People v. Ingram ( 2008 )

FIFTH DIVISION
April 11, 2008
No. 1-06-1954
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ROBERT INGRAM, ) Honorable
) John J. Moran,
Defendant-Appellant. ) Judge Presiding.
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
A jury found defendant, Robert Ingram, guilty of first degree murder (720 ILCS 5/9-
1(a)(1) (West 2000)). The trial court sentenced him to 25 years for the murder and 25 years for
personally discharging a firearm, for a total of 50 years in the Illinois State Penitentiary. On
appeal, defendant contends that (1) the trial court erred by admitting statements made by the
victim to a civilian witness under the dying declaration exception to the hearsay rule, and (2)
defendant’s trial counsel was ineffective for failing to request a second degree murder instruction
based on provocation. We affirm.
The State charged defendant with murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2000)) and
gave defendant notice that it would seek to introduce statements the victim, Anthony Hicks,
made to Angela Cameron shortly before he died. Defense counsel filed a motion in limine to bar
any reference to the statements made by Hicks to Cameron. The hearing on the motion revealed
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the State expected the evidence to show that Hicks, after being shot, stated to Cameron,
“Luscious, baby I’m dead. Luscious, baby I’m dead. I’ve been shot in the heart.” When
Cameron asked, “Who shot you?” Hicks responded, “Pattyman shot me.”
In the motion in limine, defense counsel argued the statement did not qualify under the
dying declaration exception to the hearsay rule and that the dying declaration exception was
inconsistent with Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354(2004).
The trial court denied the motion in limine, stating “[t]his is a classic instance of a dying
declaration and, additionally, an excited utterance. It is not a Crawford case. Crawford
specifically excluded traditional long embedded exceptions to the hearsay rule, which a dying
declaration and excited utterances are.” On appeal, defendant argues that the dying declaration
was inadmissible and trial counsel was ineffective.
BACKGROUND
On August, 1, 2004, in the early morning hours, the defendant watched several people
including the victim, Anthony Hicks, playing dice in the Altgeld Gardens Housing Development
near 130th and Ellis Street in Chicago. After a few minutes, defendant went home. Eventually,
Tyrone Campbell, the defendant’s nephew and Hicks got into a fight. Campbell picked up a
bottle and told Hicks that he did not want to fight anymore. At that point, Hicks said he was
going home to get his gun.
Campbell returned home where he lived with his grandmother, who was the defendant’s
mother; however, he was unable to get in. Sharon Kennedy, the mother of defendant’s children,
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lived at the home of the defendant’s mother with Campbell. Kennedy testified that before
Campbell returned, she heard Hicks banging on the back door, but refused to let Hicks into the
home. After a few minutes she saw Hicks leave carrying a long stick or pole. Kennedy called
Campbell’s uncle, the defendant, Robert Ingram. Kennedy told defendant that Hicks was trying
to get into the house and that she was scared. A few minutes later, Campbell returned home and
Kennedy told him that Hicks was looking for him. Campbell paid little attention to her story and
went to sleep.
Sharon Davis testified at trial that she lived at 13042 South Ellis. She knew defendant’s
nickname was Pattyman. Around 3 a.m. on August 1, 2004, she saw Campbell and Hicks
scuffling and rolling on the ground. She went back into her house after she was unable to break
them up. After about 45 minutes she heard two or three gunshots, went outside and saw Hicks
on the ground. Angela Cameron, who was known as Luscious, was holding his hand.
Angela Cameron testified that her nickname is Luscious. Anthony Hicks was like a
brother to her. She was awakened in the early morning hours of August 1, 2004, by gunshots.
Her husband told her that her brother had been shot. She understood that her husband was
referring to Anthony Hicks. She ran to a parking lot about half a block from her house and knelt
next to Hicks. She said, “I’m here.” Hicks said several times, “Lusch, baby I’m dead,” and told
her, “Pattyman shot me, he hit me up good.” Hicks also told her he had gotten hit in the heart.
Angela Cameron asked him again who shot him, and Hicks said, “Pattyman.” The ambulance
took him away and she later learned that Hicks died.
