2022 IL App (1st) 200287-U No. 1-20-0287 Order filed May 18, 2022 Third Division
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 Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 21034 ) BEDNACO HARPER, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge presiding.
JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice McBride concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s first-stage dismissal of defendant’s postconviction petition where he failed to set forth arguable claims of ineffective assistance of appellate counsel.
¶2 Following a jury trial, defendant Bednaco Harper was convicted of first-degree murder and
concealment of a homicidal death. The trial court subsequently sentenced him to a total of 40
years’ imprisonment, 35 years for murder and 5 years for concealment of a homicidal death, which
by law had to be served consecutively. After exhausting his direct appeal rights, defendant filed a No. 1-20-0287
petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)),
raising, in part, claims of ineffective assistance of appellate counsel for failing to raise challenges
to the actions, or lack thereof, of the trial court and his trial counsel. The circuit court dismissed
defendant’s petition at the first stage of proceedings under the Act, finding that his claims were
frivolous and patently without merit. Defendant now appeals the court’s dismissal and contends
that he set forth arguable claims of ineffective assistance of appellate counsel to survive a first-
stage dismissal. For the reasons that follow, we affirm the circuit court’s dismissal.
¶3 I. BACKGROUND
¶4 A. Pre-Trial
¶5 On November 7, 2011, Jermaine Reynolds was found dead in a bedroom closet in an
apartment belonging to defendant. The police subsequently took defendant into custody. The
following month, a grand jury indicted him on three counts of first-degree murder, one count of
armed robbery and one count of concealment of a homicidal death. Although defendant filed
various pretrial motions, none of them are relevant for purposes of this postconviction appeal, and
thus, we need not discuss them. Prior to trial, the State dismissed one of the counts of first-degree
murder and the count of armed robbery.
¶6 B. Trial
¶7 The following recitation of evidence from defendant’s trial is verbatim from the Rule 23
order that disposed of his direct appeal. See People v. Harper, 2019 IL App (1st) 162296-U. We
are not including quotation marks for readability purposes.
¶8 1. The State’s Case-in-Chief
¶9 In the State’s case, the evidence showed that, in the beginning of November 2011, Robert
Square, a friend of both defendant and Jermaine Reynolds, was staying at defendant’s one-
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bedroom apartment located on the 4000 block of South Lake Park Avenue in Chicago. During the
evening of November 3, Square and defendant went to the house of Reynolds’ long-time girlfriend,
Lizabeth Henderson, to buy drugs from Reynolds. After buying drugs from Reynolds, Square
returned to defendant’s apartment. At some point that night, defendant, Reynolds and Square were
all hanging out at defendant’s apartment and watching a movie. Eventually, Square became tired
and went to sleep in the bedroom on a bed, which is where defendant allowed him to sleep.
According to Square, defendant preferred to sleep on a makeshift bed of pillows and blankets in
front of the actual bed. That night the bedroom closet was open, and the closet had been open since
Square had been staying at defendant’s apartment.
¶ 10 The next day, around 10:30 a.m., as Square was leaving the apartment, he saw Reynolds
coming back into the apartment with drugs. During that day, Henderson had been in contact with
Reynolds and picked up her vehicle from him at defendant’s apartment. Later in the day,
Henderson talked to Reynolds on the phone.
¶ 11 According to Square, he returned to defendant’s apartment a little after midnight on
November 5. Defendant was there, but Reynolds was not. Square observed that defendant was
acting “a little weird” and “getting mad” for no reason. Both of them used drugs, and eventually,
Square decided to lay down in the bedroom. This time, he noticed that the closet was closed.
Defendant, however, instructed Square to sleep in the living room instead, and Square complied.
Meanwhile, during the day of November 5, Henderson was unable to get in contact with Reynolds,
and other people she had talked to had not heard from him either. After 24 hours without contact,
Henderson called the police to report Reynolds missing.
¶ 12 Two days later, an engineer at defendant’s apartment building entered defendant’s unit
based on complaints of an odor in the apartment. As the engineer moved from the living room to
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the bedroom, he noticed the odor getting stronger. The engineer opened the closet in the bedroom
and observed a pile of clothes lying on the floor. He tapped the pile with his foot and felt something
hard. He tapped again and suddenly, a jacket fell off the pile revealing the head of a human. The
engineer called the management office, and someone there called the police.
¶ 13 After the police arrived at the apartment, Chicago Police Officer Joseph Scumaci, an
evidence technician, observed Reynolds’ dead body in the bedroom closet. With the help of other
officers, Officer Scumaci processed the apartment for evidence. There was blood on various
objects in the apartment, including a staple gun that was recovered next to the bedroom closet.
Officers also recovered an “awl,” an object with a metal point and wooden handle, a gold-colored
horseshoe and a fake black revolver. After the evidentiary items were collected, they were tested.
