People v. Bell

2021 IL App (1st) 190366

Opinion

2021 IL App (1st) 190366

THIRD DIVISION March 31, 2021

No. 1-19-0366 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 12809 ) ALONZO BELL, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Ellis concurred in the judgment and opinion.

OPINION

¶1 Defendant, Alonzo Bell, and codefendant, Deandre Brown, who is not a party to this

appeal, were charged by indictment with two counts of attempted first degree murder and two

counts of aggravated battery with a firearm of the victims, Laquita Weatherspoon and Leemanuel

Burrell. Defendant and codefendant were tried jointly by a jury, who, after hearing the evidence,

returned verdicts of guilty on all counts. Defendant was thereafter sentenced to 26 years’

imprisonment on each of the two attempted first degree murder convictions, which were to be

served consecutively.

¶2 In this direct appeal from that judgment, defendant argues that the trial court abused its

discretion in admitting certain social media evidence at trial, that he was denied his Constitutional No. 1-19-0366

right to the effective assistance of trial counsel, and that his sentence violates the proportionate

penalties clause of the Illinois Constitution.

¶3 At trial, Weatherspoon testified that on December 17, 2014, she was 19 years old and had

plans to go to dinner downtown with her boyfriend, Burrell. Burrell drove a white Mitsubishi,

while Weatherspoon sat in the passenger seat. At approximately 8:30 p.m., while on their way to

dinner, Weatherspoon and Burrell stopped at Burrell’s aunt’s house, which was located at 51st and

Ada Streets. Burrell parallel parked, and then began looking for his phone, while Weatherspoon

looked at her phone.

¶4 Weatherspoon then noticed a car driving slowly down Ada Street, stopping near the front

of the Mitsubishi. Weatherspoon also saw a second car pull up behind the first. She heard Burrell

say, “What?” and then saw two men standing next to her window holding guns. Weatherspoon

testified that both men had their right arms extended out from their bodies with guns in their right

hands pointed at Weatherspoon and Burrell. Weatherspoon heard the first shot, then attempted to

crawl for cover into the Mitsubishi’s backseat. Weatherspoon estimated that she heard

approximately 30 gunshots. When the shooting stopped, Weatherspoon looked up and saw that the

gunmen, and both cars, were gone. Weatherspoon looked at Burrell and saw that he had been shot

in the head and arm.

¶5 Although she was not initially aware of her injuries, Weatherspoon was shot twice in her

lower body, suffering injuries where each bullet entered and exited her body. Weatherspoon was

able to exit the vehicle and, at that point, realized that she had been shot. Weatherspoon obtained

aid from a neighbor, Desire Brown, and Brown’s 15-year-old son, N.L. Brown. N.L. brought

Weatherspoon into their home, where they called 911 and comforted her until an ambulance

arrived. Weatherspoon and Burrell were both taken to Stroger hospital.

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¶6 Weatherspoon testified that she remained in the hospital for three days, and, after leaving,

she needed two to three months of physical therapy to help her learn how to walk again. When she

returned to work, she had to limit her shifts to eight hours and had to sit down to rest because she

could no longer stand for long periods of time. Weatherspoon also testified that she suffered “four

to five miscarriages ever since [the shooting] happened.”

¶7 Weatherspoon testified that the gunmen were “4 to 5 feet” from her when she observed

them. Weatherspoon further testified that the area of the shooting was illuminated by streetlights

and that both the Mitsubishi and the second car that pulled up behind the first had their headlights

on. The first gunman that she looked at was the one standing closest to her. She described him as

average height, with short hair and a light complexion, and he was holding a two-toned black and

silver handgun with a “long clip.” Weatherspoon identified defendant as this gunman in open

court. Weatherspoon described the second gunman standing with defendant as tall, with long

dreadlocks and a dark complexion. Weatherspoon identified codefendant as the second gunman,

also in open court.

¶8 Weatherspoon testified that, while she was recovering in the hospital, she began receiving

“get well soon” and “pray[er]” messages on her social media accounts. Weatherspoon then

testified regarding three Twitter posts that she saw and took screenshots of in the days following

the attack and that she later provided to the police to identify her attackers. Those three posts, and

an additional post that was ultimately excluded, were the subject of a pretrial motion in limine by

the State requesting that they be admitted. The four posts included two tweets comprised of text

and emojis; a photograph of defendant, codefendant, and a third individual, with defendant holding

a firearm; and a photograph of defendant individually, holding two firearms.

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¶9 At the pretrial hearing on the State’s motion, the State argued that the posts were relevant

because (1) they allowed Weatherspoon to identify defendant and codefendant as her attackers and

identify the firearm she believed was used in the attack, (2) they “corroborat[ed]” defendant and

codefendant’s “connection to each other,” and (3) they were “circumstantial evidence of [their]

involvement.” The State argued, in sum, that the screenshots were “extremely probative” and that

“any prejudice *** is not substantial enough to outweigh” their probative value.

¶ 10 The defense objected to the posts’ introduction, arguing that they were more prejudicial

than probative. The defense argued that there was no evidence regarding how the messages were

sent or who sent them and that there was no “nexus to the defendants.” Counsel also objected,

based on the “best evidence rule,” arguing that the defense did not have the opportunity to verify

“anything with that telephone” or the “Twitter accounts.”

¶ 11 The trial court “considered the arguments,” concluding that three of the posts were

admissible because Weatherspoon

“identified the two defendants *** in this case through a photograph that she got

through Twitter and that’s how an identification was made, that is the biggest

connection you could have to these defendants so I would find that it would be

relevant for that reason. And how she got to that picture are those two prior tweets

so she could certainly testify to the foundation and to those.”

¶ 12 The court further reasoned that “any argument regarding who sent the tweets exactly would

go to the weight not the admissibility.” The fourth post—the photograph of defendant holding two

guns—was excluded by the court, which noted that the gun Weatherspoon identified as being used

in the attack was also displayed in the other photograph.

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¶ 13 During Weatherspoon’s trial testimony, she stated that, while still in the hospital, she

received a request to follow her on Twitter from an account whose profile picture was a photograph

of codefendant, whom she recognized as the second gunman. Weatherspoon testified that she

clicked on the request and saw a recent tweet from the account that caught her attention because it

referenced her nickname, “Quitta.” The text of the tweet was “#NoNo yu Wnt RichGang or Quitta

me,” followed by several emojis including two thumbs down, “100,” a painful face, a laughing

face, a face with a surgical mask, a person running, and a gun aimed at that person. Weatherspoon

agreed that the message was “not written in your normal English like you see in a book or

magazine” but stated that she understood the message to mean that the sender was “laughing at the

incident” and saying, “You [won’t] catch me how we caught her.” Weatherspoon took a screenshot

of the tweet and saved it on her personal cell phone. Weatherspoon identified a physical copy of

the screenshot, which was admitted into evidence and published.

¶ 14 Weatherspoon further testified that while looking at the Twitter account, she noticed a “re-

tweet” of another message originating from a different account. Weatherspoon recognized the

person depicted in the profile picture associated with that account as the first gunman. The text of

the message read, “You ain’t dead yet….. [devil emoji] but you can be boi [100 emoji].”

Weatherspoon took a screenshot of this message as well, which she identified in court as a true

and accurate depiction of the message. Weatherspoon testified that she understood this second

message to mean that the sender “found out that we w[ere]n’t dead,” but “he is still going to try.”

¶ 15 Weatherspoon testified that she then saw a third tweet, which contained a photograph of

defendant and codefendant standing next to each other, with defendant holding a two-toned black

and silver handgun with an extended clip. Weatherspoon recognized defendant and codefendant

as her two attackers and recognized the gun as the one that was used by defendant during the

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shooting. Like with the previous two posts, Weatherspoon took a screenshot and saved the post to

her phone. Weatherspoon identified a physical copy of that screenshot as a true and accurate

depiction of the post she observed.

¶ 16 Upon seeing the Twitter posts, Weatherspoon was “scared” and “felt like [she] was a

target.” She did not immediately inform the police about the posts.

¶ 17 Chicago Police Detective Terry Teahan testified that at approximately 10:45 p.m. on

December 17, 2014, he and his partner, Detective Behrend, were assigned to respond to a shooting

on the 5100 block of South Ada Street. They arrived at the scene shortly thereafter, where they

spoke with responding officers, walked the scene with Evidence Technician Blaczerak, and

canvassed the area for witnesses. Detective Teahan observed numerous shell casings, fired bullets,

metal fragments from fired bullets, and a vehicle with blood stains and broken glass. The crime

scene was photographed, and 28 fired cartridge casings were recovered.

