THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BODEY COOK, Defendant-Appellant.
No. 1-14-2134
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
February 16, 2018
2018 IL App (1st) 142134
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.
Fifth Division
¶ 1 Defendant Bodey Cook was found guilty by a jury of first degree murder and aggravated battery with a firearm. He was sentenced to consecutive prison terms of 30 years and 15 years, respectively.
¶ 2 On appeal, he contends (1) the trial court abused its discretion by admitting hearsay and allowing the State to misrepresent the evidence during closing argument, and this constituted plain error because the evidence was closely balanced or, in the alternative, trial counsel was ineffective for failing to preserve these errors; (2) the trial court abused its discretion during
¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.
I. BACKGROUND
¶ 4 This case arose from a drive-by shooting that occurred on the evening of Thursday, August 19, 2010. Gunshots fired from a car struck and killed Roger Kizer and struck Estavion Thompson, who survived the attack. Eyewitnesses identified defendant Bodey Cook as the driver and codefendant Marcellus French as the shooter. French was arrested January 20, 2011, and defendant was arrested February 16, 2011. In 2013, defendant and French were tried jointly before a single jury.
¶ 6 At the trial, the State‘s evidence showed that, at about 11 p.m. on the date of the offense, the victims Kizer and Thompson were outside near 7450 South Kenwood Avenue in Chicago. Kizer‘s family lived on that block. Kizer and Thompson were either sitting on the back of a friend‘s parked car or standing by the car in the street. Several other people were also outside, including Andre Stackhouse, Shevely McWoodson, and Sherman Johnson. People were drinking alcohol. The street was residential and illuminated by streetlights.
¶ 7 Thompson had “only a cup” of alcohol and could not recall whether people were smoking or selling marijuana. Thompson saw defendant drive a small greenish turquoise Chevrolet Cavalier down the street past Thompson‘s group and stop at a stop sign. Defendant was alone in
¶ 8 Thompson spoke with detectives at the hospital the next day and identified defendant as the driver from a photo array. At that time, Thompson did not know defendant‘s full name. Two days later, on August 22, Thompson viewed a black and white photo array that included French‘s photo, but Thompson did not identify anyone as the shooter from that array. At that time, Thompson knew French‘s name but not his full name. At the trial, Thompson said French at the time of the shooting “looked totally different” from his black and white picture in the photo array. Thompson could not remember whether he told the police on August 22 that French was the shooter. On January 20, 2011, Thompson went to the police station and identified French, whom Thompson knew “from around the same area,” out of a four-person lineup as the shooter.
¶ 9 Thompson testified that no one made him any promises in exchange for his testimony. At the time of the trial, he had a pending misdemeanor marijuana charge and prior felony convictions in 2005 for resisting a police officer and aggravated battery of a police officer and in 2004 for aggravated unlawful use of a weapon. When Thompson testified before the grand jury on February 16, 2011, he said he was under the influence when he had spoken with an assistant State‘s Attorney (ASA) in January 2011; however, at the trial Thompson denied being under the influence at the time of that conversation.
¶ 10 Andre Stackhouse was on parole at the time of the trial, failed to appear on the date specified by a subpoena, and was arrested and testified the next day. He had known both defendant and French since they were in preschool. Stackhouse had been drinking tequila on the night of the shooting. He was standing a couple of houses away from the Kizer home and talking with two girls when he saw defendant drive by in a greenish blue car alone. Not long thereafter, Stackhouse saw defendant drive east on 74th Street and then south on Kenwood Avenue. French was in the passenger seat, and half of his body was hanging out the window. He had a gun in his hand. Stackhouse did not see anyone in the car wearing a hat. Stackhouse moved into a gangway and heard several gunshots but did not look toward the shooting. After the shooting, he went to Kizer and Thompson and saw that they were shot. Sherman Johnson had a gunshot hole in his hat. Stackhouse left the scene and did not talk to the police that night.
¶ 12 Shevely McWoodson was Kizer‘s uncle. At the trial, McWoodson testified he had known defendant and French a few months prior to the shooting by seeing them on the street a few times. However, McWoodson previously told the grand jury that he had known French for about three years. At the time of the offense, McWoodson was with Kizer and a group of other people on south Kenwood Avenue talking. McWoodson saw defendant drive by once in a small car alone. Then McWoodson walked to his house a couple of houses away from the group to use the restroom. When he was near the gate of his house, he saw defendant drive by again with French in the passenger seat. McWoodson saw French lean out the window, fire a gun, and shoot Kizer. McWoodson heard three gunshots and saw the gun emit flames when it was fired. He did not speak with police that night.
¶ 13 In January 2011, McWoodson went to the police station and identified defendant from a photo array as the driver and French from a lineup as the shooter. At trial, McWoodson testified
¶ 14 Sherman Johnson was Thompson‘s cousin. Johnson had known defendant and French for Johnson‘s whole life. At the trial, Johnson testified that on the afternoon of August 19, 2010, everyone was standing in front of a school when Kizer unsuccessfully attempted to flag down defendant, who was driving a red Cadillac. Later that evening, Johnson was standing with the group on the 7400 block of south Kenwood Avenue. About 30 people were outside, and they were drinking alcohol and doing drugs. He heard gunshots and ran from the scene without looking to see the source of the gunfire. He never saw who fired the gunshots, was not grazed on his elbow by a bullet, and did not have a bullet knock any hat off his head.
¶ 15 Johnson fled Chicago a week after the shooting because he was wanted for an attempted murder that occurred in an unrelated case on August 25, 2010. He was apprehended and extradited back to Chicago on January 19, 2011. Thereafter, the detectives investigating the instant case brought him from the jail to the police station. Johnson claimed the detectives put him in a room with Thompson and urged him to “go with” Stackhouse‘s written statement. Johnson also claimed the police offered to help him with his pending case in exchange for his
¶ 16 The State impeached Johnson‘s trial testimony with the testimony of detectives and the ASA; Johnson‘s January 21, 2011, signed written statement; his February 18, 2011, grand jury testimony; and a January 2011 photograph of his elbow. According to his signed statement, Johnson saw defendant drive by in a light green Chevy Cavalier. Defendant was alone, and Kizer called out defendant‘s name to get his attention. Kizer‘s cousins had a “beef” or argument with defendant. Defendant did not stop and sped off. When defendant drove by again about 15 to 30 minutes later, French was hanging out the passenger‘s-side window. The upper part of French‘s body was hanging out the window, and a gun was in his hand. French fired the gun several times. The detectives testified that Johnson identified defendant as the driver and French as the shooter in photo arrays in January 2011, identified French in a January 2011 lineup, identified defendant in a February 2011 lineup, and was never told he would receive help in any pending case in exchange for talking about this case.
