People v. Clark

2021 IL App (4th) 190580-U

Opinion

2021 IL App (4th) 190580-U NOTICE FILED This Order was filed under NO. 4-19-0580 July 9, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate Court, IL limited circumstances allowed under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County ANTHONY N. CLARK, ) No. 19CF62 Defendant-Appellant. ) ) Honorable ) Charles M. Feeney III, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, finding defendant was not denied a fair trial because he failed to demonstrate he was prejudiced by (1) the allegedly erroneous admission of a prior consistent statement made by a key State witness or (2) the State’s allegedly improper questioning on his opinion of that witness’s credibility.

¶2 Following a jury trial, defendant, Anthony N. Clark, was convicted of domestic

battery (720 ILCS 5/12-3.2(a)(2) (West 2018)) and sentenced to 30 months’ probation.

Defendant appeals, arguing he was denied a fair trial because the State (1) elicited from a

testifying officer an inadmissible prior consistent statement made by a key State witness and

(2) improperly cross-examined him on his assessment of that witness’s credibility. Defendant

acknowledges he forfeited these claims but maintains we may consider their merit under the

plain-error doctrine or, alternatively, as a matter of ineffective assistance of counsel. We affirm. ¶3 I. BACKGROUND

¶4 A. The Charge

¶5 On May 2, 2019, the State charged defendant with domestic battery (720 ILCS

5/12-3.2(a)(2) (West 2018)), a Class 4 felony due to his previous domestic battery conviction in

La Salle County case No. 98-CM-1764. The State alleged that on May 1, 2019, defendant made

physical contact of an insulting or provoking nature with Kristy Darm, a family or household

member, in that he “punched *** Darm in the shoulder and poked [her] in the neck with his

finger ***.”

¶6 B. Jury Trial

¶7 Defendant’s case proceeded to a jury trial. At trial, four witnesses testified:

(1) Darm, (2) Darm and defendant’s nine-year-old daughter, A.C., (3) Officer Jared Clark, and

(4) defendant. The State also introduced into evidence a written statement given by Darm on the

morning of the alleged battery.

¶8 1. Kristy Darm

¶9 Kristy Darm testified she had been dating defendant for 11 years. Darm and

defendant had two children together—a nine-year-old daughter and an eight-year-old son, both

of whom lived with defendant as of the time of the trial. Prior to May 1, 2019, Darm had been

living with defendant and their children for approximately six months.

¶ 10 Darm testified that on the evening of April 30, 2019, defendant was arguing with

her about her “cheating” on him, which was something they had argued about “[o]ff and on for a

few years.” The argument lasted until “probably early morning” and continued when they awoke

the next day. Darm testified that during the argument, defendant would get in her face and yell at

her, but the only physical contact between them consisted of her pushing defendant out of her

-2- way. Darm further testified she called the police because defendant would not let her leave the

house with their daughter. A police officer responded to the call and spoke with Darm in the

driveway. Darm testified she could not remember what she told the police officer nor did she

recall making a written statement. When the prosecutor showed her a copy of a written statement

with her signature and asked if she wrote the statement, Darm replied, “I did, but I don’t

remember.”

¶ 11 2. A.C.

¶ 12 A.C. testified she did not go to school on May 1, 2019, because she was sick. On

that date, she heard Darm and defendant arguing about “the Jason thing[,]” which A.C. described

as defendant “say[ing] that [Darm] cheated on him.” According to A.C., defendant and Darm

were yelling at each other and defendant would occasionally “go up in [Darm’s] face” and Darm

would “push him away.” At one point during the argument, A.C. witnessed defendant “push[ ]

[Darm] back.” A.C. further testified she observed defendant “hit” Darm twice on the arm with an

“open hand.”

¶ 13 3. Officer Jared Clark

¶ 14 Jared Clark testified he was a police officer with the Minonk Police Department

when the incident in question occurred. Officer Clark was dispatched to defendant’s residence in

response to a “domestic altercation.” Upon arrival, he observed Darm sitting in a vehicle crying.

He briefly spoke to Darm and then went inside to speak with defendant. Defendant told Officer

Clark “nothing had happened and to not arrest him.” Due to “past encounters” with defendant in

which he had locked Darm out of the house, Officer Clark placed defendant in the back of his

vehicle before returning to Darm to ask her about the incident and to provide a written statement.

-3- Darm agreed to provide a written statement, and a copy of the statement was admitted into

evidence.

¶ 15 In the statement, Darm indicated that when she arrived home on April 30, 2019,

defendant “started yelling at me all night.” According to Darm, defendant “grabbed” her “many

times,” hit her on the arm and leg, and grabbed her neck. The following morning, defendant “was

calm for about ten minutes then the same thing started.” Defendant followed Darm into the

bathroom while yelling at her and hit her on the arm again. Darm then “pushed him away” and

ran outside to call the police.

¶ 16 Officer Clark testified he also spoke with A.C. The prosecutor inquired, without

objection, if A.C. told him what she had witnessed, and Officer Clark answered, “She advised

me in the presence of her mother as well that she observed [defendant], her father, make contact

with her mother, with [Darm].”