¶ 18 Approximately 20 to 30 minutes after arriving on the scene, Detective Teahan spoke with

N.L., who was 15 years old at the time, and his mother in their home on Ada. Detective Teahan

learned from N.L. that N.L. had heard several gunshots coming from the street and immediately

looked out the front room window. N.L. told Detective Teahan that he saw two male subjects

shooting handguns. N.L. described one gunman as black, male, and 19-to-21 years of age, with a

faded hairstyle and wearing a gray hooded sweatshirt with black pants. The other shooter was

black, 19 to 20 years of age, with a dreadlock hairstyle, and wearing a black jacket with blue jeans.

¶ 19 After the shooting, N.L. saw the first shooter enter a gray car that was parked in the middle

of the street. The second offender entered a black SUV that was parked in front of the gray car,

and both vehicles then fled northbound from the scene. N.L. did not tell Detective Teahan that he

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had been smoking marijuana, and it did not appear to Detective Teahan that N.L. was “under the

influence of anything.”

¶ 20 On the evening of December 29, 2014, 12 days after the shooting, Weatherspoon went to

the Area Central 6 police station and provided detectives with the four Twitter posts. Detective

Teahan asked her to email the screenshots to his department email. He then printed them out and

inventoried them as evidence. Detective Teahan testified that, once he had obtained the screenshots

in paper form, he did not take possession of Weatherspoon’s phone because the phone itself did

not have further evidentiary value.

¶ 21 A few hours after providing the police with the screenshots, Weatherspoon viewed two

separate lineups. Weatherspoon identified codefendant in one lineup, and defendant in the other,

as the shooters she observed on December 17, 2014.

¶ 22 Detective Teahan testified that he also placed a phone call to Burrell requesting that he

come to view the lineups. Burrell, however, was uncooperative and refused to assist in the

investigation.

¶ 23 The police then spoke to N.L. and his mother. N.L. agreed to view the two lineups, and

both he and his mother signed a lineup advisory form. N.L. viewed the lineups, and his mother

was not present in the room at that time. N.L. identified defendant as one of the people he saw

outside the victims’ vehicle, who fled from the scene of the shooting by getting into a waiting car.

N.L. was not able to make an identification when he viewed the lineup containing codefendant.

Detective Teahan further testified that N.L.’s mother was not asked to view the lineups because

she had not been a witness to the shooting.

¶ 24 At approximately 12:46 a.m. on December 30, 2014, N.L. provided a written statement to

an assistant State’s attorney (ASA). N.L. signed each page of the statement and initialed

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corrections. Attached to the statement were two photographs—one of N.L., taken as he was signing

the statement, and the other of defendant, who N.L. confirmed was the person he saw on the night

of the shooting.

¶ 25 At the time of trial, N.L. was 17 years old and was in the custody of the Illinois Youth

Department of Corrections. N.L. had two juvenile adjudications, for residential burglary and

aggravated unlawful use of a weapon. At trial, N.L. generally claimed to not remember “anything

strange happen[ing]” on the night of the shooting because he had been “smokin’ ” that night. N.L.

denied seeing the shooters, helping the female victim, or speaking to detectives on the night of the

shooting. N.L. admitted that he was home that night but claimed that it was his mother who saw

the shooters, who helped the female victim, and who was questioned by detectives after the

shooting. N.L. also claimed that it was his mother, not N.L., who had given the handwritten

statement at the police station in the presence of an ASA. N.L. admitted that he signed each page

of the written statement but explained that he only did so because his mother “told the police

officers [he] said the same thing she did, so they just made [him] sign off on it.”

¶ 26 N.L.’s written statement was admitted as substantive evidence and published to the jury.

In that statement, N.L. said that “on December 17, 2014, at approximately 8:50 p.m., he was at

home when he heard approximately 20 to 30 gunshots outside his home.” Upon hearing the

gunshots, N.L. “immediately” ran to the front window facing Ada Street. He saw two vehicles

stopped in the middle of the street directly in front of his home—a black Tahoe SUV and a silver

four-door car behind the SUV. N.L. saw two black men standing outside by these vehicles. N.L.

saw both men tucking objects into their pockets, but he could not see what these objects were. N.L.

stated that the streetlights were on, and “he was clearly able to see both males.” N.L. identified

defendant as one of the men in a lineup and described the other as a “dark skinned male with

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dreads.” N.L. saw defendant get into the silver four-door car and saw the man with dreadlocks get

into the black SUV, before both vehicles drove off. N.L. also saw a white car parked on Ada Street

with a man and woman inside. The windows of the white car were broken, and the woman “was

saying that she had been shot.” N.L. called the police and helped the female, “who appeared to

have been shot in the lower body.” The male victim was bleeding from his head and arm. N.L.

further stated that he was giving his statement freely and voluntarily and that he was not under the

influence of drugs or alcohol.

¶ 27 On the second day of testimony, the State informed the court that it had learned that the

defense intended to elicit testimony from one of the State’s witnesses—Officer Patrick Fahey—

concerning the recovery of a handgun during the arrest of defendant and codefendant. Outside the

presence of the jury, the State made a motion in limine to bar this testimony as irrelevant. The State

explained the evidence at issue:

“To put it in a little bit of context, there’s going to be testimony from the

Arresting Officer today, of the two Defendants, that happened 11 days after the

incident here that we’re on Trial for.

What happens in that case is, they see a vehicle with a bumper dragging on

the bottom of a car. They attempt to do a traffic stop. The car flees. Then the two

Defendants flee from inside the car and are placed into custody.

In the area of where the Defendants flee, in an alley, there is a gun found.

Now, there will be no testimony from any Officers that they saw that gun in the

hands of either of these Defendants.

The reason why that’s important is, what happened three minutes before

that traffic stop, is a murder, a currently CI [Continuing Investigation] murder, in

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which these Defendants were initially placed under arrest, and released without

charging for the time being.

Now, the facts of that murder, as they may become relevant to this Motion,

are that there’s a vehicle parked on the other side of the park, from where our

shooting takes place.

There’s a vehicle parked on the other side of that park. Two vehicles pulled

up, and two people began shooting, and people are killed at that vehicle, and those

two vehicles then [flee]. One of those vehicles is a silver sedan.

That happens just before the Defendants *** are seen in this car that’s in

that area, and the traffic stop is effected.

Now, in regards to the evidence of that, I tender the scene supps to Counsel;

and they already knew about this case, anyway. There was no identifications made

of these two Defendants. There was GSR found in the car that they were in.

Now, the State didn’t seek to introduce all this stuff, because there was no

ID of these Defendants. They weren’t charged; and the case was a CI; and the fact

that no one saw them holding that gun, there was not enough of a nexus, the State

believed, to tie these Defendants to the gun.

And when the gun was sent out for ballistics testing, that gun matched shell

casings from the scene of the murder, but not shell casings to the scene of our crime

here.

So, to put that all in context, the State *** wasn’t seeking to introduce that

gun, because there wasn’t a nexus to the Defendants, and because it wasn’t relevant

to the shell casings at the scene; and we were not going to introduce that evidence.”

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¶ 28 In response, the defense explained to the trial court that it was seeking admission of the

evidence because the recovered handgun was relevant to their defense of misidentification. The

recovered firearm was black and silver, like the gun described by Weatherspoon and depicted in

the Twitter posts, but it had been “ballistically proved not to be *** the attempt murder weapon.”

The trial court ruled that, “if your clients agree that you want that in, that they get pulled over, they

run, they get arrested, and Officers find a gun, and you want to make a point that that gun wasn’t

used in this shooting, I would allow that.” The trial court added, “But I wouldn’t allow [the

prosecution] to bring in anything about the other shooting or the—you know, the other murder.”

The trial court then addressed defendant and codefendant:

“THE COURT: Okay. Mr. Brown and Mr. Bell, you heard what Mr.

Baliunas was arguing here, correct?

CODEFENDANT: Yes.

DEFENDANT: Yes.

THE COURT: All right. You agree with that strategy, that that’s what you

want to do?

CODEFENDANT: Yeah.

DEFENDANT: Yeah.

THE COURT: Okay. Very Good.”