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Angela Cameron testified that she did not see a pipe or pole near Hicks and admitted her
focus was on Hicks. She also said that she could tell that Hicks had been drinking. The State
rested its case after Cameron’s testimony and the court denied the defense motion for a directed
verdict.
The defendant testified that in the early morning hours of August 1, 2004, he was
watching people shoot dice, including Anthony Hicks. After a few minutes he went home and fell
asleep. He was awakened by Tyrone Campbell knocking on the door. Campbell told defendant
that “he had got into it with Hicks.” Hicks had gotten a gun, so Campbell got defendant, who
took a loaded revolver and walked Campbell home.
Defendant further testified that while he and Campbell were walking, Hicks jumped out
and approached them with a metal pole about two feet long. Hicks swung the pole at Campbell,
who ran away. Hicks went after defendant, who tried to defend himself. Hicks went to grab
defendant’s gun, but defendant pushed him away. At that point, Hicks reached for his waistband
and defendant believed Hicks had a gun so, to defend himself, he shot Hicks. Defendant said he
was 25 feet away, fired his gun four times, but did not know if he hit Hicks, as he ran away while
Hicks was still standing.
On cross-examination defendant admitted that the first time he spoke to the police he
denied shooting Hicks, but claimed to be with Latoya Spears. After the detectives confronted
defendant with the fact that Spears told them defendant was not with her, defendant then told the
police he was struggling with Hicks when the gun went off.
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The defense called no other witnesses. The prosecution called Detective Ayers in rebuttal
to discuss the various conversations he had with defendant after his arrest. Both the State and
defense rested.
After receiving the instructions on the law, the jury deliberated for approximately eight
hours before finding defendant guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)).
The trial court sentenced him to 25 years for the murder and 25 years for personally discharging a
firearm, for a total of 50 years with a credit for 424 days. Defendant’s motion to reconsider
sentence was denied.
On appeal, defendant contends that the trial court erred by admitting statements made by
the victim to a civilian witness under the dying declaration exception to the hearsay rule.
Defendant also argues that his trial counsel was ineffective for failing to request a second degree
murder instruction based on provocation. We take each argument in turn.
ADMISSION OF DYING DECLARATION
We review the issue of the admissibility of the statements de novo because, in the context
of this case, we are required to determine whether the admission of the statements made by Hicks
violate the defendant’s constitutional rights. People v. Redeaux, 355 Ill. App. 3d 302, 304
(2005).
Defendant argues that the statements admitted under the hearsay exception as a dying
declaration or excited utterance violate the sixth amendment (U.S. Const., amend.VI) as
interpreted by the United States Supreme Court in Crawford v. Washington and Davis v.
Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). In support of that
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argument, defendant contends that “[b]ecause the statements were testimonial in nature, and
because there was no opportunity for cross-examination, the admission of such statements
violated Mr. Ingram’s Sixth Amendment rights.”
Defendant, relying on Crawford and Davis, argues as follows:
“Crawford held that the admission of hearsay statements of an
unavailable declarant violates the right to confrontation unless the
defendant had a prior opportunity to cross-examine the declarant, if
the hearsay statements are testimonial. Furthermore, and
importantly for purposes of this case, the Supreme Court in Davis
v. Washington reiterated that excited utterances, a firmly rooted
hearsay exception, are still subject to the Crawford rule, and are
therefore inadmissible when the statements are considered
testimonial. Thus, contrary to the trial court’s ruling, the primary
concern should not have been whether the statement sought to be
admitted fell within a firmly rooted hearsay exception but, rather,
whether the declarant’s statement was ‘testimonial’ in nature.”
The confrontation clause of the sixth amendment provides: “In all criminal prosecutions,
the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S.
Const., amend. VI. Prior to Crawford, the Supreme Court held that the out-of-court statements
of an unavailable witness may be admitted into evidence so long as they had adequate “indicia of
reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539
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(1980). A statement showed such reliability if it fell within a “firmly rooted hearsay exception” or
demonstrated “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 65 L. Ed.
2d at 608, 100 S. Ct. at 2539.