Testing revealed no latent fingerprint impressions on either the awl or staple gun, but did reveal
blood on both objects. DNA analysis determined that the blood on both objects matched Reynolds
and did not match defendant.
¶ 14 On August 8, 2011, Dr. Adrienne Segovia, an assistant medical examiner, performed an
autopsy on Reynolds and concluded that his death was a homicide and caused by several sharp
force injuries. Specifically, Dr. Segovia found 12 incised or sharp-cut wounds to various places on
his head and body, 4 stab wounds to his head and neck, and 6 blunt force wounds to his head and
body. Dr. Segovia also determined that Reynolds tested positive for Benzoylecgonine, ethanol,
cocaine and morphine.
¶ 15 Within a couple days of Reynolds’ body being discovered, the police placed defendant into
custody and put him in an interview room at the police station. According to Chicago Police
Detective Daniel Stanek, when the police interviewed any homicide suspect, they video and audio
recorded the interview room so long as the suspect remained in custody. The recording of the
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interview room would continue even if the suspect left the room for some reason, such as a
bathroom break. The recording would only stop if a suspect’s attorney entered the room.
¶ 16 When Detective Stanek first met defendant, he observed injuries to defendant’s head and
arms, and as a result, had an evidence technician photograph defendant and his injuries. Detective
Stanek asked defendant about the injuries to his arms, and defendant told him that they had
occurred the previous day. Later, while defendant was in the interview room, Detective Stanek
along with Detective Scott Reiff questioned him about Reynolds’ death. At trial, Detective Stanek
did not recall asking defendant about his head injury and testified that defendant never indicated
that the injuries had been caused by Reynolds.
¶ 17 Additionally at trial, Detective Stanek identified People’s Group Exhibit No. 70 as seven
DVDs which contained the unedited recording of defendant in the interview room. Detective
Stanek also identified People’s Exhibit No. 71 as a single DVD containing a portion of defendant’s
time in the interview room, in particular a portion of his and Detective Reiff’s questioning of
defendant. The State offered People’s Exhibit No. 71 into evidence and played the DVD for the
jury. The DVD contained approximately 20 minutes of Detectives Stanek and Reiff interviewing
defendant on November 10, 2011, about Reynolds’ death, spread over four distinct clips. Although
the audio was difficult to hear occasionally, the following is what those clips depicted.
¶ 18 In the first clip, time stamped from 6:50 p.m. to 7:08 p.m., defendant informed the
detectives that Reynolds would not give him back his “[debit] card” so the two exchanged “words”
after which Reynolds hit him. The detectives insinuated that Reynolds had taken and used the card,
apparently because defendant owed him money, a fact that defendant acknowledged. Defendant
claimed it was only $40 as opposed to $600, which is what the detectives alleged. According to
defendant, after Reynolds hit him, the two became involved in a “tussle” that got “out of hand”
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where defendant punched Reynolds back. During the fight, defendant acknowledged “snapp[ing]
out” and continuing to hit Reynolds using a “nail punch.” The pair fought in various places in
defendant’s apartment, and the fight lasted several minutes. At some point during the fight, though
defendant could not pinpoint exactly when, Reynolds pulled out a gun which defendant thought
was real, and the two began wrestling over it. Eventually, defendant learned the gun was a toy, but
“it was too late” according to him. When pressed by the detectives whether the gun was his,
defendant denied it belonged to him.
¶ 19 According to defendant, eventually Reynolds stopped breathing, which caused defendant
to “panic[]” and drag Reynolds’ body to the bedroom closet, where he put clothes on top of the
body. Defendant was adamant to the detectives that he did not want Reynolds to die. Defendant
then left his apartment, but returned at some point. He thought about calling somebody, but was
still panicked and did not know what to do. Later that night, Square came over to defendant’s
apartment. Defendant wanted to tell Square what happened, but he did not know what to say and
did not tell Square anything. Square stayed the night, but slept in the living room. Defendant told
the detectives that, the following day, he left his residence and did not stay there the rest of the
weekend.
¶ 20 In the second clip, time stamped from 7:08 p.m. to 7:10 p.m., Detective Reiff confirmed
with defendant that he and Reynolds were arguing about the debit card when Reynolds punched
him. Detective Reiff also confirmed with defendant that he punched Reynolds back and the pair
began “tussling.” According to defendant, after fighting in the living room and hallway of the
apartment, Reynolds fell to the ground. Because Reynolds kept moving and trying to get up,
defendant grabbed a knife from the kitchen counter and hit Reynolds with it once in his face.
Defendant admitted to the detectives that he “f*** up” and “lost it.”