¶ 29 Thereafter, Chicago Police Officer Patrick Fahey testified that, on December 28, 2014, he

was working with two other officers. They all were all in plain clothes, with ballistics vests and

Chicago Police patches. At approximately 3:45 p.m., the officers were on patrol in an unmarked

squad car in the area of 57th and Sangamon Streets—a little over a mile from the area of the

shooting at 51st and Ada Streets—when they observed a gray four-door Chrysler 200 sedan with

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its rear bumper dragging on the road. The officers attempted to conduct a traffic stop by activating

their vehicle’s lights and sirens, but the gray car sped up and attempted to drive away. The officers

pursued for approximately one to two minutes, until the gray car stopped at 5740 South Peoria and

four occupants fled from the car on foot. Officer Fahey identified defendant as the subject who

fled from the driver’s seat of the vehicle and codefendant as the subject who fled from the rear

passenger seat.

¶ 30 Officer Fahey and his partners gave chase on foot. They lost sight of the subjects when

they entered a gangway, but less than a minute later, assisting units apprehended two of the

subjects—defendant and codefendant. Officer Fahey and the other officers searched the area and

located a two-toned black and silver Smith & Wesson .40-caliber handgun in a nearby alley.

¶ 31 Forensic Scientist Brian Parr testified as an expert in firearms and toolmark identification.

Parr was employed by the Illinois State Police, Joliet Forensic Science Laboratory. Parr testified

that he received the 28 fired cartridge casings recovered from the scene of the shooting and opined

that two weapons were used during the shooting. Parr determined that 15 of the fired cartridge

casings were “Fiocchi 40 *** Smith & Wesson caliber” and were all fired from a single firearm;

the remaining 13 fired cartridge casings were “Federal .9 millimeter Luger” and were all fired from

a second firearm.

¶ 32 Parr also testified that he received and examined the handgun that was recovered at the

time of defendant’s arrest. Parr determined that the handgun had not discharged any of the

recovered cartridge casings.

¶ 33 The State rested, and both defendant and codefendant chose not to testify or present

evidence. The trial court questioned defendant and codefendant separately about their decisions

not to testify. Defendant and codefendant both affirmed their decisions, with defendant specifically

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indicating that he had discussed whether to testify with his attorney, that he understood that the

decision was his and his alone, and that he affirmatively “d[id]n’t want to testify.”

¶ 34 After deliberations, the jury returned verdicts of guilty on all counts, convicting both

defendant and codefendant of two counts of attempted first degree murder and two counts of

aggravated battery with a firearm, additionally finding that they had both personally discharged

firearms in the course of the attempted first degree murder offenses.

¶ 35 Defendant retained new counsel to present a motion for a new trial, in which he alleged

that the trial court erred in admitting the Twitter posts and that trial counsel provided ineffective

assistance. Defendant’s claims of ineffective assistance included, among other things, challenges

to trial counsel’s (1) failure to move for a mistrial after codefendant’s counsel commented during

his opening statement that both defendant and codefendant would not testify; (2) failure to impeach

Weatherspoon with prior statements and prove up the impeachment by calling witnesses to testify

to those statements; (3) failure to object to Weatherspoon’s testimony that she suffered

miscarriages after the shooting; and (4) failure to object to the admission of the three Twitter

screenshots. Defendant also challenged counsel’s decision to present evidence regarding the gun

found during defendant’s arrest. Codefendant also hired a new attorney, who likewise moved for

a new trial and raised claims of ineffective assistance of trial counsel.

¶ 36 The trial court held a joint hearing on the motions, at which defendant’s trial counsel—

Thomas Leinenweber—and codefendant’s trial counsel—Algis Baliunas—testified.

¶ 37 Leinenweber testified that he and Baliunas worked collectively to prepare a joint defense.

Leinenweber testified that defendant knew that he and Baliunas were working together and that

defendant and codefendant’s defenses were “intertwined.” Leinenweber further stated that part of

the defense strategy prior to trial was that defendant did not intend to testify. Defendant never

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indicated to Leinenweber that he did not want him to discuss that strategy with codefendant’s

counsel.

¶ 38 Regarding not filing a motion for severance, Leinenweber testified that he did not believe

there was a legal basis to sever because neither defendant nor codefendant had made statements to

the police. Additionally, Leinenweber believed that it was in defendant’s best interests to have the

trials together because “two minds were better than one in the case.”

¶ 39 On cross-examination, defense counsel questioned Leinenweber about his failure to seek

severance based on the Twitter post allegedly made by codefendant. Leinenweber testified that he

did not believe the Twitter post was an “admission” by codefendant because, per the trial court’s

ruling, it was admitted to explain how Weatherspoon made her identifications, not as “admissions

of something that happened.”

¶ 40 As for Baliunas’s opening statement, forecasting for the jury that defendant and

codefendant would not testify, Leinenweber testified that it was accurate that defendant was not

planning to testify. When asked whether codefendant’s counsel’s statement “restricted

[Leinenweber’s] ability to defend the case in any way,” Leinenweber answered, “Absolutely not.”

Leinenweber explained that defendant had the right to change his mind about testifying at any time

and that the “strategy could always be changed depending on the circumstances.” Leinenweber

further testified that he continued to discuss with defendant whether he wanted to testify and

confirmed defendant’s decision prior to the defense’s opportunity to call witnesses. At that time,

defendant told Leinenweber that he did not want to testify and did not indicate that his decision

was based on Baliunas’s opening statement.

¶ 41 When questioned about defendant’s allegations about Leinenweber’s failure to impeach

Weatherspoon or call potential impeachment witnesses, Leinenweber testified that he did not want

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to “offend[ ] the jury” by “beat[ing] her up” to show that she had “somehow said something

slightly different.” Leinenweber explained that his strategy was to show that she had “made a

mistake” and was “mistaken in her quick view of” defendant. Leinenweber believed that he “got

that point across in terms of how quickly this happened, how scared she was, what the lighting

situation was, et cetera.” Overall, Leinenweber believed he “got what [he] wanted from Ms.

Weatherspoon and [he] still th[ought] that was the best cross-examination.”

¶ 42 Regarding Weatherspoon’s testimony that she had suffered multiple miscarriages,

Leinenweber reiterated that Weatherspoon was a sympathetic witness and that his argument to the

jury was that she was a victim of a “terrible thing, *** it just wasn’t [defendant] [who] did it.”

Based on that strategy, there was “no reason to question her honesty” about the effects of the

shooting, “other than to enflame the jury” against his client and distract the jury from the defense’s

misidentification argument.

¶ 43 With regard to the decision to introduce evidence of the gun recovered at the time of

defendant’s arrest, Leinenweber testified that the evidence supported the defense of

misidentification because the two-toned black and silver gun was similar to the gun that defendant

was holding in the Twitter photo but did not match the cartridge casings at the scene of the offense.

Additionally, once it was determined that the Twitter photos were “coming in,” Leinenweber

concluded that introducing the evidence outweighed potential prejudice, because “it was not going

to be a surprise to the jury that [defendant and codefendant] handled guns previously.”

Leinenweber further stated that the evidence provided an alternative “explanation for [the] gun

he’s showing in the picture.” Leinenweber testified that he discussed the strategy with defendant

before the trial and defendant never indicated that he disagreed. Leinenweber told defendant that

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it was “almost like ju-jitsu,” a way to “use something that appears to be something bad for us and

turn it into something good.”

¶ 44 Baliunas, codefendant’s trial counsel, testified, confirming that, prior to trial, he and

Leinenweber jointly discussed trial strategy for both defendant and codefendant. Baliunas

explained that the defense strategy was to hold the State to its burden of proof and that calling

impeachment witnesses to present “mediocre impeachment” evidence would have undermined the

strategy. Regarding the admission of the gun evidence, Baliunas believed the evidence “would be

interesting for the jury to consider” and “was something in [the defense’s] favor and at that point

of the trial [Baliunas] felt that we needed that. We needed something.”

¶ 45 After hearing arguments, the trial court denied defendant and codefendant’s motions for a

new trial. The court noted that this case “was an identification case. That was [the defense’s] whole

theory.” The court agreed that “maybe there w[ere] certain things that were not done properly as

far as proving up impeachment,” but that nothing rose to the level of ineffective assistance. The

court further commented that the impeachment “should have been better,” but “impeachment is

not properly done by many attorneys,” even by those “who’ve practiced for 20 years.”

¶ 46 The court specifically noted that the defense’s strategy “was sound, was reasonable.” The

defense attorneys “were focused, there was a theory, they went through on their theory, *** they

were passionate, and *** when you look at the evidence, it was the right theory. It’s an

identification case.” Regarding the gun evidence, the court found that the defense “had a reason

for” bringing that evidence in, and “it wasn’t an unreasonable theory.” The court also pointed out

that it had questioned defendant and codefendant, and they both explicitly agreed with the strategy.

