delivered the opinion of the court:
Defendant Jamie McCarter was convicted of first degree murder after a jury trial and was sentenced to 60 years in prison. On appeal, he raises three issues. First, he contends that he was denied his right to effective assistance of counsel when his trial counsel failed to object to the State’s introduction of certain evidence that he argues was inadmissible. Second, he contends that he was denied a fair trial when the trial court allowed the jury to view gruesome photos of the victim’s autopsy. Lastly, he argues that the trial court did not give him a proper preliminary inquiry with regard to his pro se posttrial motion alleging ineffective assistance of counsel. For the reasons that follow, we remand for further determination with respect to the last issue.
I. BACKGROUND
On July 20, 2003, defendant was arrested for the murder of Tyree Bias. He was later charged with first degree murder in connection with Bias’s death. The State’s theory of the case was that defendant and his brother had kidnapped Bias early on the morning of July 8, 2003, and that defendant fatally shot Bias in the back of the head and then put Bias’s feet on the gas pedal of the car he was in, causing the car to crash down into a ravine and catch on fire.
The case proceeded to a jury trial in July 2005. Officer Reilly, a police officer with the Village of Riverdale, testified for the State that around 6 a.m. on July 8, 2003, the police department was notified of a brush fire around the corner of 136th Street and Wentworth. They found a car on fire at the scene, and after the fire had been extinguished, they discovered a body in the driver’s seat of the car.
The State also called Vanessa Jackson to testify. Jackson was a district manager for the Chicago Tribune in June 2003, and on the day of Bias’s death, she was delivering newspapers in Riverdale at around 6 a.m. Near the corner of 137th Street and Riverdale, she said she saw a dark-colored Chevy Caprice blocking her way with three young men inside. When she stopped at an apartment to drop off papers, she saw that two of the men from the Caprice were now standing outside the vehicle. She continued along her delivery route and later saw them running toward Riverdale Park, one with his hood up, the other with his T-shirt pulled over his head, even though it was warm outside. They disappeared under a viaduct. Around 10 to 15 minutes later she saw them again, this time at a pay phone at the corner of 138th Street and Michigan.
Jackson testified that she did not get a good look at their faces. She viewed two police lineups on July 11, 2008, and she could not positively identify any of the suspects as the people she had seen, but in the second lineup she did point out one man who “kind of resembled” one of the people from that morning. Later in the trial, State witness Sergeant David Dempsey of the Riverdale police department testified during cross-examination that the man Johnson pointed out was a man named Shedrick Turner.
Lakesha Johnson also testified for the State. She said that she had been Bias’s girlfriend for two years and lived with him in Ford Heights. Bias was a member of a gang called the Gangster Disciples, while defendant and his two brothers Brandon McCarter (Brandon) and Ernest McCarter (Ernest) were members of the Four Corner Hustlers gang. Bias and the McCarter brothers were feuding over territory: Bias sold drugs on 16th Street, while the McCarters sold drugs on 15th Street, and in July 2003 Bias was making more money than they were.
On July 5, 2003, Bias was in jail, and Johnson put up money to have him bonded out. She also told the McCarter brothers that Bias was getting out of jail that day. The State then asked her if defendant told her “It is going down” and “It’s time for you to get that car,” but she denied that he had said any such thing.
The State then sought to admit into evidence two prior statements made by Johnson: (1) a handwritten statement, signed by Johnson, that was recorded by Assistant State’s Attorney (ASA) Patrick Enright on July 15, 2003, at the Riverdale police department, and (2) a transcript of a videotaped statement that Johnson had made to ASA Shital Thakkar on July 17, 2003, at the Riverdale police department. The court ruled that both prior statements would be admitted. Defense counsel objected at first, but then withdrew his objection.
Johnson acknowledged making both of the above statements. She said that nobody forced her to speak to the ASAs and that Enright did not threaten her. However, she testified that she had been “under a lot of pressure” from Sergeant Dempsey: “[H]e told me that if I didn’t tell him what was going on, he was going to charge me with the murder and take my children from me.” As a result, she said that she had lied when making those statements.
In the video statement, Johnson had said the following: When she told defendant that Bias was bonding out, defendant said, “It’s going down. It’s time for you to get that car”; and furthermore, “What they mean about it, it was going down, so I can make sure it’s clear, is that they was going to rob [Bias].”
