2023 IL App (5th) 180241-U NOTICE NOTICE Decision filed 01/24/23. The This order was filed under text of this decision may be NO. 5-18-0241 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Saline County. ) v. ) No. 16-CF-327 ) BRIAN T. BURNS, ) Honorable ) Walden E. Morris, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: Where there was no meritorious issue that (1) the State proved defendant guilty beyond a reasonable doubt, (2) defense counsel was ineffective, (3) the trial court erred in admitting evidence, and (4) the court abused its discretion in sentencing defendant, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the trial court’s judgment.
¶2 Following a jury trial, defendant, Brian T. Burns, was found guilty of attempted aggravated
kidnapping, solicitation to commit aggravated kidnapping, and conspiracy to commit aggravated
kidnapping. The trial court sentenced him to 20 years’ imprisonment for solicitation. Defendant
appealed.
¶3 Defendant’s appointed attorney, the Office of the State Appellate Defender (OSAD), filed
a motion to withdraw as counsel, arguing that this appeal presents no arguably meritorious issues.
See Anders v. California, 386 U.S. 738 (1967). OSAD has notified defendant of its motion. This
1 court provided defendant with ample opportunity to file a response, and he has done so. After
reviewing the record and considering OSAD’s motion, the supporting memorandum, and
defendant’s response, we agree that this appeal presents no issue of even arguable merit.
Therefore, we grant OSAD leave to withdraw and affirm the circuit court’s judgment.
¶4 BACKGROUND
¶5 In the summer of 2016, defendant was housed in the Saline County Detention Center,
charged with murdering his wife. At that time, he began discussing with a cellmate, Mark
Stricklin, a plan to have then State’s Attorney Mark Henshaw kidnapped and held until he agreed
to drop the murder charge against defendant.
¶6 Stricklin testified that defendant first discussed having his stepsons hurt because they were
suing him for the wrongful death of their mother. Defendant asked Stricklin whether he knew
anybody who could do the job. Later, defendant mentioned having Henshaw kidnapped. At that
point, Stricklin contacted his lawyer, who relayed the message to someone in law enforcement.
¶7 Stricklin agreed to wear a wire and recorded several conversations with defendant. The
pair also communicated in letters, which defendant would write in Stricklin’s presence. They
communicated in this way to avoid having their other cellmates overhear. The conversations and
letters were often in code. For example, defendant referred to the kidnapping of Henshaw as a
“roofing job.”
¶8 Stricklin told defendant that he would contact a friend who could do the job, but in reality
the “friend” was Detective David Blazier. Stricklin and defendant called Blazier from the jail to
discuss details of the kidnapping plot. On cross-examination, Stricklin admitted that he was facing
charges of predatory sexual assault and, while he had not been promised anything specific in
exchange for his testimony, he hoped to receive favorable treatment.
2 ¶9 Throughout the conversations, defendant expressed concern that he would be connected to
the kidnapping plot. Defendant wanted Henshaw to be told that his patients and coworkers were
the ones who hired the kidnapper, believing the charges against defendant to be false. Defendant
worried that he would “never get out of prison,” and he did not want to be another Drew Peterson.
Defendant asked Stricklin repeatedly whether Stricklin thought the kidnapper could pull off the
job and whether the risk of getting caught was too high. At one point, defendant became suspicious
and frisked Stricklin for a wire.
¶ 10 Defense counsel argued that defendant was merely fantasizing or speaking hypothetically.
Counsel maintained that Stricklin was the driving force behind the alleged plot, hoping to obtain
some leverage to procure more favorable treatment on his own charges. The defense further
emphasized that the plot had no chance of success and that Henshaw was never actually in danger.
¶ 11 The jury found defendant guilty. A presentence investigation report showed that, prior to
the murder charge, defendant had no criminal history. The defense emphasized that defendant had
been a local doctor, a church deacon, and a Sunday school teacher. The trial court sentenced him
to 20 years’ imprisonment, finding that the crime’s inherent seriousness outweighed defendant’s
lack of criminal history. Defendant timely appealed.
¶ 12 ANALYSIS
¶ 13 OSAD contends that it can make no good-faith argument for reversing defendant’s
conviction or sentence. We agree.
