People v. Coleman

Opinion

2024 IL App (1st) 1210755-U

SECOND DIVISION September 24, 2024

No. 1-21-0755

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 JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 14886 ) PERRY COLEMAN, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Van Tine and Justice Howse concurred in the judgment.

ORDER

¶1 Held: Affirmed. Evidence was sufficient to convict defendant of first-degree murder. Trial court did not err in omitting fourth Zehr principle as defense counsel requested. Counsel was not ineffective for declining to call witness.

¶2 A jury convicted defendant Perry Coleman of first-degree murder for participating in the

shooting of Edward Mason Sr., alongside codefendant Albert Robinson. A separate jury, sitting

simultaneously, convicted Robinson of being the second shooter. We have affirmed Robinson’s

conviction, and he is not a party to this appeal. People v. Robinson, 2024 IL App (1st) 210992-U.

¶3 Defendant raises three appellate issues. He argues that the evidence was insufficient; that

the trial court did not comply with Illinois Supreme Court Rule 431(b) when it questioned the

prospective jurors; and that his trial counsel was ineffective for failing to call a known witness No. 1-21-0755

who could have “impeached” the State’s key eyewitness. We disagree and affirm.

¶4 BACKGROUND

¶5 The victim, Edward Mason Sr., was shot around 2:00 a.m. on June 4, 2017, amid a large

gathering of people on the 1800 block of West Maypole Avenue in Chicago. A single eyewitness

identified defendant as the shooter, or more precisely, as one of two shooters. That man was

Edward Mason Jr., the victim’s son and defendant’s nephew.

¶6 Mason Jr. implicated defendant in a number of pretrial statements that he later recanted at

trial. For the first time at trial, he claimed that he suffered from a host of mental maladies at the

time of the shooting and when he made his pre-trial statements: he was drunk; he was

hallucinating on PCP; he was mentally anguished and “delusional,” on account of a difficult

divorce; and he was suffering from PTSD, schizophrenia, and possibly other mental illnesses that

were only recently diagnosed.

¶7 After Mason Jr. recanted his prior statements, those statements were admitted into

evidence, some as substantive evidence, others for impeachment. We begin with Mason Jr.’s

substantive evidence: his recorded stationhouse interview and his grand-jury testimony.

¶8 I

¶9 Detective Robert Graves spoke to Mason Jr. (and his then-wife) when the police arrived

at the scene of the shooting. Graves did not believe that Mason Jr. was in any way intoxicated.

But he was visibly distraught, for obvious reasons, and too emotional to speak at first. He later

calmed down and gave the police his contact information. In the weeks to come, he would assist

the police with their investigation, and prove to be the key—indeed, the only—eyewitness.

¶ 10 About two weeks after the shooting, Detective Nicholas Evangelides showed Mason Jr. a

series of photo arrays. Mason Jr. identified defendant and codefendant Robinson as the men who

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shot his father. That same day, Detective Dale Potter interviewed Mason Jr. about the shooting.

The stationhouse interview was video recorded, and relevant portions were published to the jury.

¶ 11 Mason Jr. said that a large group of people were hanging out in the alleyway. Defendant

(Mason Jr.’s uncle) and codefendant (Mason Jr.’s cousin) were part of the group, as was Mason

Sr., Kenyale Phillips (Mason Jr.’s cousin and defendant’s son), a man named Bernard, and one

named Ricardo Hargrove, perhaps among others.

¶ 12 Before the shooting, an aggressive argument broke out between defendant and Bernard.

Mason Jr. did not know what started the argument, but he tried to stop it by stepping in between

the men and telling them to “leave it alone, it’s not that bad.” Bernard and Mason Sr. walked off,

and Mason Jr. did not see Bernard or his father threaten defendant. Neither Mason had a gun.

¶ 13 Defendant then started arguing with Mason Jr., telling him that he should not have done

what he did because he “could get somebody hurt like that.” When Phillips defended Mason Jr.,

defendant (that is, Phillips’s father) got mad at Phillips and started physically fighting with him.

Mason Jr. tried to break up that fight, too, to no avail. The fight between defendant and his son

only abated when Mason Sr. came back to the area.