In Crawford, 541 U.S. at 60, 158 L. Ed. 2d at 198, 124 S. Ct. at 1369, the Court
concluded that the Roberts rationale had departed from the original common law principles
underlying the confrontation clause by allowing the introduction of testimonial statements of
witnesses that were never subject to cross-examination. Thus, the Court held that out-of-court
testimonial evidence was inadmissible unless the witness was unavailable and the defendant had a
prior opportunity to cross-examine that witness. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,
124 S. Ct. at 1374. While the Court refused to provide a comprehensive definition of what
constituted “testimonial” evidence, it stated that such evidence would necessarily include “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
In Davis v. Washington, the United States Supreme Court addressed two separate cases
which raised the issue of what constituted “testimonial” evidence under two very different fact
patterns. Davis, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266. In addressing these two
cases, the court in Davis provided guidelines for determining when a statement is “testimonial.”
In one case, the police responded to a domestic disturbance at the home of Amy and Hershel
Hammon. The officers separately questioned the couple. Amy completed and signed a battery
affidavit against her husband. Amy did not appear at Hershel’s trial for domestic battery;
however, her affidavit and testimony from the officer who questioned her were admitted over
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Hershel’s objection that he had no opportunity to cross-examine her. Hershel was convicted and
the Indiana Supreme Court affirmed, concluding that, although Amy’s affidavit was testimonial
and should not have been admitted, the error was harmless beyond a reasonable doubt. Davis,
547 U.S. at 821, 165 L. Ed. 2d at 236, 126 S. Ct. at 2273.
In resolving whether Amy’s statements were inadmissible testimonial evidence, the Court
noted that Amy’s interrogation was part of an investigation into possibly criminal past conduct
and there was no emergency in progress. Davis, 547 U.S. at 829, 165 L. Ed. 2d at 241-42, 126
S. Ct. at 2278. In concluding that Amy’s statements were testimonial in nature, the Court applied
the principles previously articulated in Crawford, and held that statements are testimonial when
the circumstances objectively indicate that there is no ongoing emergency and the primary
purpose of interrogation is to establish or prove past events potentially relevant to later criminal
prosecutions. Davis, 547 U.S. at 822, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273-74. Under those
principles the Court reversed and remanded, finding Amy’s statements to be inadmissible
testimonial evidence. Davis, 547 U.S. at 830-34, 165 L. Ed. at 242-44, 126 S. Ct. at 2278-80.
Applying those principles to the statements at issue in the instant case, we find the
statements are not testimonial in nature. Unlike Davis, in the instant case, there was no
“interrogation” as contemplated by the Davis standard and the conversation was not being
conducted as interrogation to establish or prove past events potentially relevant to later criminal
prosecutions. Rather, the conversation between Hicks and Cameron occurred as a natural
consequence of the shooting. The record reflects this conversation occurred between friends
immediately after Hicks, who was a friend of Cameron, was fatally shot. This is unlike the
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situation where statements to detectives are found to be testimonial because they were “made in
response to police questioning while the police were conducting an investigation into the ***
commission of a crime.” People v. Victors, 353 Ill. App. 3d 801, 812 (2004) (statements
implicating defendant made by domestic battery victim to police officer while officer was
conducting investigation were testimonial). Based on our examination of the totality of the
circumstances surrounding this conversation, including its content and context, we reject
defendant’s argument that the statements were testimonial in nature.
The additional issue presented by the factual context of the instant case is whether
Crawford applies to dying declarations. Regarding exceptions to the hearsay rule, the Court in
Crawford indicated that “there is scant evidence that exceptions were invoked to admit
testimonial statements against the accused in a criminal case.” (Emphasis in original.) Crawford,
541 U.S. at 56, 158 L. Ed. 2d at 195, 124 S. Ct. at 1367. In a footnote, the court addressed
dying declarations as follows:
“The one deviation we have found involves dying
declarations. The existence of that exception as a general rule of
criminal hearsay law cannot be disputed. [Citations.] Although
many dying declarations may not be testimonial, there is authority
for admitting even those that clearly are. [Citations.] We need not
decide in this case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations. If this exception must
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be accepted on historical grounds, it is sui generis.” Crawford, 541
U.S. at 56 n.6, 158 L. Ed. 2d at 195 n. 6, 124 S. Ct. at 1367 n. 6.
