People v. Williams

compliance under substantial The admonishment did not achieve Borst, App. People v. Whitfield. Cf. (inartful possible of maximum 1181, admonishments complied substantially limited to the result at a trial sentences not subject that he would be Whitfield). Defendant not advised entering plea. mandatory supervised upon release this disposition of Whitfield, appropriate In accordance with imprison- term of appeal modify be to defendant’s sentence to a would or to mandatory supervised term of release ment followed sentence, resulting either modify remand with directions to mandatory supervised years’ imprisonment years’ four followed two I dissent. Accordingly, neither. majority’s disposition release. The does ILLINOIS, Plaintiff-Appellant, v. THE THE OF PEOPLE OF STATE WILLIAMS,Defendant-Appellee. BENJAMIN (1st Division) First District No. 1 — 07—0187 Rehearing denied Opinion May filed June 2009. 2 0 09. WOLFSON, J., concurring. specially Botti, Appellate Defender’s Elizabeth A. both of State

Patricia Unsinn and Office, Chicago, appellant. (James Fitzgerald Devine, Attorney, Chicago E. and

Richard A. State’s counsel), People. Attorneys, for the Sally Dilgart, L. Assistant State’s of the court: opinion delivered the JUSTICE GARCIA charged Skipper Derrick were and codefendant defendant and Riley. The July murder of John with the trials, but simultaneous Skipper separate, had codefendant Skipper trial. Skipper, and a bench opting for a trial defendant trial, defendant was party appeal. Following this his to degree shooting Riley. death of convicted of first murder for appeal, the imposed years. court of 46 On defendant trial sentence on the trial court’s instruction to raises error based manslaughter, jury had to involuntary offense the. argues acquit defendant of first murder. first prosecutor’s argument to improper this error was exacerbated shooting an or accidental constitutes unintentional man- support conduct sufficient to claim reckless intentionally discharged slaughter the defendant testified he rendered inef- gun. The defendant also contends trial counsel (1) areas: failed to file a motion in fective assistance two counsel conviction; preclude prior the admission of defendant’s limine improper jury failed to trial court’s counsel instructing find erred in Although we the trial court instruction. has not established. complains, plain as the been prejudiced by defense counsel’s do we find the defendant was Nor performance. We affirm. deficient

BACKGROUND neighborhood John Skipper friends with The defendant and were in a brother, They together often time Riley spent and his Pierre. alcohol, smoking marijuana, nearby public park, drinking gambling.

Pierre, felon, just midnight on a convicted testified that before argument. during the from him an June defendant stole $10 After, park, he told older nearby public Pierre walked the his (the Daniels, brother, Riley decedent), uncle, Ronald and his John his friend, Hollis, happened. State’s Gregory what had apartment to Skipper’s that the men the street showed walked down through apartment the the window about and confronted defendant had a “kind of intense” taking they Pierre testified money. Pierre’s altercation, men returned to the After verbal the confrontation. park. at Daniels, sentence serving six-year

Ronald a convicted felon Ri- nephew, he his trial, the time of defendant’s testified that and someone apartment at 1:30 a.m. ley, Skipper’s returned to because them there. Skipper waiting them and told defendant were they arrived, standing on the sidewalk Skipper was outside When feet building standing about five front of his and the defendant was away, doorway apartment building. asked Daniels Skipper of the they could Riley they testified before what wanted. Daniels answer, shotgun and raised it to level pulled out chest, causing

Daniels’ Riley Daniels and run in opposite directions, with Riley running park. toward the Skipper prevent tried to Daniels running, from but get Daniels was able to away. briefly Daniels, chased but Riley then chased park. toward the At point, some Daniels heard Skipper yell, “shoot him.”

