strategy was to succeed on all the charges in a single proceeding.
A.V., 285 Ill. App. 3d at 477 (Wolfson, J., dissenting). The dissent
reasoned that, by following Porter in the instant case, the majority
was “saying that defense counsel has an affirmative duty to object to
consolidation in all instances or face a successful claim of
ineffectiveness,” in which case “[a] purposeful failure to object would
plant reversible error in any consolidated hearing.” A.V., 285 Ill. App.
3d at 477 (Wolfson, J., dissenting). The dissent cautioned that “a
defense lawyer would not be motivated to object to consolidation if
assured his or her silence meant that no conviction could stand.” A.V.,
285 Ill. App. 3d at 477 (Wolfson, J., dissenting).
This brings us to the present case, wherein the majority relied on
Porter and A.V. in holding that defense counsel’s request to
consolidate defendant’s bench trial with his probation revocation
hearing fell below an objective standard of reasonableness and
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prejudiced defendant. No. 1–04–2778 (unpublished order under
Supreme Court Rule 23). Obviously, if Grayson is overruled, then the
basis for defendant’s ineffective assistance of counsel claim no longer
exists, because without Grayson, defendant has no support for the
position that the State would have been precluded from proceeding
against him on the probation revocation petition if the revocation
hearing had not been consolidated with the bench trial on the
substantive charge. Whether Grayson should be overruled is a
question that implicates the doctrine of stare decisis.
The doctrine of stare decisis “ ‘expresses the policy of the courts
to stand by precedents and not to disturb settled points.’ ” People v.
Caballes, 221 Ill. 2d 282, 313 (2006), quoting Neff v. George, 364 Ill.
306, 308-09 (1936), overruled on other grounds by Tuthill v.
Rendelman, 387 Ill. 321 (1944). In other words, “ ‘a question once
deliberately examined and decided should be considered as settled
and closed to further argument’ ” (Wakulich v. Mraz, 203 Ill. 2d 223,
230 (2003), quoting Prall v. Burckhartt, 299 Ill. 19, 41 (1921)), so
that the law will not change erratically, but will develop in a
principled, intelligible fashion (People v. Mitchell, 189 Ill. 2d 312,
338 (2000)).
Stare decisis, however, is not an “inexorable command.” People
v. Jones, 207 Ill. 2d 122, 134 (2003), quoting Payne v. Tennessee,
501 U.S. 808, 828, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609-10
(1991). If it is clear a court has made a mistake, it will not decline to
correct it, even if the mistake has been reasserted and acquiesced in
for many years. People v. Boreman, 401 Ill. 566, 571 (1948). That
said, this court will not depart from precedent merely because it might
have decided otherwise if the question were a new one. People v.
Lopez, 207 Ill. 2d 449, 459 (2003). As we recently reiterated, any
departure from stare decisis must be “ ‘specially justified.’ ” People
v. Suarez, No. 100499, slip op. at 10 (January 19, 2007), quoting
People v. Sharpe, 216 Ill. 2d 481, 520 (2005). Thus, prior decisions
should not be overruled absent “good cause” or “compelling reasons.”
Suarez, slip op. at 10, quoting Sharpe, 216 Ill. 2d at 520. In general,
a settled rule of law that does not contravene a statute or
constitutional principle should be followed unless doing so is likely
to result in serious detriment prejudicial to public interests. Suarez,
slip op. at 10, quoting Sharpe, 216 Ill. 2d at 520. Good cause to
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depart from stare decisis also exists when governing decisions are
unworkable or badly reasoned. Sharpe, 216 Ill. 2d at 520.
At the outset, we observe that we do not consider the continuing
viability of Grayson on a blank slate. This court explicitly called
Grayson into question in In re Nau, 153 Ill. 2d 406 (1992).
In Nau, this court affirmed an order involuntarily committing the
respondent to a mental-health facility and an order continuing the
respondent’s involuntary commitment. Nau, 153 Ill. 2d at 431. On
cross-appeal, the respondent, who was acquitted of the murder of his
stepbrother at a discharge hearing prior to the commitment hearings,
argued that the trial court erred in allowing evidence and argument
regarding the respondent’s stepbrother’s death at the commitment
hearings. Nau, 153 Ill. 2d at 423. Specifically, the respondent argued
that his acquittal on the murder charge collaterally estopped the State
from presenting evidence or arguing at the commitment hearings that
the respondent killed his stepbrother. Nau, 153 Ill. 2d at 424.
