2022 IL App (1st) 190911-U FIFTH DIVISION September 2, 2022 No. 1-19-0911
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 17 CR 6455 ) DAVID BIVENS, ) Honorable ) Allen F. Murphy, Defendant-Appellant. ) Judge, presiding. )
PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Connors concurred in the judgment.
ORDER
Held: We affirm defendant’s convictions because the evidence was sufficient to sustain the verdict, the circuit court did not erroneously admit certain evidence, the prosecutor did not commit reversible misconduct during closing arguments, and defendant cannot establish prejudice for his ineffective assistance of counsel claim.
¶1 After a jury trial, defendant David Bivens was found guilty of robbery (720 ILCS 5/18-
1(a) (West 2016)) and aggravated battery on a public way (720 ILCS 5/12-3.05(c) (West 2016)),
and sentenced to concurrent sentences of nine and five years’ imprisonment, respectively. He No. 1-19-0911
appeals, arguing the evidence was insufficient to sustain the verdict, the circuit court erroneously
admitted repetitious prior consistent statements of identification, the prosecutor committed
misconduct during closing arguments, and his counsel was ineffective. We affirm.
¶2 BACKGROUND
¶3 Defendant and O’Hara Harris were charged by indictment with the robbery (720 ILCS
5/18-1(a) (West 2016)) and aggravated battery on a public way (720 ILCS 5/12-3.05(c) (West
2016)) of the victim Sedrick Wells. 1
¶4 At trial, defense counsel represented in his opening statement that defendant had “no idea
what happened to [Wells] on April 8, 2017, because he wasn’t there.” Counsel also stated
defendant “doesn’t have to put on a witness. He doesn’t have to show evidence. He doesn’t even
have to testify. Yesterday you all agreed that if [defendant] doesn’t testify, you won’t hold it
against him.”
¶5 Wells testified that on April 7, 2017, at 10 a.m., he went to Geno’s Goat Club in Chicago
Heights, Illinois, to play slot machines, and stayed until Geno’s closed early the next morning. He
only left between 11:30 a.m. and noon for a haircut. Wells consumed approximately “five to six”
beers while at Geno’s. He saw defendant in Geno’s that day as well, and identified him in court.
They had known each for 10 to 15 years before April 7, 2017. Harris, who Wells had also known
for years, was also in Geno’s that day. When Wells left Geno’s, he had $450 in his pocket. Harris
stood behind Wells when he cashed out his ticket from the slot machine.
¶6 As defendant was “going out [of] the door” to exit Geno’s, Harris asked to borrow his
phone. Wells agreed, but when he handed over the phone, Harris walked away quickly. Wells
followed, and saw Harris and defendant speaking in front of an apartment building. Harris then
1 Harris is not a party to this appeal.
2 No. 1-19-0911
ran “down the gangway towards the alley.” Wells pursued him to an area he described as in, “the
grass back there in the yard towards the alley,” but in the process, defendant “came [from] behind”
and struck Wells. Harris and defendant then threw Wells to the ground, and defendant removed
the $450 from Wells’ pocket while Harris choked and struck Wells. Defendant and Harris ran
away. The street had sufficient lighting that Wells could see both defendant and Harris, and nothing
obscured his view. Wells sustained back pain and soreness to his throat and face.
¶7 Wells returned to Geno’s and told Barbara, a staff member, about the incident. Barbara
drove him to the police station, where he identified defendant and Harris by name to an officer.
On April 11, 2017, Wells returned to the police station, where he identified defendant and Harris
in photographs to a detective.
¶8 Asked for clarification regarding the attack’s location, Wells explained that Harris “ran
through the gangway by the alley in the little yard back there. That’s why I ran back there and
followed him.” This location was, “[a] few feet” from the alley.