¶ 18 Codefendant French called two alibi witnesses, Romania Booker and her father Randy Alexander, who testified that French was with them at the time of the shooting. They were at the home of Booker‘s grandmother. Booker was pregnant with French‘s child, and her due date was August 19, 2010, so French stayed with her in case her water broke. Alexander testified that he and French stayed inside the house on August 19 but acknowledged they “were not joined at the hip.” Alexander was convicted in 2011 of burglary and in 2007 of possession of a controlled substance. Booker testified that French remained by her side from noon on August 19 until the
¶ 19 Defendant presented five family members to testify to his alibi that he was at his aunt‘s house at the time of the shooting. His family held a large surprise party for the aunt‘s 61st birthday, which lasted from about 6 p.m. on Thursday, August 19 until about 3:30 a.m. on Friday. The party was unplanned, and no invitations or emails were sent. They celebrated on Thursday because, contrary to her recorded birth date, that Thursday was the aunt‘s actual birth date. Also, defendant‘s sister, whom the family rarely saw, was in town visiting but returning to Birmingham on Friday.
¶ 20 Defendant‘s five alibi witnesses were his two sisters, Hagar and Sirena Crosby; his father, Jewell Crosby; his aunt, Sarma Jean Harris-Stewart; and his uncle, Peter Crosby. They testified that defendant had been staying with Sirena and her children in Carpentersville about a week before the party. Hagar picked them up in the morning on August 19 and drove to the aunt‘s house by about noon to get the house ready for the party. While Hagar and Sirena shopped for food and party supplies, defendant stayed at the house with his aunt and father. Defendant was still at the house when Hagar and Sirena returned a few hours later. The witnesses testified that they saw defendant during the course of the entire party, eating, drinking, and playing music and card games. At 11 p.m., everybody was singing happy birthday to the aunt. When Hagar left at about 1:45 a.m., defendant was drunk and asleep on the couch. Defendant slept at his aunt‘s house that night and woke up at 7 or 8 a.m., and his aunt made him pancakes. Defendant did not have a car and no one knew how he returned home. When certain witnesses learned that
¶ 21 Defense Investigator John Byrne testified that he had been a Chicago police detective and sergeant in the detective division for 25 years. When he went to Stackhouse‘s home in June 2012, he informed Stackhouse that he worked for the defense. Stackhouse agreed to speak with him about this case and invited him into the house. Byrne was at the house for about 30 minutes but did not make any video or audio recording. Byrne took notes during the interview, which he used to write his two-page, undated report and then destroyed the notes. According to Byrne, Stackhouse said he did not see the face of either the shooter or driver when the car drove past him because it was dark outside and the incident happened quickly. Stackhouse merely saw the passenger extend an arm out the open window and fire a gun. Furthermore, in January 2011, detectives signed Stackhouse out of jail, brought him to the police station, and informed him that witnesses had already identified defendant as the driver and French as the shooter. The detectives said they would help Stackhouse with his pending case if he corroborated the testimony of those witnesses. Although Stackhouse told the detectives what they wanted to hear, they ultimately did not help him. Stackhouse mentioned his probation and asked Byrne if he could get in trouble for what he said during their interview. Stackhouse did not sign or review Byrne‘s report.
¶ 22 The jury found defendant guilty of the first degree murder of Kizer and guilty of the aggravated battery with a firearm of Thompson. The trial court sentenced defendant to consecutive prison terms of 30 years for murder and 15 years for aggravated battery with a firearm. The jury also found French guilty of first degree murder and aggravated battery with a firearm.
¶ 24 On appeal, defendant argues that (1) the trial court abused its discretion by admitting hearsay—i.e., that Kizer wanted to stop defendant‘s car and talk to him about something going on between Kizer‘s family and defendant—and allowing the State to misrepresent the evidence during closing argument; (2) the trial court abused its discretion during voir dire by badgering a biased juror into saying she would be fair and preventing defense counsel from making further inquiry into that juror‘s bias, and trial counsel rendered ineffective assistance by failing to use an available peremptory challenge to dismiss that juror; and (3) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant‘s claims of ineffective trial counsel.
A. Hearsay, Prior Inconsistent Statement, and Rebuttal Closing Argument
¶ 26 Defendant contends that the trial court abused its discretion when it admitted double hearsay during Thompson‘s testimony that Kizer told him Kizer wanted to stop defendant‘s car and talk to him about “something” that was “going on” between him and members of Kizer‘s family. Defendant also contends the trial court erred when it admitted as substantive evidence a statement from Johnson‘s signed written statement to the police and ASA—i.e., that Kizer‘s cousins were having a “beef” with defendant—because the statement was not inconsistent with Johnson‘s trial testimony and did not narrate any event about which Johnson had personal knowledge. Defendant also argues that this hearsay motive evidence was irrelevant and the State failed to link it to defendant or lay any foundation for its admission. Finally, defendant argues that the State committed prosecutorial misconduct by (1) misstating the evidence to argue that defendant had a motive to kill Kizer because defendant had a “beef” with Kizer and (2) arguing without any supporting evidence in the record that Johnson disavowed at the trial his prior
¶ 27 Defendant acknowledges that he has forfeited review of these issues by failing to both timely object and include these issues in his motion for a new trial. However, he asks us to review this issue under the plain error doctrine, arguing that the evidence was so closely balanced that the errors severely threatened to tip the scales of justice against him.
¶ 28 In general, a defendant preserves an issue for review by timely objecting to it and including it in a posttrial motion. People v. Denson, 2014 IL 116231, ¶ 11. However, we may review claims of error under the plain error rule (
¶ 29 A trial court‘s evidentiary rulings on hearsay testimony are reviewed for an abuse of discretion, which occurs when the trial court‘s ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the view adopted by the trial court. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Defendant argues that the determination of whether a specific statement is hearsay is purely a legal question reviewed de novo. Although reviewing courts sometimes
¶ 30 Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matters asserted. People v. Sullivan, 366 Ill. App. 3d 770, 779 (2006).
“The term matters asserted as employed in the definition of hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express. When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay. The declarant necessarily intends to assert (i.e., implicitly asserts) matters forming the foundation for matters directly expressed in the sense that such additional matters must be assumed to be true to give meaning to the matters directly expressed in the context in which the statement was made. [Citation.] To illustrate, the question ‘Do you think it will stop raining in one hour?’ contains the implicit assertion that it is currently
raining.” (Emphasis in original.) Michael H. Graham, Cleary and Graham‘s Handbook of Illinois Evidence § 801.1, at 635-36 (6th ed. 1994).
¶ 31 The presence or absence in court of the declarant of the out-of-court statement is irrelevant to a determination as to whether the out-of-court statement is hearsay. People v. Lawler, 142 Ill. 2d 548, 557 (1991). Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant. Caffey, 205 Ill. 2d at 88.