In rejecting the respondent’s argument, this court relied on
Dowling v. United States, 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct.
668 (1990), and People v. Jackson, 149 Ill. 2d 540 (1992). In
Dowling, during the defendant’s trial on robbery charges, the
government introduced the testimony of a witness who identified the
defendant as the perpetrator of an unrelated robbery. Dowling, 493
U.S. at 344-45, 107 L. Ed. 2d at 715, 110 S. Ct. at 670. The defendant
had previously been acquitted of that robbery charge. Dowling, 493
U.S. at 345, 107 L. Ed. 2d at 715, 110 S. Ct. at 670. He argued that
his acquittal collaterally estopped the prosecution from introducing
the disputed testimony. Dowling, 493 U.S. at 348, 107 L. Ed. 2d at
717, 110 S. Ct. at 672. The Supreme Court held that collateral
estoppel was inapplicable, reasoning that because the admissibility of
the witness’ testimony was governed by a lower standard of proof
than beyond a reasonable doubt, the government was not precluded
from relitigating the issue of the defendant’s involvement in the other
robbery. Dowling, 493 U.S. at 348-49, 107 L. Ed. 2d at 717-18, 110
S. Ct. at 672.
This court applied the reasoning of Dowling in Jackson. There,
the defendant argued that he was entitled to a new sentencing hearing
because he was denied due process at his original sentencing hearing
when the trial court considered charges of which the defendant was
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later acquitted. Jackson, 149 Ill. 2d at 547. This court held that the
subsequent acquittal did not preclude the State from introducing
evidence at the defendant’s sentencing hearing that the defendant
committed the offense of which he was acquitted, as the sentencing
hearing involved a lower burden of proof. Jackson, 149 Ill. 2d at 547-
51. In so holding, the court discussed Dowling with approval, noting
that the Supreme Court had decided that evidence that resulted in a
prior acquittal could be used for limited purposes in the guilt phase
of trial for another offense, since the government is not precluded
from “ ‘relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof.’ ” Jackson, 149 Ill. 2d
at 550, quoting Dowling, 493 U.S. at 349, 107 L. Ed. 2d at 718, 110
S. Ct. at 672. Ultimately, the court found it immaterial that the
defendant’s acquittal came after his sentencing hearing, because even
though the trial court could not have known at the time of sentencing
that the respondent would be acquitted, the court did know that he
had not yet been convicted. Jackson, 149 Ill. 2d at 550-51.
In Nau, this court concluded that Jackson and Dowling were
dispositive of the issue raised by the respondent. Nau, 153 Ill. 2d at
426. The court noted that the burden of proof at the discharge hearing
where the respondent was acquitted of his stepbrother’s murder was
beyond a reasonable doubt. Nau, 153 Ill. 2d at 426. Thus, his acquittal
established only that the State was unable to prove his commission of
the crime beyond a reasonable doubt. Nau, 153 Ill. 2d at 426. At the
respondent’s civil commitment hearings, the State merely sought to
use the testimony regarding the respondent’s participation in his
stepbrother’s murder as evidence of the respondent’s eligibility for
involuntary admission. Nau, 153 Ill. 2d at 426. The State’s only
burden at the commitment hearings was to establish by clear and
convincing evidence that the respondent was a person subject to
involuntary admission. Nau, 153 Ill. 2d at 426. Because the trial court
did not have to find beyond a reasonable doubt–or, for that matter, by
any standard of proof–that the respondent murdered his stepbrother
in order to find him subject to involuntary admission, this court
concluded that it was proper for the trial court to consider evidence
regarding the respondent’s possible commission of his stepbrother’s
murder as evidence of his eligibility for commitment. Nau, 153 Ill. 2d
at 426-27.
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After upholding the trial court’s consideration of the murder-
related evidence, this court went on to reject the respondent’s reliance
on Grayson as support for his claim that the evidence was improperly
considered. Nau, 153 Ill. 2d at 427. The court summarized Grayson
(Nau, 153 Ill. 2d at 427), and then commented as follows:
“In the instant case, we are concerned only with whether
an acquittal on a criminal charge precludes the use of
evidence of that crime at a subsequent civil commitment
hearing. We have determined that, under Jackson and
Dowling, this subsequent use of the evidence was proper.