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¶ 21 In the third clip, time stamped from 7:11 p.m. to 7:12 p.m., defendant acknowledged that
he lied to the detectives when he said Reynolds had the gun. And in the final clip, time stamped
from 7:13 p.m. to 7:14 p.m., defendant acknowledged putting clothes on top of Reynolds’ body
because he did not know what to do.
¶ 22 Detective Stanek further testified that, during the interview, defendant never informed him
that Reynolds had the awl, staple gun or horseshoe in his hand. Detective Stanek added that,
although defendant initially informed him that Reynolds had threatened defendant with a gun,
defendant later admitted that the gun was fake and Reynolds never used it. According to Detective
Stanek, throughout the interview, defendant only stated that Reynolds had hit him with his hands.
Detective Stanek acknowledged that, although he requested forensic testing of the gold-colored
horseshoe, he was unsure if it was actually tested.
¶ 23 At the conclusion of the State’s case, it sought to admit all of its exhibits into evidence,
including People’s Group Exhibit No. 70. Defense counsel did not object to any of the exhibits’
admission, and the trial court granted the State’s request.
¶ 24 2. The Defense’s Case
¶ 25 In the defense’s case, defendant testified that, in November 2011, he had been recently laid
off from a woodworking company where he had worked for seven years. At the time, he was
receiving unemployment benefits, and the money would be deposited to a debit card every two
weeks. That money was his primary source of income. Although defendant was familiar with
Reynolds from around the neighborhood for several years, only in the year 2010 had they become
friendly.
¶ 26 On November 3, 2011, Reynolds came over to defendant’s apartment. The next day, around
6 p.m., defendant was looking around his apartment for his wallet that contained his debit card,
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though he was relatively certain he had left it on the kitchen counter the previous night. Around
this time, Reynolds returned to the apartment and sat down. Defendant could tell that Reynolds
was under the influence of drugs and even observed Reynolds take part of a Methadone tablet and
use heroin. Meanwhile, defendant continued to search for his wallet, but to no avail. Defendant
then accused Reynolds of taking his wallet, though Reynolds denied it. Defendant told Reynolds
that he was the only person at the apartment over the past day, and the pair subsequently
“exchanged words.” Defendant asked Reynolds to leave his apartment, and defendant told him
that he would be contacting the police. Reynolds responded that, if he did, “the folks would be at
you,” which defendant interpreted as a threat. As defendant attempted to open the door of his
apartment so Reynolds would leave, Reynolds took the keys in his hand and punched defendant in
the face, using the metal carabiner key chain to make contact. Reynolds attempted to punch
defendant again, but defendant tripped over a barstool and fell to the ground.
¶ 27 Defendant tried to get up, but Reynolds kept punching him in the head, still with the keys
in his hand. Defendant was able to crawl over to a tool bag, grabbed an awl and hit Reynolds with
it in the thigh area, which pushed Reynolds off of defendant. After defendant stood up, he
attempted to retreat to the backdoor of his apartment to leave, but felt something in his back. The
pair continued to fight into the hallway of defendant’s apartment, where Reynolds tried hitting
defendant with a staple gun while defendant fought back with the awl. Reynolds and defendant
made their way back to defendant’s bedroom, where the fighting persisted. In the bedroom,
Reynolds grabbed a decorative horseshoe off a dresser and used it as they both continued to fight.
After leaving the bedroom, the fighting continued down the hallway and into the kitchen and living
room, where both men fell to the ground and began wrestling. As they were wrestling on the floor,
defendant dropped the awl and things became “blurry” for him. At some point, defendant grabbed
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a knife, and Reynolds bit defendant’s hand. They also wrestled over the knife for a little bit, but
eventually, the two became separated. When Reynolds attempted to attack defendant again,
defendant hit him with the knife in the head.
¶ 28 Thereafter, because defendant was bleeding, he ran to the sink to put water on his face and
he spit out a tooth. Defendant observed that Reynolds tried to get up, but could not, and eventually,
Reynolds stopped moving. Defendant estimated the fight lasted between five and seven minutes.
Defendant was in shock and did not call the police, but explained at trial that he did not know what
to do and simply could not “absorb what had happened.” Defendant eventually moved Reynolds’
body to the bedroom “to try to figure out what to do.” Defendant left his apartment and sat at a
local park for a few minutes before returning to his apartment. Defendant left the apartment again
and went to a friend’s house, where he stayed for the weekend before being taken into custody by
the police.
¶ 29 At trial, defendant testified that he believed his actions that day saved his life. He
acknowledged that, when he was interviewed by the police, he initially lied to them by saying he
had been robbed with a gun. Defendant further acknowledged not telling the police that Reynolds
used keys, a staple gun or the horseshoe to attack him, but explained that the police never asked
him what weapons Reynolds had used. Defendant identified several photographs of him taken at
the police station that depicted various injuries to his head and body, which he asserted were from
the fight with Reynolds. While defendant testified that he told the police those injuries were caused
by Reynolds, he was not sure if it occurred on camera in the interview room, though he later
testified that he only discussed the fight with the detectives while in the interview room. And,
according to defendant, some of those discussions were not included in the video played for the
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jury. Defendant also disputed much of the timeline of events testified to by Square during the
State’s case, in particular that Square had stayed at his apartment before the fight with Reynolds.