1. Thompson‘s Testimony
¶ 33 According to the record, Thompson testified that when defendant drove toward the group the second time, Kizer tried unsuccessfully to flag him down. When the prosecutor asked Thompson if Kizer told him why Kizer tried to stop defendant, defendant‘s counsel raised a hearsay objection. The prosecutor argued that the testimony was being elicited to prove motive and was not hearsay. Defendant‘s counsel responded that motive was not a hearsay exception, the statement was not made in the defendant‘s presence, it might be speculation, there was no foundation, and admission would violate defendant‘s right to confront witnesses. Codefendant French‘s counsel joined the objection. The trial court overruled the objections, found the testimony was not hearsay because it was not offered for the truth of the matter asserted, and allowed the testimony to explain the course of conduct. The trial court added that very often the statements of victims made just prior to their murder were admissible. Thompson then testified that Kizer said he wanted to stop defendant to talk “to him about what was going on between, something that his family and whatever, whoever has going on.”
¶ 35 Furthermore, we cannot agree with the trial court‘s ruling that the statement was not hearsay because it was offered for some reason other than to prove the truth of the matter asserted. Kizer‘s statement that he wanted to stop the car to talk to defendant about something contains the implicit assertion that Kizer believed he observed defendant in that car. This is not a situation where the out-of-court statement was relevant simply because of the fact it was said. E.g., People v. Poe, 121 Ill. App. 3d 457 (1984) (testimony that the witness spoke to the defendant over the telephone at a given time was offered as an alibi and thus was not hearsay); People v. Shoultz, 289 Ill. App. 3d 392, 395-96 (1997) (a statement offered to prove the listener had notice of the information contained therein was not hearsay). Here, the relevance of the implicit assertion in Kizer‘s out-of-court statement depends on Kizer believing that it was true, so it was offered for the truth of its content that defendant was in the car and therefore is hearsay. Similarly, Kizer‘s directly expressed assertion that he wanted to talk to defendant about something that was going on between defendant and Kizer‘s family is also relevant only for the truth of its content.
2. Johnson‘s Prior Inconsistent Statement
¶ 38 According to the record, information similar to Thompson‘s hearsay testimony came before the jury again, without any objection from defense counsel, when the State confronted Johnson with portions of his signed written statement to the police and ASA, i.e., that Kizer tried to get defendant‘s attention by calling out his name and that Kizer‘s cousins were having a “beef” or argument with defendant. Although Johnson denied making the signed statement, the State perfected its impeachment of Johnson during the testimony of Detective Clifford Martin, wherein the relevant excerpts of Johnson‘s written statement were admitted into evidence.
¶ 39 Defendant argues that Johnson‘s prior statement that Kizer‘s cousins were having a “beef” with defendant was not admissible as substantive evidence because it was not inconsistent with Johnson‘s trial testimony and he did not have personal knowledge of the alleged “beef.”
¶ 40 In a criminal case, a prior statement may be admissible as substantive evidence if it is inconsistent under
¶ 42 If a prior inconsistent statement is not admissible as substantive evidence, that statement may only be used for impeachment when the testimony of that witness does “affirmative damage” to the party‘s case. People v. Cruz, 162 Ill. 2d 314, 361-62 (1994) (citing People v. Bradford, 106 Ill. 2d 492, 500 (1985)). “It is only when the witness‘[s] testimony is more damaging than his complete failure to testify would have been that impeachment is useful.” People v. Sims, 285 Ill. App. 3d 598, 610 (1996) (citing People v. Weaver, 92 Ill. 2d 545, 563-64 (1982)). See also People v. Martinez, 348 Ill. App. 3d 521, 532 (2004) (damaging testimony “is not limited to direct contradictions but also includes evasive answers, silence, or changes in position“). For a witness‘s testimony to be affirmatively damaging, as opposed to merely
¶ 43 The record refutes defendant‘s assertion that the challenged prior statement was not inconsistent with Johnson‘s trial testimony. The term “inconsistent” in
¶ 44 This testimony was inconsistent with Johnson‘s prior signed statement, which narrated that, at the time of the shooting, Johnson observed defendant drive by the group on South Kenwood Avenue. Defendant was alone and drove a light green Chevy Cavalier. Kizer called out defendant‘s name to get his attention. Kizer‘s cousins had a “beef” or argument with defendant, who did not stop and sped off. When defendant drove by again about 15 to 30 minutes later, Johnson observed codefendant French hang out the passenger‘s-side window and fire several gunshots.
¶ 45 Furthermore, when the prosecutor questioned Johnson about giving the prior signed statement, she asked, “Isn‘t it true that you also told [the detective and assistant State‘s Attorney] *** that [Kizer‘s] cousin was having a beef with [defendant] and that the beef means that they
¶ 46 However, Johnson‘s prior inconsistent statement does not indicate whether his knowledge about the argument between defendant and Kizer‘s cousins was based on Johnson‘s observation of some event or whether he heard about it afterwards. The State argues that sufficient evidence showed that Johnson had personal knowledge about the “beef” between Kizer‘s cousins and defendant because Johnson‘s signed statement does not state that his knowledge came from Kizer or any statement Kizer, or anyone else, made to Johnson. According to the State, Johnson simply narrated from his own knowledge that there was a beef, and it is speculative to conclude that he learned about it by someone telling him about it rather than by Johnson being present when it occurred. As support, the State cites People v. Simpson, 2015 IL 116512, ¶ 34, where a witness gave a videotaped statement and said that the defendant admitted to the witness to beating the victim. The State used this videotaped statement as substantive evidence that the defendant struck the victim numerous times with a bat. The court concluded that the witness‘s videotaped statement was not admissible under
¶ 47 Simpson does not support the State‘s argument. Whereas the circumstances in Simpson clearly indicated that the witness did not have personal knowledge of the beating, Johnson‘s signed statement gives no indication whether the source of his knowledge about the argument
¶ 48 We find, however, that the prior inconsistent statement was admissible for impeachment purposes because Johnson‘s testimony did affirmative damage to the State‘s case where Johnson testified that the incident between Kizer and defendant happened earlier during the afternoon on the date of the shooting, at a different location outside a school, and no gunshots were fired. Johnson also affirmatively damaged the State‘s case when he disavowed his prior signed statement and grand jury testimony, which identified defendant and French as the offenders, claimed the prior signed statement was a forgery, and alleged that the police put him in a room with his cousin Thompson and urged Johnson to “go with” Stackhouse‘s signed written statement in exchange for a deal on Johnson‘s pending attempted murder case. See People v. Morales, 281 Ill. App. 3d 695, 701 (1996) (although the trial court improperly allowed a witness‘s handwritten statement as substantive evidence, that error was harmless because the statement was admissible to impeach the witness‘s credibility).