While the chasing defendant was Riley, Daniels heard and saw the gunshot. flash of a Daniels testified the defendant was the shooter. At the time shooting, of the Daniels was about 15 feet behind the defendant and could see his During examination, back. direct Daniels testified he did not see what direction pointed gun, nor could he see the muzzle of gun when it was fired. Daniels did not see Riley during the shooting because he was around the corner from him. Daniels testified neither he Riley gun. nor had a During redirect, Daniels demonstrated holding how defendant was gun when he saw the muzzle prosecutor flash. The described it for the record:

“[T]he holding right witness is hand with elbow extended out parallel to the floor right chin, and his hand underneath his got he’s his left arm extended in front of him.” During recross, Daniels admitted he could not see the muzzle of the Riley or at the shooting, time of the but claimed he [the “knew defendant] was pointing my nephew.” re-redirect, it at On Daniels testified the muzzle flash atwas shoulder level.

Gregory Hollis was at park at the time of shooting. He Riley testified he saw running park, toward the shouting, got “he gun.” Riley As by, pushed ran Hollis behind a car. Hollis heard Skipper “Ben, shoot,” say, to which the responded, “f— this shit.” gunshot shot, One After followed. Hollis Riley lying saw ground. on the Hollis testified he did not see who fired the shot. The medical examiner testified John Riley single gunshot died of a wound to the slug1 left, face. The right traveled from the front to back, and upward. He shotgun slug testified the course of the consistent Riley standing with shooter, chest-to-chest with the with his head slightly However, turned to the left. he later testified that there were possibilities regarding numerous how the men were positioned and that he could say certainty how men were standing in relation to one another at the shooting. time of the He did any not find close-range firing. of a 1The medical examiner concluded the decedent’s wounds were caused shotgun a slug, pellets, lead commonly are more which associated with shotguns. stealing $10 He denied behalf. on his own testified

The defendant during argument, got into an the two men He testified from Pierre. it to hand and threw Pierre’s marijuana from bag a he took which him men confronted after, other Riley and some Shortly ground. ensued, argument A money. Pierre’s verbal stealing him of and accused After, went violence. physical no but there was away park. from the houses just a few Skipper apartment, to his group night, point at some testified that The defendant in front of Daniels, and stood Pierre, came men, including Riley, and ass to come “tell this bitch building. Riley yelled, apartment Skipper’s defendant, Daniels told the like a man.” outside, whoopin’ take his ass out, take this out, as well come you might “you might as well come going get it later.” you’re whoopin’ ass now because the men so the to calm down Skipper went outside Skipper gave exiting apartment, safely go home. Before could shooting the away” by them and told him to “scare gun defendant a happened. gun anything in the air if the men because one of Skipper followed outside

The defendant gun anyone’s testified he did not see him. The defendant yelled for often carried Pierre, Riley, Daniels and Hollis hands, knew that but Skipper’s the sidewalk front The defendant walked toward guns. “bus,” understood shouted, which the defendant apartment. Skipper everyone. air to scare gun to mean fire the into the buildings which was a few park, he fired the toward the testified people were The defendant admitted he knew down the road. anyone, did aim at nor gun, but claimed he park when he fired gun, anyone. firing hit After did he intend to later, the defendant An hour dropped it and ran to a friend’s house. and, the his mother’s house Riley had been shot. He went to learned police. in to the day, next turned himself rebuttal, copy of the defendant’s the State introduced a certified weapon. Defense aggravated unlawful use of

prior conviction for the defendant’s conviction the admission of counsel did not Later, defense at admitted the evidence. record. The trial court explain the defendant’s the court allowed counsel to request, counsel’s closing argument. jury during prior conviction to evidence, determined there was trial court At the close of the of- on the lesser-included to warrant an instruction sufficient evidence the defendant’s version involuntary manslaughter based on fense of to Illinois jury pursuant shooting. The trial court instructed (4th 2000) (defini- Instructions, Criminal, ed. No. 7.07 Jury Pattern (hereinafter IPI 4th No. manslaughter) tion of 7.07) (issues involving involuntary and IPI Criminal 4th No. 7.08

manslaughter). jury given was also a modified IPI version of (the Criminal 4th No. 26.011 concluding instruction for a case jury the degree murder, is instructed on first degree murder, second involuntary manslaughter). and The trial court did not instruct (the jury IPI 26.01Q with Criminal 4th concluding instruction for a case jury degree where the is instructed on first murder and involuntary manslaughter). Defense counsel did not to the instructions.