Johnson also said in the video statement that on July 7, 2003, the day before Bias’s death, she spoke with the McCarter brothers again; Brandon told her that “it was going down tomorrow” and made eye contact with his brothers, who nodded in agreement. She said that she understood this to mean “that they was going to rob [Bias], take his money, his drugs, and if he didn’t up it like they wanted him to up it, they was going to kill him.” However, on the stand she denied that any such conversations actually happened.
Johnson next testified that on the day of Bias’s death, around 5 a.m., Bias left the house to deliver packs of cocaine to 16th Street, as per his usual routine. When Bias returned around half an hour later, she looked out the basement window and saw him; Bias entered the house to get something, then left shortly afterward. She denied seeing him being followed at any point by a purple Monte Carlo with the McCarter brothers inside.
The State then attempted to impeach her with the handwritten statement, in which she gave the following account of events: When Bias left the house at around 5 a.m., she saw him being followed by a purple Monte Carlo, which she knew to be Ernest’s car. When Bias returned, the Monte Carlo parked in front of the house. Defendant and Brandon got out of the car, both armed with guns and dressed in black jogging pants and black hooded sweatshirts, and got in Bias’s car. Defendant was pointing his gun at Bias’s head. Bias then drove away with the two brothers. Johnson watched the whole scene from her basement window and said, “I know when they left that [Bias] was going to be killed.”
Johnson admitted that she made this statement, and she also admitted that she repeated the same story in her later video statement.
Johnson testified that she spoke with defendant again on July 8, 2003, after the alleged murder had taken place. She denied that defendant said he shot Bias in the back of the head, then put his foot on the gas pedal so that Bias’s car crashed into a tree. She also denied that defendant talked about running away under a park viaduct to a pay phone. However, she admitted giving such an account of events in both her handwritten statement and her video statement. In particular, on the video, she quoted defendant as saying, “I shot that mother- — er in the back of his head” and asking Brandon, “Did you see how that b— flinched when I shot him?”
On cross-examination, Johnson testified further regarding the circumstances under which she made her prior statements to the police. She said that the Riverdale police had told her to bring a sample of Bias’s hair and his toothbrush to them, and when she arrived at the station, they arrested her and told her that she was accused of involvement in the murder. She said that she was frightened and therefore made up the story she told them. However, on redirect, she admitted that in both the handwritten statement and the video, she stated that she was not threatened or forced to speak by the police.
The State also called both ASA Enright and ASA Thakkar to the stand. ASA Enright testified that Johnson gave her statement to the police voluntarily. He said that he did not threaten her, nor did he know of any threats against her. Moreover, she was “forthcoming” with information and did not appear to be under duress. ASA Thakkar testified that when Johnson gave her video statement, she said that the police had treated her fine. Over defendant’s objection, the video of Johnson’s statement was played before the jury.
Also testifying for the State was Gerard Jimerson, a Four Corner Hustler who knew the McCarter brothers. He testified that he lived at 137th and State in Riverdale, and at around 6:30 a.m. on July 8, 2003, defendant and his brother Brandon came to his house. They told him that they had dropped some drugs from their car while being chased by the police, and they asked him to give them a ride back to Ford Heights. On cross-examination Jimerson further testified that they said nothing about having killed anyone.
Jimerson said that he drove them back to the house of defendant’s mother in Ford Heights. All three entered and found Ernest inside. After Jimerson left the room that Ernest was in, he heard defendant telling Ernest, “Put that up.” Jimerson testified that he believed defendant was referring to a gun.
Around July 9 or 10, Jimerson was back in Ford Heights speaking with defendant. Defendant told him that Shedrick Turner was in custody for Bias’s murder. According to Jimerson, defendant then told Jimerson that he knew what was going on and if Jimerson said anything, defendant would kill him, his children, and his girlfriend. Defendant also said that “he shot that mother — er.”
A couple days later, while Jimerson was drinking and smoking with defendant and James Jenkins, defendant blurted out that “he didn’t know mother — er hair can flame up like that.” Later that day, Jimerson went with his brother Abdullah, defendant, Brandon, and James Jenkins to a forest preserve. Jimerson testified that defendant was crying, while Brandon was saying that “he’s not fitting to do no hundred years.” Brandon also said that “the hanging come before the catching”; according to Jimerson, that meant that “before he get caught, he’ll f— me up.”