¶ 49 Even if Johnson‘s statement that Kizer‘s cousins had an argument with defendant was admitted erroneously as substantive evidence, the error was harmless because essentially the same evidence was properly and substantively introduced through Johnson‘s grand jury testimony, and there is no personal knowledge requirement for grand jury testimony under
¶ 50 Accordingly, we find no error in the admission of Johnson‘s prior inconsistent statement.
¶ 51 3. Relevance and Foundation
¶ 52 Defendant argues that the trial court abused its discretion by admitting the State‘s motive evidence, i.e., the two complained-of statements by Thompson and Johnson, because those statements were vague generalizations, were irrelevant, and lacked an adequate foundation. Defendant contends that the State failed to prove the facts constituting the alleged motive, defendant‘s knowledge of those facts, or that the motive was attributable to him at the time of the offense. Defendant contends that there was no evidence of who had a beef with defendant, which or how many of Kizer‘s cousins or family members were involved, when the beef arose, what the beef was about, or even that Kizer knew of or was part of the beef.
¶ 53 “Although the State has no obligation to prove motive, the State may introduce evidence which tends to show that an accused had a motive for killing the deceased.” People v. James, 348 Ill. App. 3d 498, 509 (2004). “The test of relevance is whether the fact introduced in evidence has a tendency to make the proposition at issue more or less probable.” People v. Merritt, 64 Ill. App. 3d 482, 488 (1978). “Generally, while any evidence which tends to show that an accused
¶ 54 We have already determined that Thompson‘s statement was inadmissible hearsay. Nevertheless, we proceed with our plain error analysis and find, contrary to defendant‘s argument on appeal, that the State established a proper foundation for Thompson‘s statement, which indicated that Kizer said it when Thompson observed Kizer try to stop defendant‘s car during the second drive-by. This occurred after 11 p.m. on August 19, 2010, while Kizer and Thompson were sitting or standing near a parked car on South Kenwood Avenue with other people Thompson named during his trial testimony. The record establishes that basic foundational requirements were met concerning Thompson‘s complained-of statement. Furthermore, Thompson‘s statement—that Kizer said he wanted to talk to defendant about something that was going on between Kizer‘s family and defendant—was too vague to suggest a motive and, thus, the additional foundation applicable to motive evidence was not implicated here.
¶ 55 The defense did not object to Johnson‘s prior inconsistent statement that Kizer‘s cousins and defendant were having an argument, and the application of the forfeiture rule “is particularly appropriate when a defendant argues that the State failed to lay the proper technical foundation for the admission of evidence” for the first time on appeal. People v. Woods, 214 Ill. 2d 455, 470 (2005). Nevertheless, we proceed with our plain error analysis and acknowledge that the admission of an out-of-court statement to show inconsistency with trial testimony requires an adequate foundation. See, e.g., People v. Hallbeck, 227 Ill. App. 3d 59, 63 (1992) (foundation
¶ 56 The record establishes that the basic foundational requirements were met when the prosecutor asked Johnson about his presence at the police station in January 2011; whether he spoke with the detectives and ASA; whether he signed each page of his January 21, 2011, written statement; whether his statement was voluntary; and whether he told the ASA and detective that he was present at the scene of the shooting, he observed Kizer attempt to stop defendant‘s car, and Kizer‘s cousins were having a “beef” with defendant. Although Johnson‘s signed statement did not specifically indicate the source of his knowledge about the “beef,” this did not prejudice defendant where, as discussed above, essentially the same information was properly admitted as substantive evidence through Johnson‘s grand jury testimony, which indicated that the conflict involved defendant following Kizer‘s cousin, who was engaged in selling drugs, that Johnson and Kizer observed defendant‘s harassing conduct and Kizer tried unsuccessfully to stop defendant‘s car, and that defendant returned shortly thereafter with French, who fired gunshots at Kizer‘s group. See Donegan, 2012 IL App (1st) 102325, ¶ 38 (because the same testimony was properly introduced substantively through the witnesses’ grand jury testimony, any alleged error by the trial court in permitting the introduction of their handwritten statements was harmless).
¶ 57 The relevance of motive evidence must be fairly inferable from the evidence; direct testimony to this effect is not necessary. People v. Wallace, 114 Ill. App. 3d 242, 249 (1983).
¶ 58 For purposes of our plain error review, we find that no clear error on relevance or foundation grounds occurred regarding the admission of the State‘s motive evidence.
¶ 59 4. The Prosecutor‘s Closing Argument
¶ 60 Next, defendant argues that the trial court improperly overruled defense objections during closing argument and thereby allowed the State to commit prosecutorial misconduct by interjecting matters unsupported by the evidence and misleading the jury regarding what the testimony actually established. Specifically, defendant contends that no evidence supported the prosecutor‘s argument that Johnson disavowed at trial his prior identifications of defendant and French as the offenders because Johnson was afraid of them. Defendant also contends that the
¶ 61 “The regulation of the substance and style of closing argument lies within the trial court‘s discretion; the court‘s determination of the propriety of the remarks will not be disturbed absent a clear abuse of discretion.” Caffey, 205 Ill. 2d at 128. A prosecutor is allowed wide latitude during closing arguments. People v. Nieves, 193 Ill. 2d 513, 532-33 (2000). A prosecutor may comment on the evidence presented at trial, as well as any fair, reasonable inferences therefrom, even if such inferences reflect negatively on the defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). Remarks made during closing arguments must be examined in the context of those made by both the defense and the prosecution, and must always be based upon the evidence presented or reasonable inferences drawn therefrom. People v. Coleman, 201 Ill. App. 3d 803, 807 (1990).
¶ 62 The court reviews de novo the legal issue of whether a prosecutor‘s misconduct, like improper statements at closing argument, was so egregious that it warrants a new trial. People v. Wheeler, 226 Ill. 2d 92, 121 (2007). The reviewing court asks whether the misconduct “engender[ed] substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.” Id. at 123. “Misconduct in closing argument is substantial and warrants reversal and a new trial if the improper remarks constituted a material factor in a defendant‘s conviction.” Id.