¶9 On cross-examination, Wells testified that he drinks beer regularly. The incident occurred
at approximately 1 a.m. on April 8, 2017. Harris and Wells were outside when Harris asked to
borrow the phone. Wells responded to the question, “And then from behind you’re saying
[defendant] hit you?” by stating, “He came from like the side and then [Harris] hit me.”
¶ 10 Wells denied that he told the police on April 8 that Harris first took his phone in the alley.
He further denied that he said both defendant and Harris asked for the phone, defendant and Harris
took only $300, or that he was only punched once and could not identify whether it was defendant
or Harris that punched him. Regarding his conversation with the detective on April 11, Wells
denied that he said he gave Harris the phone inside of Geno’s or the attack occurred in the alley
directly behind Geno’s, but admitted he did not relay that Harris choked him.
3 No. 1-19-0911
¶ 11 On redirect, the following exchange occurred:
Q: *** [Y]ou told [the police] that O’Hara Harris and this defendant *** robbed
you, right?
A: Yes.
Q: You told them when you went to the police station on April 8, correct?
A: That was my reason for going up there to report them.
Q: You then also spoke to the detective later on and you not only told the
detective that [defendant] and O’Hara Harris robbed you, correct?
Q: You also pointed them out in pictures and said that these are the people that
robbed me on April 8; is that correct?
A: Right.
***
Q: You told the police on the second time you spoke to them on April 11 that
O’Hara Harris and [defendant] robbed you, correct?
Q: And you also pointed them both out in pictures, correct?
DEFENSE COUNSEL: Your Honor, I would object as to the truth of the matter
of those statements.
THE COURT: We went through the identification on direct examination so that’s
been asked and answered.
4 No. 1-19-0911
¶ 12 Wells further testified on redirect that he told the officer on April 8 that defendant punched
him and Harris joined in the attack, and responded to the question “Which is what you’re saying
today?” with “Exactly.”
¶ 13 Chicago Heights police officer Hugh McCorkle testified that at 1:51 a.m. on April 8, 2017,
he interviewed Wells at the Chicago Heights police station. McCorkle observed injuries to the left
side of Wells’ face. Wells identified Harris and defendant as the men who attacked and robbed
him.
¶ 14 On cross-examination, McCorkle testified he received training on how to write police
reports. In his report based on Wells’ April 8, 2017 statement, McCorkle wrote that Wells said
both Harris and defendant requested his phone, the men took $300, and McCorkle did not recall
that Wells said either offender choked him or threw him to the ground. On redirect, McCorkle
testified that he summarized Wells’ account in the police report, and did not record the statement
verbatim.
¶ 15 Chicago Heights police detective Ryan Zurisk testified that she was assigned defendant’s
matter on April 8, 2017, and interviewed Wells regarding the incident on April 11. During the
interview, Wells identified defendant and Harris in photographs as his attackers. On cross-
examination, Zurisk testified that both officers and detectives are trained on how to write reports.
Wells told her that he walked to the police station after the incident, and Harris took his phone
while they were inside Geno’s.
¶ 16 During closing arguments, the prosecutor referenced that Wells identified defendant and
Harris to both McCorkle and Zurisk, and again at trial. Defense counsel argued Wells was not a
credible witness because he “was drunk and his story changed significantly.” Counsel emphasized
that Wells changed his story regarding where the incident occurred, where and who asked for his
5 No. 1-19-0911
phone, how many times he was struck and who struck him, the amount of money taken, and how
he arrived at the police station. In rebuttal, the prosecutor stated, “Detective [Zurisk] told you that
*** police officers unless they’re detectives are not trained on how to write reports.” The
prosecutor continued, regarding Wells’ account of the incident, that he “said the same thing not
once, not twice but three times.” In response to defense counsel’s argument regarding alcohol, the
prosecutor stated over objection:
“[T]his is not a case where the victim is so drunk that he just doesn’t know what
was going on. Counsel misrepresented some things that the victim said. The victim said
*** he was there at 10:00 but he didn’t leave at 10:00 am to go get his haircut. He left at
10 or 11:00 p.m. so he was there all day ***. He was alert enough to leave and go get a
haircut and come back. There is no evidence in the record that he was so drunk that he just
didn’t know what was going on.”