¶ 14 Defendant turned his attention to Mason Sr. as he approached. Defendant pulled a semi-

automatic handgun from his front waistband, walked up to Mason Sr., lifted up Mason Sr.’s shirt,

and asked him, “where the gun at?” When defendant was satisfied that Mason Sr. did not have a

gun, he shot Mason Sr. in the torso. He continued to shoot as Mason Sr. fell to the ground, at

which point codefendant walked up and joined in the shooting. All told, they shot Mason Sr.

about 15 to 20 times.

¶ 15 Before the shooting, Mason Sr. did not hit, push, or do anything to suggest that he wanted

to hurt defendant. Mason Jr. estimated that he was about 20 to 30 feet away from the shooting

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and noted that the streetlights were on, giving him a clear view of the events and participants.

¶ 16 At the end of the interview, Mason Jr. said he was treated well by investigators, was

given food and allowed to use the restroom if he wanted, and was not promised anything or

threatened in any way. He said he was not under the influence of any drugs or alcohol and had

given his statement freely and voluntarily. At trial, Potter testified that Mason Jr. did not appear

to be under the influence of any drugs at the time, and Potter found no reason to think that Mason

Jr. was suffering from any kind of mental illness when he was interviewed.

¶ 17 About a week after the stationhouse interview, Mason Jr. testified before a grand jury.

Relevant portions of his grand-jury testimony were published to defendant’s jury. Because that

testimony was consistent, in all essentials, with Mason Jr.’s statements during the interview, we

will not belabor the details of his account.

¶ 18 Mason Jr. acknowledged to the grand jury that he had said the same things during his

interview with the police, and to Assistant State’s Attorney (ASA) Michael Pekara, who spoke to

Mason Jr. before presenting him to the grand jury. Mason Jr. recognized and acknowledged the

photo arrays from which he had identified defendant. He affirmed that he was speaking freely

and voluntarily, and that he was not under the influence of any drugs or alcohol.

¶ 19 ASA Pekara testified at trial that Mason Jr. was able to provide detailed information

about the shooting when they spoke at the courthouse before his grand-jury testimony. Mason Jr.

did not appear to be under the influence of drugs or alcohol, nor did he indicate that he suffered

from any mental illness that made it difficult for him to communicate about what he witnessed.

¶ 20 II

¶ 21 Mason Jr.’s testimony at trial took a decidedly different turn. For one, he was clearly

distraught over his father’s death and repeatedly objected to being “reminded” of these tragic

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events by virtue of having to testify. And his hostility toward the State was evident from the

start. He only begrudgingly acknowledged that he had two pending criminal cases, both drug-

possession charges fronted by the State on direct examination, and he complained that the State

was making it difficult for him to maintain his employment.

¶ 22 Mason Jr. went so far as to claim that he did not recognize and thus could not identify

defendant in the courtroom, even though, as he acknowledged, defendant was his uncle. As for

codefendant, Mason Jr. claimed, in so many words, that he had no idea who he was, even though

codefendant was his cousin. Mason Jr. had previously told the grand jury that he saw both these

relatives frequently.

¶ 23 Mason Jr. repeatedly complained that he was shaky and nervous, and more importantly,

he denied that he had any clear memory of the shooting, despite his detailed prior accounts. For

example, when he was asked what he remembered before seeing his father get shot, he said, “a

lot of demons and hell. That’s all I remember, hell, demons everywhere,” adding that he “wasn’t

even mentally alive. I was dead in my mind.” And that is just one characteristic statement of

many that Mason Jr. made on the witness stand.

¶ 24 Mason Jr. claimed that he did not remember speaking to the police a few days after the

murder, viewing photo arrays, giving a stationhouse interview, or testifying before a grand jury.

When confronted with the photo arrays and his signature, for instance, he acknowledged that he

“probably” signed it, “but it wasn’t with honesty,” since he “was real lost” at the time.

¶ 25 Mason Jr. offered a host of explanations for this sudden about-face. He was “under heavy

influence” of alcohol and hallucinating on PCP at the time of the shooting. He was “delusional”

at the time because he was going through a difficult divorce. He suffered from various mental

illnesses, including PTSD, and “sometimes” schizophrenia.