¶ 64 In People v. Blue, 189 Ill. 2d 99, 128-34 (2000), the court held that the trial court abused its discretion by permitting the jury to hear the prosecutor‘s arguments that the jury needed to tell the police it supported them and tell the victim‘s family that he did not die in vain and would receive justice. In People v. Hudson, 157 Ill. 2d 401, 441-46 (1993), the court found under the abuse of discretion standard that the prosecutor‘s closing argument remarks about the defendant‘s concocted insanity defense and his expert‘s lack of credibility did not exceed the scope of the latitude extended to a prosecutor. In contrast, in Wheeler, 226 Ill. 2d at 121-31, the supreme court reviewed de novo whether a new trial was warranted based on the prosecutor‘s repeated and intentional misconduct during closing argument, which involved vouching for police credibility, attacking defense counsel‘s tactics and integrity, disparaging former defense counsel, and persistently stating that the prosecution was representing the victims. Whereas a reviewing court applies an abuse of discretion analysis to determinations about the propriety of a prosecutor‘s remarks during argument (Blue, 189 Ill. 2d at 128; Hudson, 157 Ill. 2d at 441), a court reviews de novo the legal issue of whether a prosecutor‘s misconduct, like improper remarks during argument, was so egregious that it warrants a new trial (Wheeler, 226 Ill. 2d at
¶ 65 According to the record, defense counsel argued that the State had paraded in front of the jury witnesses who were all felons, shooters, thieves, people who resisted the police, probation violators, and people currently on probation or parole or suffering from dementia. Counsel argued that the State‘s witnesses were not credible due to their inconsistent statements, motives, or bias. Counsel also argued that the testimony of the State‘s witnesses was not corroborated by any DNA evidence, fingerprints, bullet casings at the scene, recovered gun, turquoise car, surveillance camera recording, or motive. According to counsel, the jury could not even think about motive because a motive had not been shown. Furthermore, counsel asserted that Johnson came to court with no fear, told the jury the truth, and was not afraid.
¶ 66 In rebuttal, the prosecutor responded that defendant and French perpetrated their brazen crime in front of the State‘s witnesses, thinking the witnesses would not come to court due to their criminal backgrounds and fear from the offenders’ bold surprise attack. Then the prosecutor argued, over the defense‘s objection, that although Johnson lied when he testified at the trial, his prior statements were truthful and admissible evidence “because the law knows *** [p]eople could have a change of heart and that‘s exactly what happened, and isn‘t Sherman Johnson justified in his possible fear of those two defendants?” Later, the prosecutor argued that the jury should not discount eyewitness testimony and “[t]here was a motive. [Defendant] had a beef with Roger Kizer.” The trial court overruled defendant‘s objection, and the prosecutor continued:
“[Defendant] had a situation with Roger Kizer. And then [defendant] came back. He‘s angry, anger what a motivating factor that is, and the motive, how are you
really going to explain the motive on such an irrational act like that besides anger to arm yourself with a gun and ride down the street with your partner driving, and he‘s got a loaded weapon that you‘re carrying as you‘re inching up there, and you‘re going to fire it at all of those people.”
¶ 67 We find no abuse of discretion by the trial court in overruling the defense objections. Viewed in context, the record establishes that the State was responding to the defense arguments that Johnson was not afraid when he testified at the trial and that there was no evidence of a motive. Hudson, 157 Ill. 2d at 441. Although the prosecutor erroneously stated that the argument was between defendant and Kizer, rather than defendant and Kizer‘s cousins, that comment was brief and isolated in the context of the entire closing argument, and the trial court thoroughly and repeatedly admonished the jury that closing arguments were not evidence. Accordingly, under a de novo standard, we find that the prosecutor‘s misstatement was not so egregious that a new trial is warranted. Cf. Wheeler, 226 Ill. 2d at 123-25.
¶ 68 5. Plain Error
¶ 69 Contrary to defendant‘s arguments about multiple errors involving inadmissible evidence, we find that the only clear error for purposes of our plain error analysis was the admission of Thompson‘s hearsay testimony that Kizer said he wanted to stop defendant to talk “to him about what was going on between, something that his family and whatever, whoever has going on.”
¶ 70 As discussed above, Thompson‘s hearsay contains the implicit assertion that Kizer believed he observed defendant in the car during the second drive-by. This implicit assertion that the deceased victim identified defendant does not pose a substantial risk of unfair prejudice to defendant because the State‘s four eyewitnesses also identified defendant as the driver of the car.
¶ 71 A defendant invoking the first prong of the plain error rule must show that the quantum of evidence presented by the State against him rendered the evidence closely balanced. People v. Sebby, 2017 IL 119445, ¶ 69. “Whether the evidence is closely balanced is, of course, a separate question from whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.” People v. Piatkowski, 225 Ill. 2d 551, 566 (2007). In order to determine whether the evidence was closely balanced, “a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case.” Sebby, 2017 IL 119445, 53.
¶ 72 Thompson positively identified defendant as the driver when the police spoke to him at the hospital the next day after the shooting. Although two days after the shooting Thompson did not identify anyone in the photo array, which included French‘s picture, as the shooter, that photo array consisted of black and white photos printed on paper, and Thompson testified that French looked “totally different” in his photo array picture from his actual appearance. Our review of the record indicates that French‘s picture in the photo array is slightly blurred around his chin area and his hair was longer than when he participated in the lineup, from which Thompson positively identified French as the shooter. Moreover, Thompson was in the hospital
¶ 73 Stackhouse had known both defendant and French since they were in preschool and identified them from photo arrays as the offenders only five days after the shooting. Stackhouse had the longest opportunity to observe the offenders approach during the final drive-by because he noticed defendant‘s car while it drove east on 74th Street and then turned south onto Kenwood Avenue. Furthermore, the upper half of French‘s body was hanging outside the passenger‘s-side window, French did not conceal his face, and Stackhouse stood on the sidewalk on the west side of Kenwood Avenue with an unobstructed view of the passenger‘s-side of defendant‘s car as it drove south on Kenwood Avenue. Although it was evening, the area was illuminated by streetlights, and Stackhouse even saw the gun in French‘s hand. Investigator Byrne‘s testimony failed to undermine Stackhouse‘s positive identifications of the shooter and the driver because Stackhouse denied speaking to Byrne about the shooting, Stackhouse never reviewed or signed Byrne‘s undated typed report of his alleged interview of Stackhouse, Byrne
¶ 74 Thompson‘s and Stackhouse‘s identifications of defendant and French as the offenders were corroborated by McWoodson‘s testimony and Johnson‘s prior inconsistent statements from his signed written statement and grand jury testimony. McWoodson was somewhat confused concerning some details, like whether he previously came to the criminal court building to appear before the grand jury and whether he identified French from a lineup as the shooter before McWoodson saw French‘s chipped tooth. Nevertheless, McWoodson knew defendant and French prior to the date of the shooting and identified them as the driver and shooter. Johnson‘s attempt to disavow his signed written statement and grand jury testimony, identifying defendant and French as the offenders, was unavailing. Johnson‘s statements identifying defendant as the driver and French as the shooter were essentially consistent with and even more detailed than the identification testimony of Thompson, Stackhouse, and McWoodson. Moreover, the testimony of the detectives and ASA established that Johnson‘s signed statement and grand jury testimony were accurate, voluntary, and not made in exchange for any promises of help in his pending case.
