*1 Cоunty did not occur Williamson and that transaction joined who were in this case reside properly none defendants Therefore, establishing met County. AHC its burden Williamson County. the circuit improper that venue is Williamson We reverse finding County. proper court’s decision that venue was Williamson
CONCLUSION reasons, For court of foregoing judgment of the circuit Wil- reversed, County liamson is to the circuit and the cause remanded granting court with directions enter an order AHC’s motion to transfer venue County.1 to Union
Reversed; remanded cause with directions. CHAPMAN, JJ.,
WELCH and concur. THE ILLINOIS, PEOPLE OF THE Plaintiff-Appellee, STATE OF WILSON, Defendant-Appellant.
DONALD (1st Division) First District No. 1 — 06—2072 Opinion filed June 2009. argument,
1At oral AHC Maddipoti stated that Dr. was now named separate defendant in a County. part suit filed in fact Williamson This is not a appeal; therefore, of the record on purposes did not we consider it for of our decision.
GARCIA, J., concurring. *2 Firebaugh, Appellate K. of Patricia Unsinn and Kari both State Defender’s Office, Chicago, appellant. of for (James Alvarez, Attorney, Fitzgerald, Chicago Manny E. Anita State’s of counsel), Colletti, Attorneys,
Magence, Nancy and Assistant State’s of for People. opinion HALL delivered the of the court:
JUSTICE codefendants, Wilson, The Donald and five Darnell Wilson1, Poole, McNeal, and Raymond Ahmed Derrick Lester Perkins murder, by degree were with at- Youngblood, charged indictment first murder, ag- firearm and aggravated first use of a tempted degree gravated battery a firearm in with the deaths of Les- connection ley wounding of Melvin Cоppage George Holliday, and and jury trial, guilty the defendant was found of Following Jefferson.2 battery aggravated of and with a degree two counts first murder of The to concurrent terms natural firearm. defendant was sentenced ag- years’ degree the first murder and imprisonment life and six for firearm, battery gravated respectively. with a (1) three issues: whether appeal, On the defendant raises closing argument deprived failure make a counsel’s (2) counsel; whether the admission of the effective of assistance testimony regarding revolver unconnected photograph of and the (3) error; the trial in and whether court shootings this case in limine to motion bar evidence granting erred the State’s belonged еyewitnesses gang. to street victims stemming from brother. His conviction 1Darnell Wilson is the defendant’s Wilson, by No. this See 1 — 06— was affirmed court. this incident 23). 2008) (December 8, (unpublished Supreme under Court Rule order by People v. See Youngblood’s was also affirmed this court. Mr. conviction 2009) (March 31, order under (unpublished No. Youngblood, 1 — 06—1997 23). Supreme Rule Court parties appeal. to this remaining are not 2The codefendants denied the effective assistance conclude that defendant was We closing argument of trial to make a by of counsel the failure counsel by failure of the evidence object trial counsel’s admission for As must be remanded a new of the unrelated revolver. this case trial, granting we do the issue of motion not rеach whether limine error.
