People v. McKinney , 2011 IL App (1st) 100317 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. McKinney, 2011 IL App (1st) 100317Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES McKINNEY, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-10-0317
Filed December 13, 2011
Rehearing denied January 10, 2012
Held On appeal from defendant’s conviction for first-degree murder in a gang-
(Note: This syllabus related shooting, the appellate court held, inter alia, that the grant of a 30-
constitutes no part of day extension of time beyond the speedy trial term was not an error, that
the opinion of the court the failure to appoint new counsel following a Krankel hearing was not
but has been prepared error, and that the 30-year sentence imposed to be served consecutively
by the Reporter of to an unrelated federal sentence was not an abuse of discretion.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-6580; The
Review Hon. Rosemary Grant-Higgins, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Christopher L. Gehrke, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, Peter Fischer and Kathleen Warnick, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Quinn and Justice Harris concurred in the judgment and
opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, the defendant, James
McKinney, was convicted of first-degree murder and sentenced to 30 years of imprisonment.
On direct appeal, the defendant argues that: (1) the trial court violated his right to a speedy
trial when it granted the State a 30-day extension of time beyond the speedy trial term; (2)
the trial court erred in admitting evidence of the defendant’s postarrest silence; (3) the State
misstated the law and improperly bolstered the credibility of witnesses’ prior inconsistent
statements during closing arguments; (4) the trial court erred in admitting evidence that
codefendant Jerome Wilkins had pled guilty to the murder and in allowing the State to
reference this evidence during its opening and closing arguments; (5) he received ineffective
assistance of counsel when defense counsel made an erroneous remark during opening
statements; (6) the trial court erred in failing to appoint new counsel for him following a
Krankel hearing; and (7) the trial court improperly imposed a 30-year consecutive sentence.
For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 On September 8, 1991, the defendant and codefendant Jerome Wilkins (codefendant
Wilkins) shot and killed the victim, Willis Myers (Myers), at 502 East Browning Avenue in
Chicago, Illinois. Codefendant Wilkins was arrested for Myers’ murder and later pled guilty
and served time in prison for the crime. However, the defendant could not be located and a
warrant was issued for his arrest.
¶4 On February 21, 2007, the defendant was arrested for the shooting death of Myers, while
he was serving a federal sentence on an unrelated charge in a Pennsylvania penitentiary. On
March 22, 2007, the defendant was charged with two counts of first-degree murder.
¶5 On May 18, 2009, the State filed a motion to extend the speedy trial term (motion to
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extend term), alleging that it had just located its material witness, Kenneth Jackson
(Jackson), on that day in Racine County, Wisconsin. The State requested that an extension
of time be allowed so that the necessary documents could be executed and served on Jackson
to compel his appearance in court for trial. On May 26, 2009, the defendant filed a response
to the State’s motion to extend term, arguing that the State had failed to exercise due
diligence in locating and securing the appearance of Jackson for trial. On May 27, 2009,
following a hearing on the State’s motion to extend term, the trial court found that the State
had exercised due diligence in locating Jackson, without whom the State could not proceed
in the prosecution of the defendant. The trial court then granted a 30-day extension of time
beyond the speedy trial term.
¶6 On June 24, 2009, a jury trial began during which the State presented the testimony of
several witnesses. During opening statements, the State asserted that the defendant and
codefendant Wilkins shot and killed Myers for wearing his hat in a manner that was
disrespectful to their street gang. The State stated that Jackson was an eyewitness to the
crime and noted that codefendant Wilkins had pled guilty to the first-degree murder of
Myers. Defense counsel1 stated that Jackson and his then wife, Joizette Finley (Finley), were
also arrested for the illegal possession of firearms in their home on the day the shooting.
Defense counsel asserted that Jackson and Finley provided statements to the police about the
shooting after they were arrested, and noted that the weapons charges against them were
dropped after they testified against the defendant before a grand jury.
¶7 Following opening statements, a sidebar conference was held during which the State
requested a mistrial. The State argued that there were “actual gasps from the jury” when
defense counsel stated that Jackson’s and Finley’s weapons charges were dismissed after they
testified against the defendant before a grand jury. The State claimed that while the
misdemeanor weapons charges against Jackson and Finley were dismissed, they were
actually replaced with felony weapons charges that resulted in a conviction. In response,
defense counsel explained that his comment was made in good faith because the
reinstatement of the felony weapons charges against Jackson and Finley was absent from the
information sheet available to the defense. The trial court then denied the State’s motion for
a mistrial, but allowed the State to address the issue through trial testimony and to clarify it
in closing arguments.
¶8 Medical Examiner Nancy Jones (Dr. Jones) performed the autopsy of the victim, Myers.
She observed that Myers was shot three times–in the back of the head, back of his left upper
arm, and the left forearm. Myers also suffered from brush-burn abrasions and injuries around
his mouth, a laceration on the right side of his upper lip, and a laceration in the right side of
the tongue–all of which were consistent with falling onto a pavement and being punched in
the face. Dr. Jones testified that there was no evidence of close-range firing. She concluded
to a reasonable degree of medical and scientific certainty that Myers died as a result of
1
Tod Urban and Rachel Moran served as defense counsel at trial. For this court’s
convenience, we will address both attorneys interchangeably as “defense counsel” and with the
generic pronoun of “he.”