¶ 30 3. The State’s Rebuttal Case
¶ 31 In the State’s rebuttal case, Detective Stanek testified that he did not have any
conversations with defendant that were not recorded, defendant never stated that the injuries on
his body were caused by Reynolds, and defendant never mentioned Reynolds using anything other
than his fists.
¶ 32 4. Jury Instructions Conference
¶ 33 During the jury instructions conference, defense counsel requested an instruction on self-
defense, and instructions on second-degree murder based on both serious provocation and an
unreasonable belief of self-defense. The trial court allowed the instruction on self-defense and an
instruction on second-degree murder based on an unreasonable belief of self-defense, but denied
an instruction on second-degree murder based on serious provocation.
¶ 34 5. Closing Arguments, Jury Deliberations and Verdict
¶ 35 Following the parties’ closing arguments, the jury began deliberating. After deliberations
began, one of defendant’s attorneys noted that, based on a pretrial motion in limine, the jury could
not have access to the entire, unedited video of defendant’s time in the interview room because
there were instances of him harming himself. Defendant’s other attorney volunteered to edit those
actions out of the video. The trial court agreed with the plan, noted that the State could have one
of its attorneys observe the editing and remarked that the jury may not even request the video
evidence. But the court stated that, if the jury did, “we’ll have it redacted.”
¶ 36 It is unclear from the record what time the jury began deliberating, but at 3 p.m. on the
same day the deliberations began, the jury sent out a note requesting the transcript of defendant’s
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trial testimony and the video evidence. At the time, defendant’s attorney was still in the process of
editing the video, and defendant’s testimony had not yet been transcribed. The trial court believed
it would be at least “a couple hours” until the transcript was ready. The court pondered having the
court reporter “come over and read it to” the jury. But defendant’s other attorney suggested that
the court “just say the transcript is not available,” which is how she had seen other trial courts
respond in the past. The State agreed, and the court responded to the jury that the transcript was
not available yet, the video would be available shortly and to continue deliberating.
¶ 37 At 4:05 p.m., the jury sent out another note. The jury asked if the transcript of defendant’s
entire testimony was not available, could it see just the portion of defendant’s testimony where he
discussed fighting with Reynolds in the kitchen and when defendant picked up the knife. As the
parties discussed the note, the trial court pondered having the court reporter “read it back” to the
jury, though the court did not want to overburden the court reporter, who had just worked late the
previous night. The court also noted that simply telling the jury that it “heard the evidence” and to
continue deliberating would be pointless. Defendant’s attorney then suggested contacting the court
reporter to determine how much longer it would be until the transcript of defendant’s testimony
would be ready and then formulate a response based on that answer. The State did not object, and
the court assented to that suggestion. After speaking with the court reporter at 4:15 p.m., the court
stated that she would have the transcript completed in 30 minutes. In turn, at 4:20 p.m., the court
responded to the jury that the court reporter was in the process of transcribing defendant’s
testimony and it would be available in approximately 30 minutes. The court also informed the jury
that it was providing the video evidence to them.
¶ 38 At 5:25 p.m., without having been given the transcript of defendant’s trial testimony, the
jury informed the trial court that it had reached verdicts. At 5:50 p.m., the court stated for the
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record that the court reporter had still not yet completed the transcript. Ultimately, the jury found
defendant guilty of first-degree murder and guilty of concealment of a homicidal death. Defense
counsel requested that the jury be polled, and each juror confirmed his or her verdicts.
¶ 39 6. Posttrial and Sentencing
¶ 40 Defendant filed a motion for new trial, arguing, in part, that the trial court erred in denying
his second-degree murder instruction based on serious provocation because it ignored the evidence
of mutual combat. The court denied defendant’s motion for new trial. Thereafter, it sentenced
defendant to a total of 40 years’ imprisonment, 35 years for murder and 5 years for concealment
of a homicidal death, which by law had to be served consecutively. Defendant subsequently
appealed.
