People v. Russell

2020 IL App (1st) 182619-U

Opinion

2020 IL App (1st) 182619-U Order filed October 9, 2020

FIRST DISTRICT FIFTH DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 16 CR 14290 ) MALCOLM RUSSELL, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.

ORDER

¶1 Held: We affirmed defendant’s conviction for being an armed habitual criminal, finding that the circuit court adequately complied with Rule 431(b) when questioning the venire and that his counsel committed no ineffective assistance.

¶2 A jury convicted defendant, Malcolm Russell, of being an armed habitual criminal, and the

circuit court sentenced him to 13 years in prison. On appeal, defendant contends that: (1) during

voir dire, the court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) by failing to

question the potential jurors regarding their understanding and acceptance that he was not required 1-18-2619

to offer any evidence; (2) defense counsel committed ineffective assistance; and (3) the court erred

by failing to overrule an objection to a leading question to one of the officers. We affirm 1.

¶3 At trial, Officer Maureen Webb testified that at about 2 a.m. on September 4, 2016, she

and her partner, Officer Christopher Williams, heard over the police radio that there was a battery

in progress at the building located at 8117 South Colfax. They went to that location, where Officer

Webb saw a woman outside the vestibule of the building. The woman was “visibly shaken” and

had been crying. Defendant was standing nearby on the sidewalk. He matched the description of

the offender. Other officers were also at the scene.

¶4 Officer Webb and Officer Williams approached defendant and asked to see his hands so as

to check for weapons. Defendant showed them his hands and then he immediately ran away. The

officers ran after him. During the chase, Officer Webb saw an “object fly from the right side of his

waistband and fall to the ground.” Officer Webb immediately recovered the object and saw that it

was a loaded, semiautomatic handgun. Officer Williams and Officer Rice subsequently captured

defendant and he was transported to the police station along with the handgun, which was

inventoried pursuant to Chicago police procedures. The handgun was produced at trial and

identified by Officer Webb and Officer Williams.

¶5 Officer Williams testified that at about 2 a.m. he and Officer Webb heard over the police

radio about a battery in progress at 81st and Colfax. They arrived at the scene and saw defendant

standing on the sidewalk near 8121 South Colfax. A female was outside the vestibule of the

apartment building at 8117 South Colfax. She was crying. Other officers were also at the scene.

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented.

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¶6 Officer Williams approached defendant while Officer Webb tended to the woman. Officer

Williams asked defendant if everything was okay. Defendant said that he was “fine.” Officer

Williams approached defendant to perform a pat-down. Defendant ran away and Officer Williams

and two other officers gave chase. During the chase, Officer Williams saw “something” fall from

defendant’s waistband. The officers caught defendant and handcuffed him. Officer Williams then

spoke with Officer Webb, who had recovered the object that had fallen from defendant’s

waistband. Officer Williams saw that the object was a loaded, .9 millimeter handgun. The handgun

was taken to the police station and inventoried.

¶7 Following Officer Williams’s testimony, the parties entered into the following stipulation:

“[ASSISTANT STATE’S ATTORNEY]: Now come the People of the State of

Illinois by their attorney, Kimberly M. Foxx, State’s Attorney of Cook County, through

her assistants Amari Dawson and Jillian Anselmo, and the defendant Malcolm Russell,

AKA Malcolm Howell through his representatives Shady Yassin and Robert Breslin, it is

hereby stipulated by and between the parties that the defendant, Malcolm Russell AKA

Michael Howell was previously convicted of two prior qualifying felony offenses.”

[THE COURT]: Is that so stipulated Mr. Yassin?

[DEFENSE COUNSEL]: So stipulated.”

¶8 In his case-in-chief, defendant called William Patterson, who testified that in the early

morning on September 4, 2016, he and a friend drove over to defendant’s girlfriend’s house at

82nd and Colfax to pick him up so that they could hang out. When they arrived at about 2 a.m.,

Patterson saw defendant on the front stoop of 8117 South Colfax, talking to his girlfriend, whose

name was Diamond. They were having a “normal conversation.” Patterson remained in his car

while defendant and Diamond talked. Patterson could not hear what they were saying.

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¶9 Several police cars pulled up and five or six officers got out. Patterson heard one of the

officers ask defendant and Diamond if everything was okay. Diamond said everything was fine.

One of the officers then tackled defendant in front of the building. Defendant had not been running

away at the time he was tackled. Nothing fell from defendant’s waistband, and the officers did not

pick anything up from the ground. The officers handcuffed defendant, placed him in a squad car,

and drove him away.

¶ 10 Following all the evidence, defendant was convicted of being an armed habitual criminal

and sentenced to 13 years’ imprisonment.

¶ 11 On appeal, defendant first contends that the circuit court erred by failing to properly instruct

and question the prospective jurors in accordance with Rule 431(b). Defendant forfeited review by

failing to make a contemporaneous objection. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).

Even if the issue had not been forfeited, we would find no reversible error.