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multiple gunshot wounds and the manner of death was homicide. The parties then stipulated
that a fired bullet and a fired bullet fragment retrieved from Myers’ body was a “.38 Special”
from a class of ammunition that included revolvers and automatic weapons.
¶9 Zeudon Knox (Knox) testified that on September 8, 1991, he, Myers and a friend named
Kendrick drove to the Ida B. Wells housing complex because Myers “wanted to go see
somebody.” Knox stated that Myers was affiliated with a street gang. Once they arrived,
Myers entered the building while Knox and Kendrick waited in the car. As they waited,
Knox observed a fistfight at the building and heard multiple gunshots. Knox testified that
Myers was shot as he tried to run; however, he was unable to identify the shooters.
Thereafter, Knox and Kendrick drove a short distance and notified a police officer, who then
returned to the crime scene with them.
¶ 10 Jackson testified at trial that he was 42 years old, that he resided outside of Illinois, and
that Finley was his wife at the time of the 1991 shooting. He stated that he had previously
lived in an apartment with Finley in the housing complex located at 511 East Browning
Avenue in Chicago. Jackson testified that he was affiliated with the Gangster Disciples street
gang in 1991. On September 8, 1991, Jackson was arrested for the illegal possession of
firearms, and he was subsequently convicted of the weapons charges and sentenced to two
years of imprisonment. However, Jackson denied witnessing the shooting and denied seeing
individuals with the nickname “Red” or “J” at the time of the shooting. Jackson further noted
that he was not Mirandized by the police at the time of his arrest for the illegal possession
of weapons and that he did not recall making any statements to the police regarding the
shooting, and he denied testifying before a grand jury in September 1991. At that point at
trial, the State confronted Jackson with prior inconsistent statements that he had made in his
September 1991 grand jury testimony, and Jackson denied making those statements. Jackson
further testified that he did not recall identifying the defendant in a photographic array during
a home visit by two Chicago detectives in January 2006.
¶ 11 Finley testified at trial that in 1991, she was married to Jackson and that they resided in
a third-floor apartment at the Ida B. Wells housing complex at 511 East Browning Avenue
in Chicago. She noted that their apartment unit had a view of the front entry area of the
building. Finley then identified a photograph of the defendant as an individual nicknamed
“Red” and identified another individual as “J” in a second photograph presented by the State.
Finley did not recall seeing either “Red” or “J” on September 8, 1991, and could not recall
the details of the shooting because she suffered from memory loss resulting from an accident
that occurred 15 years earlier. Finley also could not recall whether she spoke with the police
about the shooting in 1991, nor could she remember testifying before a grand jury on the day
after the shooting.
¶ 12 Sandra Provenzano (Provenzano) testified that on the day after the shooting, September
9, 1991, she served as a court reporter for a grand jury hearing during which Jackson and
Finley testified. The State then introduced the grand jury transcripts of Jackson’s and Finley’s
testimony into evidence and published it to the jury. In his grand jury testimony, Jackson
stated that on September 8, 1991, he was in the bedroom of his apartment at 511 East
Browning Avenue, when his wife Finley informed him that someone outside was calling his
name. Jackson then looked out the window and observed the victim, Myers, run out of the
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building while “Red” chased Myers with a gun in his hand. “Red” then shot Myers five to
six times. Jackson also observed an individual named “J” run out of the building, slip and
fall, and proceed to fire three to four gunshots at Myers. Jackson testified that he had known
“Red” and “J” his entire life. In her grand jury testimony, Finley testified that on September
8, 1991, “Red” was selling a product to Myers, along with 10 other individuals, on the first
floor of the building located at 511 East Browning Avenue. After Myers purchased the
product, “Red” punched Myers in the face, after which Finley retreated to her apartment.
Shortly thereafter, Finley believed she had heard someone call Jackson’s name from outside
the window. She testified that as Jackson went to the window, she heard about 12 gunshots.
Subsequently, Finley joined Jackson at the window, where Jackson directed her attention to
a body lying against a fence across the street. Finley noticed that the victim was Myers and
observed “Red” and “J” flee the scene. Finley further testified that “J” was someone whose
first name was “Jerome.” Later that day, Finley overheard “Red” tell an unknown individual
that Myers was shot because they believed that Myers was a member of a rival gang.
¶ 13 Codefendant Wilkins testified on behalf of the State that he was an inmate in the Cook
County department of corrections for a pending but unrelated case. He noted that in March
1995, he pled guilty to the first-degree murder of Myers and had served his sentence for that
case. Codefendant Wilkins denied knowing the defendant as “Red” and stated that the
defendant’s nickname was “Cool.” He claimed that he met the defendant for the first time
in Iowa in 1993. Codefendant Wilkins stated that he lived in the Ida B. Wells housing
complex from his birth in 1977 until 1995, that he was a member of the Gangster Disciples
street gang, and that his nickname was “J.” He testified that on September 8, 1991, he was
selling drugs with several other individuals in the lobby of the building located at 511 East
Browning Avenue. He stated that he shot Myers because Myers “snatched [his] drugs.”
Codefendant Wilkins denied that the defendant was present at the time of the shooting and
denied making a statement to the police and to an assistant State’s Attorney. Although he
acknowledged that his signature and his mother’s name2 was on a handwritten statement
detailing the shooting, he testified that he signed the statement under police coercion.
