*1 Illinois Official Reports
Supreme Court
People v. Jackson
,
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON JACKSON, Appellant. Court:
Docket No. 124112
Filed March 19, 2020
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Review
John Baricevic, Judge, presiding. Judgment Affirmed.
Counsel on James E. Chadd, State Appellate Defender, John M. McCarthy and Catherine K. Hart, Deputy Defenders, and Susan M. Wilham, Appeal
Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Michael L. Cebula, Assistant Attorneys General, of Chicago, of counsel), for the People. *2 Justices JUSTICE NEVILLE delivered the judgment of the court, with
opinion.
Chief Justice Anne M. Burke and Justices Kilbride, Garman, Karmeier, and Theis concurred in the judgment and opinion. Justice Michael J. Burke took no part in the decision.
OPINION
Following a jury trial in the circuit court of St. Clair County, defendant, Aaron Jackson,
was convicted of first degree murder (720 ILCS 5/9-1(a) (West 2008)) and was sentenced to a
term of 35 years’ imprisonment. The appellate court affirmed.
Illinois, was fatally shot at close range while seated in his white four-door Buick Regal. Witnesses told police that they heard gunshots, saw the victim’s car crash into a tree, and then saw defendant exit the victim’s vehicle and get into a waiting vehicle, which drove from the scene. The victim was found slumped over in the driver’s seat of his car. He sustained three gunshot wounds to the right side of his chest. Both front airbags were deployed. No firearm was recovered, but police found three spent bullets inside the vehicle. On May 28, 2010, a grand jury indicted defendant of first degree murder for the shooting death of the victim. A. First Trial Defendant’s first jury trial, which commenced on October 17, 2011, ended in mistrial on October 20. Testimony from the mistrial relevant to this appeal comes from State witnesses Nortisha Ball and Laqueshia Jackson. Ball’s testimony is relevant because defendant argues that inconsistencies in her testimony from the mistrial and retrial rendered the evidence insufficient to convict him of first degree murder. Jackson’s testimony is relevant because defendant argues that defense counsel was ineffective for failing to call her as a witness at his retrial. At the time of trial, Ball was being held on pending charges of residential burglary and
theft. Ball acknowledged that she was not promised anything in exchange for her trial testimony. Ball testified that she met with Illinois State Police Special Agent Joseph Bates and gave him a statement concerning what she witnessed. Her statement was videotaped. Ball’s trial testimony was inconsistent in some respects with her videotaped statement. In her statement, Ball acknowledged telling Special Agent Bates that she heard two gunshots and that, after the victim’s car crashed into the tree, she saw a man she knew as “Chill” exit the vehicle. Ball explained that defendant was known as “Chill.” Ball told Bates that, after defendant exited the crashed vehicle, he got into a red Impala and drove from the scene. *3 ¶ 8 Ball testified at trial, however, that, just before the victim’s car hit the tree, she saw
someone get out of the driver’s side of the vehicle and thought that person might have been defendant. Ball further testified that she could not remember any details of her statement or conversation with Bates because she was under the influence of drugs or alcohol during the interview. A week after the shooting, Ball met with Special Agent Bates for a follow-up interview.
During the interview, Ball picked defendant’s picture out of a six-picture photo array. Ball testified that she circled defendant’s picture because Bates asked her if she knew any of the people pictured in the photo array and that defendant was the only person she recognized. Laqueshia Jackson testified that on April 1, 2010, she was staying overnight at her mother’s house when she received an early morning call from ADT Security Services notifying her that her home’s burglar alarm had been activated. Jackson drove to her house and parked in the driveway but decided not to enter the house because there were no police on the scene. Jackson was turning out of the driveway to return to her mother’s house when she heard gunshots, and as she drove further up the street, she heard a “loud boom” and then saw that a white car had crashed into a tree. Jackson slowed her vehicle and then saw a man she knew as “Chill” exit the passenger side
of the crashed car and “limp” to a white Suburban. Jackson testified that the Suburban was owned and driven by her ex-boyfriend, David Taylor. Jackson met with Special Agent Bates and, during the interview, picked defendant’s picture out of a photo array. Jackson testified that she recognized defendant not only from seeing him around the neighborhood but also from his limp, which she believed was caused by a recent gunshot injury. Jackson made an in-court identification of defendant as “Chill.” Prior to commencing proceedings on the second day of trial, and outside the presence of
the jury, the trial court informed counsel for both sides that it had become aware of anonymous threats made against Jackson and her children. The trial court questioned the assistant state’s attorneys as to why the court had to learn of this development “second hand.” The trial court admonished the assistant state’s attorneys of their duty to promptly inform the court of such information. The trial court directed the assistant state’s attorneys to investigate the matter and report back to the court. On the next day of trial, during a break in the proceedings, one of the assistant state’s
attorneys informed the trial court and defense counsel that his office had received an anonymous phone call stating that, if Jackson were recalled to testify, she should be questioned as to whether a police officer offered her a bribe to testify that he was never at the crime scene. The officer in question was Washington Park detective Kim McAfee, who was one of the detectives assigned to investigate the shooting of the victim. At the time of trial, Detective McAfee had been indicted on federal charges of business fraud unrelated to defendant’s case. After discussing the matter off record, the trial court agreed that Jackson should be recalled and questioned outside the presence of the jury as to the validity of the alleged bribe. The proceedings were continued while the state’s attorney’s office attempted to locate Jackson. Later that day, Jackson returned to court and underwent questioning, outside the presence of the jury, regarding the alleged bribe. Jackson testified that she was never offered a bribe or given any money from a police officer concerning her testimony. Jackson testified that *4 Detective McAfee was at the crime scene when she spoke with another investigating officer but that she never spoke directly to McAfee.