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¶ 26 Mason Jr. would occasionally agree to a leading question put to him, only to contradict or

backtrack a moment later. When his videotaped statement was played, he stood up, tried to leave

the courtroom, and told the court, “You all going to have to lock me up, man, I’m not finna do

this [expletive], man.” The trial court had sheriff’s deputies take Mason Jr. into custody and

dismissed the jury for lunch.

¶ 27 After the recess, Mason Jr.’s testimony continued in much the same vein. He claimed that

he did not recall telling his grandmother, the day after the shooting, that defendant was one of the

shooters. (Or that codefendant was the other.) He did not recall leaving any items behind at the

scene of the shooting, though he acknowledged that a red and black gym shoe found there did

“look[ ] like” one of his. Mason Jr.’s Illinois state identification card and FOID card were inside

that shoe when the police found it.

¶ 28 The State called Mason Jr.’s grandmother, Corarina Mason. Her testimony was admitted

for impeachment (but not substantive) purposes. Corarina came to Chicago, from her home in

Minneapolis, the day after the shooting, upon learning that her son was killed. She spoke to

Mason Jr., who told her that defendant (and codefendant) were the shooters. Mason Jr. also

recounted some of the details of the shooting—for example, that defendant walked up to Mason

Sr., lifted his shirt, and asked where his gun was. It did not appear to Corarina that her grandson

was under the influence of alcohol or drugs or suffering from any mental health issues. The

parties later stipulated that, according to the detective who interviewed Corarina, she did not say,

at the time, that Mason Jr. conveyed these details of the shooting to her.

¶ 29 III

¶ 30 The forensic evidence generally corroborated the picture that Mason Jr. painted in his

pre-trial statements: his father was shot about 20 times by two different shooters. But none of the

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forensic evidence directly implicated defendant in the shooting or otherwise shed light on the

identity of the shooters.

¶ 31 The police recovered a .380 caliber handgun, but it was almost certainly not one of the

two murder weapons, as it did not match any of the fired bullets or casings recovered from the

victim’s body or the crime scene. The medical examiner recovered seven fired bullets, all .22

caliber, from the roughly twenty gunshot wounds sustained by Mason Sr. The police recovered

ten fired cartridge cases from the crime scene, all .40 caliber. The State’s firearms expert testified

that neither a .22 nor a .40 caliber bullet could be fired from a .380 caliber gun. There were no

usable latent prints on the gun, but there was a DNA profile that matched a pair of identical twins

named Martel and Terrell Robinson. For what it’s worth, they are codefendant’s brothers.

¶ 32 IV

¶ 33 The defense did not call any witnesses. After he was admonished of his right to testify,

defendant confirmed not only that he did not want to testify, but also that he did not want trial

counsel to call any other witnesses on his behalf. After he was convicted, however, defendant

retained private counsel to litigate a motion for new trial.

¶ 34 Among other claims, the motion alleged that trial counsel was ineffective for failing to

call Kenyale Phillips—defendant’s son and Mason Jr.’s cousin—who submitted an affidavit in

support of the motion. Phillips attested, in short, that Mason Jr. was with him, down the block,

when they heard gunshots—the implication being that Mason Jr. did not see the shooting and so

could not identify defendant as one of the shooters.

¶ 35 The trial court held an evidentiary hearing at which Phillips and trial counsel, assistant

public defender (APD) Bernard Okitipi, testified. We will detail their testimony in due course,

when we turn to defendant’s ineffectiveness claim. Suffice it to say, for now, that the trial court

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denied the motion and sentenced defendant to 40 years in prison.

¶ 36 ANALYSIS

¶ 37 I

¶ 38 Defendant first challenges the sufficiency of the evidence. His argument, in sum, goes

like this: Mason Jr.’s pre-trial identification statements to the police and grand jury were the only

evidence that directly implicated defendant as one of the shooters. (Defendant does not challenge

their admission as substantive evidence.) These statements were not corroborated, at least not on

the key issue of identity, by any other witnesses or by any physical evidence. And Mason Jr. later

recanted them at trial. Thus, defendant says, they are too suspect to support a finding of guilt

beyond a reasonable doubt.