¶ 14 OSAD first contends that there is no reasonably meritorious contention that the State failed
to prove defendant’s guilt beyond a reasonable doubt. When a defendant challenges on appeal the
sufficiency of the evidence, we will reverse the conviction only if, after viewing the evidence in
the light most favorable to the State, no “ ‘rational trier of fact could have found the essential
3 elements of the crime beyond a reasonable doubt.’ ” People v. Cunningham, 212 Ill. 2d 274, 278
(2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible
for determining witness credibility. People v. Evans, 209 Ill. 2d 194, 211 (2004).
¶ 15 Defendant was charged with three inchoate offenses, the predicate for which was
aggravated kidnapping. Kidnapping occurs when a person knowingly and secretly confines
another against his or her will or by force or threat of imminent force carries another from one
place to another with the intent to secretly confine him or her against his or her will. 720 ILCS
5/10-1(a) (West 2018); People v. Quintana, 332 Ill. App. 3d 96, 104 (2002). Kidnapping may be
aggravated where, inter alia, the kidnapper attempts to ransom. 720 ILCS 5/10-2(a)(1) (West
2018). “Ransom” includes “money, benefit, or other valuable thing or concession.” Id. § 10-2(a).
¶ 16 Here, the defense did not deny that defendant had the conversations that Stricklin testified
about and recorded. The only real issue at trial was whether defendant was serious about having
Henshaw kidnapped or was either fantasizing or going along with a conversation that Stricklin
initiated. To this point, Stricklin testified that defendant first raised the idea of kidnapping
Henshaw. After a lull of about a month, defendant raised the issue again. The pair made detailed
arrangements for the proposed crime. Blazier testified that defendant gave him the go-ahead to
carry out the plot.
¶ 17 Moreover, Stricklin testified that defendant was extremely concerned about his role in the
plot being discovered and took elaborate precautions to avoid it. From this, the jury could
reasonably conclude that defendant viewed the discussions as more than just fantasizing or
exploring hypothetical scenarios, and really intended to have Henshaw kidnapped.
¶ 18 It is true that the primary evidence against defendant came from Stricklin, a jailhouse
informant. Stricklin himself was not beyond reproach. He had a criminal history and was facing
4 serious charges, providing him with a motive to aid law enforcement in the hope of receiving
favorable treatment on his own charges. Although the testimony of a jailhouse informant should
be viewed cautiously, the credibility of a such an informant, as with any other witness, is a question
for the jury. People v. Belknap, 2014 IL 117094, ¶ 55 (citing People v. Manning, 182 Ill. 2d 193,
210 (1998)). The testimony of jailhouse informants is not to be viewed as inherently unbelievable.
Id. Moreover, Stricklin’s testimony was corroborated by Blazier and to some extent by defendant
himself in the recorded conversations. There is no question that if the jury believed Stricklin and
Blazier, the State proved beyond a reasonable doubt that defendant solicited a kidnapping.
¶ 19 OSAD next contends that there is no nonfrivolous argument that secretly recording
defendant’s conversations with Stricklin and Blazier violated his fifth or sixth amendment rights.
Under the fifth amendment (U.S. Const., amend. V), suspects must be told that they have a right
to counsel before a custodial police interrogation to effectuate that amendment’s prohibition
against being coerced into being a witness against oneself. Miranda v. Arizona, 384 U.S. 436,
471-72 (1966). However, that requirement does not apply to covert recordings by cellmates.
Illinois v. Perkins, 496 U.S. 292, 296-97 (1990) (essential ingredients of a police-dominated
atmosphere and compulsion are not present when an incarcerated person speaks freely to someone
whom he believes to be a fellow inmate). Thus, defendant’s fifth amendment right to counsel was
not infringed here.
¶ 20 The broader sixth amendment (U.S. Const., amend. VI) right to counsel may be infringed
where law enforcement agents, through a confidential informant, surreptitiously record the
conversations of a defendant after he has been indicted. Massiah v. United States, 377 U.S. 201,
206 (1964). However, the Massiah rule does not apply to offenses other than the one for which
the defendant has been indicted. Texas v. Cobb, 532 U.S. 162, 166-67 (2001) (sixth amendment
5 right is offense specific; it cannot be invoked once for all future prosecutions, for it does not attach
until a prosecution is commenced). Here, defendant was in custody for the murder of his wife.
The recordings related to a clearly distinct offense occurring after the initial murder. Thus, the
secret recordings did not violate defendant’s sixth amendment right to counsel.
¶ 21 OSAD next contends that there is no meritorious argument that defense counsel was
ineffective. To prevail on a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that the deficient performance prejudiced the
defendant. People v. Cherry, 2016 IL 118728, ¶ 24 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)).