¶ 17 After closing arguments, the circuit court instructed the jury in relevant part that opening
statements and closing arguments are not evidence. The jury found defendant guilty on both
counts. At a later proceeding, the court denied defendant’s posttrial motion, and the matter moved
to sentencing. Following a hearing, the court sentenced defendant to nine years’ imprisonment for
robbery (720 ILCS 5/18-1(a) (West 2016)) and five years’ imprisonment for aggravated battery
on a public way (720 ILCS 5/12-3.05(c) (West 2016)), to be served concurrently. The court denied
defendant’s motion to reconsider sentence. This appeal followed.
¶ 18 ANALYSIS
¶ 19 On appeal, defendant first argues that the evidence was insufficient to sustain the verdict
because Wells was not a credible witness.
6 No. 1-19-0911
¶ 20 When reviewing the sufficiency of the evidence, this court must construe the evidence in
the light most favorable to the State and determine if any rational factfinder could have found the
defendant guilty beyond a reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35. This court will
not substitute its judgment for that of the factfinder on the weight of the evidence or witness
credibility. People v. Hardman, 2017 IL 121453, ¶ 37. We may not set aside a factfinder’s
credibility determination unless the testimony is so improbable that no rational factfinder could
accept it. See People v. Cunningham, 212 Ill. 2d 274, 280 (2004) (rejection appropriate only
“where the record evidence compels the conclusion that no reasonable person could accept it
beyond a reasonable doubt”). Reversal is only appropriate where the evidence was so
unreasonable, improbable, or unsatisfactory that it creates reasonable doubt of the defendant’s
guilt. Hardman, 2017 IL 121453, ¶ 37.
¶ 21 Defendant here does not contend that the State’s evidence was insufficient to establish the
elements of the charged crimes if the State’s witnesses were found to be credible. Instead, he argues
that no rational factfinder could have ever credited Wells’ testimony because he consumed alcohol
on the day of the incident and offered conflicting accounts. We disagree. The jury heard Wells’
testimony, McCorkle and Zurisk’s testimony that included the contradictory elements of Wells’
various accounts, and defense counsel’s closing argument, which highlighted Wells’ alcohol
consumption as well as the inconsistencies in his accounts. After hearing all of this evidence and
arguments, the jury chose to favor Wells’ testimony as credible, and this court cannot substitute it
judgment for that of the jury. Id.
¶ 22 Defendant first argues that we can discount the jury’s credibility finding because the
evidence necessarily implies that Wells was so intoxicated during the incident that his memory is
untrustworthy. This argument is unsupported by the record. While Wells admitted that he
7 No. 1-19-0911
consumed alcohol on April 7, 2017, there was no evidence that he was actually intoxicated or his
memory was impaired. Defendant presented no expert witness on intoxication, nor did his attorney
even question McCorkle on whether Wells smelled of alcohol or appeared intoxicated at the police
station following the incident. The fact that Wells consumed alcohol does not on its own render
his testimony unreliable. See Gray, 2017 IL 120958, ¶ 40. The jury heard the evidence regarding
Wells’ alcohol consumption and made its choice on how this affected his credibility and the weight
of his testimony. Id. ¶ 47. While the record could support a different inference regarding
intoxication than the one the jury drew here, the evidence is not conclusive, and we may not
substitute our judgment for that of the factfinder on what reasonable inferences to draw from the
evidence. See People v. Petermon, 2014 IL App (1st) 113536, ¶ 43.
¶ 23 Defendant’s next basis to reject the jury’s credibility finding is the discrepancies between
Wells’ trial testimony, his account to McCorkle, and his account to Zurisk. Defendant claims that
Wells was inconsistent about (1) where Harris asked for the phone; (2) whether Harris alone, or
both Harris and defendant, requested the phone; (3) how much money the two took from Wells;
(4) where the attack occurred; (5) whether Wells was thrown to the ground and choked; (6) whether
defendant attacked Wells from behind or the side, and (7) how Wells traveled to the police station.