¶ 16 Jackson was also questioned about the anonymous threats she had received. Jackson
explained that she did not want to testify any further because she had received anonymous phone calls threating her and her children. She stated that the caller knew the times she left court, where she attended school, where she lived, and the times her children got on and off their school bus. Jackson also testified that someone claiming to be from the state’s attorney’s office had called her children’s school asking to speak with them. Jackson claimed that her children were afraid to leave the house or go to school. Defense counsel then expressed concern that defendant could be prejudiced if Jackson was
recalled for additional cross-examination and the jury observed her terrified demeanor and saw her “sobbing.” Defense counsel consulted with defendant and deferred to his agreement to have Jackson cross-examined in the presence of the jury but outside the presence of courtroom spectators. Jackson returned to the witness stand and in the presence of the jury acknowledged that
she was previously questioned as to whether she ever spoke with Detective McAfee. When defense counsel asked Jackson what her response had been to this question, she initially claimed she could not remember but then fell silent and failed to respond to any further questioning. At this point, the jury was ushered out of the courtroom, and a short recess was taken.
Jackson subsequently suffered a seizure. When the jurors returned to the courtroom, the trial court released them for the day but, before doing so, admonished them not to discuss the case and to avoid all media coverage of the trial. After the jury was released, the trial court called deputy court clerk Mary Ponder to the
witness stand and questioned her about Jackson’s condition. Ponder testified that Jackson was crying and claimed she had seen a dark-haired woman with blonde highlights in the hallway of the courthouse and that this woman was the same person who had shown up at her house the previous night. The trial court then agreed that the record should reflect that Jackson went into a “stupor” on the witness stand, the jury was subsequently removed from the courtroom, and thereafter Jackson suffered a seizure and was taken to the hospital by ambulance. The following morning, the trial court recalled Ponder to question her, outside the presence of the jury, about a phone call she received that morning from Jackson’s sister, Angela Dodd. Ponder testified that Dodd told her that Jackson suffered another seizure and was admitted to the hospital. Jackson’s blood pressure was elevated, and paramedics were concerned she might suffer a stroke. According to Dodd, Jackson told the paramedics “If I do have a stroke, let me die because if I don’t die they’re going to kill me.” Dodd also told Ponder that she witnessed Detective McAfee tell Jackson that if she kept her mouth shut, he would pay her off. Following Ponder’s testimony, defense counsel moved for a mistrial on the ground that defendant’s right to a fair trial was prejudiced by what jurors saw when Jackson went into a stupor on the witness stand and by what they heard when she suffered a seizure within hearing distance of the jury room. The trial court denied the motion, stating in part that it did not believe that Jackson’s illness
in and of itself was grounds for a mistrial. The trial court stated that “[a]ll the jury knows is that the witness became ill.” The trial court added there was no reason to assume the jury *5 believed that Jackson’s illness was related to defendant. The trial court also expressed skepticism that the jury might have overheard anything in connection with the treatment Jackson received after suffering her seizure, pointing out that the jury was separated in “another room.”
¶ 24 The trial court then called bailiff Tyrone Jordan to the witness stand. Jordan testified
outside the presence of the jury that a woman identifying herself as Angela had called the court and left a phone number. Jordan called the phone number and spoke with a woman who identified herself as Angela Dodd, Jackson’s sister. Dodd told Jordan that her nephew had received an anonymous phone call telling him that Jackson should not testify in the case and that defendant “could beat” the case if she refused to testify. When the court proceedings resumed after lunch, the assistant state’s attorney advised the
court and defense counsel about an anonymous phone call his office received during lunchtime. The caller stated that the state’s attorney’s office should investigate Detective McAfee and claimed that the detective offered Laqueshia Jackson money in exchange for her testifying that the detective was never at the crime scene. The assistant state’s attorney then told the court and defense counsel about a recent phone conversation he had with Jackson where she admitted that Detective McAfee had offered her money in exchange for her testimony. The assistant state’s attorney added however that Jackson continued to insist that her prior testimony about the shooting was “accurate.” Defense counsel renewed his motion for a mistrial. The trial court granted the motion,
explaining that the latest revelations of possible witness tampering and alleged perjured testimony had created a situation that deprived defendant of a fair trial. B. Second Trial Defendant’s second jury trial began on April 24, 2012. Sergeant Wendell Wilson of the
Washington Park Police Department was the first officer on the scene. Sergeant Wilson testified that as he was securing the crime scene he was approached by Ball, who informed him that she had information regarding the shooting. Sergeant Wilson was familiar with Ball because he had arrested her on prior occasions. Sergeant Wilson secured Ball in his squad car until she was turned over to Detective McAfee. Ball testified again for the State. At the time of trial, she was serving a four-year prison
sentence for burglary. Ball testified that on April 1, 2010, at about 5:30 a.m., she was hanging outside with some people when she saw and heard a car crash into a tree. Ball testified that, after the crash, she saw a male passenger exit the vehicle. Ball stated that the man’s hair was braided, but she could not see his face. The State attempted to impeach Ball with the videotaped statement she gave to Special Agent Bates. Ball testified that she remembered giving the statement but could not recall any of its
details. Ball reluctantly acknowledged that her memory would be refreshed if she watched the videotaped statement. The trial court, along with defense counsel, the assistant state’s attorneys, and Ball, watched the videotaped statement outside the presence of the jury. Ball was recalled to the witness stand and, in the presence of the jury, testified that her memory was refreshed after viewing her videotaped statement. Ball admitted telling police that, after the victim’s car crashed into the tree, she saw “Chill” exit the car and limp to a red *6 Chevy Impala, which drove from the scene. Ball testified that she recognized “Chill” because he once dated her sister. Ball claimed she was standing across the street from the car crash when she was approached