¶ 47 Finally, as to the evidence of the Twitter posts, the court stated:

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“I allowed the tweets because *** that’s how Miss Weatherspoon got to her

identification. I find that extremely relevant for a victim to testify when she makes

an identification before a lineup, that that’s clear to the jurors how that lineup, not

only how that lineup identification was made, but how this identification was made

that led to these defendants. And I find that the jury—and the defense argued it as

well, had to have a clear picture how she identified, she got this tweet, what it said,

not for the truth of what was being asserted, not that the defendant did it, but what

it said and why it led her to look at pictures and then she identified them. *** I find

it completely relevant and appropriate for the jury to know exactly how this woman

who is a single witness got to identifying the defendants. *** [I]t goes to her

identification of defendant which was a central issue in this case.”

¶ 48 At the subsequent sentencing hearing, the court noted that the relevant sentencing range

for each of the two attempted murder convictions was 6 to 30 years and that each conviction

required a 20-year enhancement based on the jury’s finding that each defendant had personally

discharged a firearm. The parties discussed that consecutive sentencing was triggered if the court

made a finding of “severe bodily injury.” The State argued that Weatherspoon’s multiple gunshot

wounds satisfied the requirement, while the defense asked the court to not make that finding

because there “was no medical testimony” or “particular description of the wounds.”

¶ 49 In aggravation, the State pointed out that defendant was on probation at the time of this

offense, and went through defendant’s criminal history, which included a juvenile adjudication for

delivery of a controlled substance and an adult narcotics case that was reduced for defendant to

receive probation. In mitigation, the defense pointed to six letters that were submitted on

defendant’s behalf, showing that he had “a strong family” and that he could “be rehabilitated” and

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“turn himself around.” The defense also emphasized that defendant had been 20 years old at the

time of the crime and argued that even the mandatory minimum of 52 years, served at 85%, would

“more or less” constitute a de facto life sentence. The defense asked the court to find that the

minimum sentence was unconstitutional based on defendant’s “youthful age.” Defendant chose

not to speak in allocution.

¶ 50 The court sentenced defendant to the mandatory minimum of 26 years in the Illinois

Department of Corrections (6 years for the Class X conviction plus 20 years for personally

discharging a firearm) on both counts of attempted first degree murder and found severe bodily

injury to Weatherspoon, triggering mandatory consecutive sentencing, for a total of 52 years’

imprisonment. The court acknowledged that the minimum was a “severe sentence” but expressed

its belief that the sentence was not “unconstitutional.”

¶ 51 Defendant filed a timely notice of appeal from that judgment and raises three general issues

in this appeal—that the court erred in admitting the Twitter posts, that his trial counsel provided

ineffective assistance, and that his 52-year sentence violated the proportionate penalty clause of

the Illinois Constitution. We will address each of defendant’s issues in turn.

¶ 52 We first consider defendant’s challenge to the admission of the three Twitter posts.

Defendant contends that the court abused its discretion in admitting the posts, contending they

“lacked foundation and w[ere] unduly prejudicial.”

¶ 53 “The admission of evidence is within the sound discretion of a trial court, and a reviewing

court will not reverse the trial court absent a showing of an abuse of that discretion.” People v.

Becker, 239 Ill. 2d 215, 234 (2010). The threshold for finding an abuse of discretion is high. A

trial court will not be found to have abused its discretion with respect to an evidentiary ruling

18 No. 1-19-0366

unless it can be said that no reasonable person would take the view adopted by the court. In re

Leona W., 228 Ill. 2d 439, 460 (2008).

¶ 54 “In general, the consequential steps of an investigation are relevant to explaining the State’s

case to a jury.” People v. Thompson, 2014 IL App (5th) 120079, ¶ 46 (citing People v.

Johnson, 116 Ill. 2d 13, 24 (1987)). “In particular, the State must be allowed to explain why a

previously unidentified defendant became a suspect.” Id. “Silence as to this point would leave

open the question of why, of all the people in the world, the police arrested defendant.” Id. “This

would invite speculation and baseless innuendo that the investigation lacked rigor.” Id.

¶ 55 As explained above, the record shows that shortly after the shooting, while Weatherspoon

was still in the hospital, she received a request to follow her on Twitter from a previously unknown

account. Weatherspoon observed four specific posts, of which she took screen shots—two posts

comprised of text and emojis and two posts containing photographs. Weatherspoon recognized

defendant and codefendant in the photographs as her shooters and also recognized the gun held by

defendant in one of the photographs as “the gun that [she] was shot with.”

¶ 56 In a pre-trial motion in limine, the State argued that it should be allowed to introduce all

four Twitter posts into evidence because of their relevance to Weatherspoon’s identifications, as

“corroboration of these two defendants’ connection to each other,” and as “circumstantial evidence

of their involvement.” The defense pointed out that the State had not indicated that it would call

“anyone from *** Twitter” to connect the posts to defendant or codefendant, and because there

was no “nexus to” defendant or codefendant, “the prejudicial effect to the defendants greatly

outweighs any probative value.”

¶ 57 In this case, the trial court repeatedly stated that it was admitting the three Twitter posts

because they were relevant to Weatherspoon’s identification of defendant and codefendant. The

19 No. 1-19-0366

trial court agreed with the State that the post with the photograph was relevant and admissible

because Weatherspoon “identified the two defendants *** through [that] photograph.” The court

also admitted the two posts containing text and emojis because those posts explained the

circumstances of “how she got to that picture.” The court, however, barred the screenshot of the

fourth Twitter post, containing the photograph of defendant holding two guns because the gun

Weatherspoon identified was also contained in the other photograph.

¶ 58 Later, at the hearing on defendant’s motion for a new trial, the court further clarified that

its decision was to admit the Twitter posts on the issue of identification, but it was “not allowing

the State to go anywhere further *** as to who wrote them, how it was written or any of that.”

Defense counsel also testified to his understanding that the court admitted the screenshots to

explain how Weatherspoon made her identifications and not as “admissions of something that

happened.”

¶ 59 Defendant insists that the trial court’s ruling was an abuse of discretion because the

screenshots lacked proper “foundation” to establish the “identity of th[e] account.” Defendant’s

argument ignores that the screenshots were admitted into evidence, not for the truth of defendant

and codefendant’s ownership of the accounts or their authorship of the posts in question, but to

show the circumstances of Weatherspoon’s identifications of them as the shooters. For this

purpose, her testimony that she took the screenshots at the relevant time and that they fairly and

accurately depicted the Twitter posts that she observed was sufficient foundation for their

admission. As the trial court stated,

“I find that the foundation was laid by Miss Weatherspoon for these tweets. They

were admitted because she’s the one that took screen shots of them. She’s the one

that—it wasn’t the [S]tate or the detective pulling up something on a tweet and then

20 No. 1-19-0366

going to her. It was [Weatherspoon] getting this evidence. She’s the one that said,

yes, this is what I did. And I found that that was appropriate, proper foundation.

And that’s why I let it in, because it goes to her identification of the defendants

which was a central issue in this case.”

¶ 60 We also note that Weatherspoon acknowledged during her testimony that she had “no idea

who sent those tweets” and “no independent knowledge of whose accounts they were” or “who

the phone numbers were registered to.” The defense was also able to use the evidence of the Twitter

posts to argue that Weatherspoon’s identifications were suspect because the Twitter posts caused

her to create “a memory in her mind,” arguing that she recognized defendant and codefendant from

the Twitter posts and not the actual shooting.

¶ 61 In this case, where the weight and believability of Weatherspoon’s identifications was the

central issue at trial, we find no abuse of discretion in the trial court’s admission of the three Twitter

posts for the purpose of explaining the circumstances of Weatherspoon’s identifications.

¶ 62 We now turn to defendant’s claims of ineffective assistance. Pursuant to Strickland v.

Washington, 466 U.S. 668, 687 (1984), a defendant presenting a claim of ineffective assistance of

counsel must allege facts sufficient to prove both (1) that counsel’s performance fell below an

objective standard of reasonableness and (2) that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. See People

v. Colon, 225 Ill. 2d 125, 135 (2007). Because both prongs of the Strickland analysis must be

proven, if an ineffective-assistance claim fails under either prong, we need not determine whether

the claim also fails under the other. See People v. Graham, 206 Ill. 2d 465, 476 (2003).