¶ 24 This argument fails because regardless of these alleged discrepancies, Wells remained
consistent on the key operative details: (1) Harris walked away with his phone, (2) Wells pursued,
(3) defendant surprised Wells and struck him, (4) defendant and Harris took Wells’ money and
left, and (5) Wells reported the incident to the police shortly thereafter. Based on these consistent
details, a rational factfinder could choose to credit Wells’ testimony despite discrepancies
elsewhere in his accounts.
8 No. 1-19-0911
¶ 25 Additionally, defendant overstates many of the alleged discrepancies. The testimony
regarding whether defendant attacked from the back or the side, and the location of the attack,
weas not materially different and not reflective of a change in Wells’ story. This is similar to the
difference between Wells’ testimony that Harris requested the phone just outside of Geno’s with
Zurisk’s testimony that Wells stated Harris made the request inside—Wells was clear in court that
the request was made as they exited Geno’s, and whether the men were inside or outside of is
irrelevant.
¶ 26 Other details, however, are significantly different, such as how Wells arrived at the police
station, the amount of money that was taken, and whether Wells was choked and thrown to the
ground. These issues, however, are collateral to the elements of the charges. 2 That a witness gave
conflicting accounts on collateral matters “need not render the testimony of the witness as to
material questions incredible or improbable.” See Gray, 2017 IL 120958, ¶ 47. Moreover, the
factfinder has the ability to decide which portions of a witness’ testimony to accept and which to
reject without discarding the entirety of the testimony. Id. It follows that this is not a scenario
where Wells’ testimony was so unbelievable that we can disturb the jury’s credibility
determination on appeal. Cunningham, 212 Ill. 2d at 280.
¶ 27 Finally, defendant argues that Wells’ identification was unreliable. When assessing the
reliability of an identification, a court considers (1) the opportunity of the witness to view the
assailant at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the
witness’ prior description of the offender, (4) the level of certainty demonstrated by the witness,
2 Here, defendant was convicted of two charges, robbery and aggravated battery on a public way. To establish robbery, the State had to show defendant took property from Wells’ person through force or threat of imminent force. 720 ILCS 5/18-1 (West 2016). To establish aggravated battery on a public way, the State had to show defendant made physical contact of an insulting or provoking nature with Wells while on a public way. 720 ILCS 5/12-3.05(c) (West 2016).
9 No. 1-19-0911
and (5) the length of time between the incident and the identification. Neil v. Biggers, 409 U.S.
188, 199-200 (1972). Where a victim is already familiar with his assailant, this fact renders the
other factors less relevant. People v. Brooks, 187 Ill. 2d 91, 130 (1999).
¶ 28 Wells was familiar with both defendant and Harris before the incident. Moreover, he saw
both men earlier that day in Geno’s, and there is no indication he did not pay attention to his
attackers during the incident. Wells identified his attackers by name with certainty the day of the
attack, three days later, and at trial. Thus, every factor weighs in favor of reliability. Biggers, 409
U.S. at 199-200. Additionally, as explained above, the jury considered and rejected the argument
that Wells’ entire testimony, including identification, could be discounted due to alleged
inebriation or inconsistencies, and we cannot substitute our judgment on that finding. See
Hardman, 2017 IL 121453, ¶ 37. It follows that defendant’s sufficiency of the evidence claim fails.
¶ 29 Defendant next claims that he deserves a new trial because the circuit court permitted
repetitive prior consistent statements of identification in violation of Illinois Rule of Evidence 403
(eff. Jan. 1, 2011). Defendant admits that he did not preserve this claim through a timely objection
at trial, but argues we may reach the claim on plain error review.