Defendant relies on various out-of-state cases that have found a violation of the
confrontation clause where statements were admitted in evidence under the dying declaration
exception. However, in Illinois the question of whether admitting dying declarations violates the
confrontation clause under the principles articulated in Crawford was addressed in People v.
Gilmore, 356 Ill. App. 3d 1023 (2005).
The court in Gilmore concluded that the victim’s statements to detectives qualified as
dying declarations and were not rendered inadmissible by the principles articulated in Crawford.
In reaching that conclusion, the court in Gilmore followed the supreme court of California in
People v. Monterroso, 34 Cal. 4th 743, 763-65, 101 P.3d 956, 971-72, 22 Cal. Rptr. 3d 1, 19-20
(2004). The reasoning in Monterroso, which we find particularly instructive, is as follows:
“[I]f, as Crawford teaches, the confrontation clause ‘is most
naturally read as a reference to the right of confrontation at
common law, admitting only those exceptions established at the
time of the founding’ [citations], it follows that the common law
pedigree of the exception for dying declarations poses no conflict
with the Sixth Amendment.” Monterroso, 34 Cal. 4th at 765, 101
P.3d at 972, 22 Cal. Rptr. 3d at 20, quoting Crawford, 541 U.S. at
54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365.
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The defense argues that we should reject these cases because “all of these cases pre-date
Davis, and rely on reasoning specifically rejected in Davis.” We note that neither of the two cases
addressed by the United States Supreme Court in Davis involved dying declarations. Moreover,
as previously discussed, under the principles articulated in Davis for determining whether a
statement is testimonial in nature, the statements in the instant case were not testimonial evidence.
The court in Davis concluded that statements are testimonial when there is no ongoing emergency
and the primary purpose of interrogation is to establish or prove past events potentially relevant to
later criminal prosecutions. Davis, 547 U.S. at 815, 165 L. Ed. at 237, 126 S. Ct. at 2273-74. In
the instant case, the statements were not elicited as the result of police interrogation. The
conversation was not being conducted for the purpose of interrogation to establish or prove past
events potentially relevant to later criminal prosecutions. Rather, there was an ongoing
emergency as Anthony Hicks was in the process of dying, and made the statements at issue in
general conversation with his friend Angela Cameron.
We conclude there is no constitutional impediment to admitting the statements made by
Hicks to Cameron as he was dying. The record reflects the statements by Hicks were beyond any
doubt dying declarations and not testimonial in nature.
We are mindful that the requirements for admitting a dying declaration are “(1) the
declaration pertains to the cause or circumstances of the homicide; (2) the declarant [has] the
fixed belief and moral conviction that death is impending and almost certain to follow almost
immediately; and (3) the declarant [has the] mental faculties sufficient to give an accurate
statement about the cause or circumstances of the homicide.” Gilmore, 356 Ill. App. 3d at 1033,
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citing People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1009 (1999), and People v. Walker, 262
Ill. App. 3d 796, 801 (1994).
In the instant case, the statement by Hicks directly pertained to the cause of the homicide.
Hicks told Cameron he was dying and he told her that Pattyman shot him. The statements by
Hicks reflect his moral conviction that death was impending and almost certain to follow
immediately. The record reflects no evidence that his mental faculties were impaired.
Accordingly, the statements are hearsay exceptions which satisfy the requirements for admission
into evidence as dying declarations.
We conclude the evidence was sufficient to allow the trial court to find beyond a
reasonable doubt that the statements made by Hicks were admissible as dying declarations. For
the reasons previously discussed, the statements made by Hicks are not testimonial. Accordingly,
under the principles of Crawford, as further articulated in Davis, there is no constitutional
impediment to admitting the non-testimonial statements under the dying declaration exception to
the hearsay rule. We need not further resolve whether the statements were properly admitted as
excited utterances because we find the statements properly admitted under the dying declaration
exception to the hearsay rule.
TRIAL COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE
Defendant contends he made a substantial showing that his right to effective assistance of
counsel was violated because although trial counsel requested an instruction on second degree
murder based on defendant’s unreasonable belief that he was justified in shooting Hicks, counsel
failed to request a second degree murder instruction based on provocation. Whether the trial
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court properly instructed the jury is a question of law subject to de novo review. People v.
Herron, 215 Ill. 2d 167, 174 (2005).