¶ 63 The court gives a great amount of deference to counsel’s judgment and indulges a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

21 No. 1-19-0366

assistance. Strickland, 466 U.S. at 689. “A defendant is entitled to competent, not perfect,

representation, and mistakes in trial strategy or judgment will not, of themselves, render the

representation ineffective.” People v. Tucker, 2017 IL App (5th) 130576, ¶ 26. “The only

exception to this rule is when counsel’s chosen trial strategy is so unsound that ‘counsel entirely

fails to conduct any meaningful adversarial testing.’ ” People v. West, 187 Ill. 2d 418, 432-33

(1999) (quoting People v. Guest, 166 Ill. 2d 381, 394 (1995)). “A reviewing court evaluates the

reasonableness of counsel’s conduct from his [or her] perspective in light of the totality of the

circumstances in the case.” Tucker, 2017 IL App (5th) 130576, ¶ 54. Where, as here, the court

reaches a determination on the merits of a defendant’s ineffective assistance of counsel claim, we

will reverse that determination only if it was manifestly erroneous. People v. Tolefree, 2011 IL

App (1st) 100689, ¶ 25. “ ‘Manifest error’ is error that is clearly plain, evident, and

indisputable.” Id.

¶ 64 In arguing that his trial counsel provided ineffective assistance, defendant challenges

several specific instances of counsel’s alleged failures. We first consider defendant’s claim that

counsel’s failure to seek a severance of his trial from that of codefendant amounted to ineffective

assistance.

¶ 65 A defense decision not to seek a severance is generally considered trial strategy. Id. ¶ 24.

Moreover, it is well established that “defendants jointly indicted are to be jointly tried unless

fairness to one of the defendants requires a separate trial to avoid prejudice.” People v. Gabriel,

398 Ill. App. 3d 332, 346 (2010).

¶ 66 “A defendant moving for severance must state how he would be prejudiced by a joint

trial.” People v. McCann, 348 Ill. App. 3d 328, 335 (2004). Our supreme court has recognized that

at least two types of prejudice can be readily identified. People v. Lee, 87 Ill. 2d 182, 187

22 No. 1-19-0366

(1981). First, a defendant may be denied his constitutional right of confrontation if, in a joint trial,

the State introduces the admission of a codefendant which implicates the defendant. People v.

Bean, 109 Ill. 2d 80, 93 (1985); Lee, 87 Ill. 2d at 187. The second is when the codefendants’

defenses are so antagonistic to each other that one of the codefendants cannot receive a fair trial

jointly with the others. People v. Daugherty, 102 Ill. 2d 533, 542 (1984).

¶ 67 Here, defendant makes no claim that his defense was in any way antagonistic to that of

codefendant, and a review of the record would dispel any such notion. Both defendant and

codefendant put forth the theories that Weatherspoon misidentified them and that the State did not

prove their guilt beyond a reasonable doubt. In fact, counsel explicitly stated that he and counsel

for defendant worked together and that their defenses were “intertwined.”

¶ 68 Defendant instead alleges that the failure to seek a severance resulted in “the admission

into evidence of statements allegedly made by codefendant on Twitter being used against

defendant in the joint trial,” relying on Bruton v. United States, 391 U.S. 123 (1968). In Bruton, a

codefendant orally confessed that he and Bruton committed the offense of armed postal robbery.

At their joint trial, the codefendant’s confession was introduced into evidence. The trial court

instructed the jury that the confession, which implicated Bruton in the crime, could only be

considered as evidence against the codefendant and not Bruton. On appeal, the United States

Supreme Court held that “because of the substantial risk that the jury, despite instructions to the

contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt,

admission of [the codefendant’s] confession in this joint trial violated [Bruton’s] right of cross-

examination secured by the Confrontation Clause of the Sixth Amendment.” Id. at 126.

¶ 69 As we explained above, the Twitter posts in this case were admitted, not as statements

made by defendant or codefendant, but for their relevance to Weatherspoon’s identifications of

23 No. 1-19-0366

them. Accordingly, the Twitter posts cannot be reasonably construed as “admission[s] of ***

codefendant which implicate the defendant.” Moreover, given the purpose for which the Twitter

posts were admitted, the posts would have been equally admissible in a separate trial of defendant

to explain how Weatherspoon identified him. We also note that trial counsel testified at the motion

for a new trial regarding his belief that a joint trial was in defendant’s best interests where counsel

for both defendant and codefendant were able to work collaboratively.

¶ 70 Because defendant would not have been entitled to severance and because the record

reveals a strategic reason why a joint trial was in defendant’s best interests, defendant cannot show

that trial counsel was deficient in failing to file a motion to sever his trial from that of codefendant.

People v. Bock, 242 Ill. App. 3d 1056, 1080 (1993) (“[A]n attorney’s failure to pursue a motion to

sever cannot amount to ineffective assistance where, even if presented, the motion would have

been unsuccessful.”).

¶ 71 Defendant next contends that counsel provided ineffective assistance by failing to “object

and request a mistrial” after codefendant’s counsel “promised in his opening statement that the

Defendant would not testify, and that ‘the defense’ would not call any witnesses.” This claim is

based on codefendant’s counsel’s opening statement, which reads, in relevant part:

“[Defendant and codefendant] were pointed at by the prosecutors, ‘These

are the guys that did it.’ Well, our defense is they are not the guys that did this

horrible crime.

The issue here is identification of the offenders. That’s the only issue that

you will have to deliberate on in this trial. ***

They have to prove these two defendants were the people that did that. Our

defense is they are not the people that committed this horrendous act. Period. And

24 No. 1-19-0366

*** you have also been instructed that these two young men are innocent until

proven guilty. So anything that was said to you by the prosecution has to be proved

and it can only be proved, only, from that witness stand—what you hear, see, and

observe—from people that tell you what they know and what happened. That’s it.

Period. ***

Now, we indicated that the defendants may not testify, and you were

instructed by the court and you all agreed that you would not hold it against

[codefendant] and [defendant] if they fail to testify in this case. You promised, you

made a solemn promise and an oath that you would do that. I’ll tell you right now,

they’re not testifying. They don’t have to testify. Okay? So let’s get that out of the

way.

The next thing: evidence. It is presented from that witness stand. Now how

can it be presented? In different ways. Number one, we will not call—the defense—

one witness. Zero. Period. None. Where will our evidence come from? Our

evidence will also come from the witness stand in this case. *** [W]e will bring

out facts on cross-examination that are favorable to our clients and negate any idea

of guilt that these are the two individuals that perpetrated the serious, nefarious act.

Somebody else out there did it, and that is our defense.

And I think when you hear the paucity of the State’s case, *** the

[witnesses’] ability to see and observe, *** at the end we will be asking for *** a

not guilty verdict in this case. Thank you very much.”

¶ 72 Defendant takes issue, in particular, with codefendant’s counsel’s statements: “I’ll tell you

right now, they’re not testifying,” and, “we will not call—the defense—one witness. Zero. Period.

25 No. 1-19-0366

None.” Defendant argues that such statements were “promise[s]” to the jury, that were “premature”

and “highly improper” because codefendant’s counsel was “essentially making the decision

[regarding whether] to testify for a defendant and doing so before any evidence has been

presented” and because calling witnesses may become necessary based on the evidence presented.

Defendant contends that, although it was not his own counsel who made the remarks, his counsel

“should have immediately objected to these remarks and moved for a mistrial.” Defendant further

asserts that the comments reveal trial counsel’s unauthorized disclosure of “privileged

information.”

¶ 73 Decisions regarding “what to object to and when to object” are matters of trial strategy and

thus are entitled to great deference. People v. Pecoraro, 175 Ill. 2d 294, 327 (1997); Graham, 206

Ill. 2d at 478-79. “[S]ince an attorney’s performance is ineffective only if it falls below an objective

standard of reasonableness [citation], counsel cannot be deficient if he fails to object to remarks

which are not improper.” People v. Johnson, 218 Ill. 2d 125, 139 (2005) (citing People v. Evans,

209 Ill. 2d 194, 220 (2004)).

¶ 74 We find no deficient performance in counsel’s failure to object and move for a mistrial

based on codefendant’s counsel’s comments. At the hearing on defendant’s motion for a new trial,

defendant’s counsel confirmed that, at the time codefendant’s counsel made the statement,

defendant did not intend to testify. In those circumstances, it was reasonable to forecast for the

jury the defense strategy and remind them of both the State’s burden to prove his guilt and the

defense’s concomitant right to not present any evidence, thereby ensuring that the jury did not

place any improper expectations on the defense. This strategy was consistent with the defense

theory of misidentification and the strategy of holding the prosecution to its burden.