¶ 30 Plain error review is appropriate where the reviewing court determines that a clear or
obvious error occurred at trial, and either (1) the evidence was so closely balanced that the error
alone may have tipped the scales of justice, regardless of the seriousness of the error, or (2) the
error was so serious that it denied the defendant a fair trial, regardless of the closeness of the
evidence. People v. Sebby, 2017 IL 119445, ¶ 48. The defendant must first show that a clear or
obvious error occurred. Id. ¶ 49. We review de novo whether a forfeited claim is reviewable under
the plain error doctrine. People v. Schoonover, 2021 IL 124832, ¶ 26.
10 No. 1-19-0911
¶ 31 Defendant argues that the admission of prior consistent statements of identification in
violation of Rule 403 constituted first-prong plain error. Under Rule 403, relevant evidence “may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
Ill. R. Evid. 403 (eff. Jan. 1, 2011). A witness’s prior consistent statements are admissible for
purposes of identification. People v. Anderson, 2018 IL App (1st) 150931, ¶ 37.
¶ 32 Here, defendant claims the circuit court erred by admitting multiple prior consistent
statements by Wells regarding his identification of defendant. Defendant complains that in addition
to Wells’ in-court identification, the State introduced the following testimony: (1) Wells testified
on direct that he identified defendant by name to McCorkle on August 8, 2017; (2) Wells testified
on direct that he identified defendant by name and in a photograph to Zurisk on August 11; (3)
Wells testified on redirect he told the police that defendant punched him in the face, which was
“exactly” the same thing he said in court; (4) Wells confirmed on redirect that he told McCorkle
and Zurisk defendant was one of his attackers; (5) McCorkle testified that Wells identified
defendant; (6) Zurisk testified that Wells identified defendant in a photograph. Defendant argues
the probative value of these repeated references to the identification was substantially outweighed
by the danger the jury would be prejudiced by the repetition, but not specify which instances should
not have been admitted.
¶ 33 We find that the circuit court did not commit clear or obvious error in admitting this
testimony. Defendant argues that the repetition itself rendered some subset of the testimony
inadmissible, but this argument collapses when the individual circumstances of each are examined.
¶ 34 First, Wells’ testimony on direct that he identified defendant to McCorkle immediately
following the incident, and again to Zurisk three days later, is highly probative on the issue of
identification, a purpose for which the law specifically permits prior consistent statements. Id.
11 No. 1-19-0911
¶ 35 Next, the record shows that the circuit court did not admit Wells’ testimony on redirect
regarding identification; defense counsel objected to this line of questioning, and the court ruled,
“We went through the identification on direct examination so that’s been asked and answered.” A
jury is presumed to follow the court’s instructions regarding objections unless proven otherwise,
and defendant makes no such showing here. See People v. Rudd, 2020 IL App (1st) 182037, ¶ 85.
Defendant also complains that Wells testified on redirect that he told the police defendant punched
him, which was consistent with his testimony. This statement, however, was uniquely probative
beyond the general identification of defendant because defense counsel challenged Wells’
identification testimony on cross-examination specifically regarding which attacker physically
contacted Wells, and was thus not cumulative to the more general identification testimony.
¶ 36 Finally, the prosecutor elicited the testimony from McCorkle and Zurisk regarding prior
consistent statements of identification only after defense counsel cross-examined Wells, during
which he challenged Wells’ credibility. In this circumstance, the law permitted the State to support
Wells’ credibility regarding identification through third-party testimony. See People v. Shum, 117
Ill. 2d 317, 342 (1987) (when a witness testifies that he previously identified a defendant and this
testimony is tested by cross-examination, “a third person may then testify that he heard or saw the
witness identify the offender because both the witness and third person would be subject to cross-
examination”). It was also appropriate for McCorkle and Zurisk to testify regarding Wells’
identification to describe the circumstances of the identification. People v. Temple, 2014 IL App
(1st) 111653, ¶ 41 (testimony about the identification process itself are properly admitted as prior
consistent statements of identification). The probative value of McCorkle and Zurisk’s testimony,
in light of defense counsel’s strategy to discredit Wells, was strong.