BACKGROUND I. Proceedings Pretrial Circuit presided selection this case was over Court jurors Joseph Claps. Judge prospective M. advised the Judge Claps there that evidence in case show was “a chance some this there type gang activity inquired was some involved” prevent any being whether that evidence would of them from fair and impartial. jurors regard Two indicated that could not be fair with such evidence and excused for cause. trial, prosecutor Prior made an oral limine motion seek- ing any bar eyewitnesses’ reference to the victims’ and the gang membership. Initially, the motion was addressed in chambers. The discussion was prior opening then continued on the reсord state- motion, Trial opposed ments. arguing as follows: theory “It’s *3 our defense in this case that the State witnesses Jefferson, are going testify, Jackson, to Melvin Eddie William Chambers, George Lawson, others, essence, conspired in and with each put being other to forward Donald as Wilson’s name one of perpetrators when, fact, the in he was not. deceased,
Their Lesley Cop- connection each other and to the page George Holliday, and is relevant to show the nature of their bias, their testifying way they motivation for the do.” The trial granted evidence, court the to bar gang motion the stat- ing as follows: go my chambers,
“I still original point back to which I in said is, and that I see people don’t the connection between the fact that got reason, building, lobby, arrested in that in that for whatever possible between conspiracy that and them to between frame somebody,simply they because were there. is, and say record, my opinion
I’ve said this I’ll the it on this best, tangential conflict, at relationship gang has some ato allegations because people, there were that some of the some of the *** gang. witnesses involved in were this case also members of a they The fact gang. They just is that were members of the same happened building. opinion to be from a In my different this is not gang rivalry buildings, people case. The is between between who 192 originally having Prairie ended to be uр
were Courts and forced Ickeys.”3 to live
II. Trial4 Jury Corey family he with Strothers testified that resided his (the housing in the Ickes building) South State Street Harold (Ickes). 2003, accompanied At around 12:30 on June project p.m. daughters, building on his to the 2240 to confront way his he was injured daughters of a had of his with a rock. parent child who one way, passed him, carrying paper bag. a brown On the jockey at working par- had the defendant while as a disc He observed (Prairie Courts). project housing ties at Prairie Courts building, adjoined defendant walked to the back of 2250 which building. building, Lesley Mr. Strothers reached the front When every Holliday day. there. He them Coppage George were saw Lawson, Jefferson, Eddie Jackson and Nathan Wilson George Melvin for there. Mr. Strothers had known these individuals аbout were also years from Ickes. eye Coppage, Mr. discussing daughter’s As he was his building. lobby of the 2240 Mr. gunshots were heard from inside the way. out of the grabbed daughters pushed one of his her Strothers Holliday Mr. ground. fell over a and remained on He bannister keep hit, daughter being Mr. other her from grabbed Strothers’s Mr. heard pause; he was There was a Strothers more but then shot. building. Mr. coming the side and the back shots from returned home. daughters Strothers located his that, shooting, prior Mr. further Strothers testified because Prairie living Prairie Courts were relocated Ickes people atmosphere at torn Since then the Courts was scheduled be down. a lot of begun change. had There was violence. Ickes Mr. attacked; result, thеy go Stroth- were afraid outside. being delivery burglary and the he had been convicted ers admitted that of a controlled substance. cross-examination, acknowledged that did not Mr. Strothers
On or where lobby building the 2240 came out of see who *4 gun. have a He not him and did not The defendant did threaten went. again. did not see points spelling “Ickes.”
3The State out that correct simultaneously with bench jury trial was conducted 4The defendant’s Ahmed of Darnell Wilson and Poole. trials p.m. on June
George approximately testified that at Lawson Jackson, building. He was with Eddie he was in front of the 2240 Lesley Jefferson, Cop- and Chambers. Corey Melvin Strothers William up had with Holliday present. grown were also He page George and every dаy. men at Ickes and saw them these porch; going a conversation was standing Mr. Lawson was on say, heard regarding daughter. on Mr. Strothers’s When he someone n-----s,” building “There he three individuals in the come the observed defendant, Suey lobby guns. with He identified the three men as the began and Be-Bo. heard and to run. He heard more Mr. Lawson shots and coming building shots from the back of the 2240 ducked behind shooting. white He not able to he van. see who was When returned, Coppage Holliday he saw that Mr. and Mr. had been shot.