¶ 14 Former Assistant State’s Attorney Nick Arvanitis (ASA Arvanitis) testified that he was
an assistant State’s Attorney in 1991. On September 9, 1991, at approximately 5 a.m., he
spoke with codefendant Wilkins during which Detective Tom Kelly, a youth officer and
codefendant Wilkins’ mother were also present. After advising codefendant Wilkins of his
Miranda rights, codefendant Wilkins made a statement to ASA Arvanitis regarding the
shooting. Codefendant Wilkins then conferred with his mother and signed a handwritten
statement summarizing the details of the shooting. The handwritten statement was then
published to the jury at trial as follows: On September 8, 1991, codefendant Wilkins and
several friends were in the lobby of a building located at 511 East Browning Avenue in
Chicago. Codefendant Wilkins had a .38-caliber handgun hidden in a radiator and “Red” also
had a firearm. While codefendant Wilkins and “Red” were selling drugs, “[Myers] came into
2
Codefendant Wilkins’ mothers name appeared on the handwritten statement because he was
a minor at the time of the 1991 shooting.
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the building wearing his hat tilted to the left,” which codefendant Wilkins interpreted to
mean that he was a “hook”–a member of the rival gang, Vice Lord. Codefendant Wilkins’
friend, Rodney, told Myers to “straighten up his hat,” but Myers refused and instead stated
that he just wanted to “get high.” Myers purchased $10 of cocaine. When asked again to
adjust his hat, Myers refused, after which an individual named Calvin began to punch Myers.
Codefendant Wilkins and “Red” then chased Myers while armed with their firearms. “Red”
then shot him about six times. Although codefendant Wilkins slipped and fell during the
chase, he managed to fire about six gunshots at Myers. After the shooting, “Red” and
codefendant Wilkins fled the scene and codefendant Wilkins went to a friend’s apartment.
Codefedant Wilkins indicated that he had the opportunity to confer with his mother before
memorializing his statement in writing.
¶ 15 Detective Tom Kelly (Detective Kelly) testified that on September 8, 1991, he was
assigned to investigate Myers’ murder at 502 East Browning Avenue in Chicago. In the
course of his investigation, Detective Kelly spoke with Jackson and Finley–whose accounts
of the shooting were similar to the testimony they gave at the grand jury hearing. Detective
Kelly was aware that Jackson was under arrest on weapons charges at that time, but he made
no promises to Jackson in exchange for his eyewitness statement. Similarly, Detective Kelly
stated that he made no promises to Finley in exchange for her account of the shooting.
Detective Kelly noted that he was present at the police station at the time codefendant
Wilkins signed the written statement prepared by ASA Arvanitis. Detective Kelly later
learned that the names “James Jones” and “Red” were aliases for the defendant. Detective
Kelly testified that a warrant was issued for the defendant’s arrest because the police were
unable to locate him.
¶ 16 Detective Robert Trlak (Detective Trlak) testified that from 1991 to 1999, the police
made unsuccessful attempts to locate the defendant. However, in July 1999, he received
information from a source that the names of “Charles Collins” and “Charles Davis” were
aliases for the defendant. Detective Trlak was then able to obtain a photograph of “Charles
Davis.” At that time at trial, the parties stipulated that a photograph of “Charles Davis,”
which Detective Trlak had obtained during the course of his investigation, was in fact a
photograph of the defendant. Detective Trlak stated that after he obtained the photograph of
the defendant, he was unable to locate Jackson and Finley in order to see if they could
identify the individual in the photograph as “Red.” Thereafter, the case was temporarily put
aside. On January 12, 2006, Detective Trlak and his partner, Detective Robert Lenihan
(Detective Lenihan), traveled to Racine, Wisconsin, where they located Jackson at his
residence. Detectives Trlak and Lenihan presented Jackson with a photographic array from
which Jackson positively identified the defendant’s photograph by saying “[t]hat’s Red that
used to hang out at Browning.” Jackson then informed Detective Trlak that “Red” was
involved in the 1991 shooting. Subsequently, Jackson and Detectives Trlak and Lenihan
signed and dated the defendant’s photograph. Detective Trlak testified that the police could
not locate Finley in 2006.
¶ 17 Detective Lenihan testified that on September 21, 2006, he and Detective Michael
Cummings (Detective Cummings) continued to investigate the 1991 shooting. On September
21, 2006, Detective Lenihan, Detective Cummings, and ASA Heather Alwin (ASA Alwin)
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traveled to the Lewisburg Penitentiary in Pennsylvania where the defendant was serving a
federal sentence on an unrelated crime. Detectives Lenihan and Cummings did not place the
defendant under arrest at that time, but advised him of his constitutional rights. The
defendant then told the detectives that he was not surprised to see them, that he was present
when codefendant Wilkins was arrested in 1991, and that codefendant Wilkins was not going
to testify against him. However, the defendant informed the detectives and ASA Alwin that
“he was young when [the shooting] happened, [t]hat he thought about giving a statement, but
[that] he wanted to talk to his family first.” The defendant also acknowledged to the
detectives and ASA Alwin that his former nickname was “Red,” but that his current
nickname was “Cool.”
¶ 18 The parties then stipulated at trial that on September 8, 1991, Jackson was arrested for
misdemeanor “possession of guns” and that Finley was also arrested for “misdemeanor
unauthorized possession or storage of a weapon.” The parties stipulated that both Jackson’s
and Finley’s charges were later “stricken with leave to reinstate,” but that they were not
stricken in exchange for any statements or testimony Jackson gave to the police or grand jury.