While we question the viability of Grayson in light of
Jackson, we are not now presented with the specific question
addressed in Grayson: whether a crime of which a defendant
has been acquitted may nonetheless constitute the basis for a
probation revocation. Thus, we will not herein decide whether
Grayson remains valid today. However, we do determine that
Jackson, and not Grayson, controls the instant case.” Nau,
153 Ill. 2d at 427-28.
Accordingly, the court held that the respondent’s acquittal of his
stepbrother’s murder did not collaterally estop the State from
introducing evidence of the murder at the respondent’s civil
commitment hearings. Nau, 153 Ill. 2d at 428.
Unlike Nau, this case does present us with the specific question
addressed in Grayson, albeit in the context of an ineffective
assistance of counsel claim. Here, defendant was acquitted of the
offense of unlawful use of a weapon by a felon but found to have
violated his probation on the basis of committing that offense. Thus,
the reservations this court expressed in Nau over addressing the
viability of Grayson are not present here.
Nau provides a useful point of departure for our discussion of
whether to overrule Grayson because it brings to light the problematic
nature of Grayson’s doctrinal underpinnings. In relying on Dowling
and Jackson, Nau holds to the principle that an acquittal in a criminal
trial does not preclude the government from relitigating an issue in a
subsequent action governed by a lower standard of proof. See Nau,
153 Ill. 2d at 426-27. This principle emerged from the Supreme
Court’s decision in Dowling as a limitation on its holding in Ashe v.
Swenson that the double jeopardy clause of the fifth amendment
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incorporates the doctrine of collateral estoppel. See Dowling, 493
U.S. at 347-49, 107 L. Ed. 2d at 717-18, 110 S. Ct. at 671-72. As the
Court explained in Dowling:
“[U]nlike the situation in Ashe v. Swenson, the [defendant’s]
prior acquittal did not determine an ultimate issue in the
present case. This much [defendant] concedes, and we decline
to extend Ashe v. Swenson and the collateral-estoppel
component of the Double Jeopardy Clause to exclude in all
circumstances, as [defendant] would have it, relevant and
probative evidence that is otherwise admissible under the
Rules of Evidence simply because it relates to alleged
criminal conduct for which a defendant has been acquitted.”
Dowling, 493 U.S. at 348, 107 L. Ed. 2d at 717, 110 S. Ct. at
672.
As further support for not extending Ashe, the Court in Dowling
discussed two cases decided after Ashe that involved civil forfeiture
proceedings initiated after criminal acquittals. Dowling, 493 U.S. at
349, 107 L. Ed. 2d at 718, 110 S. Ct. at 672-73. In United States v.
One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 79 L. Ed. 2d
361, 368, 104 S. Ct. 1099, 1104 (1984), the Court held that a gun
owner’s acquittal on a charge of dealing firearms without a license
did not preclude a subsequent in rem forfeiture proceeding against
those firearms, because even though forfeiture was only appropriate
if the jury in the forfeiture proceeding concluded that the defendant
had committed the underlying offense, the government only had to
prove its forfeiture case by a preponderance of the evidence.
Likewise, in One Lot Emerald Cut Stones v. United States, 409 U.S.
232, 234-35, 34 L. Ed. 2d 438, 441-42, 93 S. Ct. 489, 491-92 (1972),
the Court held that the double jeopardy clause did not bar a forfeiture
action subsequent to acquittal on the underlying offense because the
difference between the burden of proof in a criminal case and the
burden of proof in the forfeiture proceeding precluded application of
the doctrine of collateral estoppel.
After Dowling was decided, the Court applied Dowling’s rationale
in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct.
633 (1997). In Watts, two sentencing courts considered conduct of
which the defendants had been acquitted in enhancing the defendants’
sentences. Watts, 519 U.S. at 149-51, 136 L. Ed. 2d at 560-61, 117 S.
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Ct. at 634-35. After concluding that the Federal Sentencing
Guidelines permitted consideration of this conduct (Watts, 519 U.S.
at 151-54, 136 L. Ed. 2d at 561-63, 117 S. Ct. at 635-36), the Court
determined that the acquittals had no preclusive effect, because, under
the Guidelines, facts relevant to sentencing only had to be proved by
a preponderance of the evidence (Watts, 519 U.S. at 155-57, 136 L.