¶ 41 7. Direct Appeal
¶ 42 On direct appeal, defendant contended that the trial court erred by refusing to provide the
jury with an instruction on second-degree murder based on serious provocation, his trial counsel
provided ineffective assistance because, even in the edited video evidence, there was instances of
him harming himself that the jury could have seen, and his sentence was excessive. We found that
the court did not err when it refused to give the jury a second-degree murder instruction based on
serious provocation, his trial counsel did not provide ineffective assistance and his sentence was
proper. Defendant lastly contended that his mittimus did not reflect the actual record in his case
because it showed that he was convicted of two counts of first-degree murder where he was only
convicted of one count of first-degree murder. Under Illinois Supreme Court Rule 472(e) (eff. May
17, 2019), we remanded the matter to the trial court for purposes of allowing defendant to file a
motion to correct his mittimus. As a result, in June 2019, in all other respects, we affirmed
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defendant’s convictions and sentences. Defendant subsequently filed a petition for leave to appeal
to our supreme court, but, in September 2019, the court denied his petition.
¶ 43 8. Postconviction Proceedings
¶ 44 In October 2019, defendant filed a pro se petition under the Act (725 ILCS 5/122-1 et seq.
(West 2018)), raising multiple alleged substantial deprivations of his constitutional rights. As
relevant for this appeal, defendant claimed that his appellate counsel was ineffective for failing to
argue that he was denied due process and deprived of a fair trial when the jury asked for the
transcript of his trial testimony, but was not given the transcript within the time frame promised
by the trial court. According to defendant, the jury’s request made clear that it “wanted to compare
and evaluate” what he said while being interrogated by the police with what he testified to at trial.
Defendant asserted that the court should have “either stopped [the] jury’s deliberations” until the
transcript was available or at least waited to send the jury the video evidence until it also sent the
transcript of his trial testimony. Defendant further argued that his trial counsel should have
objected to the court’s responses to the jury’s notes. Defendant contended that, had his appellate
counsel raised these issues on direct appeal, there was a reasonable probability that he would have
been granted a new trial.
¶ 45 Two months later, the circuit court found the claims in defendant’s petition frivolous and
patently without merit. In relevant part, the court found there was nothing arbitrary or unreasonable
about the trial court allowing the jury to continue deliberating while the transcript was being
prepared. Moreover, the court observed that defendant’s trial counsel attempted to obtain the
transcript for the jury as soon as possible and that counsel could not have reasonably believed that
the jury would have reached a verdict so soon after being told the transcript would be available in
a few minutes. As such, the court found that appellate counsel did not arguably perform deficiently.
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Additionally, the court found that defendant was not arguably prejudiced because it was pure
speculation that the jury would have reached not guilty verdicts had they been provided with the
transcript sooner. Consequently, the court concluded that defendant’s ineffective assistance of
appellate counsel claims were not arguably meritorious and dismissed his petition.
¶ 46 Defendant subsequently appealed.
¶ 47 II. ANALYSIS
¶ 48 Defendant contends that the circuit court erred in dismissing his postconviction petition.
Defendant asserts that, when the jury requested to review the transcript of his testimony, the trial
court acknowledged the importance of his testimony. But despite this acknowledgement, defendant
observes that the court provided the jury with the video of his statements to the police without the
benefit of allowing the jury to also examine his trial testimony. According to defendant, the court
erred by not suspending the jury’s deliberations so that the jury could view both his statements to
the police and his testimony at trial simultaneously. In turn, defendant posits that his appellate
counsel should have raised the issue on direct appeal, and by not raising it, appellate counsel
arguably provided ineffective assistance such that his petition should have survived first-stage
review.
¶ 49 The Act provides a three-stage process for defendants who allege that they have suffered a
substantial deprivation of their constitutional rights. People v. Cotto, 2016 IL 119006, ¶ 26. This
appeal only concerns the first stage, as this is the stage where the circuit court dismissed
defendant’s petition. At the first stage of proceedings under the Act, after the defendant files a
petition, the circuit court must determine whether the petition states the gist of a constitutional
claim, or is frivolous or patently without merit. People v. Bailey, 2017 IL 121450, ¶ 18; see also
725 ILCS 5/122-2.1(a)(2) (West 2018). At this stage, the court acts “ ‘strictly in an administrative
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capacity by screening out those petitions which are without legal substance or are obviously
without merit.’ ” People v. Tate, 2012 IL 112214, ¶ 9 (quoting People v. Rivera, 198 Ill. 2d 364,
373 (2001)). Because of this administrative role, the court is not permitted to make any credibility
determinations or engage in any fact-finding endeavors. People v. Coleman, 183 Ill. 2d 366, 380-
81 (1998). The petition’s allegations of fact must be accepted as true as long as they are not
affirmatively rebutted by the record. People v. Thomas, 2014 IL App (2d) 121001, ¶ 47.
¶ 50 A petition may be deemed frivolous or patently without merit only where it has no arguable
basis in either law or fact, meaning the petition relies “on ‘an indisputably meritless legal theory
or a fanciful factual allegation.’ ” People v. Boykins, 2017 IL 121365, ¶ 9 (quoting People v.