¶ 39 If defendant's sufficiency challenge is to succeed, he must show that the evidence was so

“unreasonable, improbable, or unsatisfactory” that no rational trier of fact, viewing it in the light

most favorable to the State, could accept it as proof beyond a reasonable doubt. People v. Ross

229 Ill. 2d 255, 272 (2008); see Jackson v. Virginia, 443 U.S. 307 (1979). The trier of fact’s

findings regarding the credibility of witnesses and the inferences to be drawn from the evidence

are not conclusive, but they are entitled to significant deference. Ross, 229 Ill. 2d at 272.

¶ 40 To begin, let’s leave Mason Jr.’s recantation aside, for the time being, and assess his pre-

trial identification statements on their own merits. It is well established that a single eyewitness

identification, if positive and credible, is sufficient to sustain a conviction. People v. Slim, 127

Ill. 2d 302, 307 (1989). And an identification is significantly “strengthened by the witness’s prior

acquaintance with the accused.” People v. Davila, 2022 IL App (1st) 190882, ¶ 38.

¶ 41 Mason Jr. did not purport to identify a perfect stranger, or even, say, someone he had

seen around the neighborhood from time to time; he identified his own uncle, a close relative

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whom, by his own account, he saw frequently. (Though he refused to use the word “uncle” on

the witness stand, insisting for whatever reason on calling defendant his “mother’s brother.”)

That fact alone goes a long way toward establishing the reliability of his identification. And we

would add that, though the shooting occurred at 2:00 a.m., Mason Jr. said that the streetlights

were on, and he had a clear view of the shooting from some 10 yards away. He identified

defendant soon after the shooting, never expressed any doubt about who and what he saw, and

never wavered in his various pre-trial statements.

¶ 42 That will suffice, for our purposes here, as a brief analysis of the reliability of Mason Jr.’s

identification under the so-called Slim/Biggers factors. See Slim, 127 Ill. 2d 302; Neil v. Biggers,

409 U.S. 188 (1972). Defendant does not argue that the Slim/Biggers factors were not satisfied

here—as if to say, implausibly, that Mason Jr. could not reliably identify his uncle from a short

distance under good lighting. Rather, he challenges the veracity of Mason Jr.’s pre-trial

statements: as Mason Jr. later claimed at trial, he was not in his right mind, for various reasons,

and thus his statements to the police and grand jury cannot be seen as anything but

confabulation.

¶ 43 So let’s take stock of the pertinent features and circumstances of the pre-trial statements

before moving on to the recantation testimony. True, Mason Jr. was shocked and grief-stricken

by what he saw. But he collected himself soon enough and cooperated with the investigation. His

statements to the police and the grand jury were clear, lucid, and detailed. Though there was no

corroborating evidence on the key issue of identity, the forensic evidence did support the general

narrative arc of Mason Jr.’s story: his father was shot roughly 20 times by two different shooters.

(And there is little doubt that Mason Jr. was there, as the police found one of his shoes at the

scene, with his FOID and state ID cards tucked inside.) Mason Jr.’s pre-trial statements were

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consistent with each other, rarely diverging even on finer points of detail.

¶ 44 Mason Jr. affirmed on both occasions that he was not under the influence of drugs or

alcohol when making his statements. Neither the detective who interviewed him nor the ASA

who presented him to the grand jury—nor, for that matter, his own grandmother, who spoke to

him the day after the shooting—had any inkling that he was experiencing a mental illness or

other altered mental state. Defendant points to nothing on the videotape of his police interview

that plausibly suggests a different conclusion. And defendant never claimed, in any of his pre-

trial statements, that he was suffering from any such maladies when he witnessed the shooting.

¶ 45 In short, his recantation aside, we have been given no reason to doubt that Mason Jr.

reliably and credibly identified his uncle as one of the shooters. His pre-trial statements, while

uncorroborated on the issue of identity, were nonetheless strong evidence on that issue; indeed, if

he had not recanted, a sufficiency challenge based on the merits of his identification would be all

but frivolous. So the question becomes: did Mason Jr.’s recantation render his prior statements so

wanting that no reasonable juror could find guilt beyond a reasonable doubt? Our answer is no.