The parties further stipulated that on September 18, 1991, Jackson’s charges were
“superseded by indictment” and upgraded to “felony possession” of the weapons. A sidebar
conference was then held during which defense counsel admitted that he had misread the
stipulation and that he could not agree to the portion of the stipulation stating that no
promises were made to Jackson in exchange for dismissing his misdemeanor charges.
Following the sidebar conference, the trial court informed the jury that a typographical error
had been made, and the State reread the stipulations to the jury by omitting the portion to
which defense counsel objected. Instead, the parties stipulated that former ASA George
Andrews, if called to testify, would testify that he was assigned to Jackson’s gun possession
case and that Jackson’s misdemeanor charges were not dismissed in exchange for any
statements or testimony that Jackson gave to the police or to the grand jury. The parties also
stipulated that Jackson pled guilty to the felony weapons charges and served two years in
prison. The trial court then admitted into evidence, without any objections, a certified record
of Jackson’s misdemeanor charges and a certified copy of conviction for Jackson’s felony
charges. The State then rested.
¶ 19 Defense counsel then introduced into evidence a “certified statement of deposition” in
the case of People v. Finley, marked as case number 91138130901. The defense then rested.
¶ 20 During closing arguments, the State apprised the jury on Illinois law pertaining to prior
inconsistent statements. The State argued that “people might speak the truth right after
something happens,” but that they may change their testimony at trial. The State stated that
the “law recognizes it” and that the jury could consider the prior inconsistent statements of
Jackson, Finley and codefendant Wilkins “as if that is what they said in court before you.”
Following deliberations, the jury found the defendant guilty of first-degree murder.
¶ 21 On July 30, 2009, the defendant filed a motion for a new trial. On August 18, 2009, at
a hearing on the motion for a new trial and sentencing, the defendant alleged ineffective
assistance of counsel and requested a Krankel hearing, which the trial court granted. On
October 15, 2009, the defendant filed a pro se “motion for a new trial/dismiss attorney,”
alleging ineffective assistance of counsel by asserting, inter alia, that defense counsel failed
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to call key witnesses to testify on his behalf at trial.
¶ 22 On December 16, 2009, following a Krankel hearing, the trial court denied the
defendant’s request to appoint new counsel. The trial court allowed the July 30, 2009 motion
for a new trial to be supplemented with the defendant’s pro se October 15, 2009 “motion for
a new trial/dismiss attorney.” The trial court then denied the defendant’s motion for a new
trial. On that same day, December 16, 2009, the trial court sentenced the defendant to 30
years in prison, to be served consecutively with his federal sentence on an unrelated
conviction.
¶ 23 On January 14, 2010, the trial court denied the defendant’s motion to reconsider
sentence. On January 19, 2010, the defendant filed a notice of appeal before this court.
¶ 24 ANALYSIS
¶ 25 We determine the following issues: (1) whether the trial court erred in granting the State
a 30-day extension of time beyond the speedy trial term; (2) whether the defendant received
ineffective assistance of counsel when defense counsel made an erroneous remark during
opening statements; (3) whether the trial court erred in admitting evidence of the defendant’s
postarrest silence; (4) whether the State misstated the law and improperly bolstered the
credibility of the witnesses’ prior inconsistent statements during closing arguments; (5)
whether the trial court erred in admitting evidence that codefendant Wilkins had pled guilty
to the murder and in allowing the State to reference this evidence during its opening and
closing arguments; (6) whether the trial court erred in failing to appoint new counsel for him
following a Krankel hearing; and (7) whether the trial court improperly imposed a 30-year
consecutive sentence.
¶ 26 We first determine whether the trial court erred in granting the State a 30-day extension
of time beyond the speedy trial term.
¶ 27 The defendant argues that the trial court violated his statutory right to a speedy trial when
it granted the State a 30-day extension of time beyond the 120-day speedy trial term where
the State failed to exercise due diligence in locating Jackson as a witness. Specifically, he
contends that the State took little to no substantive action to locate Jackson until shortly prior
to the expiration of the speedy trial term, and that the State should have begun its search for
Jackson in Racine, Wisconsin, where Detectives Trlak and Lenihan had visited him in 2006.
He further argues that because the trial court improperly granted the 30-day extension and
he was not tried within the statutory speedy trial term, the first-degree murder charges against
him should be dismissed. The defendant acknowledges his failure to properly preserve this
issue for review on appeal, but nonetheless argues that this court may consider the merits of
his arguments under the plain error doctrine.
¶ 28 The State counters that the defendant has forfeited this issue for review on appeal
because the defendant had failed to include the issue in his motion for a new trial. Moreover,
the State maintains that this court should not review the merits of the defendant’s arguments
because he failed to specifically allege how the plain error doctrine applies in this case. Even
if this court addresses the defendant’s arguments, the State contends, no error occurred
because the record positively establishes that the State engaged in due diligence in locating
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Jackson prior to trial.
¶ 29 Initially, we find that the defendant has forfeited this issue for review on appeal because
although defense counsel objected to the State’s request to extend the speedy trial term
during pretrial proceedings, he failed to preserve the issue in the motion for a new trial.