Hodges, 234 Ill. 2d 1, 16-17 (2009)). At the first stage of proceedings, a pro se petition should be
construed liberally, meaning a “borderline” petition should be allowed to proceed. Thomas, 2014
IL App (2d) 121001, ¶ 48. We review the circuit court’s first-stage dismissal de novo. Boykins,
2017 IL 121365, ¶ 9.
¶ 51 To succeed on a claim of ineffective assistance of appellate counsel, the defendant must
satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
Golden, 229 Ill. 2d 277, 283 (2008). Under the Strickland test, the defendant has to establish that
it is arguable his appellate counsel’s performance fell below an objective standard of
reasonableness and it is arguable there is a reasonable probability that the result of his appeal would
have been different absent appellate counsel’s allegedly deficient performance. Id. Because the
defendant has the burden to prove both prongs of the Strickland test, we may examine them in
either order. Strickland, 466 U.S. at 697. Appellate counsel is not required to brief every possible
issue on appeal. People v. Simms, 192 Ill. 2d 348, 362 (2000). “[I]t is not incompetence of counsel
to refrain from raising issues which, in his or her judgment, are without merit, unless counsel’s
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appraisal of the merits is patently wrong.” Id. To this end, in order to determine whether appellate
counsel was ineffective, we must examine the merits of the underlying issue because the
“defendant does not suffer prejudice from appellate counsel’s failure to raise a nonmeritorious
claim on appeal.” Id.
¶ 52 As an added wrinkle, when the trial court responded to the jury’s various notes, defendant’s
attorney did not object. In fact, after the first note, it was defendant’s attorney who suggested the
court inform the jury that the transcript was not available, which is how the court ultimately
proceeded. Arguably, this could be a basis for invited error. Under the invited-error doctrine, “a
party cannot complain of error that it brought about or participated in.” People v. Hughes, 2015 IL
117242, ¶ 33. “When a defendant acquiesces in the trial court’s answer to a question from the jury,
the defendant cannot later complain that the trial court’s answer was” erroneous. People v. Averett,
237 Ill. 2d 1, 23-24 (2010). If defendant, through his attorney, invited the error, appellate counsel
would have been precluded from meritoriously raising an argument on direct appeal about the trial
court’s actions. See People v. Carter, 208 Ill. 2d 309, 319 (2003) (“Action taken at defendant’s
request precludes defendant from raising such course of conduct as error on appeal.”). Despite this,
we will give defendant the benefit of the doubt because, in response to the jury’s second note,
defendant’s attorney did not invite the error. She did, however, fail to object to the court’s response
and never requested the court suspend deliberations. Similarly, defendant never raised any
argument about the court’s actions in response to the jury’s notes in his posttrial motion, meaning
on direct appeal, any argument over the court’s actions would have been forfeited. See People v.
Sebby, 2017 IL 119445, ¶ 48 (“To preserve a purported error for consideration by a reviewing
court, a defendant must object to the error at trial and raise the error in a posttrial motion.”)
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¶ 53 To overcome this forfeiture on direct appeal, defendant would have had to rely on the plain-
error doctrine. Under the plain-error doctrine, we may review an unpreserved claim of error when
there was a clear or obvious error and either (1) the evidence was so closely balanced that the error
itself threatened to tip the scales of justice against the defendant, regardless of the gravity of the
error, or (2) the error was so serious that it resulted in an unfair trial to the defendant and challenged
the integrity of the judicial process, regardless of the closeness of the evidence. Id. The first step
under the doctrine would have been to determine whether a clear or obvious error occurred. Id. ¶
49.
¶ 54 In turn, we must examine the underlying issue of whether the trial court’s actions in
response to the jury notes were clear or obvious errors. “Transcripts of testimony may be shown
to the jury if the jury so requests and if the trial court, in its discretion, considers the transcripts
will be helpful.” People v. Flores, 128 Ill. 2d 66, 93 (1989). Thus, as a general matter, the court
has broad discretion to grant or deny the jury’s request to review trial transcripts. People v.
Williams, 173 Ill. 2d 48, 87 (1996). Though, when the jury requests trial transcripts, the court
“must assume that the jury believes that such review would be helpful.” People v. Modrowski, 296
Ill. App. 3d 735, 747 (1998).
¶ 55 In this case, the trial court believed the jury’s review of the transcript of defendant’s trial
testimony would be helpful. Indeed, the court diligently attempted to provide the jury the
transcript; it simply was not ready yet. To this end, defendant posits that the court should have
suspended deliberations while the court reporter finished transcribing defendant’s trial testimony
so that the jury could have reviewed the transcript simultaneously with his statements to the police,
as shown in the video evidence. “[A] court may, after submission of the case to the jury, suspend
deliberations.” People v. Hollahan, 2020 IL 125091, ¶ 25. “ ‘[J]ury deliberation’ is not some
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uncontrollable chain reaction *** that, once set in motion, is beyond the power of the trial court to
suspend, control, and circumscribe as the court reasonably sees fit in the exercise of its discretion.”