¶ 46 As we have emphasized, a strong enough identification does not require corroboration to

sustain a conviction. Slim, 127 Ill. 2d at 307. Defendant appears to suggest that a recantation at

trial automatically triggers a need for corroborating evidence. Not so. When, as here, “a jury has

convicted a defendant on the basis of a recanted prior inconsistent statement, the question for the

reviewing court is not whether any evidence existed to corroborate that statement,” but rather, as

always, whether a rational juror could have found the elements beyond a reasonable doubt.

People v. Green, 2017 IL App (1st) 152513, ¶ 102.

¶ 47 Recanted prior statements, if properly admitted for their substance, are not a “suspect

categor[y]” and “should be treated no differently” than any other type of evidence; the trier of

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fact should put the statements into the mix and weigh it all together. People v. Craig, 334 Ill.

App. 3d 426, 439 (2002). That includes the recantation testimony itself: “[I]t is for the trier of

fact to weigh the statement, weigh the disavowal and determine which is to be believed.” People

v. Armstrong, 2013 IL App (3d) 110388, ¶ 27; see also People v. Heller, 2017 IL App (4th)

140658 ¶ 35. In other words, when presented with a recantation, the trier of fact is called upon to

judge the credibility of a witness’s live testimony and resolve a conflict in the evidence. That all

lies squarely within the heartland of the jury’s function, with all the deference that entails.

¶ 48 It follows from the general principles we have discussed that a recanted, substantively

admitted prior identification statement may itself be sufficient evidence to support a conviction.

And we have thus upheld several convictions that were based largely on such statements. See,

e.g., Heller, 2017 IL App (4th) 140658, ¶ 103; Armstrong, 2013 IL App (3d) 110388, ¶ 18;

People v. Thomas, 354 Ill. App. 3d 868, 877-88 (2004); Craig, 334 Ill. App. 3d at 440. Much ink

is spilled in the briefs on disputes about the extent of the corroborating evidence offered in these

cases. Because there is no per se rule that an identification requires corroborating evidence if the

witness recants, those disputes are beside the point, and we can safely leave them aside.

¶ 49 When, as here, the State does not present significant corroborating evidence, the

sufficiency inquiry will turn on the inherent strength of the pre-trial identification statement(s)

and the credibility of the recantation testimony. Mason Jr.’s identification of defendant was

inherently strong, for the reasons we have discussed. So we turn now to his recantation.

¶ 50 It is perhaps a gross understatement to say that a reasonable juror could find Mason Jr.’s

recantation at trial to be contrived and incredible. It could thus find that his pre-trial statements

remained worthy of belief.

¶ 51 For starters, Mason Jr. was palpably hostile to the State. He did not want to recount, and

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thus to some extent relive, the undoubtedly horrific experience of watching his relatives murder

his father. He was angry that the State had charged him with two drug-possession cases in the

wake of the murder and an apparently difficult divorce—cases that, he claimed, were making it

difficult for him to stay employed. From the very start of his testimony, Mason Jr. made no

secret of his motives to stonewall the State.

¶ 52 And stonewall the State he did. He repeatedly claimed that he had no useable memories

of the murder. None. And he didn’t want to talk about it anymore. Confronted with his lucid and

detailed pre-trial statements, he tried everything he could think of to disavow them. At one point,

he even got up and tried to leave the courtroom, in a fit of expletives, and had to be taken into

custody by the sheriff’s deputies.

¶ 53 To be sure, it is possible to credibly disavow or recant a prior statement, but one might

rightly expect a compelling explanation of how and why the purportedly false statement came

about. The jury did not have to buy the stories that Mason Jr. tried to sell, as he lurched from one

explanation to the next. He was drunk at the time of the murder. He was high on PCP. He

suffered from mental illnesses that he only recently learned about. Like PTSD—and not only

now, but back then, too. He was schizophrenic, at least “sometimes.” And he was nothing short

of “delusional”—not upset or disappointed or under serious stress, but fully “delusional”—on

account of his divorce. For some or maybe all these reasons, he was “hallucinating,” his mind

filled with nothing but visions of “demons and hell.”

¶ 54 But the jury was shown incontrovertible evidence that shortly after the fact, Mason Jr.’s

mind was filled with a credibly detailed description of the murder that cohered with the physical

evidence. Because his police interview was videotaped, the jury could compare his demeanor

when he made that statement with his cantankerous demeanor on the stand. That lends even

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further weight to its credibility determination. Armstrong, 2013 IL App (3d) 110388, ¶ 28.