Jimerson also stated that he had asked the State’s Attorney’s office to move him to a different location after the case was over, and the State agreed to pay for his moving expenses, his first month’s rent, and his security deposit.
On cross-examination, Jimerson testified that Ernest had owned a purple Monte Carlo in July 2003, but he said that the car had no transmission and thus could not be driven; it was simply sitting in front of the McCarter house.
The State also brought in a number of witnesses to testify regarding the physical evidence. Dr. Claire Helen Cunliffe, a certified forensic pathologist working for the office of the medical examiner in Chicago, testified that Bias’s autopsy showed that he had a gunshot wound in the back of his head and that he had already died from that wound before his body burned.
Sergeant Dempsey of the Ford Heights police department testified that while executing a search warrant for the house of defendant’s mother, he found a loaded .357 Huger revolver with one spent round. Walter Sherk, a forensic science examiner working for the Illinois State Police crime lab in Joliet, examined the bullet recovered from Bias’s body as well as the gun found by Dempsey. He testified that the bullet was consistent with a gun of that caliber and rifling pattern, but he could not definitively tell whether the bullet had been fired from that specific weapon.
Sergeant Dempsey also testified that he test drove Ernest’s Monte Carlo and found that it could successfully run, though he only drove it for five feet forward and back.
The sole witness for the defense was James Jenkins, who testified that in July 2003 he was a member of the Four Corner Hustlers and a friend of the defendant. Sometime after Bias’s death, Jenkins was together with defendant, Jimerson, and Abdullah; later Brandon joined them, and they all went to a forest preserve. According to Jenkins, they were just talking about women. He testified that there was no mention of Bias and no conversation in which defendant admitted involvement in the murder or commented about Bias’s hair on fire. He also stated that there was no disagreement between Jimerson and defendant, and he denied that defendant or his brother had threatened Jimerson.
After both sides had rested, the State sought to have the autopsy photographs of Bias’s body sent back to the jury, arguing that they corroborated witness testimony about the manner of Bias’s death. Defense counsel objected on grounds that the photos were not relevant to any issue that was actually contested, so they would serve only to prejudice the jury. The trial court decided, over defense counsel’s objection, that the State could choose any three of the photos to go back with the jury, but no more. The State selected (1) People’s Exhibit 36, a photo of Bias’s charred chest and upper abdomen, and (2) People’s Exhibit 43, a photo of the inside of Bias’s skull showing the bullet wound to which pathologist Dr. Cunliffe had testified. 1
In addition, the trial court allowed Johnson’s video statement to go back to the jury. The reason the State gave for wanting to send back the video was that Johnson had implied that she spoke to the police under duress or coercion, and the State believed that Johnson’s demeanor on the video would help to rebut that claim. The jury was given an instruction on how to consider prior inconsistent statements; the instruction explained, in relevant part, that such statements “may be considered by you only for the limited purpose of deciding the weight to be given to the testimony you heard from the witness in this court room.” It also stated that this limitation did not apply to statements “that the witness has personal knowledge of,” though it did not define the term “personal knowledge.”
The jury found defendant guilty of first degree murder and found that he personally fired the gun that killed Bias.
Defendant then filed a pro se posttrial motion for a new trial, alleging ineffective assistance of trial counsel. The motion alleged several different omissions by his counsel: (1) failure to file pretrial motions that defendant had wanted to be filed; (2) failure to heed defendant’s wish for a bench trial as well as his wish to testify; (3) failure to meaningfully interview witnesses, investigate information, and discuss the case with defendant; (4) failure to call exculpatory witnesses on his behalf; and (5) failure to investigate the background of an accusing witness. (Only the allegations related to defendant’s right to a bench trial and defense counsel’s failure to call witnesses are at issue in this appeal.)
The court held a hearing on the motion in which it questioned defendant about these contentions, asking him about the basis for each allegation in turn. Regarding defendant’s allegation that he was denied his wish for a bench trial, the entire exchange between the court and the defendant was as follows:
“THE COURT: You also indicate that, Number 3, you indicated that you wanted a bench trial, but, however, your attorney wanted a jury trial; is that correct?