26 No. 1-19-0366

¶ 75 We also reject defendant’s argument that by “promising” that the defense would not present

evidence, counsel allowed a “straitjacket” to be put on his ability to represent defendant, lest the

jury be “put off by *** the defense not liv[ing] up to its promises.” As counsel testified, the

statement did not interfere with defendant’s ability to exercise his right to testify, nor did it

“restrict[ ]” counsel’s ability to defend the case in any way. Trial counsel’s testimony, as well as

the record of the court’s colloquy with defendant at the time he waived his right to testify,

established that defendant knew that the decision to testify was defendant’s and defendant’s alone

and that he affirmatively chose to waive that right because he “d[id]n’t want to testify.” Moreover,

had defendant ultimately changed his mind and decided to testify, or had the defense ultimately

decided to present evidence, then the defense would have exceeded the jury’s expectations by

presenting more than had been promised.

¶ 76 We also reject defendant’s claim that codefendant’s counsel’s statements indicate that his

counsel made an unauthorized disclosure of privileged information, specifically, defendant’s

decision regarding whether to testify. Counsel for defendant stated that he and codefendant’s

counsel worked collectively to prepare a joint defense and that defendant was aware that the

attorneys were working together to present an “intertwined” defense. Leinenweber also testified

that, prior to trial, defendant did not intend to testify and defendant never told counsel that he

wanted that information kept secret from codefendant’s counsel.

¶ 77 Having found no deficient performance, we need not reach defendant’s arguments that he

need not prove prejudice because counsel’s failure constituted “a complete abandonment of his

role as counsel” or, alternatively, that he was prejudiced by counsel’s failure to object and move

for a mistrial. Graham, 206 Ill. 2d at 476.

27 No. 1-19-0366

¶ 78 Defendant next claims that he “was denied his right to the effective assistance of counsel

because his trial attorney failed to impeach [Weatherspoon] and *** prove up impeachment.”

¶ 79 “Generally, the decision of whether or not to cross-examine or impeach a witness is a

matter of trial strategy, which cannot support a claim of ineffective assistance of counsel.” People

v. Franklin, 167 Ill. 2d 1, 22 (1995); Tolefree, 2011 IL App (1st) 100689, ¶ 34. “The manner in

which to cross-examine a particular witness involves the exercise of professional judgment which

is entitled to substantial deference from a reviewing court.” Pecoraro, 175 Ill. 2d at 326-327.

Defendant can only prevail on an ineffectiveness claim by showing that counsel’s approach was

objectively unreasonable. Id. at 327.

¶ 80 Defendant specifically points to Weatherspoon’s statements to ambulance personnel on the

night of the shooting, as well as interviews with responding officers and detectives at the hospital,

to claim that her “account of the events was riddled with inconsistencies.” Specifically, defendant

contends that Weatherspoon told ambulance personnel that the shooters were 20 feet away, while

at trial she testified that they were 4 or 5 feet away. Defendant further contends that in statements

made to responding officers and to detectives at the hospital, Weatherspoon did not describe the

shooters or describe them as specifically as she did at trial. Additionally, defendant states that in

two of her three prior statements, Weatherspoon did not mention a second vehicle. Defendant

contends that counsel should have impeached Weatherspoon with the prior statements, proving

them up if necessary, and that doing so “would have devastated her testimony.”

¶ 81 A review of the record shows that trial counsel effectively handled Weatherspoon’s cross-

examination, eliciting various admissions from Weatherspoon that were intended to call into

question the reliability of her identifications. Specifically, counsel elicited that it was a “fairly

dark” night, that she was looking at her phone, that the shooting started “immediately,” that she

28 No. 1-19-0366

was scared, and that it was a “very chaotic and frightening event” that happened

“instantaneous[ly].” Counsel also got Weatherspoon to admit that she initially said that she did not

know how many shots were fired. Finally, counsel showed Weatherspoon a photo of the scene

showing a street light and elicited testimony that that the street light would have been shining at

the shooters’ backs at the time of the shooting.

¶ 82 When specifically questioned about not pursuing or proving up certain points of

impeachment, trial counsel explained his belief that “beating up” Weatherspoon on cross-

examination would have hurt his client’s case. He explained that any benefit from calling

paramedics or responding officers to testify that she had “said something slightly different” would

have been outweighed by those witnesses reminding the jury of the condition she was in and the

injuries she had at the time the statements were made. In sum, counsel stated that he “got what

[he] wanted from Ms. Weatherspoon and [he] still th[ought] that was the best cross-examination.”

¶ 83 In these circumstances, we cannot say that counsel’s approach was objectively

unreasonable. See People v. Holman, 132 Ill. 2d 128, 163 (1989) (where proposed cross-

examination concerned a “minor incident” in the case, “[e]xtensive cross-examination concerning,

or objections to, the testimony could have called undue attention to the incident” and could also

have turned the jury’s sympathy against defendant if it appeared that counsel was picking on [the

victim], a woman who had been shot, and whose son had been killed, by defendant”).

¶ 84 Defendant, however, essentially argues that counsel’s alleged “fail[ure] to properly follow

the rules of evidence in proving up impeachment,” was per se unreasonable, specifically focusing

on the trial court’s statement that counsel’s impeachment “should have been better.” Defendant

contends that the court improperly excused counsel’s clear deficiencies by commenting that

“impeachment is not properly done by many attorneys.”

29 No. 1-19-0366

¶ 85 We initially note that the court’s comments on this point were in response to defense

counsel’s arguments that any “26-year-old third chair state’s attorney, or *** 26-year-old second

chair public defender” should know “correct trial practice.”

¶ 86 Nonetheless, we reiterate that defendant is entitled to competent, but not perfect,

representation. Tucker, 2017 IL App (5th) 130576, ¶ 26. Even if we could conclude that counsel

made errors in his cross-examination of Weatherspoon, “ ‘[m]istakes in trial strategy or tactics or

in judgment do not of themselves render the representation incompetent.’ ” (Internal quotation

marks omitted.) West, 187 Ill. 2d at 432 (quoting People v. Hillenbrand, 121 Ill. 2d 537, 548

(1988)). While, in hindsight, defendant may contend that certain questions should have been asked

or other tactics employed, we cannot say that counsel failed to conduct any meaningful adversarial

testing sufficient to rise to the level of ineffective assistance of counsel.

¶ 87 Moreover, even if we were to find deficient performance based on counsel’s choice to not

impeach Weatherspoon regarding her prior descriptions, or lack thereof, of the shooters, defendant

suffered no prejudice from that choice. The record shows that during codefendant counsel’s cross-

examination of Weatherspoon, he elicited testimony that during her initial interview, she “gave

basically no description or no detailed description of the two people who shot [her],” other than

that one of the suspects had dark skin. Accordingly, much of the testimony that defendant claims

his counsel should have elicited, actually came into evidence and was before the jury.

¶ 88 Next, defendant asserts that his counsel was ineffective for failing to object to

Weatherspoon’s testimony “that she had suffered four or five miscarriages as a result of the

shooting.” This testimony was elicited after Weatherspoon was asked if she had “any other long

lasting effects” from the shooting, and she responded, “I had four to five miscarriages ever since

that happened.” The answer was never elaborated upon or discussed during the rest of the trial.

30 No. 1-19-0366

¶ 89 Trial counsel’s decision not to object to this testimony was reasonable in light of the

defense theory. As stated above, the defense’s strategy was not to deny the facts of the shooting or

Weatherspoon’s injuries. Instead, the defense acknowledged that “a terrible thing happened” to

Weatherspoon, but argued that “it just wasn’t [defendant] [who] did it.” As counsel testified, “there

was no reason to question [Weatherspoon’s] honesty” about the effects of the shooting, “other than

to enflame the jury” against defendant and distract the jury from the defense’s misidentification

argument. In denying defendant’s motion for a new trial, the court found that there were “reasons

why [the defense] didn’t focus on that” and that counsel’s failure to object to Weatherspoon’s

testimony on this point did not amount to ineffective assistance. We find no manifest error in the

circuit court’s findings.

¶ 90 Defendant next claims that his trial counsel was ineffective for failing to object when

Weatherspoon testified concerning her understanding of the meaning of the Twitter posts depicted

in the screenshots. Defendant argues that Weatherspoon should not have been permitted to testify

regarding the meaning of the Twitter posts because she did not testify to any “specialized

knowledge” allowing her to understand and interpret their meaning.