Mr. Lawson that he had the defendant around testified observed building prior shooting. the 2320 for about three to the months project. defendant was with other individuals from the Prairie Courts cross-examination, acknowledged On Mr. Lawson that there was bad blood the men between from Prairie Courts and the men at Ickes fighting and that some going acknowledged on. He also his grand jury testimony, he stated that his attention was drawn to lobby gunfire. because of the He did not talk police to the until the day shooting. after the he told the While detective who interviewed him a month shooting identify after the that he could all men in three lobby, Suey he identified testifying and Be-Bo. He admitted another hearing guns, they that he saw the three men with not fired them. examination,
On redirect Mr. Lawson testified that he identified all gave three of the men and police. statement that effect to the He further grand jury. testified to that fact before the On re-cross- examination, Mr. discussing shooting Lawson denied the facts of the anyone prior police. his interview with
Eddie p.m. Jackson testified that at about on June was standing porch building Coppage, on the of the 2240 with Messrs. Holliday,Lawson, listening Strothers and Nathan Wilson. He was conversation regarding daughter. gunshots Mr. Strothers’s He heard building say, they from inside the 2240 “Here come. heard someone Here building come those n-----s.” Mr. into the Jackson looked saw shooters; moving firing guns. faces of the their He (Hot identified the shooters as Mr. Dog), Suey, Poole Be-Bo and Lester. more, There could been He did have but those were the men he saw. testify that he the defendant in the building. saw Mr. Jackson testified that next to parking as he ran toward lot building, shooting stopped. along Mr. Jackson ran side As *5 shоoting. there more He looked to his left. At this building, was Poole, he three individuals. He identified them as Mr. point, observed brother, fir- the defendant and the defendant’s Darnell. The men were Coppage, Mr. Jackson and Mr. who ing guns running their toward Coppage and Mr. turned running was with Mr. Jackson. As Mr. Jackson lot, parking Coppage back to run to the corner of the Mr. was shot. police hide until the arrived. Mr. Jackson was able to before; they many had times Mr. Jackson observed He him numerous High both attended Dunbar School. had also seen times at Ickes. cross-examination, acknowledged Mr. Jackson that he was
On custody had taken the defendant into before he went police aware the He knew the defendant and Darnell аs “broth- police to the station. in the told him their lineup, police ers.” After he identified them he had seen four telling police names. He did not remember 2240 build- shooting than three black males at the back of the rather of the front of the ing. any He never saw of the shooters come out Mr. Poole building he had started to run. He did see because building. coming from the back of the 2240 Suey he and had grew up Melvin testified that with Jefferson he lived at years. for over 10 He would see them when known Be-Bo Suey and Be-Bo at Ickes. Prairie Courts. He saw the defendant with on June p.m. p.m. Mr. that between 12:30 Jefferson testified Coppage, 26, 2003, building he in front of the 2240 with Messrs. was Strothers, group was talk- Holliday, Jackson and Nathan Wilson. and another daughter an Mr. Strothers’s ing about incident between building the 2240 Mr. heard the back door to child when Jefferson Suey and Be-Bo lobby He the front of the and saw open. looked toward Mr. Jefferson ran began shooting. in their hands. The men guns with run- building. Coppage Mr. was parking toward the lot north of him that he hit. when he called out ning parking lot with Jackson; he Mr. and Mr. hid behind a car with Lawson Mr. Jefferson looking Coppage, at Mr. leg. in the After discovered he had been shot He Darnell running. three individuals saw up he looked back and saw him; the men were with gun a in his hand. Two other with silver Jefferson, Mr. shooting The men started defendant and Mr. Poole. managed get up Mr. Mr. Jefferson Mr. Jackson and Lawson. Street, police pulled car and State got to Cermak Road run. When up. men that the two cross-examination, Mr. Jefferson testified
On Youngblood, Mr. building the 2240 guns lobby in the McNeal, “Be-Bo.” He known also as “Suey,” and Mr. known also as testimony did not grand jury of his transcript acknowledged had hidden behind a van. reflect that he Anthony Hardy currently serving one-year testified that he violating probation given possession sentence for term he was for employed of a controlled substance. On June he was janitor building at Ickes. He worked at the 2320 south of the 2250 and buildings. years very He had worked at for 10 and was Ickes grown up familiar with the area because he had there. Hardy
Mr. testified that p.m. around on June he was back of the 2320 building. gunshots coming He heard from the 2240 buildings. later, and 2250 About a minute he saw two individuals run- ning building toward the 2320 from the back of 2240 and 2250 build- ings. Only one of the gun. gun individuals had a He had described the *6 police big Hardy as and silver color. Mr. identified Darnell as the gun. individual with the He did not notice Darnell where went as he trying get way. out of the He did not see the face of the other individual. acknowledged pending