Ed. 2d at 563-65, 117 S. Ct. at 637-38).
We discern from the cases discussed above that the principle of
collateral estoppel embodied in the double jeopardy clause of the
United States Constitution does not preclude the relitigation of an
issue after an acquittal in a criminal trial when the subsequent
disposition of the issue is governed by a lower standard of proof. This
is because an acquittal on a criminal charge does not prove that the
defendant is innocent, but merely that a reasonable doubt exists as to
his guilt. Watts, 519 U.S. at 155, 136 L. Ed. 2d at 564, 117 S. Ct. at
637, quoting 89 Firearms, 465 U.S. at 361, 79 L. Ed. 2d at 368, 104
S. Ct. at 1104. This court’s decision in Grayson, however, extended
Ashe v. Swenson’s application of the doctrine of collateral estoppel in
the manner subsequently rejected by these cases. As discussed,
Grayson relied heavily on Ashe v. Swenson in holding that the State
was precluded from proceeding with the defendant’s probation
revocation hearing after the defendant was acquitted of the
substantive charge, despite the fact that the probation revocation
hearing involved a lower standard of proof. See Grayson, 58 Ill. 2d
at 263-65.
This court did not expressly state in Grayson whether it was
conducting its analysis solely under the United States Constitution
(U.S. Const., amend. V). Assuming it was, then Grayson clearly goes
beyond what is required by the double jeopardy clause of the fifth
amendment in precluding the relitigation of an issue under a lower
standard of proof after an acquittal in a criminal trial. Furthermore,
we find no independent support for Grayson’s expansive
interpretation of the principle of collateral estoppel in the double
jeopardy clause of the Illinois Constitution of 1970 (Ill. Const. 1970,
art. I, §10). This court has previously interpreted the Illinois
Constitution’s double jeopardy clause in a manner that is consistent
with the United States Supreme Court’s interpretation of the double
jeopardy clause of the fifth amendment. See In re P.S., 175 Ill. 2d 79,
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89-90 (1997), citing People v. Levin, 157 Ill. 2d 138, 160 (1993);
People v. 1988 Mercury Cougar, 154 Ill. 2d 27, 39 (1992). We have
no reason to do otherwise here. As we recently described in People
v. Caballes, our approach to determining the relationship between
cognate provisions of the Illinois Constitution and the United States
Constitution is an “interstitial,” or “limited,” form of the lockstep
doctrine. Caballes, 221 Ill. 2d at 309. Consistent with that approach
(Caballes, 221 Ill. 2d at 310-11), we find nothing in the language of
our state constitution (Ill. Const. 1970, art. I, §10 (“No person shall
*** be twice put in jeopardy for the same offense”)), the debates or
committee reports of the constitutional convention (3 Record of
Proceedings, Sixth Illinois Constitutional Convention 1376-80, 1390;
6 Record of Proceedings, Sixth Illinois Constitutional Convention 43-
44), or the tradition of our state that warrants interpreting the Illinois
Constitution’s double jeopardy clause to preclude a probation
revocation hearing after an acquittal of the substantive charge in the
manner suggested by Grayson. In light of these considerations,
overruling Grayson would have the salutary effect of harmonizing
this court’s case law regarding the collateral estoppel component of
the guarantee against double jeopardy with that of the United States
Supreme Court. It would also eliminate the tension between Grayson
and this court’s more recent decisions in Jackson and Nau.
Grayson’s doctrinal weakness is not the only factor that militates
in favor of its abrogation. The rule established by Grayson is
unworkable, because it creates a perverse system of incentives for the
State and for defense counsel in cases where a defendant faces both
a substantive charge and probation revocation based on the same
conduct. In such cases, the defendant can receive a trial on the
substantive charge before his probation revocation hearing, receive a
trial on the substantive charge after his probation revocation hearing,
or receive a trial on the substantive charge at the same time as his
probation revocation hearing. The third option is beneficial to the
State and the defendant, because it avoids duplicative litigation, and
thereby results in a more prompt, less costly disposition of all the
proceedings against the defendant. However, Grayson provides
defense counsel with an incentive to argue their own ineffectiveness
in consolidated proceedings that result in an acquittal and a probation
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revocation, and provides the State with a concomitant incentive to
avoid consolidation.