by a police officer she knew as Wendell Wilson. Ball testified that she and Wilson talked but that they did not discuss the crash. Ball claimed that she spoke with Detective McAfee and Special Agent Bates that morning and told them what she witnessed concerning the crash. After Ball claimed that she never told police she heard gunshots, she was impeached with her prior statement, where she claimed she heard gunshots. Ball responded that she had lied to the police. Ball also testified that she picked defendant’s picture out of a six-picture photo array because Detective McAfee told her to circle defendant’s picture. At this point, over defense counsel’s objection, the trial court granted the State’s request to
treat Ball as a hostile witness in order to impeach her with her prior statement to Special Agent Bates. Ball initially claimed that she lied to Bates but then claimed she was under the influence. Ball acknowledged however that the information in her statement was probably more accurate than her trial testimony because the statement was made closer in time to the incident. Ball admitted telling Special Agent Bates that she witnessed defendant exit the victim’s car after it crashed into the tree but then testified that she did not know who the person was who exited the vehicle and denied it was defendant. On cross-examination by defense counsel, Ball testified that, after the car crash, Detective
McAfee transported her to the police station. Ball testified that, during the ride to the police station, McAfee told her that, if she saw something, to tell him; otherwise she would be arrested. Ball testified that McAfee told her that he already knew from another witness that defendant was the person who got out of the victim’s car after it crashed into the tree. Ball claimed that McAfee told her to tell the police that defendant was the person who exited the crashed vehicle; otherwise she would be arrested. Ball testified that, when she arrived at the police station, she spoke with Special Agent Bates. When defense counsel asked Ball if anyone had threatened her, she responded that she had not been threatened but then claimed she “got scared” when her cousin informed her that her name was in the newspaper. On redirect examination, and over defense counsel’s objection, the trial court permitted the
State to impeach Ball with a letter she wrote to the trial court while in jail. In the letter, Ball writes that she is “scared,” she requests to be put in protective custody, and she states, “Please help me. I’m admitting to everything that happened. It was Jackson that killed the mayor.” Ball acknowledged writing the letter but claimed it was not true. Ball testified that she wrote the letter because she was mad at something that happened long ago, which she refused to discuss, but which she claimed had nothing to do with defendant’s case. The letter was admitted into evidence over defense counsel’s objection. Special Agent Bates testified that, after he interviewed Ball, he focused his investigation
on defendant. Bates interviewed and obtained a videotaped statement from defendant on the morning of the murder. The videotaped interview was played for the jury. In the interview, defendant claims that in the early morning hours of April 1, 2010, he was walking down 47th Street when he heard gunshots and started running. He fell and thought he had been shot. He went to his girlfriend’s apartment but could not remember how he got there or anything else that happened during that time. In his videotaped statement, defendant can be seen limping. *7 ¶ 38 Gilda Lott testified for the State regarding the events at issue. She was not a witness at
defendant’s first trial. Police first interviewed Lott in March 2012, nearly two years after the murder. Lott was in jail awaiting trial on a charge of reckless driving. At the time of trial, there were criminal charges pending against Lott. She acknowledged
that no threats or promises were made to her in exchange for her trial testimony. Lott testified that on April 1, 2010, at around 5 a.m., she was standing outside her
daughter’s house talking with friends, including Nortisha Ball, when she saw a car come down 47th Street and hit a tree. Lott claimed she did not see who was driving the car but at the same time testified that, after the car crashed into the tree, she saw “Chill” get out of the driver’s side of the vehicle. Lott testified that, after Chill exited the vehicle, he ran and “jump[ed] in a car with somebody else.” When Lott was asked to clarify whether defendant ran or walked, she testified that he was “limping.” Lott was also asked if she ever gave a statement to police claiming that the driver of the waiting vehicle got out and helped defendant into the vehicle. Lott admitted that, if she made the statement, it would be accurate. Lott made an in-court identification of defendant as “Chill” and testified that she knew him from the neighborhood. On cross-examination, defense counsel attempted to impeach Lott with statements she made to him and his investigator Michael Boyne during a speakerphone conversation and subsequent face-to-face meeting. Defense counsel inquired if Lott remembered telling him and his investigator that she did not actually see anyone get out of the car after it crashed into the tree and that she identified defendant because she thought that was what the police wanted to hear and she believed it would help her case. Lott denied seeking any favorable treatment in return for her statement to the police. Lott
acknowledged her conversations with defense counsel and his investigator but claimed she could not remember what she said during those conversations because she had recently been hit in the head with a baseball bat, causing memory loss. When asked how she could remember events that occurred on the morning of the murder, two years before trial, if she was unable to remember a conversation that took place three days earlier, Lott responded “Because when I got hit in my head, before I could remember very well.” On redirect and recross-examinations, the State and defense counsel continued questioning
Lott as to whether she saw defendant get out of the car after it crashed into the tree. Lott insisted that she saw defendant exit the crashed vehicle, from the driver’s side. Boyne testified for the defense about the conversations he and defense counsel had with
Lott. According to Boyne, when Lott was asked if she ever saw defendant get out of the car after it crashed into the tree, she responded that she saw the car crash but did not see who exited the vehicle after the crash. Boyne testified that, when he asked Lott why she identified defendant to the police, she responded that she thought it would help her get out of jail. Boyne testified that, although Lott agreed to give him a written statement to that effect, she never did so. Cynthia Hooker, defendant’s girlfriend and the mother of two of his children, testified that
on the night of March 31, 2010, she left work and returned to her apartment at about 11 p.m. Defendant was at the apartment, but he left shortly thereafter in her red Chevy Impala. Hooker testified that she went to sleep and, when she woke up the next morning just before 7 a.m., she saw that defendant had returned to the apartment. Hooker and defendant argued about him being out all night. Defendant claimed he was out gambling.