William Chambers that he had a possession of a charge controlled substance but that no or threats promises were made to him testimony. for his He testified that p.m. between 12:30 p.m. and 1 on June he was on the north side building parking friends, Jackson, lot with his Messrs. Jefferson Holliday. group parking Some left the lot and went to the front of the 2240 building. Mr. Chambers remained in the parking lot. He heard gunshots coming from building the front of the and saw people running began toward him. Hе run west and northbound. He also saw three running individuals down the lane in back of the 2240 building. One of the held up gun individuals a silver and started shooting him; recognized he the shooter as Mr. Poole. The other two also started shooting. Another man was in back standing building shooting at him. Mr. Chambers identified him as Mr. Youngblood. cross-examination, On Mr. Chambers testified that he could identify the defendant one of the did shooters because he not see his face. Sullivan,
Officer investigator Chicago William a forensic for the police department, Ostafin, that he partner, testified and his Officer assigned were process a crime scene at 2240 South Street. State lobby area, Inside the cartridge he recovered five nine-millimeter fired cases. lobby area, Outside the he recovered two nine-millimeter fired cartridge parking building, cases. lot north of the 2240 he observed a vehicle directly red stain on hood in front of where the driver would There also a red sit. stain to the rear of and about eight seven to feet north of the vehicle. the of- Based on experience, ficer’s the red stains were blood. and he further that Officer Ostafin went
Officer Sullivan testified building. apartment, In the were apartment described as a Smith and weapon, directed to a closet and retrieved a six-shot, double-action bluesteel revolver with Wesson .45-caliber barrel. 5V2-inch that, April on Chicago officer Mark Struke testified police working at Gang District Team and was assigned he was to the 18th on that housing approximately p.m. At project. the Cabrini Green and recovered a date, apartment at Cabrini Green he entered an refrigerator.5 attempting place man it under weapon from a in firearm expert and an Murray, Kurt a forensic scientist cartridges came from the identification, that all of the fired testified cartridge that the recovered cases weapon. same He determined by apart- Officer Sullivan at not fired from the revolver recovered cartridges determined that the building. ment in the 2420 He further from the recovered Officer Struke. weapon came that on June Mayer Mark testified Chicago police officer plain He was in clothes рerson a call of a shot at Ickes. responded driving down Dearborn Street driving an unmarked car. While walking toward he observed the defendant building, behind the 2420 a field Mayer Officer conducted building pace. the 2420 at a fast ap- noted that the defendant the defendant. The officer interview with any did not reveal A of the defendant very pat nervous. down peared Mayer observed a Officer questioning evidence. While 24th He left running toward West Street. black male individual for a field interview. stopped the other acknowledged that cross-examination, Mayer Officer On *7 defendant to obtain away. stopped He try did not to run defendant conversation, realized the the officer information; during their accоmpanied by two Mayer Officer was very defendant was nervous. the defendant. approached the car and they all exited partners; he was as- on June testified that Sergeant Ronald Watts fired at 2240 South to a call of shots responded He signed to Ickes. scene, apartment proceeded he arrived at the State Street. After police were people some of the building, where 708 in the to be located. looking for were believed him to the admitted that a black female testified
Officer Watts her herself, he believed identify but did not apartment. The woman Struke’s reference based on Officer for a mistrial 5Trial counsel-moved for mistrial denied the motion The trial court being assignеd gangs to a unit. fact the jury that the request to admonish the trial counsel’s and also refused nothing this case. had to do with assigned gangs unit officer Sergeant last name two Upon entering, was “Wilson.” Watts observed black males who identified themselves as the defendant and Darnell. The him there gave permission apartment; woman to search person- revolver in the closet. The revolver was recovered crime lab police nel. The defendant and Darnell taken to Area 4 district. The defendant advised the trial court that he did not wish to testify. parties stipulated testify The that Officer Sullivan would apartment further that the revolver he from the was loaded recovered cartridge stipulated with six live cases. It was also that Melvin Jeffer- testify lineup son would that he viewed a on June at 7:35 p.m. parties identified the Darnell and Mr. Poole. The stipulated Bowen, also gave defendant an address of 725 East Chicago, Mayer. to Officer parties
The further stipulated that Detective William Whalen testify that Mr. person Jackson told him he had seen a named “Be-Bo” building come out of the shooting handgun. It was also stipulated that Hardy lineup Mr. viewed a in which the defendant and Darnell participated, but Hardy Mr. identified Darnell. The defendant then prosecutor rested. After the made closing argu- her ment, trial counsel informed the trial court that the defense chose to rely on the trial court’s jury. conferring instructions to the After record, counsel off the proceeded the trial court to instruct jury. After deliberate, retired to trial counsel for a moved verdict; directed the motion was denied.
The found the guilty degree two counts of first murder and aggravated one count of battery with a firearm. defendant’s motion for a new trial was denied. The trial court sentenced him to natural imprisonment life for first degree murder years’ and six imprisonment for aggravated battery with a firearm. The defendant’s motion to reconsider his sentence was denied. This appeal followed.