Id. An abuse of discretion occurs only when the court’s decision was fanciful, arbitrary or so
unreasonable that no reasonable person would adopt the same view. People v. King, 2020 IL
123926, ¶ 35.
¶ 56 In this case, the trial court’s actions were eminently reasonable. After the jury’s first
request, with the agreement of the State and one of defendant’s attorneys, the court told the jury
the transcript was not available yet, the video evidence would be available shortly and to continue
deliberating. See People v. Olinger, 112 Ill. 2d 324, 349 (1986) (finding the trial court did not
abuse its discretion in response to the jury’s request to see trial transcripts by saying “ ‘the
transcripts are not available,’ ” the jurors “ ‘must rely on [their] memories’ ” and instructing them
to continue deliberating). Once the jury’s second note indicated that it wanted to review only a
portion of defendant’s trial testimony, the court acted assiduously in contacting the court reporter
to find out when the transcript would be ready. The court reporter informed the court that it would
be available in 30 minutes. Consistent with this assurance, the court told the jury the transcript
would be available in 30 minutes and provided the jury with the video evidence of defendant’s
statements to the police. Approximately an hour later, the jury returned its guilty verdicts. Given
the court had just provided the video evidence to the jury and its assertion that the transcript of
defendant’s trial testimony would be ready very soon, the court could not have had the
clairvoyance to foresee that the jury would then return guilty verdicts less than an hour later absent
reviewing the transcript. See People v. McCurry, 2011 IL App (1st) 093411, ¶ 24 (observing that
we cannot expect the trial court to have “clairvoyant capabilities”).
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¶ 57 Although the trial court could have utilized its discretion and suspended the jury’s
deliberations until the transcript was available (see Hollahan, 2020 IL 125091, ¶ 25), its failure to
do so was not unreasonable given that the trial evidence was presented the day before the jury
began and completed deliberations. See People v. Franklin, 135 Ill. 2d 78, 105 (1990) (finding the
trial court did not abuse its discretion in denying the jury’s request to review transcripts of trial
testimony, in part, because “the testimony was still fresh in the jurors’ minds, as they heard it the
previous day”); People v. Fisher, 281 Ill. App. 3d 395, 405-06 (1996) (finding the trial court would
not have abused its discretion in denying the jury’s request to review trial transcripts because the
trial lasted only four days, the jury reached a verdict on the fourth day and therefore, “there was
no appreciable delay in the proceedings, nor did the jury deliberate for a great length of time such
that the testimony may have grown stale”). In all, the court did not act unreasonably in responding
to the jury’s notes and allowing the jury to continue deliberating while the court reporter finished
transcribing defendant’s trial testimony.
¶ 58 Nevertheless, in arguing that the trial court did abuse its discretion in responding to the
jury’s notes, defendant relies on People v. Queen, 56 Ill. 2d 560 (1974) and People v. Davis, 105
Ill. App. 3d 549 (1982). In Queen, 56 Ill. 2d at 565, during the jury’s deliberations, it requested to
review the defendant’s trial testimony. The trial court, however, responded that it did not have
discretion to consider the request. Id. Ultimately, our supreme court found that the trial court’s
failure to consider the jury’s request “was of such substance that the cause must be remanded for
a new trial” and “the defendant was entitled to have the request considered by the trial court.” Id.
at 565-66. In Davis, 105 Ill. App. 3d at 554-55, during the jury’s deliberations, it informed the
bailiff of its desire to see a transcript of a certain portion of the trial. The bailiff, however, refused
to inform the trial court of the request. Id. at 555. And because the trial court was responsible for
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the actions of its bailiff, the appellate court found that the trial court, in essence, refused to exercise
its discretion in considering the jury’s request, which was an abuse of discretion. Id. The appellate
court further observed that, “[e]ven in a case in which the evidence is overwhelming it is the duty
of the court to furnish the jury with testimony, if it may be done without undue hardship.” Id. at
556. In the instant case, in stark contrast to Queen and Davis, the trial court exercised its discretion
to essentially grant the jury’s request to see the transcript but it could not immediately provide the
transcript given that the court reporter had not finished transcribing defendant’s testimony.