¶ 46 Hooker testified that she and defendant were in her apartment watching television when a
news report came on about the fatal shooting of the victim. The news report stated that the police were looking for a red Impala. A few hours later, police arrived at Hooker’s apartment. The police towed her car and then came to her front door. Hooker testified that defendant got dressed and told her that he did not know why the police were there but that they were probably looking for him. The parties stipulated that, on the day of the shooting, Detective McAfee transported defendant to the police station.
¶ 47 Dr. Raj Nanduri, who conducted the autopsy on the victim, testified that the victim suffered
three gunshot wounds to the front right side of his chest, including a contact wound underneath his right nipple. Dr. Nanduri concluded, within a reasonable degree of scientific certainty, that the victim died as a result of the gunshot wounds. The State presented expert testimony concerning the forensic evidence recovered in this
case. Abby Keller, a crime scene investigator with the Illinois State Police, photographed the victim’s vehicle, including blood on the airbags, the dashboard between the airbags, the seats, the door panels, the ceiling of the vehicle, and the exterior of the vehicle near the top of the windshield on the passenger side and the rear passenger-side door. Swabs of the blood evidence were collected. Three spent bullets were recovered from inside the vehicle along with a cell phone. Keller dusted the vehicle for fingerprints and collected 57 lifts. Melissa Gamboe, a fingerprint examiner with the Illinois State Police, testified that she
examined the latent fingerprints lifted from the victim’s car and identified one of the fingerprints as belonging to defendant. The fingerprint was found near the front passenger door handle underneath the window. Robert Berk, a trace evidence analyst with the Illinois State Police, analyzed the gunshot
residue kits performed on defendant’s hands. He also analyzed defendant’s clothing for the presence of gunshot residue and residue from the deployed airbags. No airbag residue was found on defendant’s hands or clothing. However, gunshot residue was found on his left hand, the left shoulder area of his T-shirt, and the right thigh area of his jeans. Ellen Chapman, a forensic scientist with the Illinois State Police, analyzed the gunshot
residue kits performed on defendant’s hands. She found gunshot residue on his left hand, but none was found on his right hand. Jay Winters, a forensic scientist with the Illinois State Police, performed DNA testing on a
small bloodstain recovered from defendant’s jeans. Due to the small size of the bloodstain, Winters was only able to obtain a partial DNA profile, which was from a male. Winters compared the partial DNA profile to known DNA standards obtained from defendant and the victim. Defendant was excluded as a possible contributor to the partial DNA profile recovered
from his jeans. Winters testified that, although the victim could not be excluded as a contributor, the partial DNA profile was “consistent” with having originated from the victim. Winters added that, although the partial DNA profile recovered from defendant’s jeans did not precisely “match” the victim’s DNA, he opined within a reasonable degree of scientific certainty that it “likely” came from the victim. Utilizing updated DNA recalculations, Winters explained that the partial DNA profile occurred in only 1 out of every 46,000 unrelated African American individuals, 1 out of every 73,000 unrelated Caucasian individuals, and 1 out of every 17, 000 unrelated Hispanic individuals.
¶ 55 The jury found defendant guilty of first degree murder, and he was sentenced to 35 years
in prison. On September 7, 2012, following a hearing, the trial court denied defendant’s posttrial motion. Defendant filed his appeal the same day.
¶ 56 A week later, defendant, pro se , sent a letter to the trial court arguing that the evidence was
insufficient to prove him guilty of first degree murder. Defendant also argued that he was not fairly represented by his trial counsel. The trial court did not address the letter.
¶ 57 The appellate court dismissed defendant’s pending appeal as premature but remanded the
matter to the trial court to conduct a preliminary inquiry into defendant’s
pro se
claims of
ineffective assistance of counsel in accordance with
People v. Krankel
,
of the issues raised on appeal. II. ANALYSIS Before this court, defendant contends that his conviction should be reversed because the
evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant
alternatively seeks a new trial because the prosecutor made two mischaracterizations during
closing argument that were prejudicial and constituted reversible error. Also, defendant seeks,
as alternative relief, appointment of counsel to address the merits of his
pro se
claim of
ineffective assistance of counsel, pursuant to ,
degree murder beyond a reasonable doubt. Defendant argues that the two eyewitnesses to the incident, Nortisha Ball and Gilda Lott, were not credible because they gave inconsistent and contradictory accounts of the incident. Defendant also argues that the physical evidence linking him to the crime scene “was weak” and did not place him inside the victim’s car. When a defendant challenges the sufficiency of the evidence, a reviewing court must
determine whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.