MR. McCARTER: Yes, sir.”
Regarding defendant’s contention that trial counsel had failed to call witnesses on his behalf, the court asked defendant to name the specific witnesses and explain what they could have said to change the outcome of the case. Defendant first named his brother Ernest, but he admitted that Ernest was not in the area and could not be located. He also named his parents, saying that they would testify that he had been at home at the time the murder allegedly occurred. He explained that due to his drug addiction, he “was out there in the streets” and could not remember what was happening or where he was at the time of the incident, while his parents had clearer memories of events at the time.
At the conclusion of this hearing, the court denied defendant’s motion for a new trial, saying, “I don’t believe that [a new trial] would assist you in any way.” It went on to explain:
“I believe that [defense attorney] Mr. Grace did, in fact, do everything necessary that a competent attorney would do. In fact, I commented that I was very impressed by all of the attorneys in this case how well they presented this case. *** You haven’t been out to really tell us how any witnesses would have assisted you in terms of having the outcome be different in this case. In terms of a bench trial, quite frankly, I would have found you guilty also. So that would not have been — made a difference.”
At defendant’s request, the trial court then appointed the public defender to represent defendant for sentencing.
On November 14, 2005, the trial court sentenced defendant to 60 years’ imprisonment for first degree murder. The instant appeal followed.
II. ANALYSIS
On appeal, defendant has three major contentions: first, that his trial counsel’s failure to object to the introduction of certain inadmissible evidence was ineffective assistance of counsel; second, that the jury should not have been allowed to view gruesome autopsy photos of the victim; and third, that the court erred in failing to properly investigate the factual allegations in his pro se posttrial motion claiming ineffective assistance of counsel.
A
Regarding his first contention, defendant argues that some of Johnson’s prior inconsistent statements introduced by the State at trial were inadmissible — in particular, the portion of Johnson’s prior statement in which she said that defendant admitted and gave details about his commission of the murder — as was the lay opinion testimony of Johnson and Jimerson giving incriminating interpretations to statements made by defendant and his brother Brandon. Defendant further urges that his trial counsel’s failure to raise objections to the introduction of these pieces of evidence was such poor trial strategy that it constituted ineffective assistance of counsel. We find that, although some of the complained-of evidence was introduced in error, the remaining admissible evidence against defendant was so strong that no prejudice resulted to him from the error; therefore, his ineffective assistance claim fails.
The State initially contends that defendant has waived this issue on appeal, as he did not raise these specific evidentiary issues in his pro se posttrial motion alleging incompetence of his counsel. In order to preserve an issue for appeal, a defendant must both make an objection at trial and raise the specific issue in a posttrial motion. People v. Woods,
Defendant contends that it is a violation of fundamental fairness for us to find waiver based on a motion that was written pro se; he argues that the doctrine of waiver should only apply to situations where defendant has the assistance of counsel. However, we need not rule upon this contention at this point, for even if we were to find that defendant had waived the issue, we would still be able to consider it under the second prong of the plain error rule, if defendant’s contentions of ineffective assistance were correct. Under the plain error rule, an appellate court may consider unpreserved error when either (1) the evidence is so closely balanced that the error alone might have been the decisive factor against the defendant, or (2) the error was so substantial that defendant was deprived of a fair trial. People v. Herron,
With respect to the case at hand, if a defendant can successfully prove ineffective assistance of counsel, this is considered a substantial impairment of fundamental rights, thus satisfying the second prong of the Herron test and triggering the plain error rule. See People v. Chandler,
Therefore, we move to substantive consideration of defendant’s ineffective assistance claim. Under the sixth and fourteenth amendments to the United States Constitution and article I, section 8, of the Illinois Constitution, the defendant in any criminal case has a right to effective assistance of counsel. Strickland v. Washington,
With regard to the first prong of the Strickland test, we recognize that the defendant “must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy.” Jackson,
We must therefore consider the admissibility of the challenged prior inconsistent statements of Johnson regarding her July 8, 2003, conversations with defendant where he allegedly admitted to shooting Bias and gave details about the murder and his subsequent getaway. The State contends that these statements were admissible both as substantive evidence and as impeachment. With respect to substantive admissibility, the State tacitly admits that Johnson’s statements are hearsay, but argues that they fall under the prior inconsistent statement exception to the hearsay rule. With respect to their use for impeachment purposes, the State argues that they were properly admitted because Johnson’s trial testimony contradicted them on matters that were not collateral.