To illustrate this point, under Grayson, the only scenario in which
objecting to consolidation actually proves helpful to a defendant is
where the State tries the substantive charge first and the defendant is
acquitted. However, defense counsel can achieve the same result by
not objecting to consolidation, and can do so at an advantage to the
defendant. If counsel does not object, counsel secures the benefits of
prompt adjudication that consolidation provides. Counsel also avoids
the possibility that the State will simply proceed first with the
probation revocation hearing and obtain a finding that the defendant
violated his probation. Then, in the end, if the defendant is acquitted
of the substantive charge but found to have violated his probation,
defense counsel can argue he was ineffective for not objecting to
consolidation. A finding of ineffective assistance of counsel will
result in an automatic reversal of the finding that the defendant
violated his probation, because, pursuant to Grayson, the acquittal
precludes the State from proceeding with a new probation revocation
hearing.
Alternatively, defense counsel can simply request consolidation
on the defendant’s behalf. There again, the same concerns arise. The
defendant enjoys the benefits of a consolidated proceeding while
preserving the opportunity to obtain an automatic reversal of the
finding that he violated the terms of his probation.
Defendant’s point is well taken that lawyers have a reputational
interest in avoiding determinations that they provided ineffective
assistance of counsel. Grayson, however, has created a situation
where a defense lawyer is encouraged to provide ineffective
assistance of counsel in the interest of zealous advocacy. Therefore,
the fact that lawyers generally seek to avoid allegations of
ineffectiveness does little to assuage our concerns.
For the reasons expressed above, we believe good cause exists to
overrule Grayson. The appellate court’s decisions in People v. Porter
and In re A.V., which relied on Grayson in finding that the defendants
therein received ineffective assistance of counsel, are hereby
overruled as well. In light of our conclusion that collateral estoppel
does not preclude the State from proceeding with a probation
revocation hearing after a defendant has been acquitted of the
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substantive charge, defendant’s ineffective assistance of counsel
claim must fail.
II. Sufficiency of Evidence of Probation Violation
Having rejected defendant’s ineffective assistance of counsel
claim, we briefly address whether the evidence presented to the trial
court was sufficient to prove that defendant violated his probation.
Defendant argues that the evidence submitted at trial was
insufficient to demonstrate that the item he dropped was “firearm
ammunition” as defined by section 1.1 of the Firearm Owners
Identification Card Act (FOID Act) (430 ILCS 65/1.1 (West 2002)).
Specifically, defendant contends that Sergeant Glynn’s testimony
about finding an ammunition clip containing nine-millimeter rounds
was insufficient to prove that the clip actually contained live nine-
millimeter rounds. Defendant posits that the cartridges might have
been blanks, and that none of the evidence presented by the State
rules out this possibility.
The State maintains that the evidence was sufficient to show by
a preponderance that defendant was in possession of firearm
ammunition as a felon. According to the State, it is clear that the
credible testimony of one witness is sufficient to sustain a defendant’s
conviction, even if that testimony is contradicted by the defendant.
Here, Sergeant Glynn’s testimony that he observed defendant in
possession of a black, semiautomatic pistol, and that he recovered an
ammunition clip containing nine-millimeter rounds, was sufficient to
establish that defendant was in possession of firearm ammunition.
The State emphasizes that Sergeant Glynn was an 18-year veteran of
the Chicago police department at the time of the offense, and that his
testimony was neither impeached nor discredited.
Section 24–1.1 of the Criminal Code of 1961 provides, in
pertinent part:
“It is unlawful for a person to knowingly possess on or
about his person *** any weapon prohibited under Section
24–1 of this Act or any firearm or any firearm ammunition if
the person has been convicted of a felony under the laws of
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this State or any other jurisdiction.” (Emphasis added.) 720
ILCS 5/24–1.1(a) (West 2002).
Section 2–7.1 of the Code defines “firearm ammunition” as
having the meaning ascribed to it in section 1.1 of the FOID Act (720
ILCS 5/2–7.1 (West 2002)). Section 1.1, in turn, provides that
“[f]irearm ammunition” means:
“[A]ny self-contained cartridge or shotgun shell, by
whatever name known, which is designed to be used or
adaptable to use in a firearm; excluding, however:
(1) any ammunition exclusively designed for use with
a device used exclusively for signalling or safety and
required or recommended by the United States Coast
Guard or the Interstate Commerce Commission; and
(2) any ammunition designed exclusively for use with
a stud or rivet driver or other similar industrial
ammunition.” 430 ILCS 65/1.1 (West 2002).