¶ 59 Lastly, defendant posits that his case is analogous to the Third Circuit Court of Appeals
decision in United States v. Jackson, 257 F.2d 41 (3d Cir. 1958). Initially, we note that decisions
from lower federal courts are not binding on this court but merely persuasive authority. See People
v. Stansberry, 47 Ill. 2d 541, 545 (1971). Nonetheless, in Jackson, the defendant was charged with
various narcotics-related offenses and some of the critical trial evidence was based on the
testimony of a government informant. Jackson, 257 F.2d at 42. During the trial, the defendant
raised the defense of entrapment. Id. at 43. During deliberations, the jury asked the trial court
whether the informant was a government employee. Id. at 42. The court “doubted [its] power to
comment on the evidence as to this matter” but, regardless, “did not remember” and thus, told the
jury to resume its deliberations without answering the question. Id. After the court sent the jury
back to resume deliberations, the parties’ attorneys and the court continued discussing the note. Id.
at 42-43. Ultimately, the court decided that it would read the portion of the trial transcript
discussing the informant’s role to the jury, which did, in fact, show that the government paid the
informant. Id. at 43. By the time the court made that decision, however, the jury came back with a
guilty verdict. Id. When the court asked the foreman of the jury about its need for an answer to the
question, the foreman asserted that it no longer needed an answer. Id.
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¶ 60 On appeal, the Third Circuit Court of Appeals observed that the trial court “had just
explained what entrapment was and on the matter of entrapment the question whether [the
informant] was a government employee was certainly something to be considered.” Id. Because
the question was “highly relevant” to the issues of the case, the Third Circuit Court of Appeals
found the trial court’s “failure to permit the reading of the relevant testimony at a time when it
would have been useful in the jury’s deliberations created unfairness to the defendant.” Id.
Although the Third Circuit Court of Appeals acknowledged that such decisions are generally left
to the discretion of the trial court, “in this particular situation *** the defendant was entitled to
have the jury informed as a matter of right.” Id. As such, the Third Circuit Court of Appeals
reversed the defendant’s guilty verdict. Id. at 44.
¶ 61 In the instant case, in contrast to Jackson, defendant was not entitled to any particular action
by the trial court as a matter of right, as both the decision of whether to provide a transcript to the
jury and whether to suspend deliberations were, based on our well-established case law, within the
court’s discretion. Furthermore, in Jackson, the jury’s question sought an answer that had legal
significance to the defendant’s entrapment defense, whereas, in the instant case, an answer to the
jury’s question did not have legal significance. Rather, the jury’s question merely indicated its
desire to review portions of defendant’s trial testimony.
¶ 62 In sum, in this case, the trial court did not abuse its discretion when it allowed the jury to
continue deliberating, rather than suspend deliberations, while the court reporter finished
transcribing defendant’s trial testimony. Because the court did not commit clear or obvious errors
in responding to the jury’s notes, there would have been no plain error. See People v. Sims, 192
Ill. 2d 592, 628 (2000). Having found that no plain error occurred below, the underlying issue had
no merit and defendant cannot show arguable prejudice from his appellate counsel’s failure to
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argue this issue on direct appeal. See People v. Enis, 194 Ill. 2d 361, 382 (2000) (“Because the
underlying issue has no merit, defendant has suffered no prejudice due to appellate counsel’s
failure to raise this issue on direct appeal.”). Consequently, defendant’s appellate counsel was not
arguably ineffective.
¶ 63 In the alternative, defendant contends that his appellate counsel was arguably ineffective
for not raising a claim that his trial counsel was ineffective when trial counsel failed to request a
suspension of the jury’s deliberations while the transcript was being completed or failed to object
to the court only providing the jury with the video evidence.
¶ 64 To succeed on a claim of ineffective assistance of trial counsel, like a claim of ineffective
assistance of appellate counsel, the defendant must satisfy the two-pronged test set forth in
Strickland, 466 U.S. 668. And so, the defendant must show that his counsel performed deficiently
and his counsel’s deficient performance prejudiced him. People v. Domagala, 2013 IL 113688, ¶
36. Like with defendant’s first claim of ineffective assistance of appellate counsel, for this
alternative claim to have succeeded, defendant had to show that the underlying issue has merit.
Simms, 192 Ill. 2d at 362.
¶ 65 Here, defendant fails to do so because he relies on complete speculation that the jury would
have reached different verdicts had counsel requested the court suspend deliberations or objected
to providing the jury with only the video evidence. See People v. Bew, 228 Ill. 2d 122, 135 (2008)
(“Strickland requires actual prejudice be shown, not mere speculation as to prejudice.”); People v.
Palmer, 162 Ill. 2d 465, 481 (1994) (“Proof of prejudice” for an ineffective assistance of counsel
claim “cannot be based on mere conjecture or speculation as to outcome.”) Given the speculation
involved in demonstrating the prejudice component of trial counsel’s alleged ineffectiveness,
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the underlying issue had no merit and defendant cannot show arguable prejudice from his appellate
counsel’s failure to argue this issue on direct appeal. See Enis, 194 Ill. 2d at 382. Consequently,
defendant’s appellate counsel was not arguably ineffective.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 68 Affirmed.
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