¶ 22 OSAD observes that the jury was allowed to hear—without objection—evidence that
defendant also discussed having his sons in Texas kidnapped to dissuade them from pursuing a
civil suit against him. Generally, evidence of other crimes, threats, or bad acts is not admissible to
show the defendant’s character or propensity to commit crime or wrongful acts. People v. Knight,
309 Ill. App. 3d 224, 227 (1999). Such evidence may, however, be admissible if relevant for some
other purpose. Id.
¶ 23 Even if counsel could have successfully objected to this evidence, the failure to do so did
not establish his ineffectiveness. OSAD speculates that counsel may have had a strategic reason
for failing to object. See People v. Perry, 224 Ill. 2d 312, 344 (2007) (decisions regarding “ ‘what
matters to object to and when to object’ ” are matters of trial strategy (quoting People v.
Pecoraro, 175 Ill. 2d 294, 327 (1997))). In any event, however, in light of the other evidence
detailed above, defendant was not prejudiced. See People v. Griffin, 178 Ill. 2d 65, 74 (1997)
(“[I]f the ineffective-assistance claim can be disposed of on the ground that the defendant did not
suffer prejudice, a court need not decide whether counsel’s performance was constitutionally
6 deficient.”). The evidence included clear and consistent testimony by Stricklin and Detective
Blazier, as well as the letters defendant wrote and his recorded calls. In light of this evidence,
there is no reasonable probability that the jury would have acquitted the defendant had it not heard
evidence that he also discussed having his stepsons kidnapped.
¶ 24 OSAD further contends that there is no arguably meritorious contention that the trial court
reversibly erred in its evidentiary rulings. OSAD lists three possible issues that defendant could
conceivably raise.
¶ 25 OSAD first notes that the court overruled a defense objection to admitting defendant’s
handwritten letters. Counsel argued that the letters were irrelevant and that the State failed to lay
a proper foundation.
¶ 26 Evidentiary rulings are within the trial court’s sound discretion and will not be reversed
absent an abuse of that discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Here, the letters
went to the heart of the offense for which defendant was on trial. Thus, as OSAD contends, they
could hardly have been more relevant. Moreover, the State laid a proper foundation as Stricklin
testified that defendant wrote the letters in his presence. The “requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a) (eff. Sept.
17, 2019). Such evidence may include testimony by a witness with knowledge that the evidence
is what it is claimed to be. Ill. R. Evid. 901(b)(1) (eff. Sept. 17, 2019). Thus, Stricklin’s testimony
was sufficient to satisfy the relatively minimal foundational requirement.
¶ 27 OSAD next observes that defense counsel wanted to show that Stricklin’s pending charges
involved the sexual assault of a minor (rather than an adult). Generally, a witness may not be
impeached with evidence of arrests or pending indictments to show his bad character. People v.
7 Triplett, 108 Ill. 2d 463, 475 (1985). However, showing bias, interest, or motive to testify is also
an accepted method of impeachment. Id. With this method of impeachment, “ ‘the fact that a
witness has been arrested or charged with a crime may be shown or inquired into where it would
reasonably tend to show that his testimony might be influenced by interest, bias or a motive to
testify falsely.’ ” (Emphasis in original.) Id. (quoting People v. Mason, 28 Ill. 2d 396, 401 (1963)).
Thus, counsel achieved the goal of the impeachment by showing that Stricklin was facing serious
charges. He admitted that he was motivated to implicate defendant in the hope of receiving
favorable treatment on his own charges. The precise nature of those charges was irrelevant. Thus,
the trial court did not err.
¶ 28 In any event, counsel did accomplish much the same thing when he asked Stricklin, “You
pled not guilty of what you’re accused of, as it relates to the children, right?” Stricklin responded
in the affirmative, and the State did not object.
¶ 29 In its third point under this issue, OSAD contends that it cannot meritoriously argue that
the trial court erred by allowing the State to show that defendant was facing charges for the murder
of his wife. As noted, evidence of other crimes is inadmissible merely to show a defendant’s
character or propensity to commit crimes. Knight, 309 Ill. App. 3d at 227. However, such
evidence is relevant if offered for some other purpose, such as motive. Id. Here, the motive for
defendant’s plot to kidnap Henshaw was to persuade him to drop the pending murder charge. Thus,
evidence of that charge was highly relevant to motive. Indeed, the State’s evidence of a plot to
kidnap the state’s attorney would have made little sense without knowledge that defendant had
been charged with murder. Thus, the court properly allowed the evidence.