ANALYSIS I. Ineffective Assistance of Counsel The defendant contends that trial counsel’s failure to make a clos- ing argument him denied assistance of effective counsel. A. Standаrd Review surrounding
Where the facts
claim are
ineffective assistance
undisputed
below,
and the claim was not raised
this court’s review is
People Berrier,
de novo.
362 Ill.
B. Discussion counsel, “To establish ineffective assistance of a defendant must show both that performance prejudice counsel’s was deficient and that
198
285, 289,
Bailey,
v.
232 Ill. 2d
deficiency.” People
resulted from that
(2009),
Washington,
v.
466 U.S.
citing
When
deficient,
that the at
reviewing
indulges
strong presumption
court
profes
range
fell within the wide
of reasonable
torney’s performance
Berrier,
many
Ill.
3d at 1166. Under
App.
sional assistance.
circumstances,
a matter of trial
closing argument
is
waiver
122, 127,
Conley,
App.
Ill.
3d
454 N.E.2d
strategy. People v.
‘“ “[mjistakes
(1983).
in trial
recognized
Our
court has
that
supreme
render the
judgment
do not of themselves
strategy or tactics or
’
fact,
strategic
In
counsel’s
incompetent.”
[Citations.]
representation
Further, the fact that
virtually unchallengeable. [Citation.]
choices are
not a fac
strategy
a different
attorney might
pursued
another
have
Palmer,
v.
People
[Citation.]”
determination.
competency
tor
(1994),
v. Hillen
quoting People
2d
Given the lack
issue,
of Illinois case law on this
find
we
Com
Sparks,
monwealth v.
Super. 463,
Pa.
(1988),
The reviewing court concluded that trial counsel’s failure to make a closing argument rendered his assistance constitutionally ineffective. pointed court out that defense counsel had not made an opening statement to outline the jury. addition, defendant’s case to the In the evidence was conflicting and complex included medical evidence. The court then stated as follows:
“Defense counsel’s failure to comment thereon was in unfortunate
contrast to
closing
[the] extensive
argument
by
made
counsel for
the Commonwealth in
plausible
which he offered
explanations for
inconsistencies in the
Thus,
Commonwealth’s evidence.
when it
began
deliberations,
[its]
jury
had not
any
had the benefit of
explanation by the
facts,
defense of its version of the
while the
position
Commonwealth’s
presented
had been
forcefully and
emphatically. Although defense
might personally
counsel
have
found
inadequacies
of the Commonwealth’scase to have been
apparent,
assumption
equally
obvious
jury
memorable to the
without
was,
comment
counsel
under the
***,
circumstances
unreasonable
strategically lacking
merit.” Sparks,
Super, 468,
372 Pa.
at
In present case, at the evidence, сlose of the the trial court informed the jury that the over; trial was not first the State and then the defense would have the opportunity to make final arguments. Thus, jury was expecting defense, to hear from the and as noted earlier, the trial court appeared surprised that trial counsel chose not evidence, gang Moreover, barring even with argue. impress upon closing argument opportunity had the identification in the State’s witnesses’
jury the inconsistencies any physi- the lack of of a confession and testimony as well as the lack in this to the offenses case. connecting the defendant cal evidence that the witnesses’ jury told the closing argument, prosecutor be considered the defendant at the scene should testimony placing for the codefendants’ defendant was accountable a whole and that the in the witnesses’ the inconsistencies argument That addressed acts. at the scene and that presence the defendant’s testimony as to prosecu- have found the trial counsel one of the shooters. While did is unreason- assumption argument specious, tor’s strategy. Sparks, 372 and not sound trial under the circumstances able A.2d at 889. Super, Pa. closing not to make a choosing in which
It be a rare case strategy. Given be sound trial in a trial would argument McCarter, People v. here, a case. See this was not such evidence (2008) (admission impermis 897 N.E.2d *10 Ill. 3d strategic justifica susceptible аny testimony was not opinion sible test). the ineffective assistance prong the first of tion and fulfilled of the uncon address the issue defendant did not Although the of counsel assistance in the context of his ineffective revolver nected sup further object to that evidence claim, find that the failure to we claim. ineffective assistance the defendant’s prong the first of ports the testimony regarding that the argument makes no The State of photograph and the apartment from the recovery of the revolver See charged offenses. to the somehow connected the revolver was (1995) 137 648 N.E.2d Babiarz, App. 271 Ill. 3d People v. (firearm that the establishes where the evidence not admissible the was sufficiеntly connected to firearm, if even recovered offense). fact, no connec In we find the commission of not used in the tion. of assistance of the ineffective prong the