During closing argument, prosecutor jury told the it need not involuntary if manslaughter thought it the defendant was guilty prosecutor of murder. The argued further that the defendant did recklessly not act purposes involuntary manslaughter defendant, himself, because the admitted he intentionally fired the park. toward the The jury found the defendant guilty degree of first murder. The defendant timely appeals.

ANALYSIS initial right frames his issue as a denial of his to a fair trial. gave jury He contends the trial court wrong instruc- guide jury’s tion to greater deliberations on the offense of first degree involuntary manslaughter. murder the lesser offense of Rather than in jury instruct the accordance with IPI Criminal 4th No. 26.01Q (greater, instruction), lesser offense gave the trial court IPI modified Criminal 4th No. 26.011 that was written to address first degree murder, degree involuntary second murder and manslaughter. murder, degree Because of the nature of second IPI 4th No. provides 26.011 that the jury guilty must first find the defendant degree first determining mitigation murder before whether a factor proven has been degree degree to reduce first to second murder. modifying instruction, the three-offense the trial court directed to first determine guilty whether is or not guilty degree considering of first murder before the lesser-included of- 26.01Q fense IPI involuntary manslaughter. Criminal 4th No. instruction) (greater, lesser offense contains no such direction to the jury regarding its murder deliberations of first Rather, manslaughter. merely provided told it will be with three verdicts and it is to “select the one verdict form that reflects 26.01Q. IPI [its] verdict.” Criminal 4th No. The defendant contends in improper jury regarding instruction the order which must error, plain warranting consider the offenses constitutes a new trial. plain instructing The defendant further contends the argument that was exacerbated the State’s involuntary manslaughter because guilty could not be found firing shotgun. intentionally acted

Plain Error found, People error must be shown. error can be plain Before (2000). In the State’s 621, Sims, 592, did not err instruct that the trial court brief, argument find no we 4th IPI Criminal based on the modified instruction ing cannot show only argues The State No. 26.011. Keene, N.E.2d 901 169 Ill. 2d plain error. See u. one,” ‘plain’ that an asserted error is (upon a “conclusion default). procedural may error doctrine excuse plain error has not been argument initial State’s recharacterizing of the issue authority based on its established cites to defendant does not claim presented by the defendant. While the in the “Is- process” mention “due process” violation of “due or even brief, a conten- portion opens response sues” of his the State its claim: “To tion that the defendant cannot make out a constitutional claim, Defendant must show prevail with this constitutional ‘undesirable, erroneous or even merely that the instruction is condemned,’ that the instruction ‘so infected universally but rather resulting process.’ trial violates due entire that conviction 368, 373, 141, 146-47[, L. Ed. 2d 94 S. Cupp Naughten, v. 414 U.S. 38 396, ‘presumption (affirming despite 400] Ct. conviction Oregon soundly but truthfulness’ instruction used courts courts; aspect of the instruc- any objectionable criticized the federal error).” did tion not rise to the level of constitutional implied We decline the State’s invitation that we turn claimed jury claim. We find it instruction error into a federal constitutional repeat supreme recently: sufficient to our court made clear “We what error, doctrine, intimated nonconstitutional plain have that while a added.) process.” (Emphasis has roots in the same soil as due v. (2005). Thus, Herron, 167, 177, focus 215 Ill. 2d 830 N.E.2d 467 we concluding instruction to the analysis our this case on whether the ” “ “ jury defects,’ ‘are not waived contained ‘substantial which justice if timely objections failure to make thereto the interests ” Herron, Ill. 2d at jury properly instructed].’ 215 require [that be 451(c). 175, us is quoting Accordingly, Ill. 2d R. the issue before instruction, 4th on IPI Criminal concluding jury whether the based 26.011, the manner in which regarding No. contains substantial defects deliberations, IPI light should undertake its offenses, so that 26.01Q, greater 4th and lesser which addresses Herron, 215 Ill. grave error. the erroneous instruction constitutes 175, citing 1, 7, 2d at People Hopp, 209 Ill. 2d 805 N.E.2d 1190 (2004), Thurman, 329-30, citing People 104 Ill. 2d (1984). case, ruled, Judge this Schreier objection, over the State’s be instructed on the lesser involuntary manslaughter offense of And, based on the testimony. prepared defendant’s State instructions, which IPI included Criminal 4th No. 26.011 as charges modified to reflect two of first murder and involuntary manslaughter. While it is undeniable that the modified IPI Criminal 4th No. 26.011 given objection instruction was without from counsel, supreme defense the words of our court have some application “ ‘[Where] here: it is clear that the prosecuting attorney has taken advantage of the accused poorly represented because he was and the permitted taken, trial court has advantage such to be then we will notwithstanding preserve errors the failure properly ” Herron, questions for review.’ 215 Ill. 2d at quoting People v. Gardiner, 135 N.E. 422 prongs There are two to assess error: closeness of the Herron, evidence and fundamental fairness. 215 Ill. 2d at 178-79. We urges. consider each as the defendant Closeness the Evidence