¶ 30 OSAD finally concludes that no meritorious contention exists that the trial court erred in
sentencing defendant. The trial court must base its sentencing determination on the particular
8 circumstances of each case, considering such factors as the defendant’s credibility, demeanor,
general moral character, mentality, social environment, habits, and age. People v. Fern, 189 Ill.
2d 48, 53 (1999). We presumptively defer to the trial court’s sentencing decision because the trial
judge, having observed the defendant and the proceedings, has a far better opportunity to consider
these factors than the reviewing court, which must rely on the “cold” record. Id. Accordingly, we
may not substitute our judgment for that of the trial court merely because we might have weighed
the factors differently. Id. at 53-54. We will not disturb a sentence within the statutory range
unless it is “greatly at variance with the spirit and purpose of the law or manifestly disproportionate
to the nature of the offense.” Id. at 54.
¶ 31 Here, solicitation was a Class X felony by virtue of the underlying crime—aggravated
kidnapping—being a Class X felony. 720 ILCS 5/8-1(c), 10-2(a)(1) (West 2018). Class X felonies
are ordinarily punishable by 6 to 30 years in prison. 730 ILCS 5/5-4.5-25(a) (West 2018).
Defendant’s 20-year sentence—slightly above the midpoint of that range—was certainly severe.
Defendant had no prior convictions, was a doctor in the community, and was involved in his
church. However, a “defendant’s lack of a prior record is not necessarily the most persuasive
consideration at sentencing; the seriousness of the crime has been called the most important factor
to be considered in imposing sentence.” People v. Brown, 250 Ill. App. 3d 767, 774 (1993). Here,
the crime was undoubtedly serious, involving a plot to kidnap a sitting state’s attorney. Thus, the
crime threatened the integrity of the justice system itself. In light of the extraordinary seriousness
of the crime, the sentence was not an abuse of discretion.
¶ 32 In his response, defendant states his belief that numerous meritorious issues exist, but
specifically identifies only two. He first argues that the court erred by denying a motion for change
of venue. However, no such motion, either oral or written, appears in the record, and defendant
9 does not specify the basis for any such motion. He notes the obvious fact that the victim was the
Saline County State’s Attorney and was likely known to courthouse personnel, but does not
provide any specific facts to show that the case should have been moved to another county or that
any specific judge should have recused himself.
¶ 33 Whether to grant a change of venue is within the trial court’s discretion and will not be
reversed absent an abuse of that discretion. People v. Fort, 248 Ill. App. 3d 301, 309 (1993). A
trial judge is presumed to be impartial, and the burden of overcoming this presumption rests on
the party making the charge of prejudice. People v. Faria, 402 Ill. App. 3d 475, 482 (2010).
Allegations of judicial bias or prejudice must be viewed in context and should be evaluated in
terms of the trial judge’s specific reaction to the events taking place. Id. The trial judge is in the
best position to decide whether he or she is prejudiced against the defendant. People v. Kliner,
185 Ill. 2d 81, 169 (1998). The trial judge’s decision will not be reversed absent an abuse of
discretion. Id. A judge’s possible acquaintance with a victim is not specifically listed as a basis
for disqualification in the Code of Judicial Conduct. See Ill. S. Ct. R. 2.11 (eff. Jan. 1, 2023).
And, as noted, defendant lists no specific statements or actions by the trial judge showing that a
personal relationship with the victim affected the outcome of the trial.
¶ 34 Defendant’s second issue is that defense counsel was ineffective. Defendant contends that
counsel met with him only twice and failed to call any of the witnesses defendant suggested. As
to the first point, assuming the truth of defendant’s allegations, he does not explain how he was
prejudiced by counsel’s failure to meet with him more extensively. The case was not particularly
complex, turning on the testimony of two witnesses, authenticated letters defendant wrote, and
recorded conversations. The failure to allege prejudice thus defeats this claim. See Griffin, 178
Ill. 2d at 74.
10 ¶ 35 As to the second point, defendant fails to name any of the proposed witnesses or to describe
what their testimony might have been. Decisions about whether to call certain witnesses are also
strategic ones left to counsel’s discretion. People v. Watson, 2022 IL App (5th) 190427,
¶ 50; People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 48. In the absence of specifics about
how the witnesses’ testimony might have affected the outcome, we cannot say that counsel was
ineffective.
¶ 36 CONCLUSION
¶ 37 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 38 Motion granted; judgment affirmed.