¶ 91 However, as described above, the posts were admitted to explain the circumstances of

Weatherspoon’s identifications, which include the effects that those posts had on Weatherspoon.

Specifically, Weatherspoon testified that upon seeing the posts, she was “scared” and “felt like

[she] was a target.” As a result, she did not immediately alert the police about what she had found,

but she took screenshots of the posts, which she saved on her phone. Twelve days after the

shooting, after defendant and codefendant were arrested, Weatherspoon provided detectives with

the screenshots and identified defendant and codefendant as the shooters in separate physical

lineups.

31 No. 1-19-0366

¶ 92 Given the purpose for which the posts were admitted and the relevance of Weatherspoon’s

understanding of the posts, we find no ineffective assistance in counsel’s failure to object to

Weatherspoon’s interpretation of the Twitter posts, where such an objection would have been

meritless. People v. Edwards, 195 Ill. 2d 142, 165 (2001) (“Counsel cannot be considered

ineffective for failing to make or pursue what would have been a meritless objection.”); People v.

Mister, 2016 IL App (4th) 130180-B, ¶ 95 (defense counsel is not required to make futile

objections to provide effective assistance).

¶ 93 Defendant further claims ineffective assistance of counsel based on trial counsel’s

“fail[ure] to object to improper comments made by the prosecutor during closing argument.”

¶ 94 A prosecutor has wide latitude in making a closing argument and is permitted to comment

on the evidence and any fair, reasonable inferences it yields. People v. Nicholas, 218 Ill. 2d 104,

121 (2005). A closing argument must be viewed in its entirety, and the challenged remarks must

be viewed in their context. People v. Blue, 189 Ill. 2d 99, 128 (2000). Statements will not be

held improper if they were provoked or invited by defense counsel’s argument. People v.

Kirchner, 194 Ill. 2d 502, 553 (2000).

¶ 95 Defendant’s first challenge is to certain comments regarding N.L. Looking at those

comments in their context, the prosecutor stated, in relevant part:

“You also heard from [N.L.]. He was very uncomfortable on that witness

stand. He didn’t want to be here at all. He didn’t want to be sitting in a room with

these two guys. He didn’t want to be telling you about anything that he saw that

night.

And when it comes down to sitting on that witness stand, and facing people

who have done something wrong, he doesn’t have the courage for that.”

32 No. 1-19-0366

¶ 96 In codefendant’s counsel’s closing argument, counsel argued that Weatherspoon’s

identifications were “uncorroborated,” commenting, “I won’t even address [N.L.] *** You saw

him. You think he’s afraid? No.”

¶ 97 Then, during rebuttal, the prosecutor stated, “The fact that he got up here and didn’t want

to do that in open court, we’re not saying it’s because, oh, he’s a little scared kid. He’s obviously,

not. It’s because that’s a violation. You don’t come into court and make identifications.” It is this

comment by the prosecutor that defendant contends was improper and should have been objected

to by his counsel. Specifically, defendant argues that N.L.

“never testified or [alluded] to any fear of receiving such a violation. Instead, this

was an argument that was made without evidentiary support in the record and was

highly inflammatory and prejudicial since it gave the jury a reason to completely

disregard his trial testimony, yet defense counsel made no objection.”

¶ 98 The prosecutor’s comment above was clearly provoked or invited by defense

counsel’s argument that N.L. was not “afraid.” That argument caused the prosecutor to clarify that

the State was not claiming that N.L. was “a little scared kid,” but rather that N.L.’s trial testimony

changed from the account provided by his statement because, “You don’t come into court and

make identifications.” The prosecutor’s comments were a reasonable inference supported by the

evidence regarding N.L.’s written statement and the circumstances surrounding that statement,

when compared to his subsequent trial testimony and recantation after multiple delinquency

adjudications and while in the custody of the Illinois Youth Department of Corrections.

Accordingly, counsel was not ineffective for failing to object to the prosecutor’s comment, where

the statement was not improper and an objection would have been meritless. Edwards, 195 Ill. 2d

at 165; Mister, 2016 IL App (4th) 130180-B, ¶ 95.

33 No. 1-19-0366

¶ 99 Moreover, even if we could find any error in the prosecutor’s comment, such error would

have been cured by the trial court’s subsequent instruction to the jury that “closing arguments are

not evidence” and that the jury must decide the facts “only from the evidence in this case.” See

People v. Desantiago, 365 Ill. App. 3d 855, 866 (2006).

¶ 100 Defendant also challenges his counsel’s failure to object to the following statement during

the prosecutor’s closing argument:

“When [Weatherspoon] and [Burrell] were in that car, being shot by these

Defendants, they were alone. As the bullets tore through them, and then as

[Weatherspoon] the following day, starts getting these messages, threatening her

from these Defendants she was alone. But here, today, in this courtroom,

[Weatherspoon] is no longer alone. She has the evidence. She has the law, and most

importantly, she has you.”

¶ 101 Defendant contends that the above comments were an improper “attempt by the prosecutor

to align Weatherspoon and the State with the jurors, and appeal to jurors’ sympathies, rather than

the facts and evidence.”

¶ 102 Although closing arguments are improper if they serve no purpose other than to inflame

the jury (Blue, 189 Ill. 2d at 128), a prosecutor may “comment unfavorably on the evil effects of

the crime and urge the jury to administer the law without fear, when such argument is based upon

competent and pertinent evidence” (Nicholas, 218 Ill. 2d at 121-22 (holding that the prosecutor’s

comments characterizing the defendant’s actions as “pure evil” in order to preface his argument

that the facts proved the defendant guilty “constituted a permissible comment upon the

evidence”)). “[L]imited prosecutorial exhortations are proper where it is made clear to the jury that

its ability to effect general and specific deterrence is dependent solely upon its careful

34 No. 1-19-0366

consideration of the specific facts and issues before it.” (Emphases omitted.) People v. Johnson,

208 Ill. 2d 53, 79 (2003). A prosecutor may not, however, “blur[ ] that distinction by an extended

and general denunciation of society’s ills and, in effect, challenge[ ] the jury to ‘send a message’

by its verdict.” Id. In doing so, a prosecutor “does more than urge ‘the fearless administration of

justice,’ he interjects matters that have no real bearing upon the case at hand, and he seeks to incite

the jury to act out of undifferentiated passion and outrage, rather than reason and deliberation.” Id.

¶ 103 Here, we find the prosecutor’s statement to be a proper comment “urg[ing] the jury to

administer the law without fear *** based upon competent and pertinent evidence.” Nicholas, 218

Ill. 2d at 121-22. We do not find that the comments served no purpose other than to inflame the

jury (Blue, 189 Ill. 2d at 128), nor do we find that they are “an extended and general denunciation

of society’s ills and, in effect, challeng[ing] the jury to ‘send a message’ by its verdict.” Johnson,

208 Ill. 2d at 79.

¶ 104 Nonetheless, even if we were to find the prosecutor’s comments improper, isolated

references to the need to send a message or do something about the problem of crime do not

ordinarily require reversal. It is only when such themes are argued pervasively that they become

prejudicial enough to warrant reversal. See id. Given the isolated nature of the prosecutor’s

comments, in the context of the closing arguments as a whole, we find no reasonable probability

that the outcome of the proceeding would have been different had defense counsel objected to the

prosecutor’s improper comments during closing arguments.

¶ 105 Defendant also argues that he “was denied his right to the effective assistance of counsel”

by counsel’s choice to introduce evidence of the gun found at the time of defendant’s arrest.

Defendant contends that by doing so, counsel “affirmatively presented harmful and damaging

35 No. 1-19-0366

other-crimes evidence, *** [which] allowed the prosecution to paint *** [d]efendant as a generally

violent person, who was familiar with firearms.”

¶ 106 As described above, at the time of defendant’s arrest, police recovered a two-tone black

and silver handgun that was consistent with Weatherspoon’s description of the gun used by

defendant in the shooting. That gun was forensically compared to the cartridge casings recovered

from the scene of the shooting, and it was determined that it was not one of the guns used in that

offense. At trial, Weatherspoon identified the gun being held by defendant in a photograph as the

same gun defendant had used on the night of the shooting. The defense, however, attempted to

undermine Weatherspoon’s testimony by showing that the gun recovered at the time of defendant’s

arrest, which was also a two-tone black and silver handgun like the one that he held in the Twitter

photograph, was not used in the offense.