The general rule is that hearsay, defined as an out-of-court statement offered for the truth of the matter asserted, is inadmissible at trial. People v. Brooks,
For the “personal knowledge” requirement to be satisfied, “ ‘the witness whose prior inconsistent statement is being offered into evidence must actually have seen the events which are the subject of that statement.’ [Citations.]” People v. Cooper,
The rationale behind this requirement is ensuring reliability through giving defendants a meaningful opportunity for cross-examination. In general, Illinois courts look with suspicion upon the introduction of prior statements of witnesses, since “allow[ing] an accused to be convicted on the extrajudicial statements of witnesses *** runs counter to the notions of fairness on which our legal system is founded.” People v. Spicer,
Hence, prior inconsistent statements which consist of secondhand accounts of events are still inadmissible hearsay, notwithstanding section 115 — 10.1. The facts of the Morgason case are illustrative in this regard. In Morgason, defendant was charged with murder. At trial, the State introduced a tape-recorded statement by defendant’s ex-wife in which she claimed that defendant admitted that he and his friends murdered the victim. Morgason,
Under the rule articulated in these cases, we find that Johnson had personal knowledge of the events she purportedly witnessed at her house — in particular, defendant and his brother leading Bias away at gunpoint in his own car on the morning of Bias’s death — but she did not have personal knowledge regarding the murder of Bias. Since she allegedly saw with her own eyes the scene where Bias was led away, her prior inconsistent statements regarding that scene are admissible as substantive evidence. See 725 ILCS 5/115 — 10.1 (West 2006). By contrast, her account of the things she heard defendant saying about the murder is highly analogous to the substantively inadmissible statements in Morgason and Cooper: as there is no evidence linking Johnson to the actual scene of the murder, she could not have personal knowledge of the events defendant described and was purportedly bragging about. See Morgason,
The State, however, argues that even if Johnson’s statements regarding the murder of Bias were not substantively admissible, they were still admissible as impeachment evidence, particularly in light of the cautionary instruction given to the jury on the proper use of impeachment evidence. We do not have to resolve the sufficiency of the jury instruction, because we find that these statements were inadmissible for purposes of impeachment.
It is true that, even if a statement is not admissible for the truth of the matter asserted under section 115 — 10.1, that does not automatically preclude it from being used for impeachment purposes. 725 ILCS 5/115 — 10.1 (West 2006) (“Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement *** fails to meet the criteria set forth herein”). The State argues that the statements at issue would have been admissible as a means of impeaching Johnson’s trial testimony and, hence, that any error in admitting them as substantive evidence was harmless. See People v. Morales,
Johnson’s trial testimony is indeed inconsistent with her prior statements that the State introduced into evidence, and those statements dealt with noncollateral matters, both of which are prerequisites to the introduction of evidence as a prior inconsistent statement. See People v. Thomas,
This limitation on the use of prior inconsistent statements is necessary because the purpose of impeachment is to cancel out damaging testimony by a witness; if no such damaging testimony has been proffered, then the only purpose of introducing a prior inconsistent statement is to get it before the jury as substantive evidence. Cruz,
In this case, Johnson’s refusal to incriminate defendant did not cause any affirmative harm to the prosecution’s case; she did not offer evidence of his innocence but merely declined to come forward with evidence of his guilt. Hence, under the standard articulated in Cruz and Bradford, the State had no legitimate need to impeach her credibility, and thus her prior inconsistent statements were inadmissible for that purpose. Cruz,
We next consider the admissibility of the statements that defendant characterizes as impermissible opinion testimony by lay witnesses. Specifically, defendant objects to Johnson’s testimony regarding her interpretation of conversations she had with the McCarter brothers: in her video statement, when Brandon said “it’s going down,” Johnson said that she understood that to mean that the brothers planned to rob Bias and kill him if he refused to give up the money. Defendant also objects to the testimony of Jimerson in which he says that when he heard defendant telling Ernest to “put that up,” he believed that defendant was referring to a gun. Finally, defendant objects to Jimerson’s statement that when Brandon told him “the hanging come before the catching,” Brandon meant that he would “f— [Jimerson] up.”