¶ 75 Although Stackhouse, McWoodson, and Johnson did not speak with police immediately after the shooting occurred, that is not surprising, considering that some of the witnesses were on probation and illegal drug use and sales and the consumption of alcohol were occurring on the street at the time of the shooting. Moreover, Stackhouse and Johnson spoke to the police only after they were arrested for separate offenses involving guns.
¶ 76 The defense opposed the State‘s identification evidence with weak alibi evidence. Defendant‘s alibi concerning the family party was weak, where family members asserted that the
¶ 77 The evidence in the instant case was not closely balanced. Thompson‘s inability to identify French as the shooter shortly after the incident does not detract from the credibility of two of the State‘s other identification witnesses, Stackhouse and Johnson. Thompson knew French from around the neighborhood but did not know his full name, whereas Stackhouse and Johnson had known both French and defendant for many years, since they were children. On the day after the shooting, Thompson, while in the hospital, told the police that defendant, whom Thompson had known for about three years, was the driver and identified him from a photo array. Thompson‘s failure to tell the police at that time that French was the shooter was not surprising where Thompson did not notice the car approach the group the third time because his back was facing the car, he ran when he heard the gunshots, he fell to the ground, and he crawled to the grass before observing defendant‘s car and its occupants. In addition, Thompson explained that his inability to identify French from the photo array two days after the shooting was because French, whom Thompson did not know as well as Stackhouse and Johnson knew French, did not resemble French‘s picture in that photo array. Thompson recognized French as the shooter when he saw him in person in the January 2011 lineup that was conducted after French was arrested. Stackhouse and Johnson‘s identification testimony of French was stronger than Thompson‘s.
¶ 78 The relative credibility of the State‘s identification witnesses over the reliability of defendant‘s alibi witnesses was obvious and apparent. The testimony of the alibi witnesses was not sound; its veracity was taxed by the circumstances surrounding the alleged party. Although the alibi witnesses claimed that the party was a surprise for their aunt, defendant and others were supposedly at the aunt‘s house since noon, getting her house ready for the alleged surprise in her presence. Furthermore, even though the aunt‘s recorded birth date of August 20 fell on a Friday in 2010, the party was held on Thursday, August 19, 2010, the date of the shooting. Also, the party lasted until about 3:30 a.m., despite the fact that several family members had to attend work that day. Although the alibi witnesses claimed that the party was held on a Thursday to accommodate a visiting relative who was leaving town on Friday, the aunt did not know the last name of that relative, who did not testify. In addition, no emails, invitations, or photographs documented the occurrence of the alleged large birthday party. Moreover, defendant‘s family members never informed the police of this alibi after they learned that defendant was arrested in February 2011.
¶ 79 We find, based on the record, that defendant does not meet his burden to show that the error was prejudicial, i.e., “that the quantum of evidence presented by the State against [him] rendered the evidence closely balanced.” (Internal quotation marks omitted.) Piatkowski, 225 Ill. 2d at 566. The error in admitting Thompson‘s hearsay testimony—the essential substance of
¶ 80 6. Ineffective Assistance of Counsel
¶ 81 In the alternative, defendant argues that trial counsel was ineffective by failing to object to Thompson‘s hearsay testimony, Johnson‘s prior inconsistent statements, and the lack of foundation for and irrelevance of this motive evidence. Defendant contends that if counsel had objected and kept out Thompson and Johnson‘s highly prejudicial statements in this close case, the outcome of the trial would have been different.
¶ 82 A defendant alleging a claim of ineffective assistance of counsel must satisfy both prongs of the test discussed in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that “counsel‘s performance was deficient” and the deficient performance “prejudiced the defense.” To satisfy the first prong, the defendant must show “that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688. The second prong requires the defendant to “show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. If an ineffectiveness claim can be disposed of on the ground of insufficient prejudice, then that course should be taken, and the court does not need to consider the quality of the attorney‘s performance. Id. at 697.
¶ 83 In reviewing a claim of ineffective assistance of counsel, this court reviews counsel‘s actions under the totality of the circumstances of the individual case. People v. Shatner, 174 Ill.2d 133, 147 (1996). Judicial scrutiny of counsel‘s performance is highly deferential, and counsel‘s trial strategy is given a strong presumption of reasonable professional assistance. Strickland, 466 U.S. at 689. To establish deficient performance, defendant must identify counsel‘s acts or omissions that allegedly are not the result of reasonable professional judgment and overcome the strong presumption that counsel‘s action or inaction was the result of sound trial strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007); Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Strickland, 466 U.S. at 689. Defendant must show that counsel‘s errors were so serious and his performance was so deficient that he did not function as the counsel guaranteed by the sixth amendment. Perry, 224 Ill. 2d at 342.
¶ 84 Because we have already determined that no clear error occurred concerning either the admission of Johnson‘s prior inconsistent statements (i.e., the statements were admissible impeachment, and any erroneous admission as substantive evidence was harmless given Johnson‘s grand jury testimony) or the foundation for and relevance of the motive evidence, we review defendant‘s ineffective trial counsel claim based only on counsel‘s alleged failure to object to Thompson‘s hearsay testimony.
¶ 85 The record, however, establishes that trial counsel did object to the admission of Thompson‘s hearsay testimony but the trial court overruled that objection. Accordingly, defendant cannot satisfy the deficient performance prong of the Strickland test and his ineffective trial counsel claim fails.
¶ 87 Defendant argues that the trial court abused its discretion during voir dire when the court “pestered” a juror to agree that she could be fair despite her expressed opinions to the contrary. Defendant also argues that the trial court abused its discretion by denying defense counsel a fair opportunity to probe the juror‘s blatant biases and prejudices against not only the type of crime in this case generally but also against defendant and codefendant specifically. Defendant concedes that he failed to preserve these issues for review but asks this court to consider them as matters of plain error under either the first or second prong of the plain error rule because the evidence was closely balanced and the trial court‘s serious error affected the fairness of the trial and challenged the integrity of the judicial process. Defendant also argues that trial counsel was ineffective for failing to use a preemptory challenge to dismiss this juror.
¶ 88 According to the record, during voir dire, juror J.W. stated that her son was the victim of a crime. Specifically, during the previous year, her son was putting his children in his car, and someone walking down the street was shooting. The car was struck but no one was hurt. During that same week, two “kids” in the neighborhood were shot but no one was charged. When the trial judge asked J.W. whether anything about what had happened to her family members would make her unfair here on this unrelated case, J.W. responded, “It is hard to say it wouldn‘t because, because it may.”
¶ 89 The judge then explained that a jury consists of 12 people with different backgrounds and life experiences and they are not told to disregard their life experiences because that would be impossible and would make our legal system less effective. While it was expected that J.W. would have negative feelings about the people who fired guns on her block and endangered her
¶ 90 The judge then explained that she had only a couple of minutes to speak with each juror and thus did not have the luxury of knowing J.W., so J.W., who knew herself better than anybody, had to answer this question honestly. The judge continued:
“I‘m not saying it‘s going to be easy, but do you think you are the type of person that [would be] able to work and make sure that you kept those feelings separate and give both of these defendants a fair trial? Do you think you would be able to do that?”