¶ 107 Importantly, defendant explicitly consented to this strategy. When the defense requested

that such evidence be introduced, the trial court addressed defendant and codefendant, who both

confirmed that they “agree[d] with that strategy” and it was “what [they] want[ed] to do.” Having

given his express consent to the now complained-of strategy, defendant cannot now claim that the

strategy amounted to ineffective assistance. “Where a defendant knowingly and intelligently

consents to defense counsel’s strategy, he normally cannot claim ineffective assistance of counsel

for the actions of defense counsel in furtherance of that strategy.” People v. Anderson, 272 Ill.

App. 3d 566, 571 (1995) (citing People v. Fair, 159 Ill. 2d 51 (1994)); see also People v. Page,

155 Ill. 2d 232, 260-263 (1993).

¶ 108 Seeking to avoid that conclusion, defendant now argues that he should not be deemed to

have given his consent because “it was not an informed [decision]” on his part, and it was “based

on a misapprehension of the facts.” Defendant further contends that he “was not notified of this

36 No. 1-19-0366

ill-informed decision until the day of the trial, only spoke about the topic for a few minutes with

his attorney and he was apprehensive to question the professional judgment of his attorney.” In

support of the above claims, defendant cites only to his own affidavit attached to his motion for a

new trial. That affidavit, however, is not consistent with his current characterization. Regarding

the gun found at defendant’s arrest, that affidavit states, in total,

“At some point during the trial, [the trial] Court asked me whether I agreed with

my attorney regarding the defense strategy about bringing up the incident when I

was arrested with my co-defendant. *** I deferred to my attorney’s decision on this

matter, and this was never thoroughly discussed at the time I made this statement.”

¶ 109 Furthermore, defendant’s vague protestations are contradicted by counsel’s testimony, in

which he stated that he did discuss the strategy with defendant prior to the trial, and defendant

agreed. The trial court was in the best position to evaluate defendant’s claims and the

circumstances of defendant’s consent; it concluded that defendant knowingly and intelligently

consented to the defense strategy. The court specifically found that defendant was “paying

attention” and he “agreed because [the defense] attorneys had a reason for doing it.” We find no

manifest error in the court’s findings. See Fair, 159 Ill. 2d at 79 (“We will not disturb the trial

judge’s ruling that defendant knowingly and intelligently consented to defense counsel’s strategy

in the case.”).

¶ 110 Consent aside, defendant’s claim of ineffective assistance also fails because trial counsel’s

strategy was reasonable and did not prejudice defendant. “[T]he choice of defense theory is

ordinarily a matter of trial strategy, and counsel has the ultimate authority to decide this trial

strategy. [Citation.] This court will generally not review a claim of ineffectiveness of counsel based

on inadequate trial strategy.” People v. Guest, 166 Ill. 2d 381, 394 (1995). An exception is “where

37 No. 1-19-0366

counsel entirely fails to conduct any meaningful adversarial testing.” The fact that another attorney

might have pursued a different strategy or that the strategy chosen by counsel ultimately proved

unsuccessful, does not demonstrate incompetence or suggest ineffective representation. People v.

Fuller, 205 Ill. 2d 308, 331 (2002).

¶ 111 In the circumstances of this case, trial counsel’s decision to introduce this evidence

furthered a reasonable theory of misidentification. By introducing evidence of the recovered gun,

which had been forensically proven not to have been used in the shooting, counsel attempted to

discredit Weatherspoon’s identification of the gun in the Twitter photograph that she testified was

used in the shooting, thereby also calling into question her identification of defendant.

¶ 112 We also note that counsel testified that the decision to admit evidence of the gun found

during defendant’s arrest was made only after the court had already decided to admit the Twitter

photo showing defendant holding a gun. As counsel explained in his testimony, any prejudice to

defendant from the admission of the recovered firearm was lessened because defendant’s

familiarity with firearms was already suggested by the Twitter photograph and it “was not going

to be a surprise to the jury” that defendant had handled a gun before.

¶ 113 Moreover, in admitting evidence of the gun, the court specified that defendant could enter

the evidence in furtherance of his intended strategy; however, the court would not allow the State

to enter any evidence regarding the double homicide that the gun was connected to, which also

limited any prejudice to defendant from the gun’s admission.

¶ 114 Finally, defendant claims that his trial counsel’s errors cumulatively deprived him of a fair

trial. However, we have already found that none of the circuit court’s findings with regard to trial

counsel’s representation are manifestly erroneous. Where, as here, the alleged errors do not

38 No. 1-19-0366

amount to reversible error on any individual issues, there is no cumulative error. People v. Howell,

358 Ill. App. 3d 512, 526 (2005).

¶ 115 Defendant’s final challenge is to his sentence, arguing that it violates the proportionate

penalties clause of the Illinois Constitution. The proportionate penalties clause of the Illinois

Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of

the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970,

art. I, § 11.

“While courts of review are generally reluctant to override the judgment of the

General Assembly with respect to criminal penalties [citation], it is also true that

when defining crimes and their penalties, the legislature must consider the

constitutional goals of restoring an offender to useful citizenship and of providing

a penalty according to the seriousness of the offense [citation].” (Internal quotation

marks omitted.) People v. Miller, 202 Ill. 2d 328, 338 (2002).

“We have recognized three different forms of proportionality review. A statute may

be deemed unconstitutionally disproportionate if (1) the punishment for the offense

is cruel, degrading, or so wholly disproportionate to the offense as to shock the

moral sense of the community; (2) similar offenses are compared and the conduct

that creates a less serious threat to the public health and safety is punished more

harshly; or (3) identical offenses are given different sentences.” Id.

¶ 116 Initially, we note that defendant’s argument on this point is approximately one page long

and that he does not argue under any particular theory of proportionality review. Defendant cites

People v. Buffer, 2019 IL 122327, which held that a sentence over 40 years imposed on a juvenile

offender constitutes a de facto life sentence. Buffer, however, does not apply to defendant, who

39 No. 1-19-0366

was 20 years old—not a juvenile—at the time of the offense. In anticipation of that conclusion,

defendant relies on People v. House, 2019 IL App (1st) 110580-B, to contend that “at least one

appellate court case in Illinois has applied the proportionate penalties clause to youthful offenders

over the age of 18.”

¶ 117 Defendant’s vague challenge to his sentence, without identifying any particular theory for

concluding that his sentence is unconstitutionally disproportionate, is not sufficient to allow for

appellate review. See Ill. S. Ct. R. 341 (eff. May 25, 2018); People v. O’Dette, 2017 IL App (2d)

150884, ¶ 51 (“arguments not raised or not sufficiently developed are forfeited”).

¶ 118 Defendant also did not specifically raise this issue in the trial court, making only a cursory

argument that the court should find the minimum sentence unconstitutional based on defendant’s

“youthful age.” Defendant did not present any evidence regarding the evolving science on juvenile

maturity and brain development applied to him, and the trial court did not conduct an evidentiary

hearing or make any findings of fact on defendant’s specific circumstances. In these circumstances,

the record is also not sufficiently developed to allow for appellate review. See People v. Harris,

2018 IL 121932, ¶¶ 41-46 (finding defendant’s as-applied challenge was “premature” because “a

reviewing court is not capable of making an as-applied finding of unconstitutionality in the ‘factual

vacuum’ created by the absence of an evidentiary hearing and findings of fact by the trial court”).

¶ 119 Apparently recognizing the insufficiency of the record, defendant alternatively asks in his

reply brief that this court “remand this issue to the trial court for an evidentiary hearing to

determine whether the science on juvenile maturity and brain development applied to the

Defendant.” Defendant acknowledges that the issue can be brought in a postconviction petition

but claims that it would be “far more efficient for all parties involved to address this issue by

conducting an evidentiary hearing on remand.” We decline defendant’s request. See id. ¶ 48

40 No. 1-19-0366

(declining the defendant’s request for remand to the trial court for an evidentiary hearing on his

proportionate penalties claim, finding that defendant’s claim that his was more appropriately raised

in another proceeding, such as a postconviction petition).

¶ 120 For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 121 Affirmed.

41 No. 1-19-0366

No. 1-19-0366

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CR- 12809; the Hon. Ursula Walowski, Judge, presiding.

Attorneys Richard Dvorak and Loren Jones, of Dvorak Law Offices, LLC, for of Willowbrook, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Daniel Piwowarczyk, and Megan K. Mulay, Assistant Appellee: State’s Attorneys, of counsel), for the People.