It appears the defendant’s sole contention that this case falls under the “closeness of the prong guilt evidence” is that the defendant’s testimony “turned on whether the believed that he Williams’ *** discharged testimony into the air or the State’s witness’ Riley chasing park.” that Williams shot John after him toward the disagree However, do not far goes. so as that statement the closeness persuasiveness of the evidence turns on the of the evidence on each question presented jury. side of the to the trial, At the it clearly Riley evidence established that was that sought allegedly Riley’s the the defendant recover stole from $10 Riley Skipper’s brother. It was that taunted the defendant outside apartment building returning park. before to the It was Daniels and Riley Skipper’s apartment that returned to chased the to be Daniels, shotgun. defendant armed chased defendant first Riley. chasing Riley, Skipper then With the defendant Daniels heard yell him.” yell having Skipper “shoot The defendant testified to heard “bus,” prearranged everyone.” as a code for “fire in the air to scare Yet, clearly the that the defendant fired the evidence established in in shotgun Riley such a manner that was shot the face. in the

Daniels demonstrated to the the manner which time shotgun Daniels saw the muzzle flash.- defendant held the at the

265 showing the defendant as described Daniels’ demonstration The State The manner which ground. to the holding shotgun “parallel” the shot in the Riley how shotgun explained the defendant held shoot he intended to face, the defendant’s claim that negating park at the witness, Hollis, that he was Gregory testified air. Another “Ben, Hollis say, shoot.” Skipper heard Riley past. see run Hollis single shit,” followed “f— this respond, heard the on the chasing, up ended defendant was Riley, the man the gunshot. supporting Against this substantial in the face. ground, shot Riley, the directly at that shot the State’s claim of the events. defendant offered his own version apartment only because Skipper’s claimed he exited him an “ass give threatened to Riley, of the men with who had one armed with him The defendant was whoopin’,” called outside. in this no chase oc- by Skipper. him version shotgun, given to While direction of firing shotgun in the curred, defendant testified to shouted, He testified had “bus.” Skipper because nearby park, he fired anyone, to hit when anyone did aim at or intend that he And, defendant. believe the Obviously, did not shotgun. events, version of clearly favoring the State’s based on the evidence why. we understand degree murder guilt of first on the defendant’s

The record evidence 188-89, 435 Pastorino, Ill. 2d was not close. See it consider (judge’s instruction to N.E.2d because manslaughter verdict murder verdict before *** to look prompt as to us closely so balanced “[t]he evidence is not objection”). past the lack of Fairness

Fundamental claim challenge the defendant’s says the State little to While error, it instruction, we hold was. concluding given, as directs 26.011 that was used IPI Criminal 4th No. modified version of degree murder before of first acquit first goes direction manslaughter. This the offense of of 26.01Q, greater, lesser IPI Criminal 4th beyond far what regarding we have instruction, Many of the concerns contains. fense were stated concluding jury instruction the use of such an erroneous jury, but erroneously instructed similarly by this court in a review of manslaughter. People voluntary murder and regard to the offenses of (1980), rev’d, 91 921, 925, 414 N.E.2d 54 Pastorino, App. Ill. 3d had the have not 188-89, deci the State on the Pastorino the defendant or benefit of the view of neither side cited this case. sion because