12 No. 1-19-0911
¶ 37 Therefore, we cannot find that defendant has identified any testimony for which the
probative value was substantially outweighed by the danger of unfair prejudice, nor that defendant
has demonstrated that any of the testimony was so cumulative or unnecessarily repetitive that any
portions became more prejudicial than probative by virtue of repetition. Accordingly, the circuit
court did not commit a clear or obvious error by admitting the complained-of testimony such that
plain error review is appropriate.
¶ 38 Defendant next claims that the prosecutor committed misconduct in three specific ways,
only one of which he properly preserved for appeal: that the prosecutor improperly accused defense
counsel of misrepresenting testimony by overstating the degree to which the evidence showed
Wells was intoxicated. Defendant further argues, in unpreserved claims, that the prosecutor
committed misconduct by: (1) referencing the allegedly improper prior consistent statements
discussed above during her closing argument, then commenting in rebuttal that Wells repeated the
identification, “not once, not twice, but three times”; and (2) misrepresenting Zurisk’s testimony
about officer training on police reports by stating, “Detective [Zurisk] told you that *** police
officers unless they’re detectives are not trained on how to write reports.” Because defendant did
not preserve the claims, they are only potentially reviewable as plain error.
¶ 39 The State is provided considerable latitude during closing arguments. People v. Hall, 194
Ill. 2d 305, 346 (2000). The reviewing court must review the argument in its entirety so that the
challenged sections can be placed in the appropriate context. People v. Cisewski, 118 Ill. 2d 163,
175-76 (1987). Additionally, the reviewing court must presume that the jury followed a trial
judge’s instructions in reaching the verdict, absent a showing to the contrary. People v. Simms,
192 Ill. 2d 348, 373 (2000). One factor courts use to weigh the impact of an improper comment at
closing is whether “the comments were brief and isolated in the context of lengthy closing
13 No. 1-19-0911
arguments.” People v. Runge, 234 Ill. 2d 68, 142 (2009). Improper argument at closing will only
constitute reversible error if the comments were “so prejudicial that real justice was denied or the
verdict resulted from the error.” People v. Jackson, 2020 IL 124112, ¶ 83.
¶ 40 The prosecutor’s statement that defense counsel misrepresented testimony, was:
“[T]his is not a case where the victim is so drunk that he just doesn’t know what
was going on. Counsel misrepresented some things that the victim said. The victim said
*** he was there at 10:00 but he didn’t leave at 10:00 am to go get his haircut. He left at
10 or 11:00 p.m. so he was there all day ***. He was alert enough to leave and go get a
haircut and come back. There is no evidence in the record that he was so drunk that he just
¶ 41 We find the prosecutor did not make an improper statement in this portion of her argument.
Instead, it is clear she was simply distinguishing her interpretation of the evidence regarding
intoxication from defense counsel’s, contending the evidence did not show that Wells was so
inebriated he did not understand what was happening, as defense counsel suggested. Additionally,
this was a single statement in a full closing and rebuttal, during which the prosecutor did not repeat
the statement in an attempt to discredit defense counsel generally, rendering the comment benign.
See Runge, 234 Ill. 2d at 142. Moreover, the court instructed the jury that neither party’s closing
argument was evidence, and defendant makes no showing that the jury did not follow this
instruction regarding its interpretation of the alcohol consumption evidence. See Simms, 192 Ill.
2d at 373. Thus, defendant could not demonstrate reversible error on this point even if we agreed
the comment was improper.