¶ 17 4. Defendant

¶ 18 Defendant testified that on April 30, 2019, Darm asked to come over and spend

time with him and their children. According to defendant, he and Darm prepared a meal and “had

a good time” until they began to argue. At approximately 11 p.m., Darm told defendant “the guy

she cheated on she liked him better.” Defendant “started crying” and ended up sleeping in his

son’s room. He woke up “mad” the next morning and walked into the bedroom and asked Darm,

“don’t you think what you told me last night was atrocious?” Defendant testified he followed her

around the house and “just proceeded to keep repeating the same thing.” Finally, Darm yelled at

him to leave her alone, so he returned to the bedroom and “nothing else happened.” While

defendant was in the bedroom, Darm ran outside and got in her vehicle. Defendant went outside

-4- to see what she was doing, and Darm held her phone to the window to indicate she was calling

the police.

¶ 19 On cross-examination, defendant denied making physical contact with Darm and

stated he did not remember Darm pushing him. He later testified she may have pushed him, but

then finally concluded that she did not push him. The prosecutor asked defendant, without

objection, “So your daughter [A.C.] who testified, you are basically stating she is a liar?”

Defendant responded, “No.”

¶ 20 5. Guilty Finding

¶ 21 Following the presentation of evidence and closing arguments, the jury found

defendant guilty.

¶ 22 C. Sentence

¶ 23 The trial court sentenced defendant to a 30-month term of probation.

¶ 24 This appeal followed.

¶ 25 II. ANALYSIS

¶ 26 Defendant argues he was denied a fair trial because the State (1) elicited from

Officer Clark the substance of an inadmissible prior consistent statement made by A.C. and

(2) improperly cross-examined him on his assessment of A.C.’s credibility. Defendant concedes

he forfeited these claims but maintains we may excuse his forfeiture under the first prong of the

plain-error doctrine because the alleged errors were “clear or obvious” and “the jury was

presented with a straightforward credibility contest that was, by definition, closely balanced.”

Alternatively, relying on People v. Moore, 2020 IL 124538, 161 N.E.3d 125, defendant contends

we may address the merits of his claims because their forfeiture was due solely to counsel’s

ineffectiveness. Whether a forfeited claim is reviewable as plain error and whether counsel was

-5- constitutionally ineffective are questions of law reviewed de novo. See People v. Johnson, 238

Ill. 2d 478, 485, 939 N.E.2d 475, 480 (2010) (addressing plain error); People v. Hale, 2013 IL

113140, ¶ 15, 996 N.E.2d 607 (addressing ineffective assistance).

¶ 27 The plain-error doctrine allows reviewing courts to excuse a forfeited claim when,

in relevant part, “a clear or obvious error occurred and the evidence is so closely balanced that

the error alone threatened to tip the scales of justice against the defendant ***.” People v.

Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410 (2007). If a defendant shows the evidence

was closely balanced, “prejudice is not presumed; rather, the error is actually prejudicial.”

(Internal quotation marks omitted.) People v. Sebby, 2017 IL 119445, ¶ 51, 89 N.E.3d 675. To

determine whether the evidence was closely balanced, we “must evaluate the totality of the

evidence and conduct a qualitative, commonsense assessment of it within the context of the

case.” Id. ¶ 53. This requires “an assessment of the evidence on the elements of the charged

offense or offenses, along with any evidence regarding the witnesses’ credibility.” Id. Our

supreme court has held evidence is close when a fact-finder is left to resolve a “contest of

credibility[,]” which occurs when both the State and defense present credible versions of events

and neither version is corroborated or contradicted by extrinsic evidence. (Internal quotation

marks omitted.) Id. ¶ 63; see also People v. Naylor, 229 Ill. 2d 584, 607, 893 N.E.2d 653, 668

(2008) (“Given these opposing versions of events, and the fact that no extrinsic evidence was

presented to corroborate or contradict either version, the trial court’s finding of guilty necessarily

involved the court’s assessment of the credibility of the two officers against that of defendant.”).

¶ 28 Ineffective-assistance-of-counsel claims are governed by the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504, 473

N.E.2d 1246 (1984) (adopting the Strickland standard). “To prevail on a claim of ineffective

-6- assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient

and that the deficient performance prejudiced the defendant.” People v. Domagala, 2013 IL

113688, ¶ 36, 987 N.E.2d 767. “More specifically, a defendant must show that counsel’s

performance was objectively unreasonable under prevailing professional norms and that there is

a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 687). “A

reasonable probability is a probability sufficient to undermine confidence in the outcome of the

proceeding.” (Internal quotation marks omitted.) People v. Peterson, 2017 IL 120331, ¶ 79, 106

N.E.3d 944. “[W]e may dispose of an ineffective assistance of counsel claim by proceeding

directly to the prejudice prong without addressing counsel’s performance.” Hale, 2013 IL

113140, ¶ 17.