People v. Herron, 215 Ill. 2d 167, 175, 830 N.E.2d 467, 472-73 (2005) (a defendant who
fails to either make a timely trial objection and include the issue in a posttrial motion forfeits
the review of the issue). However, despite the defendant’s failure to include this issue in the
motion for a new trial, it is subject to plain error review because a speedy trial implicates
fundamental constitutional concerns. People v. Gay, 376 Ill. App. 3d 796, 799, 878 N.E.2d
805, 808 (2007) (defendant’s forfeited claim is reviewed under the plain error doctrine
because “a speedy trial is a substantial, fundamental right”). Therefore, we proceed to the
merits of this issue.
¶ 30 Section 103-5 of the Code of Criminal Procedure of 1963 (Code), commonly known as
the Speedy Trial Act (Act), provides in relevant part that “[e]very person in custody in this
State for an alleged offense shall be tried by the court having jurisdiction within 120 days
from the date he was taken into custody unless delay is occasioned by the defendant.” 725
ILCS 5/103-5(a) (West 2008); see also U.S. Const., amends VI, XIV; Ill. Const. 1970, art.
I, § 8 (an accused has a constitutional right to a speedy trial). “Delay shall be considered to
be agreed to by the defendant unless he *** objects to the delay by making a written demand
for trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a) (West 2008). A trial
court may continue the cause up to an additional 60 days if it “determines that the State has
exercised without success due diligence to obtain evidence material to the case and that there
are reasonable grounds to believe that such evidence may be obtained at a later day.” 735
ILCS 5/103-5(c) (West 2008). “The test of due diligence is whether the State began efforts
to locate its witness in sufficient time to secure [his] presence before the speedy trial term
expired.” People v. Exson, 384 Ill. App. 3d 794, 799, 896 N.E.2d 844, 849 (2008). A trial
court’s decision to grant an extension under the Act will not be disturbed on appeal absent
an abuse of discretion. People v. Gray, 326 Ill. App. 3d 906, 909-10, 761 N.E.2d 1237, 1240
(2001).
¶ 31 In the instant case, the record indicates that on February 21, 2007, the defendant was
arrested for Myers’ murder. On March 22, 2007, the defendant was charged with two counts
of first-degree murder. On May 18, 2009, the State filed a motion to extend term, requesting
that an extension of time be allowed so that the necessary documents could be executed and
served on Jackson to compel his appearance for trial. On May 27, 2009, at the hearing on the
State’s motion to extend term, the trial court found that the State had exercised due diligence
in locating Jackson, without whom the State could not proceed in the prosecution of the
defendant. The trial court then granted a 30-day extension of time beyond the June 1, 20093
expiration of the speedy trial term.
¶ 32 We find that the trial court did not abuse its discretion in granting the State a 30-day
extension of time beyond the speedy trial term. The record shows that in September 2008,
3
The parties did not dispute that the speedy trial term expired on June 1, 2009.
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three months before this case was originally set for jury trial on December 2, 2008, the State
began its investigation into Jackson’s whereabouts. Thereafter, the State received
information that Jackson might be residing in Hennepin County, Minnesota. On November
20, 2008, the State obtained a “certificate of judge adjudicating [Jackson] a material witness”
and a subpoena, which were delivered to the authorities in Hennepin County. The Hennepin
County authorities then assigned local investigators to locate Jackson. On December 2, 2008,
defense counsel was unable to appear in court due to a family emergency. The parties then
agreed to set January 13, 2009 as the jury trial date. The record shows that from November
2008 to May 2009, the State was repeatedly assured by the Hennepin County authorities that
Jackson resided at a specific address in Hennepin County, but that they were unable to locate
him because they believed Jackson was avoiding service of the subpoena. As a result, the
State was not ready for trial on January 13, 2009, and the case was continued to March 23,
2009. The record shows that between March 23, 2009 and May 18, 2009, the defendant made
six jury trial demands on the record. However, during that time, the State continued to be in
contact with Hennepin County authorities. On May 13, 2009, the State’s prosecutors and
investigators traveled to Hennepin County for two days, during which they discovered that
Jackson might actually be residing in Racine, Wisconsin. The State then contacted Wisconsin
authorities, who located Jackson but improperly served him with an Illinois subpoena. On
May 18, 2009, Jackson telephoned the State’s investigators and an assistant State’s Attorney
to inform them that he refused to be a witness at trial. On that same day, May 18, 2009, the
State filed a motion to extend term. Subsequently, the State procured the necessary
paperwork to obtain a Wisconsin subpoena to serve on Jackson. Although the defendant
argues that the State should have begun its search for Jackson in Wisconsin, where the police
had questioned him in 2006, rather than in Minnesota, such evidence was never presented
to the trial court at the May 27, 2009 hearing. Thus, based on the totality of the evidence in
the record, we find that the trial court acted within its discretion in finding that the State was
duly diligent in its efforts to locate Jackson prior to the expiration of the speedy trial term on
June 1, 2009, and in granting a 30-day extension of time for the State to execute the
necessary paperwork in Wisconsin to secure Jackson’s appearance for trial in Illinois.
¶ 33 We next determine whether the defendant received ineffective assistance of counsel when
defense counsel made an erroneous remark during opening statements.