¶ 55 Lastly, Mason Jr. undermined the credibility of his recantation with displays of

recalcitrance that were sometimes over the top. Storming out of the courtroom was one. And

there were at least two more: he went so far as to claim that he did not recognize his uncle and

professed ignorance of his cousin, too, even as they sat right there at the defense table. The jury

reasonably could, and most likely did, take this as clear evidence that Mason Jr. was being

deliberately uncooperative and untruthful—not to the police and grand jury, but here and now,

on the witness stand.

¶ 56 In sum, a reasonable juror could find (1) that Mason Jr.’s identification was reliable and

credible enough to prove defendant guilty beyond a reasonable doubt, and (2) that Mason Jr.’s

recantation at trial was contrived and thoroughly lacking in credibility. Defendant’s sufficiency

challenge thus fails.

¶ 57 Defendant’s cited cases do not convince us otherwise. In particular, they do not establish

that a recanted identification is per se insufficient without corroborating evidence. Rather, they

illustrate the obvious point that some recanted identifications will fall short of proof beyond a

reasonable doubt in the absence of corroborating evidence, and for all sorts of fact-specific

reasons: the identification was weak to begin with, the recantation was supported by credible

reasons, or the defense presented its own exculpatory evidence.

¶ 58 In People v. Brown, 303 Ill. App. 3d 949, 965 (1999), the identification was not made

until two years after the murder, and the recanting witness explained at trial that he belatedly

identified the defendant only after he was led to believe that he would be charged with his own

(unrelated) offense if he did not cooperate.

¶ 59 In People v. Wise, 205 Ill. App. 3d 1097, 1098-1101 (1990), the witness disavowed a

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prior statement implicating the defendant, but the witness’s pre-trial statements as a whole were

riddled with contradictions: some implicated the defendant, but others exonerated him. Thus, the

witness’s prior statements were shown to be inherently untrustworthy.

¶ 60 In People v. Arcos, 282 Ill. App. 3d 870, 874 (1996), a bench trial, the trial court found

that the recanting witness “had absolutely no credibility” and “would say anything to get the

police to drop the charges against him, whether it was true or untrue.” Yet the trial court also

found that the recanted statement, made to the police, was somehow trustworthy. Id. In light of

the trial court’s own credibility finding, corroboration of the recanted statement was needed, but

the appellate court found that there was none to be had. Id.

¶ 61 In People v. Parker, 234 Ill. App. 3d 273 (1992), three witnesses recanted. One was a

victim who purportedly identified the defendant shortly after he was shot in the neck and while

he was laid up in the hospital, in “great pain,” with “tubes all over [his] body,” and recovering

from surgery. Id. at 276. Another was a juvenile, a 17-year old who had just been released from

JDOC and was scared that he would be charged—because the police threatened as much—if he

didn’t sign the statement they prepared. Id. at 276-77. The third witness testified that he signed a

prepared statement after he was beaten by the police. Id. at 277-78. And the defense, for its part,

offered multiple eyewitnesses who testified that the defendant was not the shooter. Id.

¶ 62 None of these fact-specific reasons for demanding corroboration of a recanted statement

apply here, where Mason Jr.’s pre-trial identification statements were reliable and credible, and

his recantation testimony at trial was anything but. The State’s evidence was sufficient.

¶ 63 II

¶ 64 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires the trial court to ask all

prospective jurors whether they understand and accept certain fundamental principles of law,

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commonly known as the “Zehr principles.” See People v. Zehr, 103 Ill. 2d 477 (1984).

Defendant argues that the trial court committed first-prong plain error by failing to question the

prospective jurors in accordance with this rule.

¶ 65 In particular, says defendant, the trial court did not ask the prospective jurors whether

they understood and accepted the last of the four principles set forth in the rule—namely, “that if

the defendant does not testify it cannot be held against him or her.” Ill. Sup. Ct. R. 431(b) (eff.

July 1, 2012). The rule further provides, “however, [that] no inquiry of a prospective juror shall

be made into the defendant’s decision not to testify when the defendant objects.” Id.