266 jury Pastorino, Jiganti

Of erroneous instruction Justice judge jury stated: “The record shows that the trial told the to consider If they supported the murder verdict first. found that the evidence they that theory, manslaughter theory. were not even to consider the *** judge’s The comments had the taking away jury effect of from the necessary [by] deemphasizing importance element of choice Pastorino, manslaughter App. verdict.” 3d at 925. concern we add here is that the modified IPI Criminal 4th 26.011 No. inability jury failed to make an allowance for an of the to reach unanimity degree charge considering on the first murder before concluding jury only lesser offense. The directed that instruction involuntary manslaughter upon finding the defendant not guilty degree 26.01Q, of first murder. In IPI 4th jury jury’s greater instruction written to address a consideration of offenses, fact, lesser there is no such direction. the Committee Note suggests jury, that to so instruct the where it has found the defendant offense, guilty “[I]t of the lesser included is error. would be error for jury guilty the court to tell the to nonetheless return a verdict on the if greater jury offense had somehow also been able to conclude guilty greater that defendant was also of the offense because he had 26.01Q, intentionally knowingly.” acted or IPI Criminal 4th No. Com Note, words, concluding mittee at 417. In other to the extent that the upon instruction intrudes the order the is to deliberate on the of fenses, if it such an instruction must also inform the cannot murder, unanimity charge degree may proceed reach on the of first it manslaughter. to consider the lesser offense of See State v. (1991) (“In Labanowski, 405, 423, 26, 117 Wash. 2d 816 R2d 36 future, should be allowed to render a verdict on a lesser offense offense”); if agreement greater it is unable to reach on the State v. (1986) Allen, 35, 40, Supreme P2d (Oregon 301 Or. 717 1181 “ ‘acquittal Court examined studies that show that first’ instruction decisions”); exacerbates the risk of coerced but see United States v. (1st 1986) “logical F.2d Cir. Ciampa, (approving progres 27-28 requires greater sion” instruction that consideration of offense before offense). here, however, may error that occurred be harm lesser Towns, 90, 108-09, less. 157 Ill. 2d 623 N.E.2d 269 (where greater guilty finds the defendant of both the offense, return it error to instruct the lesser is harmless offense). greater guilty verdict of the error harmless, plain it cannot be may the claimed error be

Where 189. Pastorino, Ill. 2d at prong. under the fundamental fairness has been fair trial right “To to a determine whether defendant’s uses whenever this court compromised, employ the same test that we applies prong the second ask [Citation.] test. right whether substantial has been affected to such a that we confidently fundamentally cannot state that defendant’s trial was Blue, fair.” People 724 N.E.2d 920 In Pas torino, supreme any court closed the door to consideration under prong finding plain the fundamental fairness to error on the based order in jury pending which the is instructed to consider the offenses. guilt degree

The evidence of the defendant’s first in of murder substantial, supreme this case was much as the court noted of the in evidence Pastorino: “There was substantial evidence that defendant

committed murder in the by admissions made defendant to her brother Pastorino, here, [another witness].” 2d at 189. It follows no Pastorino, in less so than that the instruction error that occurred deprive Pastorino, did not the defendant of a fair trial. 91 Ill. 2d at 189 (“no deprive error so substantial as to defendant of a fair trial has oc curred”). We have no doubt that had the proper instruction been given here, would have rendered same verdict it reached. The right defendant’s to a fair trial substantially compromised was not by the erroneous instruction.

The defendant’s claim plain of error here is foreclosed Pas- torino; the evidence was not close and no fundamental fairness viola- tion occurred.

Prosecutor’s Closing Argument The defendant claims he was denied due process under when, in closing argument, prosecutor stated that engage and, defendant did not in thus, reckless conduct guilty was first murder intentionally because he shotgun. fired the The argument asserts this jury by equating only misled the an unintentional or accidental shooting with reckless conduct.

The prosecutor argued: night

“What the defendant did that was not an unintentional act, to, and that’s what it comes down did he great intend to cause bodily harm? Did likely he know his actions were to cause death or great bodily harm? That’s what it comes down to. Or an was it shooting clearly unintentional Firing into the air. It was not that. park people likely bullet into a where there present are to cause bodily death or serious harm.”