J.W. responded, “Yeah. Yes.”
¶ 91 During a sidebar, the judge referred to two other venire members who had started crying during questioning. The judge informed counsel that any further questioning of those two people would occur in chambers. After the sidebar, codefendant‘s counsel, Ms. Hatcher, questioned J.W. about her many years of work as a social worker, and the following occurred:
“Q. And the experience with your son, you know, when you have to talk about something like that that happens again, it can bring up the feelings all over?
MS. MURTAUGH [Assistant State‘s Attorney]: Judge, objection.
THE COURT: Sustained. I‘m going to sustain that line of questioning.
MS. HATCHER [Codefendant‘s Attorney]: Sure.
Q. [Codefendant‘s Attorney:] I‘d just ask you if maybe you think you can be fair in this case, but maybe this is not the right case for you, is that your feeling?
THE COURT: I‘m going to sustain that, because this we talked about. The line of inquiry is not if anybody wants to do. I‘m afraid the doors would open and I would lose the majority. But could you do it. I think she answered the question already.
Q. [Codefendant‘s Attorney:] Well, can I just follow up, because you, the first two times the judge asked you you weren‘t sure if you could do this job. Can you?”
MR. DEBONI [Assistant State‘s Attorney]: Objection.
THE COURT: I‘m going to sustain that.”
¶ 92 Thereafter, defendant‘s counsel, Mr. Murphy, questioned J.W.:
“Q. Miss [J.W.], I know you seemed like there was something about this case, where you couldn‘t be fair to the defendants. Is that what you were trying to say?
MS. MURTAUGH: Objection to that question.
THE COURT: Sustained.
Q. [Defendant‘s Attorney:] Is there anything in your mind that would prevent you being a fair juror?
A. My neighborhood is somewhat violent. You see a killing is going to happen at least once a month, once every two months. You get up at five o‘clock, you see a young man laying dead on the street. So I‘m looking at my neighborhood when I look at them.
Q. When you look at them, though, they say they‘re innocent in this case—
MS. MURTAUGH: Objection.
Q. [Defendant‘s Attorney:] Can you still presume them innocent because of your neighborhood?
THE COURT: I am going to sustain the [objection]. I think she‘s gone over it. As I said, the issue is not do you want to. Her answer would probably be no, if she is given a choice. But she indicated she would be a fair juror if pressed into service. So sustained as to that.
Q. [Defendant‘s Attorney:] Can you be fair to my client?
A. I will be fair.”
¶ 93 Later, defendant‘s attorney moved to strike J.W. for cause, arguing that she vacillated, would agree with whoever asked her the last question, and lived near the area where the offense occurred. Codefendant‘s counsel joined the motion. The court denied the motion, stating that it was understandable that people like J.W., whose family members had been crime victims, would, if given a choice, “rather not do it. But when pressed [J.W.] truthfully answered she could do it.” The trial court found that J.W. was sincere in her answer and even relented under questioning by defendant‘s counsel that she would be fair. Defense counsel did not use an available peremptory challenge against juror J.W.
¶ 94 In People v. Rinehart, 2012 IL 111719, our supreme court discussed the right to an impartial jury encompassed within the constitutional right to a jury trial.
“The trial court is primarily responsible for initiating and conducting voir dire ***. Because there is no precise test for determining which questions will filter out partial jurors [citation], the manner and scope of the examination rests within the discretion of the trial court, and we review such decisions for an abuse of
discretion. An abuse of discretion occurs when the conduct of the trial court thwarts the purpose of voir dire examination—namely, the selection of a jury free from bias or prejudice. [Citation.]; People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993) (‘[t]he purpose of voir dire is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath‘); see also People v. Clark, 278 Ill. App. 3d 996, 1003 (1996) (‘The purpose of voir dire is to enable the trial court to select an impartial jury and to ensure that the attorneys have an informed and intelligent basis on which to exercise peremptory challenges.‘). Stated differently, a trial court does not abuse its discretion during voir dire if the questions create ‘a reasonable assurance that any prejudice or bias would be discovered.’ People v. Dow, 240 Ill. App. 3d 392, 397 (1992).” Id. ¶ 16.
¶ 95 “While a prospective juror may be removed for cause when that person‘s ‘views would prevent or substantially impair the performance of his duties as a juror’ [citation], an equivocal response does not require that a juror be excused for cause.” People v. Buss, 187 Ill. 2d 144, 187 (1999). “An equivocal response by a prospective juror does not necessitate striking the prospective juror for cause where the prospective juror later states that he will try to disregard his bias.” People v. Hobley, 159 Ill. 2d 272, 297 (1994).
¶ 96 A review of J.W.‘s entire voir dire examination shows that the trial court did not abuse its discretion by questioning her to ascertain whether her strong feelings about her experiences would interfere with her ability to be fair to the parties in this case. The trial court is charged
¶ 97 We also find that the trial court acted within its discretion in sustaining the State‘s objections to defense counsel‘s inquiries of J.W. The record establishes that the trial court sustained objections to defense counsel‘s questions that were already asked of and answered by J.W. concerning her feelings about her family members being victims of crime and her ability to keep her strong feelings about her experiences with crime separate from this case and serve as a fair and impartial juror. Accordingly, the trial court did not abuse its discretion, so no error occurred and defendant is held to his forfeiture of this issue.
¶ 98 Finally, defendant argues that he was denied effective assistance of trial counsel when his attorney failed to use an available peremptory challenge to dismiss J.W. from the jury.
¶ 100 Defendant‘s argument that counsel‘s decision not to remove J.W. with a peremptory challenge was objectively unreasonable and cannot be attributed to a matter of jury selection strategy is not persuasive. J.W. was a retired social worker and several members of her family were also social workers. In addition, counsel was aware that the criminal records of the State‘s witnesses would be brought out at the trial. Moreover, both defendant‘s attorney and French‘s attorney evaluated the circumstances from their own perspectives at the time and both made the same strategic decision not to use a peremptory challenge against J.W.