People v. Jackson
,
contradictory versions of the incident. Defendant points out that Ball claimed that, after the
mayor’s car crashed into the tree, she saw defendant exit from the front passenger side of the
car, while Lott testified that she saw him exit from the driver’s side of the vehicle. We do not
believe that this discrepancy rendered the whole of Lott’s testimony unworthy of belief. See,
e.g.
,
People v. Brooks
,
were standing when they observed the crash, how defendant exited the crashed vehicle, and
who called the police, are issues to be resolved by the jury as the trier of fact. It is the function
of the jury as the trier of fact to assess the credibility of the witnesses and to resolve
discrepancies and inconsistencies in the evidence.
Evans
,
testimony and statements to police identifying defendant. It is well settled that the recantation
of testimony is generally regarded as unreliable, especially where it might have resulted from
duress or perceived threat.
Brooks
,
who exited the victim’s vehicle after it crashed into the tree. Lott admitted that, if she made the statement, it would be accurate. It was up to the jury as the trier of fact to determine whether *11 Lott’s statement was more credible than her subsequent recantation. See id. at 133 (trier of fact could have reasonably believed that statement implicating defendant was truthful and that subsequent recantation was untruthful). Continuing his challenge to the sufficiency of the evidence, defendant points to Lott’s
issues with her memory and her alleged motive to fabricate her testimony because she was in
jail when she identified defendant. Defendant’s challenge addresses the province of the jury,
not this court of review. The jury observed Lott testify and was made aware of her criminal
history and memory problems. The jury, as the trier of fact, was in a much better position than
we are to determine Lott’s credibility and the weight to be accorded to her testimony.
Tenney
,
weak” and did not place him inside the victim’s car. Defendant observes that no hair or fiber
evidence connected him with the car, there was no evidence that he came into contact with an
automobile airbag, and no gun was recovered. However, it is not necessary that the trier of fact
find each fact in the chain of circumstances beyond a reasonable doubt. Rather, the trier of fact
must find only that the evidence taken together supports a finding of the defendant’s guilt
beyond a reasonable doubt.
Evans
,
discussion of every piece of evidence as well as every possible inference that could be drawn
therefrom. To engage in such an activity would effectively amount to a retrial on appeal.”
People v. Wheeler
,
gunshot residue was found on defendant’s hand and clothing. Moreover, an expert witness opined, within a reasonable degree of scientific certainty, that the partial DNA profile recovered from defendant’s jeans “likely” came from the victim because the profile occurred in only 1 out of every 46,000 unrelated African American individuals, 1 out of every 73,000 unrelated Caucasian individuals, and 1 out of every 17, 000 unrelated Hispanic individuals. Ball and Lott testified and gave statements claiming that, when defendant exited the victim’s vehicle after it crashed into the tree, he was limping. This was corroborated by defendant’s videotaped statement showing his limp. Ball testified that, after defendant exited the victim’s crashed vehicle, he got into a red
Impala, the same type of automobile defendant’s girlfriend owned, which she testified he was driving at the time of the incident. In addition, defendant’s videotaped statement, which was played for the jury, placed him at the crime scene at the time the shooting occurred, and he had no explanation as to how he arrived back at his girlfriend’s apartment after the shooting. We have reviewed all of the evidence presented in defendant’s trial in the light most favorable to the prosecution. We cannot say that the evidence was so improbable, unsatisfactory, or unreasonable as to justify a reasonable doubt of defendant’s guilt. *12 B. Prosecutor’s Closing Argument 1. Mischaracterization of the Evidence Defendant next contends that the prosecutor exaggerated two pieces of evidence during the State’s closing argument. Defendant argues that these two mischaracterizations were improper and prejudicial and denied him a fair trial. Before this court, defendant seeks a new trial. During the State’s closing argument, the prosecutor reminded the jury of DNA analyst Winters’s testimony that the bloodstain on defendant’s jeans revealed a partial profile that occurs in only 1 in 46,000 African Americans and Winters’s opinion that the blood could not have been defendant’s and was “likely” the victim’s. The prosecutor then employed an example with this statistic to show the likelihood that the bloodstain came from the victim, during which he used the word “matched.” The prosecutor then repeated that the DNA analyst could not say definitively that the blood was that of the victim. However, the prosecutor argued that, based on the statistical likelihood, the jury could find that the blood came from the victim. Also, during the State’s initial closing argument, the prosecutor remarked that the defendant’s fingerprint was found on the victim’s car. During defendant’s closing argument, defense counsel reminded the jury of the State’s fingerprint expert’s testimony that it was impossible to determine the age of a fingerprint. Defense counsel also argued that numerous fingerprints were lifted from the victim’s vehicle. During the State’s rebuttal closing argument, the prosecutor addressed defendant’s argument that numerous other fingerprints were found on the victim’s car that did not match those of defendant. The prosecutor told the jury that the State’s fingerprint expert stated that “a fresh print” was recovered. Defendant acknowledges that he failed to object to each of these two mischaracterizations
at trial and, therefore, has failed to preserve this issue for appellate review. See
People v.
Enoch
,
v. Runge
,
used in deciding whether a prosecutor committed plain error.