The prosecutor by alluding followed to the defendant’s motive: the shooting “knew who he was prosecutor argued, at.” The gentlemen, “Ladies and this is not a reckless act. This is an intentional act shooting at a person, shooting people at in park.” prosecutor continued, acts, Getting “Reckless reckless driving acts. a car and street, drunk on a crowded Shooting somebody that’s reckless. in the shotgun, face murder.” note of the Taking with a that’s defendant’s people park that he were when fired the admission gun, knew argue, way prosecutor only get went on to “the to manslaughter nobody at involuntary park is to believe there was anybody.” and he couldn’t see prosecution’s legal

The defendant contends “the misstatements be believing guilty misled the into that Williams could not manslaughter, for Williams himself admitted that he intentionally discharged park.” toward the excerpts argument reads in the broadest these the State’s manner prosecutor involuntary manslaughter to contend that the meant that shooting act of legally foreclosed the defendant’s intentional reject reading. Wiley, shotgun. the 259, 295, such a See (comments must be considered arguments). closing context of the entire making argument, stating an prosecutor point could prosecutor properly argued law. The that the defendant be found way guilty involuntary manslaughter get but “the involuntary manslaughter” was for the to believe defendant’s no anybody” claim that “he couldn’t because he took aim. The see argument. People Lasley, facts at trial this support established See v. (1987) 614, 633, (proper 158 N.E.2d 661 to comment App. Ill. 3d 511 facts). by the the unfavorably upon supported defendant where It to based on improper argue not for the State that its view was claimed, he recklessly of the the defendant did not act as but man, instead, Riley, intentionally him. chased an unarmed shot at in the The defendant’s admission that he was aware of individuals evidentiary support in the park he fired that direction adds when recklessly. very did The argument that the defendant not act State’s may gun group people support act of in of a firing a the direction instructing in a jury trial exercise discretion not on judge’s 157, App. manslaughter. People v. 378 3d Sipp, See (2007) (the 161-64, properly trial court refused 883 N.E.2d 133 involuntary manslaughter the defendant testified instruct on “ ”); ‘to scare ’em’ right people he fired shots to the of a crowd (2007) Jackson, 605, 614, People App. 372 Ill. 3d 874 N.E.2d 123 v. (the affirmed, his that rejecting claim defendant’s murder conviction warning people); air as to scare going he to fire a into the was (1988) 49, Cannon, 55, N.E.2d 1035 People App. 176 Ill. 3d 530 v. building did not entitle the in direction a residential (shooting the instruction). is instructed manslaughter Where defendant to may argue State that involuntary manslaughter, on weapon. recklessly, discharging in intentionally, merely acted

269 error, otherwise, prosecutor’s argument find no or firing shotgun. act defendant of regarding intentional of Counsel Ineffective Assistance asserts his counsel was ineffective for two trial (1) to file a limine to bar admission of reasons: he failed motion use prior conviction; to the of the modi- failed IPI fied Criminal 4th No. 26.011 instruction. counsel,

To a claim succeed on of ineffective assistance both counsel’s representation defendant must establish substantially deficient and that the defendant prejudiced 668, 690, performance. Washington, deficient Strickland v. 466 U.S. 80 674, 698, (1984), 2d 2052, People Albanese, L. Ed. 104 S. Ct. 2066-68 v. (1984). 525, 504, Ill. 2d 473 Falling

104 N.E.2d 1246 short on either Coleman, 366, showing is fatal to the claim. Ill. 2d 397- (1998). 98, 701 question N.E.2d 1063 Because there is little counsel should done that complains have which defendant now about, prejudice we look to determine whether substantial has Albanese, 527, Strickland, established. 2d at citing been 104 Ill. (lack at Ed 2d at U.S. 80 L. 104 S. Ct. at 2069 of substantial counsel). prejudice fatal to claim of ineffective prejudice Substantial there prob shown where is a reasonable that, ability performance, but for counsel’s the result deficient of the proceeding Coleman, have would been different. Ill. 2d at 397. Whether counsel was ineffective is an issue we de novo. People review Chapman, N.E.2d 48 Conviction Prior Defendant’s testified, having State moved rebuttal copy introduce a prior ag certified of the defendant’s conviction for gravated unlawful use of a weapon. inquired court whether the State had with” “checked defense counsel about this evidence. The replied State Defense did reply had. counsel when the trial court any objection being asked whether he had to the evidence received. The court admitted the evidence. day,

The next to the of prior closing arguments start and outside presence jury, explained of the defense his counsel that failure to object his going was based on belief the court to that was address the admissibility sidebar; in prior the defendant’s conviction a he had planned object to though “pretty even he the court sure” would admit the evidence.