¶ 34 The defendant contends that he was deprived of his right to have effective counsel when
defense counsel erroneously stated during opening statements that the weapons charges
against Jackson and Finley were dropped after they testified against the defendant before a
grand jury. This erroneous statement, he maintains, allowed the State the opportunity to
repeatedly discredit the defense and created the perception that the defense was trying to
mislead the jury.
¶ 35 The State argues that defense counsel’s single statement during opening statement did
not constitute overall deficient representation and that there was no possibility that it could
have altered the outcome of the trial. The State further maintains that the jury was instructed
by the trial court that arguments by attorneys could not be considered evidence, and that the
defense counsel was not personally discredited at trial.
¶ 36 To prevail on a claim of ineffective assistance of counsel, the defendant: (1) must prove
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that the attorney’s performance fell below an objective standard of reasonableness so as to
deprive him of the right to counsel under the sixth amendment (performance prong); and (2)
that this substandard performance resulted in prejudice (prejudice prong). Strickland v.
Washington, 466 U.S. 668, 687-94 (1984). To prove prejudice, the defendant must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” (Internal quotation marks omitted.) People v.
King, 316 Ill. App. 3d 901, 913, 738 N.E.2d 556, 566 (2000). A reasonable probability is one
that sufficiently undermines confidence in the outcome. Id. The defendant must satisfy both
prongs to prevail on his claim of ineffective assistance of counsel. However, a reviewing
court may analyze the facts of the case under either prong first, and, if it deems that the
standard for that prong is not satisfied, it need not consider the other prong. People v. Irvine,
379 Ill. App. 3d 116, 129-30, 882 N.E.2d 1124, 1136-37 (2008).
¶ 37 In the case at bar, defense counsel stated in opening statements that the weapons charges
against Jackson and Finley were dropped after they testified against the defendant before a
grand jury. Following opening statements, a sidebar was held during which the State
requested a mistrial and claimed that the misdemeanor weapons charges were dismissed but
then upgraded to felony weapons charges. In response, defense counsel explained that his
comment was made in good faith because the reinstatement of the felony weapons charges
against Jackson and Finley was absent from the information sheet available to the defense.
The trial court then denied the State’s motion for a mistrial, but allowed the State to address
the issue through trial testimony and to clarify it in closing arguments. Thereafter, the State
elicited witness testimony from Jackson and Officer Kelly that Jackson was convicted of the
felony weapons charges and sentenced to two years of imprisonment, and that no promises
were made to Jackson in exchange for his eyewitness testimony. The parties also stipulated
at the close of witness testimony that Jackson’s misdemeanor weapons charges were
upgraded to felony weapons charges, and the State introduced into evidence a certified copy
of conviction for Jackson’s felony weapons charges. The State further alluded to this
evidence during closing arguments.
¶ 38 We find that the defendant cannot show that there was a reasonable probability that the
outcome of the trial would have been different but for defense counsel’s single erroneous
statement at issue. The 1991 grand jury transcripts of Jackson’s and Finley’s testimony were
introduced into evidence and published to the jury. Jackson testified in the 1991 grand jury
hearing that he had known “Red” and “J” his entire life and that on September 8, 1991, he
observed “Red” chase Myers with a gun in his hand and shoot Myers five to six times. He
also observed that “J” fired three to four shots at Myers. The jury also heard Finley’s grand
jury testimony that she saw “Red” punch Myers in the face shortly before the shooting
occurred and that she observed “Red” and “J” flee the scene after the murder. The jury also
heard ASA Arvanitis’s testimony that codefendant Wilkins signed a handwritten statement
summarizing the details of the 1991 shooting. ASA Arvanitis stated that in codefendant
Wilkins’ handwritten statement, he indicated that he and “Red” shot Myers multiple times
and then fled the scene. Detective Trlak also testified at trial that on January 12, 2006, he and
Detective Lenihan located Jackson in Racine, Wisconsin, where Jackson positively identified
the defendant as “Red” in a photographic array and informed them that “Red” was involved
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in the 1991 shooting. It is well settled that a witness’s recanted testimony admitted pursuant
to section 115-10.1 of the Code may be sufficient to prove a defendant’s guilty murder
beyond a reasonable doubt. People v. Craig 334 Ill. App. 3d 426, 438, 778 N.E.2d 192, 202
(2002); People v. Morrow, 303 Ill. App. 3d 671, 676-77, 708 N.E.2d 430, 436 (1999). Based
on the evidence presented at trial, we cannot say that there was a reasonable probability that
the defendant would not have been convicted of first-degree murder but for defense counsel’s
erroneous remark during opening statements. Therefore, we find that the defendant’s claim
for ineffective assistance of counsel must fail.
¶ 39 The defendant also raises several issues which he acknowledges are forfeited on appeal
because defense counsel neither objected at trial nor presented them in the defendant’s
motion for a new trial. Herron, 215 Ill. 2d at 175, 830 N.E.2d at 472-73. Specifically, he
contends that the trial court erred in admitting evidence of his postarrest silence; that the
State misstated the law and improperly bolstered the credibility of the witnesses’ prior
inconsistent statements during closing arguments; and that the trial court erred in admitting
evidence that codefendant Wilkins had pled guilty to the murder and in allowing the State
to reference this evidence during its opening and closing arguments. The plain error doctrine
allows a reviewing court to consider unpreserved issues when either: (1) the evidence is
close, regardless of the seriousness of the error; or (2) the error is so serious, regardless of
the closeness of the evidence. Id. at 178-79, 830 N.E.2d at 475; People v. Piatkowski, 225
Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007).