Under Illinois law, “the testimony of a lay witness must be confined to statements of fact of which the witness has personal knowledge.” People v. Brown,
We find that the complained-of statements in the instant case, as with the statements in Brown, go beyond the realm of mere observation, crossing the line into impermissible opinion testimony by lay witnesses. On its face, Brandon’s statement that “it’s going down” helps establish the pendency of a crime, but it does not connect to the specific crime or victim involved here. Thus, Johnson’s explanation that Brandon was speaking about a plan to rob Bias was not merely sensory perception or a recitation of facts; it required an inferential step in her mind as to what was “going down” for Brandon. The same kind of inferential step is present in the two aforementioned statements by Jimerson mentioned at trial. Hence, these statements were impermissible opinion testimony (Linkogle,
In sum, defendant is correct in his contention that certain evidence introduced by the State at trial was inadmissible, and therefore he is also correct that his trial counsel erred by failing to maintain its objection to this evidence. We also find that such failure was not reasonable as a matter of trial strategy, since tlie evidence thereby introduced was significantly incriminating: defendant’s alleged statements regarding the murder, as related by Bias’s girlfriend, would constitute a clear admission of the crime if believed by the jury. The allegations that Brandon was planning to rob Bias and was later planning to harm Jimerson rather than be caught are likewise damaging, insofar as the prosecution sought to demonstrate that defendant was complicit with Brandon. Although under Strickland we are called to give deference to the strategy of trial counsel (Jackson,
However, this is only the first prong of the Strickland test; in order to prevail in his ineffective assistance claim, defendant must also demonstrate that counsel’s error prejudiced him. The State contends that because the evidence against defendant was so overwhelming, even if the disputed evidence were found to be inadmissible, its introduction changed nothing: excluding the complained-of evidence would not have reversed the outcome of the trial. We agree.
To meet his burden under Strickland, defendant must show that the probability that counsel’s errors changed the outcome of the case is “sufficient to undermine confidence in the outcome.” Strickland,
In this case, taking into account the totality of the evidence which the State presented to the jury, we cannot find that the errors complained of are sufficient to undermine our confidence in the jury’s verdict. See Albanese,
B
Defendant’s next contention is that the trial court erred in allowing the jury to view certain autopsy photos of the victim. Defendant argues that the photos of Bias’s charred body and the inside of Bias’s skull, shown to the jury over his counsel’s objection, were prejudicial and not relevant to any contested facts, thus depriving him of a fair trial.
At the outset, the State contends that defendant has waived this issue as well, as he did not include it in his posttrial motion. See Enoch,
Defendant next contends that he should not be held to waiver since he was not represented by counsel in the preparation and presentation of his posttrial motion. However, contrary to defendant’s contention, pro se defendants are not entitled to favored treatment and do not have license to disregard procedural requirements. People v. Anderson,
Defendant, however, seeks to rely upon the cases of People v. Janes,
Moreover, in the instant case, defendant’s right to counsel during the filing of his posttrial motion is not at issue. Defendant was not denied the assistance of counsel; rather, he had trial counsel, but he chose to proceed without the aid of that counsel in filing his own motion before the court. He must therefore bear the risks inherent in that decision. A defendant who deliberately rejects the assistance of the attorney who is currently representing him is not thereby absolved from having to follow the rules of procedure. See Anderson,
For the same reason, defendant’s next contention, that he was entitled to counsel during the filing of his posttrial motion under People v. Finley,
Defendant furthermore contends that, even if we were to find that waiver is applicable to defendant’s motion, we should choose to overlook any such waiver under the plain error rule. We disagree. As stated earlier, courts may choose to overlook waiver and consider defendant’s contentions on the merits if the evidence is closely balanced, or if the error was substantial enough to deprive defendant of fundamental rights. Herron,
Furthermore, any error that might have occurred in the introduction of the photos was not substantial enough to constitute a deprivation of fundamental rights. For this prong of the Herron test to be satisfied, defendant must show that the error was so severe that it went beyond “ ‘typical trial mistakes’ ” to constitute “ ‘breakdowns in the adversary system.’ ” People v. Keene,
C
Defendant’s final contention is that the trial court failed to properly investigate the factual allegations in his pro se posttrial motion for ineffective assistance of counsel. He therefore requests that we remand the case for the court below to conduct a proper inquiry under the standard first laid out in People v. Krankel,
In Krankel, the defendant filed a pro se posttrial motion alleging ineffective assistance of counsel, and the Illinois Supreme Court ruled that the trial court should have appointed him new counsel to represent him at a hearing on the motion. Krankel,
In considering whether the trial court has met its burden under Krankel, “[t]he operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.” Moore,
The trial court’s decision to decline to appoint new counsel for a defendant based on a judgment that the ineffective assistance claim is spurious shall not be overturned on appeal unless the decision is manifestly erroneous. People v. Woodson,
For the case at hand, it is defendant’s contention that the trial court did not conduct an adequate preliminary inquiry as required under Krankel and Moore before denying defendant’s motion. In his brief, defendant presents only two areas under which he argues additional inquiry was required: first, his allegation that trial counsel failed to call witnesses who would have provided an alibi for him, and second, his allegation that his trial counsel proceeded with a jury trial despite his wish for a bench trial.