The trial judge stated he would have defense addressed counsel’s objection sidebar, judge a had he one. requested The trial went on to that an objection made, state even if been had he would have admit- prior pursuant People Montgomery,

ted the defendant’s to v. conviction 2d 268 N.E.2d 695 The court reasoned that prejudice type was minimal as the conviction did not involve the same pending probative of offense at trial. The conviction had value based commission, turpitude, raised a question on its recent which moral At impacted credibility. and thus the defendant’s defense counsel’s closing request, permitted explain the court defense counsel to in his argument that meant that to the the defendant’s conviction previously possessed gun. he had a argues

The “had little prior defendant that because his conviction witness,” with a his should have to do his truthfulness as counsel ground prejudicial to bar its on its moved limine admission that probative argues, its defendant “Given outweighed effect value. The value, probative minimal prejudicial effect the evidence and its have probability there is reasonable the trial court would argues The mo- granted pretrial the defense’s motion.” “may very convinced” the court to exclude tion limine well have disagree. prior conviction. We is to defen repel own statement sufficient trial court’s timely would argument. unpersuaded are that a filed motion

dant’s Ill. 2d People Griffin, in a different outcome.2 See have resulted (1992) (Strickland 45, 60, require filing 592 N.E.2d 930 does motions). useless claim, ineffec- argues trial counsel was

As related use of his failing purported to the State’s substantive tive the fol- support, appears rely on prior conviction. by the lowing prosecutor: statements Riley Ronald see the

“Now as soon as John and Daniels they standing shotgun, ran. doorway in the Riley They [the Daniels and John knew what ran because Ronald him, capable They they knew what defendant] was of. knew capable of.” attempt claim is untenable. The defendant’s defendant’s might at most be viewed manufacture error based on statements that prior conviction tangentially as substantive use of defendant’s performance. See challenge reed to defense counsel’s too slender a Rhodes, 899 N.E.2d 335 App. 386 1Ill. (lack did not outcome of objection prejudice caused no affect trial). applica challenge, as an erroneous the defendant does

2Wenote that standard, it would the trial court’s conclusion Montgomery of the tion objection. prior over the defendant’s admitted his conviction have Improper Jury Instruction Finally, argues his trial counsel rendered ineffec trial of a object tive assistance when he failed to to the court’s use Having modified version of IPI Criminal 4th found no No. 26.01I. instruction, plain error based on the erroneous we conclude is in position by placing defendant no better fault on trial counsel for object his failure to to the erroneous instruction for two related reasons.

First, whether we characterize as or evidence substantial overwhelming, against nature the evidence precludes finding prejudiced by that he was counsel’s deficient Nitz, performance. 82, 108-09, See People v. 143 Ill. 2d 572 N.E.2d 895 (fair trial plain by not denied under either error or deficient balanced”); performance closely of trial “not counsel (1999) (no Ward, 249, 263, 187 Ill. 2d People v. reason probability light able that outcome would have been altered evidence). overwhelming

Second, for this defendant to succeed on his claim of ineffective counsel, ness probability must show that there is a reasonable that the outcome would been for have different but defense counsel’s object Coleman, failure to the erroneous instruction. 2d See 183 Ill. plain at 397. As we made clear in our analysis error under fundamental fairness, the jury would have rendered the same verdict even if it had by been guided proper instructions. deprived