¶ 40 Our supreme court has recently held that “the closely-balanced-evidence-prong of plain
error is similar to an analysis for ineffective assistance of counsel based on evidentiary error
insofar as a defendant in either case must show he was prejudiced,” stating that both analyses
are “evidence-dependent and result-oriented.” People v. White, 2011 IL 109689, ¶¶ 133-34.
The White court found that even assuming that an error occurred in the admission of the
challenged evidence, the evidence in the record against the defendant was “such that he
[could not] show prejudice for purposes of either analysis.” Id. at ¶ 134. Applying the
principle pronounced in White to the facts of the instant case, we find that having determined
that the defendant has failed to establish prejudice under the Strickland analysis, as
discussed, we likewise find that the defendant cannot establish prejudice under the plain error
analysis. Even assuming, arguendo, that error occurred in the admission of the complained-
of evidence and the State’s closing arguments, the evidence against the defendant is such that
he cannot show prejudice–namely, that the verdict may have resulted from the alleged errors
rather than from the evidence at trial. Accordingly, we need not further address the
defendant’s forfeited issues.
¶ 41 We next determine whether the trial court erred in failing to appoint new counsel for him
following a Krankel hearing.
¶ 42 The defendant argues that the trial court should have appointed new counsel for him
because defense counsel was ineffective for failing to call three key witnesses at trial–his
mother, Russ Ewing (Ewing) and Sidney Jones (Jones). He contends that if called to testify,
his mother and Ewing would have testified that they escorted the defendant to the police
station after the shooting “to clear his name,” which would have countered the State’s
argument at trial that the defendant eluded the police after the crime occurred. He further
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argues that defense counsel should have called Jones to testify as an alibi witness, as he
would have testified that he was with the defendant on the day of the shooting. The State
counters that the trial court properly declined to appoint new counsel following a full
Krankel inquiry into the defendant’s allegations.
¶ 43 In Krankel, our supreme court addressed the issue of how a defendant’s pro se posttrial
motion alleging ineffective assistance of counsel must be addressed by a trial court. People
v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). “New counsel is not automatically
required in every case where a defendant brings such a motion.” People v. Taylor, 237 Ill.
2d 68, 75, 927 N.E.2d 1172, 1175 (2010). Rather, the trial court should first examine the
factual basis of the defendant’s claim. Id. “If the court determines the claim lacks merit or
pertains only to matters of trial strategy, new counsel need not be appointed and the pro se
motion may be denied.” Id. at 75, 927 N.E.2d at 1175-76. However, new counsel should be
appointed by the trial court to argue the defendant’s claim of ineffective assistance if the
defendant’s allegations show possible neglect of the case. Id. at 75, 927 N.E.2d at 1176.
¶ 44 In the case at bar, on August 18, 2009, the defendant alleged ineffective assistance of
counsel and requested a Krankel hearing, which the trial court granted. On October 15, 2009,
the defendant filed a pro se “motion for a new trial/dismiss attorney,” alleging ineffective
assistance by asserting, inter alia, that defense counsel failed to call certain key witnesses to
testify on his behalf at trial. On December 16, 2009, a Krankel hearing was held during
which the defendant argued that defense counsel failed to call as witnesses his mother and
Ewing, who was a news reporter at the time, to testify that they personally escorted him to
the police station after the 1991 shooting to “clear [his] name,” but that, when they arrived,
police officers informed them that there was no warrant for the defendant’s arrest. The
defendant asserted that this evidence would have countered defense counsel’s closing
arguments at trial that the defendant had fled from justice because he was “scared and had
a lack of education.” The defendant maintained that he never gave defense counsel
permission to make that statement in closing arguments. The trial court then provided
defense counsel with an opportunity to respond. Defense counsel responded that “[t]his is
news to [the defense team],” and that he had no knowledge of this information.
¶ 45 The trial court then ruled that defense counsel’s failure to mention the fact that the
defendant, his mother, and Ewing may have gone to the police station after the shooting was
not “indicative of facts or circumstances that would support an ineffectiveness of counsel
claim” but, rather, was trial strategy. The trial court further noted that there were also
“limitations made by this court as to what could be presented with regard to [the defendant’s]
arrest because we didn’t want to prejudice the jury by letting them know [he was] in federal
custody on another case, so there were other strategy reasons and reasons to protect [him]
that would have excluded some of that being mentioned.”
¶ 46 The defendant also asserted that defense counsel was ineffective for failing to call an alibi
witness, Jones, who would have testified at trial that Jones was with the defendant at the time
of the shooting. In response, defense counsel noted that he was unaware of any alibi
witnesses in this case. The State also noted that there was no evidence that the defendant had
made any alibi statements to the police that could have been further explored by defense
counsel at trial. The trial court then found that Jones’s testimony would not have been
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considered an alibi, that there was no alibi for defense counsel to present at trial, and that all
matters were trial strategy.