A defendant is guaranteed the right to the effective assistance of counsel under the United
States and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. In
order to establish a violation of the constitutional right to effective assistance of counsel, a
criminal defendant must show that counsel’s performance was deficient in that it was objectively
unreasonable and that the deficient performance so prejudiced the defense as to undermine
confidence in the outcome of the proceedings or deprive defendant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-89, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064-65 (1984).
In People v. Albanese, 104 Ill. 2d 504 (1984), the Illinois Supreme Court adopted the Strickland
rule, stating that “ ‘the benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.’ ” Albanese, 104 Ill. 2d at 525, quoting
Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064; Ill. Const. 1970, art. I,
§ 8.
A defendant has the burden of demonstrating that counsel was ineffective. People v.
Lundy, 334 Ill. 3d 819, 829 (2002). Under the first prong of the Strickland test, defendant must
overcome a “strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance; that is, defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466
U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana, 350 U.S.
131-06-1954
91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164 (1955). Evaluation of counsel’s conduct cannot
extend into areas involving the exercise of judgment, discretion or trial tactics even where the
reviewing court would have acted differently. People v. Mitchell, 105 Ill. 2d 1, 12 (1984).
To prove the prejudice prong, defendant must show that “counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. A defendant’s failure to make a requisite showing
of either deficient performance or sufficient prejudice defeats an ineffective assistance of counsel
claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. If the claim of
ineffective assistance can be disposed of on the basis that the defendant did not suffer sufficient
prejudice, a court need not consider whether counsel’s performance was deficient. Strickland,
466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Erickson, 161 Ill. 2d 82, 90
(1994).
In reviewing the conduct of trial counsel, we note defendant is entitled to effective, not
perfect, representation (People v. Odle, 151 Ill. 2d 168, 173 (1992)), and this is to be determined
from the totality of counsel’s performance. People v. Evans, 186 Ill. 2d 83, 94 (1999).
Defendant argues his trial counsel was ineffective for failing to request a second degree murder
instruction based on provocation. Defendant contends the record supported such an instruction
because the record reflects that before Hicks was shot by the defendant, there was a 10-minute
fistfight between defendant’s nephew, Tyrone and Hicks. After the fight, Hicks went to Tyrone’s
house with a pipe or pole demanding to see Tyrone. Defendant testified that while he was
walking Tyrone home, Hicks stepped into their path with a metal pipe and swung at both of them.
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Defendant argues that under “these circumstances, defense counsel’s failure to ask for an
instruction on second degree murder based on provocation was unreasonable, and undermined
confidence in the outcome of the trial.”
The purpose of jury instructions is to convey to the jury the correct principles of law
applicable to the evidence so that the jury may reach a correct conclusion according to the law
and the evidence. People v. Hopp, 209 Ill. 2d 1, 8 (2004). While the giving of jury instructions is
generally within the discretion of the trial court, we review de novo the question of whether the
jury instructions accurately conveyed to the jury the applicable law. People v. Parker, 223 Ill. 2d
494, 501 (2006). In the factual context of the instant case, defense counsel asked and received an
instruction on second degree murder based on defendant’s unreasonable belief that he was
justified in shooting Hicks. In considering the totality of defense counsel’s performance, our
review of the record reflects that defense counsel cross-examined the witnesses, made appropriate
objections, argued various motions, presented witnesses on defendant’s behalf, made opening
statement, gave closing argument and asked for specific jury instructions consistent with his
theory of defense.
Trial counsel obtained a second degree murder instruction based on the theory that
defendant mistakenly believed that the circumstances would justify the deadly force he used. That
instruction was consistent with defendant’s testimony during trial. That instruction was consistent
with trial counsel’s theory of defense.
Defendant contends that the evidence supports the theory that the defendant was acting
under a sudden and intense passion resulting from serious provocation by the victim. In the
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instant case, defendant told several different versions of what happened the night of the murder.
Defendant admitted during his testimony that he had changed his story and defendant’s nephew
and the mother of his children gave conflicting testimony at trial. Defense counsel requested and
received an instruction for second degree murder based on the theory that defendant believed the
circumstances existed which justified the deadly force he used, but his belief that such
circumstances existed was unreasonable. 720 ILCS 5/9-2(a)(1)-(2) (West 2000).