With respect to defendant’s allegations regarding alibi witnesses, we find that the trial court’s decision was not manifestly erroneous in light of its discussion with defendant. Decisions about whether to call witnesses are generally considered matters of trial strategy and reserved to the discretion of trial counsel. Chapman,
At the hearing on defendant’s motion, the trial court specifically elicited information from defendant about the witnesses’ names and the testimony that defendant hoped that they could provide. In its subsequent rejection of this claim, the trial court indicated that defendant had not made a colorable argument for how these witnesses would be able to change the outcome of the case. Defendant also argues that the trial court erred in not discussing the matter with defendant’s counsel; however, as discussed above, colloquy with trial counsel is not a necessity if the trial court can otherwise determine that defendant’s claim does not warrant the appointment of new counsel. Chapman,
Furthermore, the trial court made a clear finding based on its knowledge of counsel’s actions at trial that defense counsel acted not only competently, but impressively. See Moore,
However, defendant’s second claim with respect to his posttrial motion, that his trial counsel disregarded and overrode his desire for a bench trial, is less clear-cut. Under the Illinois Constitution, an accused has the right to waive trial by jury. People ex rel. Daley v. Joyce,
As noted, the trial court’s examination of defendant upon this point was cursory, consisting of only one question. The trial court’s sole question to defendant was, “You also indicate that, Number 3, you indicated that you wanted a bench trial, but, however, your attorney wanted a jury trial; is that correct?” to which defendant responded in the affirmative. The court made no effort to ask defendant to provide further details or question trial counsel to ascertain whether this allegation was a credible one. Nor did the court indicate that it had any basis upon which to deny the claim other than the court’s statement that the error was harmless because its finding at a bench trial would be no different than the finding of the jury.
Correspondingly, the State contends that no prejudice could have occurred to defendant from the fact that he received a jury trial rather than a bench trial, because the trial court stated that it would have found defendant guilty if he had proceeded to a bench trial. The State’s reliance on this statement — as well as the trial court’s apparent reliance — is misplaced. For ineffective assistance claims under Strickland, prejudice is presumed if there is a reasonable probability that the defendant would have waived a jury trial in the absence of the alleged error. Cf. People v. Todd,
As noted, the trial judge’s only response to defendant’s contention that his attorney deprived him of a right to a bench trial was that such denial would constitute harmless error, since the bench trial finding would not have differed from that of the jury. In light of that erroneous response, we remand this matter to permit the court to clarify whether, and if so, on what basis it may have implicitly found that the defendant’s claim was otherwise spurious, so as to obviate the need for any further inquiry. Moore,
Remanded with directions.
McBRIDE, EJ., and O’MALLEY, J., concur.
Notes
The third photo selected by the State is not at issue in this appeal.
In this regard, we note that logically, the autopsy photos would only prejudice the jury against defendant to the extent that it believed, under all the evidence, that defendant committed the crime in question. That is, the gruesome nature of the crime would not influence the jury’s opinion of defendant if it did not conclude that the State had sufficiently established his guilt. Hence, the potential prejudicial impact of the photos is arguably minimal.