People v. Nieves
,
to deny him a fair trial. Defendant argues that he was prejudiced because the evidence was so closely balanced that the mischaracterizations could have tipped the scales of justice against him. Defendant further argues that the two mischaracterizations were “not isolated, but worked together to exaggerate and misrepresent the scant physical evidence.” According to defendant, “[t]he pervasive misconduct here created a pattern of unfairness that denied [defendant] a fair trial and requires reversal and remand for a new trial.” We disagree. Considering the closing argument in its entirety, each of the two challenged prosecutorial
remarks was obviously a mischaracterization of an item of evidence. Defendant is correct that the prosecutor’s remark that the blood from the bloodstain on defendant’s jeans “matched” the blood of the victim was a mischaracterization. However, this was clearly an isolated remark that the prosecutor made between several correct references to the DNA evidence throughout the entirety of the argument. Defendant is also correct that the prosecutor’s remark that defendant’s fingerprint on the
victim’s vehicle was a “fresh print” was a mischaracterization. However, this too was an isolated remark among several correct references to defendant’s fingerprint. We cannot accept defendant’s description of these two isolated remarks as “pervasive
misconduct” that “created a pattern of unfairness.” The brief and isolated nature of these two
mischaracterizations, in the context of the entire lengthy closing argument, is “a factor we have
found significant in assessing the impact of such remarks on a jury verdict.”
Runge
, 234 Ill. 2d
at 142. As to another appropriate factor in our assessment, we note that the trial court instructed
the jury to disregard statements made in closing argument not based on the evidence. See,
e.g.
,
id.
at 143;
People v. Moore
,
when his trial counsel failed to preserve this issue for review. To demonstrate ineffective assistance of counsel, a defendant must show that (1) the attorney’s performance fell below an objective standard of reasonableness and (2) the attorney’s deficient performance prejudiced the defendant in that, absent counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687 (1984). Because the defendant must satisfy both prongs of this test, the failure to establish either is fatal to the claim. at 697. *14 In this case, we can dispose of defendant’s assertion of ineffective assistance of counsel on
the prejudice prong alone. The showing of
Strickland
prejudice in this context is similar to the
prejudice that establishes reversible error for improper prosecutorial remarks: whether the
guilty verdict resulted from trial counsel’s failure to object.
Perry
,
assistance of counsel because his trial counsel failed to investigate or present an alibi defense.
The trial court gave the defendant an opportunity to argue his motion. After hearing from the
defendant, the trial court denied the defendant’s
pro se
ineffectiveness claim. Before this court,
the State conceded that the defendant should have had new counsel to represent him on the
motion. We agreed and remanded the matter for a new hearing on the defendant’s
pro se
motion with different counsel to determine whether the defendant was denied effective
assistance of counsel.
Krankel
,
pro se
posttrial claim alleging ineffective assistance of counsel.
People v. Roddis
, 2020 IL
124352, ¶ 34;
People v. Patrick
,
ineffective assistance of trial counsel.”
Jolly
,
refinement of the procedure.”
Roddis
, 2020 IL 124352, ¶ 37. New counsel is not
automatically appointed in every case when a defendant raises a
pro se
posttrial claim of
ineffective assistance of counsel. Rather, when a defendant makes such a claim, the trial court
*15
should first examine its factual basis. If the trial court determines that 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. However, if the allegations show possible neglect of the case, new
counsel should be appointed.
Jolly
,
determine the merits of the defendant’s
pro se
posttrial claims of ineffective assistance of
counsel.
reasons. First, defendant contends that the trial court applied the wrong criteria in denying his pro se ineffectiveness claims at the conclusion of the Krankel preliminary inquiry. Second, defendant contends that the Krankel preliminary inquiry was conducted in an adversarial manner, which can never be deemed harmless error. Third, defendant alternatively contends that harmless error review is inappropriate in this particular case. 1. Allegedly Incorrect Criteria Defendant contends that the trial court applied the wrong guideline in denying his pro se
ineffectiveness claims at the conclusion of the
Krankel
preliminary inquiry. The test to be
applied at a preliminary inquiry is familiar. “ ‘ “If the trial court determines that 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. However, if the allegations show possible
neglect of the case, new counsel should be appointed.” ’ ”
Ayres
, 2017 IL 120071, ¶ 11
(quoting
Jolly
,
elaborate on his ineffectiveness claims. After defendant elaborated on each claim, the trial court asked defense counsel to respond. Defendant claimed that defense counsel was ineffective for failing to call Laqueshia
Jackson as a witness at his second trial. Defendant maintained that Jackson recanted her
*16
inculpatory testimony from the first trial. In response, defense counsel explained that Jackson
gave him a statement recanting her prior inculpatory testimony but that he did not call her
based on trial strategy due to uncertainty as to what she might say on the witness stand.
Defendant next claimed that defense counsel was ineffective for failing to call Jackson’s sister,
Angela Dodd, as a witness. In response, defense counsel explained that his only memory of
Dodd was speaking with her to locate Jackson. Defendant claimed that defense counsel was
ineffective for failing to call two alibi witnesses. Defense counsel responded that he was unable
to locate one witness and decided not to call the other based on trial strategy. Defendant
claimed that defense counsel was ineffective for failing to object to the two earlier-discussed
prosecution mischaracterizations during closing argument. Defense counsel responded that he
did not believe the mischaracterizations were improper. Defendant also claimed that defense
counsel was ineffective for failing to present evidence concerning the unreliability of the
State’s DNA evidence. Defense counsel responded that he made the strategic decision to argue
that the evidence failed to prove that defendant was ever inside the victim’s car because he
could have picked up the bloodstain from blood that was found on the exterior of the car.
In this case, defendant argues that he triggered the appointment of new counsel for a
hearing on his
pro se
ineffectiveness claims by showing a possible neglect of his case by
defense counsel. However, according to defendant, the trial court “erroneously applied a higher
standard and required Jackson to show his counsel’s ineffectiveness at this hearing.”