That instruction is factually supported by defendant’s version of what happened which he
provided under oath at trial. Defendant testified at trial that while he and Campbell were walking,
Hicks approached them with a metal pole about two feel long and swung the pole at Campbell,
who ran away. Hicks then went after defendant, who tried to defend himself. Hicks attempted to
grab defendant’s gun, but defendant pushed him away. At that point, according to the testimony
of the defendant, Hicks reached for his waistband and defendant believed Hicks had a gun, so to
defend himself, he shot Hicks. Defendant said he was 25 feet away, fired his gun four times, but
did not know if he hit Hicks, as he ran away while Hicks was still standing.
On cross-examination, defendant admitted that he initially told the police that he did not
shoot Hicks, but was with Latoya Spears. It was not until the police confronted him with the fact
that Spears told them defendant was not with her, that defendant then described himself struggling
with Hicks when the gun went off.
In the factual context of the instant case, it was reasonable trial strategy for defense
counsel to decide that any additional instructions would only serve to emphasize the fact that
defendant told several different stories. It was strategically sound for defense counsel not to
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submit the second degree instruction for sudden and intense passion resulting from serious
provocation by Hicks, as that alternate theory could have served to undermine the credibility of
defendant’s testimony at trial which supported the theory that defendant mistakenly believed the
circumstances justified his use of deadly force to prevent death or great bodily harm to himself.
Rather than considering a jury instruction in isolation, we review whether the instructions
given the jury considered as a whole, fully and fairly provide the jurors with the applicable law.
People v. Terry, 99 Ill. 2d 508, 516 (1984). In the instant case, the jury instructions taken as a
whole, including those submitted by defense counsel which were used by the trial court to instruct
the jury accurately conveyed to the jurors the applicable law. Taking into consideration the total
record, we cannot conclude that trial counsel’s performance was deficient. Accordingly, we find
the conduct of trial counsel to be objectively reasonable.
Moreover, the record does not reflect actual prejudice. To
show actual prejudice, defendant must establish that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different or
the trial process was fundamentally unfair. Strickland, 466 U.S.
at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The defendant told multiple stories and his various versions
of the events were uncorroborated. In the factual context of the
instant case, the record does not reflect that the failure to
instruct the jury on second degree murder based on provocation
changed the result of the proceeding or was fundamentally unfair.
Based on the totality of the record, defendant has not satisfied
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the Strickland standard for demonstrating ineffective assistance
of counsel. The record does not reflect deficient performance or
prejudice as the result of trial counsel’s representation.
Accordingly, defendant failed to demonstrate a violation of
Strickland. When considered and read as a whole in the factual
context of the instant case, the instructions fully and fairly
informed the jury of the applicable law.
CONCLUSION
For the reasons previously discussed, we conclude the
evidence was sufficient to allow the trial court to find beyond a
reasonable doubt that the statements made by Hicks were
admissible as non-testimonial dying declarations. Accordingly,
under the principles articulated by the United States Supreme
Court in Crawford and Davis there is no constitutional impediment
to admitting the non-testimonial statements under the dying
declaration exception to the hearsay rule. Further, based on our
review of the record, we conclude that defense counsel’s
representation reflects that defendant was provided effective
assistance of counsel.
Affirmed.
FITZGERALD SMITH, P.J., and TULLY, J., concur
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee
v.
ROBERT INGRAM,
Defendant-Appellant
No. 1-06-1954
Appellate Court of Illinois
First District, FIFTH DIVISION
April 11, 2008
Justice Margaret O'Mara Frossard authored the opinion of the
court:
Presiding Justice Fitzgerald Smith and Justice Tully concur.
Appeal from the Circuit Court of Cook County.
The Hon. John J. Moran, Judge Presiding.
COUNSEL FOR APPELLANT
Patricia Unsinn of the Office of the State Appellate Defender,
Chicago, IL 60601
OF COUNSEL: Melissa C. Chiang
COUNSEL FOR APPELLEE
Richard A. Devine, Cook County State's Attorney, Chicago, IL
60602
OF COUNSEL: James E. Fitzgerald and Marie Q. Czech
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