In to fulfill second order that probability “the that test, must establish the defendant case is ‘sufficient of the changed the outcome errors counsel’s ” at McCarter, App. Ill. 3d 385 in the outcome.’ confidence undermine 698, 2d 104 S. 694, L. Ed. at Strickland, at 80 935, 466 U.S. quoting of the prove by preponderance not need 2068. The defendant Ct. at different; “rather, the been would have the outcome evidence that ' pos “there is a reasonable only demonstrate need defendant the errors, the result unprofessional that, for counsel’s sibility but ’ ” McCarter, Aрp. Ill. 385 different.” have been proceeding 525, 473 N.E.2d Albanese, Ill. 2d quoting at Strickland, U.S. at L. Ed. 2d at (1984), quoting errors, the assessing impact S. the of counsel’s 104 Ct. 2068. before the fact the of the evidence reviewing totality court considers McCarter, finder. Ill. 3d at 935-36. admitting the error in the evidence uncon-
Turning first to revolver, defendant that the admission of argues improper nected pertaining highly prejudicial evidence to the was because revolver citing 2 J. suggested dangerous person, Strong, it that he was a 1999). (5th §212, responds ed. State McCormick on Evidence at 8 testimony was made it clear that the revolver not the Mayer, weapon stopped by murder and that when Officer However, gun possession. defendant did have a there was his tеstimony that, shortly shootings, after the the revolver was recovered a closet in same where the was apartment from defendant found by police. connecting
There was no physical evidence the defendant shootings. very least, At the of a of and the photograph admission revolver, testimony extensive about a unrelated shootings to the case, puzzled part this would have as to was why it against worst, evidence admitted the defendant. At evidence that the defendant found in proximity close to the revolver have suggested to the a dangerous person defendant was likely therefore more participated shootings. have The error prejudicial light was even more defendant trial counsel’s closing argument. failure make a was there Not physical linking no shootings, evidence the defendant to the but the inculpatory against made no statements. The only evidence the testimony of some of the State’s witnesses identifying him as one of the shooters.
The defendant’s conviction in
case came
this
down whether the
jury believed the
testimony
eyewitnesses
identification
of the State’s
the shootings.
Unlike Sparks, trial counsel did make an opening
*11
However,
statement.
case,
this
defendant
prejudiced by
the
was
the
failure of trial
to confirm the jury
counsel
to
that the inconsistencies
referred to in trial
opening
present
counsel’s
statement were
in the
testimony.
witnesses’
This
espeсially
light
prosecutor’s
is
true in
of the
closing argument
to
appeared
the
that
reconcile
those
inconsistencies. Trial counsel
argued
could also have
the
the
of
against
bias
those
the
witnesses
the defendant based on
evidence of
the ill-will between the Ickes and the Prairie
residents. Closing
Courts
argument opportunity
also have afforded
counsel the
jurors
revolver,
remind the
that
about which
had heard so
much,
in the
participation
was
evidence
defendant’s
shoot-
Clearly,
gave
persuade
the “last clear chance to
ings.
up
trial counsel
the trier of fact that there
be reasonable doubt of the defendant’s
862,
Herring,
600,
2d at
Ct. at
guilt.”
422 U.S.
45 L. Ed.
95 S.
2555.
People McGee,
on
v.
222 Ill. App.
The State’s reliance
Palmer and
(1991),
cases,
In
misplaced.
the review
3d
N.E.2d 603
both
rejected
strategies
failed trial
ing
arguments
courts
that
constituted
However, “if
is or
ineffective assistance of counsel.
no reason
can be
tactic,
being
given
prevent
for a
the label ‘tactic’ will not
it from
used
Anderson,
v.
evidence of ineffective assistance of counsel.” Miller
as
(7th
2001).6
(7th
2001),
vacated, 268
Cir.
255 F.3d
Cir.