The State must prove a violation of probation by a preponderance
of the evidence. 730 ILCS 5/5–6–4(c) (West 2002). One condition of
probation is that a person on probation “not violate any criminal
statute of any jurisdiction.” 730 ILCS 5/5–6–3(a)(1) (West 2002). In
the State’s petition to revoke defendant’s probation, the State alleged
that defendant violated his probation by committing the offense of
unlawful use of a weapon by a felon. Defendant’s information
specified that he committed the offense by “knowingly possess[ing]
on or about his person any firearm ammunition, to wit: bullets, after
having been previously convicted of the felony offense of aggravated
unlawful use of a weapon.” Accordingly, to demonstrate that
defendant violated a condition of his probation, the State had to show
by a preponderance of the evidence that, while on probation,
defendant knowingly possessed firearm ammunition as a felon.
Defendant does not dispute that, on April 19, 2004, the date of his
alleged probation violation, he was on probation and was a felon.
Defendant also does not dispute that he was in knowing possession
of the item that Sergeant Glynn saw him drop in the alley and
subsequently recovered. Defendant argues only that the evidence
presented at trial was insufficient to demonstrate by a preponderance
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that the item in question was, in fact, “firearm ammunition” as
defined by section 1.1 of the FOID Act.
We note that defendant’s challenge to the sufficiency of the
evidence assumes that, as a matter of law, blank ammunition does not
qualify as “firearm ammunition” for purposes of section 1.1 of the
FOID Act. We need not address the validity of this assumption, as
defendant has made no attempt to justify it through argument or
citation to relevant authority. See 210 Ill. 2d R. 341(h)(7) (argument
portion of brief “shall contain the contentions of the appellant and the
reasons therefor, with citation of the authorities and the pages of the
record relied on *** [and] [p]oints not argued are waived”); Miller v.
Rosenberg, 196 Ill. 2d 50, 56 n.2 (2001) (declining to address party’s
challenge to ruling barring his attorney fees as element of damages in
his malicious prosecution claim where brief contained insufficient
discussion of issue). Moreover, even assuming, arguendo, that blanks
do not qualify as “firearm ammunition” within the meaning of the
relevant statutory definition, the evidence presented to the trial court
provided it with a sufficient basis for inferring that the clip in
defendant’s possession contained live nine-millimeter rounds, not
blanks.
When the trial court finds that a violation of probation has been
proved, a challenge to the sufficiency of the evidence of the type
asserted by defendant will succeed only if the trial court’s finding is
against the manifest weight of the evidence. People v. Houston, 118
Ill. 2d 194, 199 (1987); People v. Cooper, 66 Ill. 2d 509, 514 (1977);
People v. Crowell, 53 Ill. 2d 447, 451-52 (1973). In the instant case,
Sergeant Glynn’s testimony established that he was an 18-year
veteran of the Chicago police department, that he clearly observed
defendant in possession of a black, semiautomatic pistol, and that he
recovered a magazine from that pistol containing nine-millimeter
rounds. As the State points out, Sergeant Glynn’s testimony was not
contradicted or impeached in any way, and there is no indication in
the record before us that the cartridges he identified were blanks.
Therefore, the trial court could reasonably have inferred that the
ammunition in defendant’s possession was live ammunition, and the
court’s finding that defendant violated his probation by committing
the offense of unlawful use of a weapon by a felon was not against
the manifest weight of the evidence. Accord People v. Lee, 48 Ill. 2d
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272, 281 (1971) (rejecting defendants’ argument that, by failing to
prove that shotgun shells introduced into evidence were live shells,
the State failed to meet its burden of proving defendants guilty
beyond a reasonable doubt of unlawful possession of firearm
ammunition, because whether shells were capable of being discharged
was for trier of fact to decide, and nothing in record suggested shells
were not, in fact, live).
CONCLUSION
For the reasons expressed above, we hold that defendant was not
denied the effective assistance of counsel, and that the evidence was
sufficient to demonstrate that defendant violated his probation.
Accordingly, we reverse the judgment of the appellate court and
affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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