¶ 42 Turning to the forfeited claims, we reject defendant’s argument that the prosecutor’s
comments about the prior consistent statements of identification were improper. As described
14 No. 1-19-0911
above, the record shows the prior consistent statements of identification were properly admitted
into evidence. The prosecutor’s references to properly admitted evidence during the closing
argument was thus appropriate, particularly in light of defense counsel’s efforts to discredit Wells’
testimony as unreliable and inconsistent, and the considerable latitude afforded prosecutors at
closing. See Hall, 194 Ill. 2d at 346.
¶ 43 Regarding his second forfeited contention, however, defendant is accurate that the
prosecutor misrepresented the record. Zurisk did not testify that police officers are not trained on
how to write reports unless they are detectives, as the prosecutor claimed. We do not believe this
misstatement, however, rises to the level of reversible error, let alone plain error. This was an
isolated comment based on a tangential issue in the midst of lengthy argument and rebuttal, and
the reviewing court must consider the totality of the argument. Runge, 234 Ill. 2d at 142. The court
instructed the jury that closing arguments are not evidence, and there is no indication from the
record that the jury did not follow this instruction and concluded therefrom that McCorkle did not
know how to write a police report. See Simms, 192 Ill. 2d at 373. It follows that there is no
probability this comment tainted the whole trial, or was so central to the jury’s credibility
determination that the verdict resulted from the error. Accordingly, the claim fails, because without
reversible error, there can be no plain error. See Jackson, 2020 IL 124112, ¶¶ 87-88 (a prosecutor’s
“brief and isolated” mischaracterizations of the evidence during closing argument was not so
improper or prejudicial to show reversible error, and therefore plain error review was
inappropriate).
¶ 44 Finally, defendant argues his counsel was ineffective for “promising” to present evidence
that defendant was not present during the incident, but then failing to do so.
15 No. 1-19-0911
¶ 45 To establish an ineffective assistance of counsel claim, a defendant must show that his
counsel’s conduct was objectively unreasonable, and the unreasonable conduct prejudiced the
defendant. People v. Clendenin, 238 Ill. 2d 302, 317 (2010). To demonstrate prejudice, the
defendant must show that but for counsel’s deficient conduct, there is a reasonable probability the
result at trial would have been different. Id. The defendant must prove both prongs, and the failure
to establish one obviates the need for a reviewing court to analyze the other. Id. at 317-18.
¶ 46 During his opening statement, defense counsel stated defendant, “has no idea what
happened to [Wells] on April 8, 2017, because he wasn’t there.” Counsel continued that because
the State had the burden of proof, defendant did not need to present evidence, and also reminded
the jury that defendant had no requirement to testify and the jury could not hold the decision not
to testify against him. Defendant presented no evidence at trial.
¶ 47 On this record, we find that, even if we accept that counsel acted unreasonably by making
the above statement then not presenting any evidence, defendant cannot establish prejudice. While
defendant claims counsel’s statement constituted “self-immolation” before the jury, the record
does not support this hyperbolic assertion. Defendant fails to demonstrate how the result of the
trial likely would have been different had counsel not made this statement. The jury here chose to
credit Wells’ account of the incident, and it is highly unlikely that defense counsel’s single
sentence in his opening statement would have impacted that decision one way or another,
particularly in the context here where the statement was immediately followed by counsel
reminding the jury that defendant had no burden to present evidence, and could choose not to
testify. We note that because defendant cannot demonstrate prejudice, we need not determine
whether counsel’s conduct was objectively unreasonable. Id.
16 No. 1-19-0911
¶ 48 Finally, defendant argues in passing that the cumulative impact of these purported errors
warrants a new trial. This argument, however, is unavailing because we have rejected each claimed
error. See People v. Perry, 224 Ill. 2d 312, 356 (2007).
¶ 49 CONCLUSION
¶ 50 The evidence was sufficient to sustain the jury’s verdict, the circuit court did not commit
clear or obvious error respecting the admission of prior consistent statements of identification, and
defendant could not establish prosecutorial misconduct or demonstrate his counsel was ineffective.
Accordingly, his convictions are affirmed.
¶ 51 Affirmed.