F.3d 485
Miller,
errors committed
appeals
the court of
identified several
determining
prejudice
trial counsel. In
defendant
trial,
represented
if he
a new
the court
that
had been
required
observed
have
a
by minimally competent attorney,
a
the defendant would
had
Miller,
Conceding,
acquittal.”
“reasonable shot at
“[Ijindeed, of an would still have we think chance have significantly percent; been less than 50 but it would not been chance, negligible enough require us to conclude and that is were, aggregate, in the lawyer’s representation that errors Miller, prejudicial.” 255 F.3dat 459-60. us, acquit- chance of the evidence in case before the defendant’s
Given not negligible. tal was conclude the defendant received ineffective assistance
We deficient and performance trial counsel’s the defendant must receive prejudice to the defendant. As resulted trial, granting turn to of the State’s motion a new we need not limine.
II.
Jeopardy
Double
sufficiency
challenge
The defendant has not raised
prove
the evidence was sufficient
We find that
evidence.
therefore,
and,
double
doubt
guilty beyond
reasonable
Junior,
Ill.
a retrial. See
jeopardy does not bar
(2004).
III. Conclusion is reasons, defendant’s conviction foregoing of the the For all new trial. reversed, and the cause is remanded for a Reversed; cause remanded. P.J., GORDON,
R. concurs. GARCIA, concurring:
JUSTICE I separately write further doubt that defense counsel’s cast closing as forego argument may properly decision to be characterized “virtually decision,” a unchallengeable the State claims in tactical as out, points very its brief. As Justice Hall little law there Illinois case addressing precise jury very this issue in the context of a trial for a good it a ought give reason: be a rare case the failure to clos- where ing argument jury if may strategy. before constitute sound trial Even exists, such a this is not that case case. jury gave
The
heard from the
open
defendant after the State
its
ing
statement,
statement
the
jury.
opening
before
his
defense
questions
reliability
anticipated
raised
the
testimony against
evidence,
the defendant. At the close of
the trial
judge, being unaware that defense
closing
counsel intended
waive
argument,
jury
first,
informed the
that it
hear
the
from
State
defense,
then the
again
from the
The
the
State.
State addressed
jury.
jury,
defense, instead,
The
expecting
then
to hear from the
saw
attorneys
the
for
engage
judge,
each side
in a
sidebar with
trial
after
the jury
which
was instructed on
law.
made
Defense counsel
no request of the
judge
just
that
as the
admonish
right
testify
defendant had a
to not
giving
without
rise to an adverse
inference, in
manner,
the same
he could
right
waive his
address
(2008)
jury.
Bannister,
People
See
v.
232 Ill. 2d
Of good argu the State made its opening closing use of witnesses, ment. It highlighted testimony only of the Jefferson Jackson, that actively claimed to have seen participate if shootings. Certainly, believed the Jackson, testimony Jefferson or testimony was sufficient prove guilty beyond a reasonable doubt. See (“If (2007) Tabb, Ill. trustworthy, 870 N.E.2d a single eyewitness positive identification be proof sufficient credibility; offered
guilt”). argued The State for their defense counsel nothing response. case, agree light conflicting
I context of of the this evidence, nature where two of numerous witnesses shooter, by the State identified the defendant as defense presented closing “objectively present argument counsel’s decision not to [of our criminal prevailing professional unreasonable under norms *13 (2009). N.E.2d 409 People Bailеy, courts].” v. 232 Ill. 2d up “the last clear gave Defense was ineffective when she trier of fact there be reasonable persuade chance to York, Herring v. 422 U.S. guilt.” doubt of the defendant’s New (1975). 593, 600, 95 S. The closeness 45 L. Ed. 2d Ct. argument defense compelled closing of the evidence counsel, find that defense counsel’s decision provides but the basis to that a new closing argument prejudiced to forfeit a so Brown, Ill. granted. must be See (2005) (but shortcoming, for counsel’s reasonable 831 N.E.2d dif proceeding result could have been probability exists that ferent). SERVICES, INC., Special Adm’r of the Estate of
MIDWEST TRUST Howard, Deceased, HEALTH Plaintiff-Appellant, v. CATHOLIC James SERVICES, formerly Medical known as Columbus-Cabrini PARTNERS
Center, Defendant-Appellee. (1st Division) 1 — 06—2257 First District No.
Opinion 2009. filed June