Where fair trial by of a an errone ous prong error, necessarily instruction under either plain required prejudice follows that to establish an as ineffective sistance of counsel claim on er object based counsel’s failure to to the Nitz, roneous instruction cannot be at shown. See 143 Ill. 2d (fair 108-09 trial not either plain denied under error or deficient performance counsel); Pecoraro, of trial (1991) (no N.E.2d 942 plain analysis warranted where claim of ineffectiveness of counsel made case not closely where evidence bal anced and claimed magnitude [not] “error of such that the defendant trial”). impartial was denied a fair and

CONCLUSION reject each of the defendant’s error. claims of While the circuit court in instructing erred with a modified IPI version of 26.01I, 4th showing no error has been made. context, The prosecution’s argument, preclude viewed in did not considering firing shotgun from the defendant’s intentional of the purposes as reckless conduct of the manslaughter charge. substantially prejudiced to establish by counsel’s failure to his claims of ineffective assistance of counsel following testimony or prior bar the admission of his conviction improper jury to the instruction. counsel’s failure Affirmed. GORDON, P.J.,

R. concurs. WOLFSON, concurring: specially JUSTICE gave jury agree I trial erred the IPI Criminal the court when (210 451(a) 26.01Q. Supreme 4th No. instead No. Court Rule 26.011 451(a)) pattern use judges appropriate Ill. 2d R. directs trial the Here, accurately the IPI instruction unless “it does not state law.” 26.01Q law. It should have been accurately Criminal 4th No. states the given.

I defense lack agree by also the issue has been forfeited counsel’s objection. obligation It then became the defendant’s to demonstrate IPI giving the 4th No. 26.01I. prejudiced how he was reasoning process, the speculation jury’s have offered about been little but else. the conclusion there Supreme support

Two Illinois Court decisions (1982), Pastorino, Ill. 2d 178 plain People no In v. 91 here. trial told the not to court no error where the court the saw manslaughter charge unless it first found the voluntary the (1993), Towns, Ill. 2d 90 People of murder. v. 157 guilty 26.01Q, but incor gave the trial IPI Criminal 3d court find rectly paragraph authorizing included involuntary manslaughter, degree of first murder guilty objection different led the required. mental states Lack despite the Ill. Towns, 157 2d prejudiced. court to conclude defendant was at 108. points importance make that are of

Pastorino and Towns two First, op court of the object deprives the trial us. the failure to Pastorino, might be to make. any correct mistake it about portunity to demonstrates Second, 2d the record as whole Ill. at 188. 91 sup substantial, of a close balance is lack the evidence of murder deprived of a fair that the defendant was ports conclusion Pastorino, 108-09; 2d at 188-89. Towns, 2d at trial. charge on the murder Here, guilt of defendant’s (1983) (discharge of a Bartall, 98 Ill. People See v. substantial. supports lot people parking weapon group the air over into verdict.) jury’s guilty I do not share the majority’s concern about jury’s possible in- ability to reach a unanimous verdict on the murder charge. That pos- sibility present in any jury trial. We do not instruct about it.

Involuntary manslaughter is a lesser-included offense of first degree Robinson, murder. 232 Ill. 2d When degree murder, offenses to be considered are first degree second murder, and IPI involuntary manslaughter, Criminal 4th No. 26.01I tells the not to consider the involuntary manslaughter charge un less it guilty finds the defendant not of the two murder offenses. if any proposition regarding degree also is told that first murder proved, has not been it then involuntary manslaugh should decide the ter charge. That is the given instruction this case. I do not see how is, defendant is harmed it. That I why presence do not see of a second charge radically changes murder the instructional landscape. Whatever reason pattern the criminal instructions commit tee had for making the in IPI distinctions Criminal 4th Nos. 26.01I and 26.01Q is not any shared with us in Committee Note. al.,

MICHAEL CAREY Plaintiffs-Appellees, et FAMILY AMERICAN BROKERAGE, INC., Foreign Corporation, Family American Insurance d/b/a

Group, Defendant-Appellant. (1st Division) First District No. 1 — 07—3261 Opinion May 11, filed 2009.

Case Details

Case Name: People v. Williams

Court Name: Appellate Court of Illinois

Date Published: May 11, 2009

Citation: 908 N.E.2d 1079

Docket Number: 1-07-0187

Court Abbreviation: Ill. App. Ct.