This argument is foreclosed by our recent decision in
Roddis
,
“The trial court, most familiar with the proceedings at issue, remains best situated to serve the interests of judicial economy by extinguishing conclusory claims. We decline to unduly limit the most effective arbiter between patently frivolous claims and those showing possible neglect. The court can ‘base its evaluation of the defendant’s pro se allegations of ineffective assistance on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face.’ ” Id. ¶ 56 (quoting Moore ,207 Ill. 2d at 79 ).
We held that, “even in preliminary inquiries, a trial court must be able to consider the merits in their entirety when determining whether to appoint new counsel on a pro se posttrial claim of ineffective assistance of counsel. This serves both the ends of justice and judicial economy.” (Emphasis in original.) ¶ 61. In the case at bar, the trial court found that “[t]he sufficiency of the allegations made by
the defendant fail on their face to substantiate a claim of ineffective assistance of counsel.” We
agree. Defendant claimed that defense counsel was ineffective by not calling Jackson and Dodd
to testify, by failing to challenge the State’s DNA evidence, and by not objecting to the two
mischaracterizations in the State’s closing argument. “Whether to call certain witnesses and
whether to present an alibi defense are matters of trial strategy, generally reserved to the
discretion of trial counsel.”
People v. Kidd
, 175 Ill. 2d 1, 45 (1996). Also, generally, “trial
strategy encompasses decisions such as what matters to object to and when to object.”
People
v. Pecoraro
, 144 Ill. 2d 1, 13 (1991); see
People v. Leger
, 149 Ill. 2d 355, 396-97 (1992).
Because each of these allegations relates to trial strategy, it cannot serve as the basis of a
claim. See,
e.g.
,
People v. Chapman
,
manner at the Krankel preliminary inquiry. Defendant argues that this error is not subject to harmless error review. As earlier stated, defendant elaborated on each claim, to which defense counsel offered a
response. After defendant and defense counsel finished this dialogue, the trial court asked the prosecutor: “[D]o you want to comment on any of that?” The prosecutor argued that defendant’s pro se ineffectiveness claims related to trial strategy and evidentiary issues and that defense counsel presented “an excellent defense” for defendant. The prosecutor asked the trial court “to make a finding that based upon this initial review, that there has been nothing presented that is—that additional counsel needs to be presented.” As earlier discussed, the trial court denied defendant’s claims of ineffective assistance of counsel without appointing independent counsel and further hearing pursuant to Krankel . It is established that during the Krankel preliminary inquiry, some interchange between the
trial court and defendant’s 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 the defendant’s claim. The trial court may inquire of trial
counsel about the defendant’s
pro se
allegations, and the court may briefly discuss the
allegations with the defendant. Also, the trial court may base its determination on its
knowledge of defense counsel’s performance at trial and the facial insufficiency of the
defendant’s allegations.
Ayres
,
State’s adversarial participation in the Krankel preliminary inquiry rendered it erroneous. During the Krankel inquiry in Jolly , the trial court allowed the defendant to explain each of his claims of ineffective assistance but repeatedly stopped the defendant from presenting argument on his claims. Id. ¶ 18. The court then offered the State the opportunity to “rebut” the defendant’s claims. The State accepted the court’s offer and called the defendant’s trial counsel as a witness. Id. ¶ 19. The State subjected defense counsel to lengthy questioning on the defendant’s claims that he was ineffective. Through the examination, defense counsel generally rebutted and otherwise denied the defendant’s ineffectiveness claims. After the State questioned defense counsel, the trial court did so. Id. ¶ 20. The court allowed both the pro se defendant and the State to present brief arguments. Id. ¶ 21. Finding that the defendant’s allegations lacked merit or pertained to trial strategy, the trial court ruled that it would not appoint new counsel or proceed to a full evidentiary hearing. Id. ¶ 22. On appeal, the State conceded before this court that the trial court erred in permitting the State’s adversarial participation. However, the State argued that the improper procedure constituted harmless error. ¶ 27. The Jolly court disapproved of the management of that hearing. We maintained
that the common-law procedure is intended to address fully a defendant’s pro se *18 posttrial ineffectiveness claims against trial counsel and thus potentially limit issues on appeal. Also, by initially evaluating a defendant’s claims in a Krankel preliminary inquiry, the trial court will create the necessary record for any claims raised on appeal. Id. ¶ 38. We held:
“For these reasons, we believe that a preliminary Krankel inquiry should operate as a neutral and nonadversarial proceeding. Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State’s participation at that proceeding, if any, be de minimis . Certainly, the State should never be permitted to take an adversarial role against a pro se defendant at the preliminary Krankel inquiry.” Id.
We reasoned:
“[T]he purpose of Krankel is best served by having a neutral trier of fact initially evaluate the claims at the preliminary Krankel inquiry without the State’s adversarial participation, creating an objective record for review. This goal, however, is circumvented when the circuit court essentially allows the State to bias the record against a pro se defendant during the preliminary Krankel inquiry. A record produced at a preliminary Krankel inquiry with one-sided adversarial testing cannot reveal, in an objective and neutral fashion, whether the circuit court properly decided that a defendant is not entitled to new counsel.” Id. ¶ 39.
We held that the State’s adversarial participation in that Krankel preliminary inquiry was “contrary to the intent of a preliminary Krankel inquiry.” Id. ¶ 40. Generally, the erroneous failure to appoint new counsel to argue a defendant’s pro se
posttrial ineffectiveness claim following a proper
Krankel
preliminary inquiry can be harmless
beyond a reasonable doubt.