¶ 47 Based on our review of the record, we find that the trial court conducted an adequate
inquiry into the defendant’s pro se allegations of ineffective assistance of counsel. The record
demonstrates that the trial court adequately inquired and reviewed each of the defendant’s
allegations, that it gave the defendant an opportunity to argue, explain and support each
allegation, and that it gave defense counsel an opportunity to respond to the defendant’s
allegations. Here, defense counsel was unaware of information pertaining to the defendant’s
mother, Ewing and Jones. Although defense counsel’s lack of awareness was not per se “trial
strategy,” the trial court did not err in finding no “possible neglect” of the case by defense
counsel, where the ineffective assistance of counsel claim lacked merit. As the record
demonstrates, the trial court found that the failure to call the defendant’s mother and Ewing
to testify was not “indicative of facts or circumstances that would support an ineffectiveness
of counsel claim,” because such evidence would have been excluded as a result of the
limitations imposed by the trial court regarding what could be presented at trial pertaining
to the defendant’s arrest. Further, the defendant’s allegation that defense counsel was
ineffective for failing to call Jones as an alibi witness was without merit, where there was no
indication in the record that the defendant ever apprised defense counsel of the existence of
Jones. Thus, defense counsel could not have been ineffective for failing to call an alleged
witness of whom he had no knowledge. Therefore, we find that the defendant’s claim of
ineffective assistance of counsel lacked merit and the trial court properly denied the
defendant’s request to appoint new counsel.
¶ 48 Finally, we determine whether the trial court improperly imposed a 30-year consecutive
sentence, which we review on an abuse of discretion standard. See People v. Gutierrez, 402
Ill. App. 3d 866, 900, 932 N.E.2d 139, 171 (2010).
¶ 49 The defendant contends that the trial court abused its discretion in imposing a 30-year
sentence to be served consecutively to his federal sentence on an unrelated case. Specifically,
the defendant argues that the trial court’s imposition of a consecutive sentence was based
upon exaggerated and untrue facts–such as characterizing Myers’ murder as an “execution”
and stating that the defendant went on a “crime spree” that included violent crimes
subsequent to the 1991 shooting. Accordingly, he urges this court to reduce his sentence or
to vacate his sentence and remand the matter for resentencing. The State argues to the
contrary that the defendant’s sentence was proper and that the defendant has forfeited this
issue on appeal.
¶ 50 Sentencing decisions of the trial court are entitled to great deference because the trial
court, based on its firsthand consideration of the defendant’s credibility, demeanor, moral
character and other relevant factors, is in a better position than a reviewing court to impose
the appropriate sentence. Id. Accordingly, “a trial court has wide latitude in determining and
weighing factors in mitigation or aggravation in imposing a sentence.” Id. An imposed
sentence which falls within the statutory guidelines will not be disturbed absent an abuse of
discretion. Id. Moreover, a reviewing court will not reweigh the sentencing factors; instead,
the trial court is presumed to have considered all mitigating evidence before it, absent any
indication in the record to the contrary. Id.-14-
¶ 51 We find that the defendant has properly preserved this issue for review because it was
included in his motion to reconsider sentence. See People v. Snowden, 2011 IL App (1st)
092117, ¶ 85 (“[t]o preserve a sentencing issue for appellate review, a defendant must raise
the issue with the trial court in a postsentencing motion”). Accordingly, we address the
merits of the defendant’s arguments.
¶ 52 Based on our review of the record, we find that the trial court acted within its discretion
in imposing a 30-year sentence to be served consecutively to the defendant’s unrelated
federal sentence. During the sentencing hearing, the trial court heard factors in aggravation
and mitigation, and noted that it had reviewed the defendant’s pre-sentence investigation. In
determining the appropriate sentence, the trial court stated that after the 1991 shooting, the
defendant engaged in a “life of crime, very serious crime, including violent crime.” The trial
court noted that such “crime spree” was an important factor in determining whether the
defendant’s sentence should be served consecutively with his federal sentence in order “to
protect the public from further danger.” The trial court stated that the evidence in this case
demonstrated that there was an “execution.” On appeal, the defendant challenges the
accuracy of the quoted language above, arguing that the imposition of a consecutive sentence
by the trial court was erroneously based upon these exaggerated and untrue facts. We find
that the trial court did not abuse its discretion in imposing a 30-year sentence, which falls
within the statutory sentencing range for first-degree murder. See 730 ILCS 5/5-8-1(a)(1)(a)
(West 2008) (the statutory sentencing range for first-degree murder is between 20 and 60
years of imprisonment). Nor do we find any abuse of discretion in imposing the 30-year
sentence to be served consecutively with the defendant’s federal sentence, where the trial
court found it necessary to protect the public from further danger. See 730 ILCS 5/5-8-4(a),
(b) (West 2008) (trial court has discretion to impose consecutive sentences where a defendant
is already subject to another sentence imposed by a federal court; consecutive sentences may
be imposed where the trial court is of the opinion that they are required to “protect the public
from further criminal conduct by the defendant”). Although the defendant correctly argues
that the evidence does not support the trial court’s statement that Myers was “shot when he
was laying [sic] on the ground, begging for mercy,” we find that an inference could be made
that an “execution” occurred, based on Dr. Jones’s testimony that Myers suffered multiple
gunshot wounds to the back of his head and arms. Likewise, although the defendant
challenges the trial court’s characterization of his criminal background as “violent,” we find
no error in such description in light of the fact that the trial court heard aggravating factors
of the defendant’s subsequent convictions involving guns and drugs. Thus, we find no abuse
of discretion in the trial court’s imposition of a 30-year sentence to be served consecutively
with the federal sentence.
¶ 53 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 54 Affirmed.
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