¶ 66 And here, defendant objected—or at least specifically requested that the inquiry not be

made. Twice, in fact. At the start of jury selection, the trial court asked, “Is the Defense asking

that the fourth [Zehr] question be asked?” Counsel answered, “No, Judge.” A selected juror was

later removed for cause after revealing previously undisclosed reasons why he could not be fair

and impartial. When a new alternate was picked, the trial court asked the prospective jurors

whether they understood and accepted the first three principles and then asked defense counsel,

“Do you wish the additional question asked?” As before, counsel answered, “No, Judge.”

¶ 67 Rule 431(b) puts the decision to inquire about the fourth Zehr principle in the hands of

the defense. The trial court ascertained the defense’s position and honored it. That was not error.

¶ 68 III

¶ 69 Lastly, defendant argues, as he did in his motion for new trial, that his trial counsel was

ineffective for failing to call his son, Kenyale Phillips, to “impeach” Mason Jr.’s (recanted) pre-

trial identification statements.

¶ 70 Because the trial court held an evidentiary hearing on the post-trial claim of ineffective

assistance, we apply a bifurcated standard of review: we review the trial court’s findings of fact

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and credibility determinations for manifest error, but we review the ultimate legal question of

trial counsel’s ineffectiveness de novo. People v. Bailey, 375 Ill. App. 3d 1055, 1059 (2007). In

so doing, we apply the familiar deficiency-and-prejudice framework of Strickland v. Washington,

466 U.S. 668 (1984). See People v. Domagala, 2013 IL 113688, ¶ 36.

¶ 71 At the evidentiary hearing, Phillips testified for the defense. APD Okitipi, defendant’s

lead trial attorney, testified for the State. (Due to COVID-19 concerns, he appeared via Zoom,

without objection from the defense.) The hearing established three salient points.

¶ 72 First, there is no dispute that Okitipi interviewed Phillips and considered him a potential

witness. Whether to call Phillips was a game-day decision, in counsel’s view, to be made after

seeing how the State’s case actually unfolded at trial. To this end, counsel asked Phillips to come

to court but excluded him from the courtroom during the first day of testimony. After Mason Jr.

recanted, counsel made the final decision not to call Phillips.

¶ 73 In other words, counsel’s alleged deficiency was not a failure to investigate a potential

defense. To the contrary, it is undisputed that counsel made a considered, strategic decision not

to call a known witness. (We will circle back to counsel’s rationale for this decision shortly.)

¶ 74 Second, Okitipi and Phillips gave competing accounts of exactly what Phillips said his

testimony would be. According to Phillips, he told counsel that he was hanging out in the alley

with Mason Jr., smoking and drinking. They were halfway down the block and both drunk. They

heard gunshots nearby, and hid behind a nearby building for a few minutes, before returning to

the alley and finding Mason Sr., who had been shot, laying on the ground. The clear implication

was that Mason Jr. did not see the shooting. Phillips further testified that he never got into an

argument with defendant, as Mason Jr. claimed in his pre-trial statements.

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¶ 75 But according to Okitipi, Phillips never told him that he was with Mason Jr., or that they

were not present, at the time Mason Sr. was shot. Rather, Phillips said that before the shooting,

“there was an argument between Mason Junior and Kenyale Phillips, and [defendant] was kind

of a peacemaker and told him to leave the scene before the shooting.” After defendant broke up

the argument between Phillips and Mason Jr., Phillips went home and “Mason Junior also

walked away.” But Okitipi did not recall Phillips saying that they left together. Nor did he recall

Phillips saying where he was when the shots were fired, or even anything about hearing or seeing

the shooting at all.

¶ 76 Thus, as APD Okitipi understood it, Phillips’s testimony was limited to the events that

took place before the shooting. It did not clearly contradict Mason Jr.’s pre-trial claims that he

saw the shooting and could thus identify the shooters. If counsel had called Philips, it would have

been to establish that defendant acted as a peacemaker at the scene of the shooting; that

defendant was not aggressive toward Mason Sr.; that the argument was between Phillips and

Mason Jr.; and that defendant was not armed, at least as far as Phillips knew.