¶ 101 Even if we were to assume a deficiency on the part of defense counsel, defendant has not shown the requisite prejudice. The prejudice prong of the Strickland test generally requires the defendant to show “a reasonable probability that, but for the counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Where a defendant challenges his conviction, the question is whether a reasonable probability exists that, absent the alleged errors, the fact-finder would have entertained a reasonable doubt of guilt. Id. at 695. The evidence against defendant was more than sufficient to establish his guilt and his alibi evidence was weak; as discussed above, the evidence was not closely balanced. The record does
¶ 102 C. Denial of the Krankel Motion
¶ 103 Defendant argues that the trial court erred when it failed to appoint new counsel for him and conduct a hearing on his pro se posttrial claims of ineffective assistance of trial counsel. Specifically, defendant argues that counsel admitted they did not interview two witnesses, who were listed on defendant‘s answer to discovery. Defendant also argues that the trial court failed to conduct an adequate Krankel inquiry into his claim that trial counsel failed to properly communicate with him and failed to present crucial information to rebut the State‘s motive evidence.
¶ 104 The common law procedure developed from People v. Krankel, 102 Ill. 2d 181 (1984), is triggered when a defendant raises a pro se posttrial claim of ineffective assistance of trial counsel. People v. Patrick, 2011 IL 111666, ¶ 29. It is settled that new counsel is not automatically appointed when that type of claim is raised. People v. Moore, 207 Ill. 2d 68, 77 (2003). Instead, the trial court first examines the factual basis of the defendant‘s claim. Id. at 77-78. If the trial court determines the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. Id. at 78. A claim lacks merit if it does “not bring to the trial court‘s attention a colorable claim of ineffective assistance of counsel” (People v. Johnson, 159 Ill. 2d 97, 126 (1994)), or is “conclusory, misleading, or legally immaterial” (internal quotation marks omitted) (People v. Burks, 343 Ill.App. 3d 765, 774 (2003)). However, if the allegations show possible neglect of the case, new counsel should be appointed to investigate the defendant‘s claims and present them at a hearing. Moore, 207 Ill. 2d at 78. The goal of a Krankel proceeding is to facilitate the trial court‘s full consideration of a defendant‘s pro se claims of ineffective assistance of trial counsel and thereby potentially limit issues on appeal. Patrick, 2011 IL 111666, ¶ 41; People v. Jocko, 239 Ill. 2d 87, 91 (2010).
¶ 105 “[S]ome interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant‘s claim.” Moore, 207 Ill. 2d at 78. A trial court assesses the defendant‘s pro se claim based on (1) defense counsel‘s answers to questions and explanations of facts and circumstances surrounding the defendant‘s allegations, (2) a brief discussion between the trial court and the defendant, or (3) the trial court‘s knowledge of defense counsel‘s performance at trial and the insufficiency of the defendant‘s allegations on their face. Id. at 78-79.
¶ 106 The supreme court has held that if the trial court made no determination on the merits, then our standard of review is de novo, which means we perform the same analysis that a trial judge would perform. Id. at 75; Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). If the trial court has reached a determination on the merits of a defendant‘s ineffective assistance of counsel claim in a Krankel inquiry case, we will reverse only if the trial court‘s action was manifestly erroneous. McCarter, 385 Ill. App. 3d at 941. “Manifest error” is error that is plain, evident, and indisputable. People v. Morgan, 212 Ill. 2d 148, 155 (2004). Even if the reviewing
¶ 107 Defendant raised 17 claims in his Krankel motion but only pursued 3 in this appeal. First, defendant alleges he met his burden to show possible neglect because counsel admitted during the Krankel inquiry that no records indicated they ever interviewed two possible alibi witnesses, Ruby Harris or Arielle. Defendant offers no indication about the substance of testimony from these potential additional witnesses. At the Krankel inquiry, one defense attorney said the five alibi witness who testified “were all prepared,” had all been “talked to in [his] office,” and most of them more than once. He did not call the additional witnesses because they would not have benefitted the alibi but he could not recall why they would not have been helpful. The other attorney said that she could not recall without her notes whether the witnesses were detrimental to the alibi or simply did not see defendant during the relevant time period. Later, this attorney stated at the hearing on defendant‘s motion to reconsider the denial of his Krankel motion that she did a thorough investigation of the file and her records did not reflect whether the two witnesses were not amenable to coming in or missed appointments, so counsel had no recollection whether she interviewed them.
¶ 108 We find that defendant failed to show possible neglect concerning this claim. The record establishes that the trial court conducted a thorough Krankel inquiry of this issue. Furthermore, the court‘s finding that counsel made a strategic decision not to call the additional alibi witnesses was not manifestly erroneous and was supported by the evidence. Five alibi witnesses was a large number, and the more alibi witnesses presented, the greater the potential they would step on each other‘s testimony and create the impression that the alibi (here, a large family party)
¶ 109 Second, defendant argues that the trial court failed to conduct an adequate inquiry into whether defense counsel failed to properly communicate with him. Defendant alleged that counsel visited him in jail only once before the trial and would merely inform him of continuances at status hearings. Counsel responded that he talked to defendant for “countless hours” about the evidence and this case. Although counsel was not sure how many times he visited defendant in jail, he knew that he brought a notebook and showed defendant everything possible. Also, the trial judge observed that counsel had talked to defendant in the back of the courtroom numerous times during the three year pendency of this case. Furthermore, defendant admitted that he and counsel had discussions about defendant‘s alibi and counsel had read the reports and knew the circumstances about defendant‘s arrest and identification as the offender. Defendant also acknowledged that counsel explained why certain pretrial motions were not appropriate, why witnesses would be discredited due to their backgrounds, and why using information about another murder case to show the occurrence witnesses’ motive to implicate defendant would make defendant look bad.
¶ 111 Third, defendant argues that the trial court failed to conduct an adequate inquiry of counsel‘s alleged failure to present evidence to explain the motives of the State‘s occurrence witnesses to implicate defendant in this offense. At the Krankel inquiry, defendant stated that codefendant French had been acquitted of murder in 2009 in a case involving the friends and relatives of the State‘s occurrence witnesses, so they had a vendetta against French. Defense counsel indicated that he decided the information about French‘s 2009 acquittal of murder would not have benefitted defendant‘s case. Later, at the hearing on the motion to reconsider, defendant stated that French and Rico Clark were charged in 2007 for the murder of Damion Kendrick, who was a close friend of all the State‘s occurrence witnesses. Although defendant was “brought in” about that case, he was never charged. After French and Clark were acquitted in 2009, Kendrick‘s family and friends showed defendant “an undeserved animosity.”
¶ 112 We find no error in the trial court‘s inquiry about this claim. As defense counsel properly assessed, the information that the witnesses were hostile to defendant because codefendant French and another man were acquitted of murdering the witnesses’ close friend actually would have given defendant a motive to commit the drive-by shooting in this case. Consequently, the record shows that the strategic decision not to present this evidence was sound.
¶ 114 We conclude that the trial court did not err when it denied defendant‘s posttrial ineffective counsel motion without appointing new counsel and conducting a hearing because defendant‘s claims pertained only to matters of trial strategy and did not show possible neglect of the case.
¶ 115 III. CONCLUSION
¶ 116 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 117 Affirmed.