¶ 29 In People v. White, 2011 IL 109689, ¶ 133, 956 N.E.2d 379, the supreme court

highlighted the similarities between first-prong plain error and a claim of ineffective assistance

of counsel:

“Plain-error review under the closely-balanced-evidence

prong of plain error is similar to an analysis for ineffective

assistance of counsel based on evidentiary error insofar as a

defendant in either case must show he was prejudiced: that the

evidence is so closely balanced that the alleged error alone would

tip the scales of justice against him, i.e., that the verdict may have

resulted from the error and not the evidence properly adduced at

trial [citation] (plain error); or that there was a reasonable

probability of a different result had the evidence in question been

-7- excluded (see Strickland, 466 U.S. at 694).” (Internal quotation

marks omitted.)

Because the White court determined from a review of the record that the defendant could not

show prejudice under either analysis, it found there was “no reason” to analyze whether error

occurred: “Even if we were to assume, arguendo, there was error in the admission of evidence

***, the evidence against defendant is such that he cannot show prejudice for purposes of either

analysis.” Id. ¶ 144.

¶ 30 Here, even assuming, arguendo, defendant could demonstrate clear or obvious

error occurred or that counsel’s performance was deficient, or both, the evidence against him was

such that he cannot show prejudice under either a plain-error or ineffective-assistance analysis.

¶ 31 Beginning with plain-error prejudice, the contested element of the charged

offense was whether defendant made physical contact of an insulting or provoking nature with

Darm. On the one hand, A.C. testified she observed defendant “push” Darm multiple times and

“hit” her twice with an open hand on the arm. On the other hand, defendant testified,

inconsistently, that Darm may or may not have pushed him, and that he did not strike Darm.

Were this the only evidence presented, we might agree with defendant’s characterization of this

case as a credibility contest on the issue of whether he pushed or struck Darm. However, A.C.’s

version was strongly corroborated by extrinsic evidence—Darm’s contemporaneous written

statement—and defendant’s version was strongly contradicted by this evidence. Therefore, this

case cannot be properly classified as a contest of credibility, as such a classification would

require two credible versions of events and “no extrinsic evidence *** to corroborate or

contradict either version ***.” (Emphasis added.) Naylor, 229 Ill. 2d at 607.

-8- ¶ 32 Moreover, a “commonsense assessment” of the evidence reveals defendant’s and

Darm’s testimony regarding the incident was contradictory and not credible. See Sebby, 2017 IL

119445, ¶ 53. For example, Darm testified to specific details about the argument and asserted the

only physical contact with defendant occurred when she pushed him. However, when confronted

with her contemporaneous written statement in which she described defendant “grabbing” and

“hitting” her numerous times, Darm claimed she could no longer remember whether its

substance was true. In addition, defendant initially testified Darm did not push him. Then he

testified Darm did push him. He finally concluded Darm did not push him. In short, we find

A.C.’s credible and consistent testimony was corroborated by extrinsic evidence consisting of

Darm’s written statement, while Darm’s and defendant’s inconsistent testimony lacked

credibility and was contradicted by this same evidence. Accordingly, we cannot say the evidence

was so close that the alleged errors threatened to tip the scales of justice against defendant. Thus,

we find no plain error occurred.

¶ 33 As for defendant’s contention he was prejudiced based on an ineffective-

assistance analysis, we find his reliance on Moore misplaced. In that case, the defendant

appealed from his conviction for unlawful possession of a weapon by a felon (720 ILCS

5/24-1.1(a) (West 2012)), arguing his counsel “was ineffective for failing to stipulate to [the]

defendant’s felon status, thereby allowing the jury to consider highly prejudicial evidence that

[his] prior conviction was for murder.” Moore, 2020 IL 124538, ¶ 1. The Moore court found the

defendant was prejudiced by his counsel’s deficient performance because the “case essentially

involved a credibility contest between [a police officer’s] version of events and the version

presented by [the] defendant and his witness ***.” Id. ¶ 48. According to the officer’s version, he

pulled the defendant over and the defendant “volunteered, ‘I have a loaded firearm in the front

-9- center console of my car.’ ” Id. ¶ 49. The other version consisted of the defendant and his

witness testifying the defendant did not make the above statement and he had no knowledge the

weapon was in the vehicle because it belonged to the witness, who accidentally left it in the

vehicle the previous day. Id. ¶ 51. In concluding the case “present[ed] a classic case of closely

balanced evidence[,]” the court noted the jury “was faced with two plausible versions of events

that depended on witness credibility” and explicitly pointed to the fact “there was no extrinsic

evidence to corroborate [the officer’s] account of the incident regarding [the] defendant’s alleged

statement.” Id. ¶¶ 50, 52.

¶ 34 Here, as previously noted, and unlike in Moore, there was extrinsic evidence that

corroborated A.C.’s version of events and contradicted defendant’s version. Accordingly, for the

reasons discussed above, we cannot say the evidence was such that, but for counsel’s allegedly

unprofessional errors, there is a reasonable probability the result of the proceeding would have

been different.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we affirm the trial court’s judgment.

¶ 37 Affirmed.

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