¶ 77 The trial court found Okitipi credible and “believe[d]” his account of Phillips’s proposed

testimony. The trial court thus found that Phillips’s testimony would not have established that

Mason Jr. was with Phillips at the time of the shooting. So it would not have undercut Mason

Jr.’s claim to be an eyewitness or, in turn, his identification of defendant.

¶ 78 This credibility finding in Okitipi’s favor is entitled to substantial deference, and indeed,

defendant does not ask us to overturn it as manifest error. Thus, as defendant acknowledges, our

Strickland analysis starts from the premise that Phillips would have testified at trial consistent

with Okitipi’s understanding of that testimony.

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¶ 79 Third, Okitipi testified that he decided not to call Phillips because Mason Jr., “the State’s

only witness[,] recanted,” and so Okitipi “believe[d] from [his] experience that [he] created

reasonable doubt.” In other words, Phillips’s testimony had little probative value to begin with,

and appeared even less useful after Mason Jr.’s recantation.

¶ 80 Against this factual backdrop, we turn to the Strickland analysis. When, as here, counsel

makes a “strategic choice” as to whether “to present a particular witness,” and the decision is

informed by an adequate investigation, it “generally *** cannot support a claim of ineffective

assistance of counsel.” People v. Richardson, 189 Ill. 2d 401, 414 (2000).

¶ 81 That said, it is of course possible, albeit quite rare, for a “strategic” decision to be deemed

objectively unreasonable, one which no competent defense attorney would make. The trial court

and the State have marshalled various reasons why counsel acted reasonably here, and some of

these points are well taken. But we may resolve a claim of ineffective assistance on the lack of

prejudice alone, without deciding whether counsel’s performance was reasonable or deficient.

People v. Jackson, 2020 IL 124112, ¶ 91; Strickland, 466 U.S. at 697. We will do so here.

¶ 82 We share the assessment of trial counsel, the State, and the trial court that Phillips’s

proposed testimony, as Okitipi understood it, had little if any probative or exculpatory value for

the defense. For one, Phillips could not claim to exonerate defendant by credibly identifying a

different shooter.

¶ 83 And more to the point, Phillips’s testimony did not even squarely contradict Mason Jr.’s

pre-trial claims that he witnessed the shooting and could identify the shooter(s). We reiterate that

the trial court specifically credited Okitipi’s testimony that, as far as he could remember, Phillips

never said that Mason Jr. was with him, somewhere down the block, where he could not possibly

identify the shooters, at the time of the shooting. The upshot of what Phillips told Okitipi, in the

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trial court’s summation, was “only that Mr. Phillips wasn’t there” when Mason Sr. was shot,

because he had started walking home at defendant’s urging after the fight. As for Mason Jr., he

too “walked away” from the fight, but Phillips could not clearly account for Mason Jr.’s

whereabouts when Mason Sr. was shot.

¶ 84 Thus, from counsel’s perspective, all that Phillips could offer was a competing account of

the fight that preceded the shooting: Phillips was fighting with Mason Jr., rather than defendant,

as Mason Jr. claimed. By painting defendant as an unarmed peacemaker, rather than the bellicose

figure that Mason Jr. described, Phillips’s testimony—if believed by the jury—would extricate

defendant from the preceding fisticuffs. But not from the shooting that ensued.

¶ 85 So even with Phillips’s testimony, Mason Jr.’s pre-trial identification statements would

have stood uncontradicted. As we explained above, those statements were clear, lucid, detailed,

consistent with each other, and contemporaneous to the shooting. Nobody, including Mason Jr.’s

own grandmother, had any inkling that he was mentally disturbed, beyond the understandable

grief that followed his father’s murder.

¶ 86 The jury evidently credited Mason Jr.’s statements to the police and the grand jury. We

see no reason why the proposed testimony from defendant’s son would have changed the jury’s

bottom-line assessment of those statements. Counsel’s decision not to call Phillips does not

undermine our confidence in the verdict or give rise to a reasonable probability of an acquittal.

See Strickland, 466 U.S. at 694. Defendant has thus failed to establish prejudice, dooming his

ineffectiveness claim.

¶ 87 CONCLUSION

¶ 88 The judgment of the circuit court is affirmed.

¶ 89 Affirmed.

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