Id.
¶¶ 42-43 (citing
People v. Nitz
,
adversarial participation in his
Krankel
preliminary hearing. The State’s participation consisted
of more than a few passing remarks and was not
de minimis
. Rather, the prosecutor presented
argument in opposition to defendant’s claim of ineffective assistance of trial counsel and
actually asked the trial court to deny defendant’s
Krankel
motion. By complimenting defense
counsel’s trial performance, the prosecutor advanced the appearance of the State and defense
counsel aligned against defendant, who was acting
pro se
at this proceeding. Also, the fact that
the State’s argument responded to all of defendant’s ineffectiveness claims at the end of the
preliminary inquiry, rather than responding sequentially to each claim, does not reduce
the State’s adversarial participation to a
de minimis
degree. We observe that the appellate court
agreed with our conclusion that the trial court erred by permitting the State’s adversarial
participation in defendant’s preliminary inquiry.
Reviewing courts may look beyond considerations of forfeiture to maintain a sound and
uniform body of precedent or where the interests of justice so require.
Halpin v. Schultz
, 234
Ill. 2d 381, 390 (2009);
Barnett v. Zion Park District
,
preliminary inquiry precludes harmless error review because this type of error results in “an
unreliable record which cannot be examined to determine if it is harmless” and “will never
produce the type of neutral record required for harmless error review.” We disagree.
We earlier observed that this court in
Jolly
specifically declined to find that the State’s
improper adversarial participation in a preliminary inquiry was structural error.
Jolly
,
recognized that the trial court erroneously conducted the
Krankel
preliminary inquiry in that
case in an adversarial manner. However, the
Skillom
court observed that “the supreme court
specifically declined to hold that the error in that case [
Jolly
] constituted structural error.
Jolly
,
court reached the opposite conclusion. In that case, the State argued that its adversarial participation in that Krankel preliminary inquiry was harmless error. The Gore court reasoned: “That argument, however, is foreclosed by the decision in Jolly , in which our supreme court rejected the notion that a Krankel inquiry conducted in adversarial fashion could be considered harmless error.” Id. ¶ 39. Although the Gore court cited Jolly , it failed to refer to paragraph 45 of Jolly , in which we refused to find this type of error to be structural error, thereby rendering it amenable to harmless error review. To the extent that People v. Gore , 2018 IL App (3d) 150627, holds that the State’s erroneous adversarial participation in a Krankel preliminary inquiry can never be considered harmless error, that decision is hereby overruled. 3. Appropriateness of Harmless Error Review in This Case Defendant alternatively contends that harmless error review is inappropriate in this
particular case. Defendant argues that an objective and neutral record of the Krankel preliminary inquiry is unavailable in this case because the proceeding was tainted by the State’s adversarial participation and because defendant’s trial counsel actively argued against defendant’s claims. We disagree. Although the preliminary inquiry here was erroneously conducted by the trial court, it nevertheless produced a neutral and objective record with which a reviewing court can assess defendant’s pro se ineffectiveness claims. Defendant argues that his trial counsel “did not merely make statements about the facts and circumstances, [rather] he actively argued against [defendant].” The record refutes this argument. The trial court, assisted by defense counsel, created an objective record of the facts and circumstances relating to defendant’s pro se ineffectiveness claims. Defendant points to one comment. Defendant claimed ineffectiveness because trial counsel failed to challenge the weakness of the State’s DNA evidence. Defendant contends that his trial counsel argued against him by responding that defendant’s fingerprint was on the outside of the car. However, this was an objectively true statement to explain for the record why defense counsel made this strategic decision. Further, defendant argues that his preliminary inquiry “was tainted by the State’s
adversarial participation.” We disagree. We have already concluded that the prosecutor’s remarks constituted erroneous adversarial participation. However, the trial court’s error occurred after the trial court allowed defendant to present all of his ineffectiveness claims and confirmed that defendant had nothing else he wanted to say. Further, in contrast to Jolly , the prosecution here did not introduce evidence, cross-examine defendant or his trial counsel, or *21 otherwise create, much less distort, the record in any way. Rather, the prosecutor erroneously commented at the end of the hearing on the already existing objective record. Although the prosecutor’s comments were erroneous, they cannot be said to have distorted the instant record or to have made it impossible for a reviewing court to consider whether defendant was entitled to new counsel and a hearing on his ineffectiveness claims. In sum, neither the challenged remarks of defendant’s trial counsel nor the trial court error of permitting the State’s adversarial participation in defendant’s Krankel preliminary inquiry prevented the trial court from creating an objective record for us to review. To establish that any error was harmless, the State must prove beyond a reasonable doubt
that the result would have been the same absent the error.
People v. Thurow
,
degree murder beyond a reasonable doubt. The two challenged prosecutorial mischaracterizations during closing argument did not constitute reversible error. The trial court did not manifestly err in denying defendant’s request for the appointment of new counsel and further hearing on his pro se ineffective assistance of counsel claims pursuant to . Lastly, although the trial court erred when it permitted the State’s participation in the preliminary inquiry, it constituted harmless error because the trial court’s denial of defendant’s pro se ineffectiveness claim would have been the same absent the error. Therefore, the judgment of the appellate court, which affirmed the judgment of the circuit court, is affirmed. Affirmed. JUSTICE MICHAEL J. BURKE took no part in the consideration or decision of this case.