¶ 12 Rule 431(b), which codified our supreme court’s ruling in People v. Zehr, 103 Ill. 2d 472

(1984), provides:

“The court shall ask each potential juror, individually or in a group, whether that

juror understands and accepts the following principles: (1) that the defendant is presumed

innocent of the charge(s) against him or her; (2) that before a defendant can be convicted

the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant

is not required to offer any evidence on his or her own behalf; and (4) that if a defendant

does not testify it cannot be held against him or her; however, no inquiry of a prospective

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

Ill. S.Ct. R. 431(b)(eff. July 1, 2012).

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¶ 13 The circuit court’s compliance with Rule 431(b) is reviewed de novo. People v. Belknap,

2014 IL 117094, ¶ 41.

¶ 14 Defendant argues that the court failed to properly instruct and question the venire so as to

ascertain its understanding and acceptance of the third Rule 431(b) principle, namely, that he is

not required to offer any evidence on his own behalf. Defendant does not argue that the court erred

with regard to the instructions and questions regarding the other principles.

¶ 15 The record shows that the court instructed and questioned the prospective jurors in

pertinent part as follows:

“Thirdly, the defendant *** is not required to prove his innocence or call witnesses

on his own behalf. The defendant is not required to prove his innocence or call witnesses

on his own behalf. Anyone out there who’s a possible juror who does not understand and

accept that instruction? And, again, as for all the others, raise your hand now. And, again,

no hands, no response.”

¶ 16 Defendant contends that the court’s instruction to the prospective jurors that he need not

prove his innocence or call witnesses on his own behalf, and its question as to whether they

understood and accepted that instruction, was not sufficient to ascertain that they understood and

accepted that he was not required to offer any evidence on his own behalf. According to defendant,

the prospective jurors could have misconstrued the court as requiring him to present evidence other

than witnesses, such as physical or documentary evidence.

¶ 17 Defendant’s argument fails, as this court has repeatedly held that a trial court’s instruction

to the prospective jurors that defendant is not required to prove his innocence, and its question as

to whether they understood and accepted that instruction, is sufficient to satisfy the third Rule

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431(b) principle. See People v. Kidd, 2014 IL App (1st) 112854; People v. Chester, 409 Ill. App.

3d 442 (2011); People v. Atherton, 406 Ill. App. 3d 598 (2010).

¶ 18 The cases relied on by defendant, People v. Shumpert, 126 Ill. 2d 344 (1989) and People

v. Jackson, 2016 IL App (1st) 133741, are inapposite. Shumpert did not even involve Rule 431(b)

and therefore is of no help to defendant. In Jackson, we held that the trial court failed to comply

with Rule 431(b) as it did not instruct the venire about the fourth principle, that defendant’s failure

to testify cannot be held against him, nor did it adequately instruct on the second principle where

it did not mention the reasonable doubt standard during the question-and-answer process. Jackson,

2016 IL App (1st) 133741, ¶¶ 43, 46. We also held that the trial court failed to inquire as to whether

the venire understood the first principle, the presumption of innocence, when it asked the

prospective jurors whether they “believe[d] that they could follow” that principle. Id. ¶ 44. We

noted that asking the prospective jurors whether they “could follow” a Rule 431(b) principle was

the rough equivalent of asking them if they accept that principle, but it is not the equivalent of

asking them if they understand that principle. Id. In contrast to Jackson, the court here instructed

the venire about all of the Rule 431(b) principles, including the third principle at issue, and also

specifically questioned the venire as to whether it understood and accepted those principles.

Accordingly, the court adequately complied with Rule 431(b).

¶ 19 Next, defendant contends that his counsel provided ineffective assistance by failing to

object to certain improper remarks made by the prosecutor during opening statement. To prevail

on his claim of ineffective assistance, defendant must show that his trial counsel’s performance

was objectively unreasonable and that he was prejudiced thereby such that, but for counsel’s

unprofessional errors, the result of the trial would have been different. People v. Gunn, 2020 IL

App (1st) 170542, ¶¶ 93-96. Defendant must overcome the strong presumption that the challenged

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action may have been the product of sound trial strategy. Id. ¶ 94. Generally, matters of trial

strategy are immune from claims of ineffective assistance of counsel. Id. Our review is de novo.

Id. ¶ 91.

¶ 20 Opening statements are meant to inform the jury of what the parties intend to prove at trial.

Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 29. While no comment should be

made therein that counsel cannot or will not prove, opening statement may include a discussion of

expected evidence and reasonable inferences to be drawn therefrom. Id.

¶ 21 Defendant argues that his trial counsel was ineffective for failing to object to the following

remarks by the prosecutor during opening statement:

“[On] the night of September 4, 2016, at approximately 2 a.m. in the morning in

the 8100 South block of Colfax in this county. On that day at that location and at that time

police received a dispatch that there was a battery in progress. They respond to that location

in less than a minute. When they get to the location, they hear a distraught female inside

the vestibule of a building. She’s sobbing so loudly that they can hear her while that door

is closed on that building. They then see a male. The male happens to be this man, the

defendant. He’s standing near that building. Immediately, there is a female officer who

runs to the distraught female. She tries to ensure that she’s safe. There’s a male officer who

is with her. He approaches the defendant. As he approaches the defendant and begins to

speak with him, the defendant takes off running.

Stop. The police yell. The defendant does not stop. As he runs a few steps down

the block, drop, there’s a gun, a firearm that drops from his waistband. The police notice

this and now they’re close to him. They’re trailing behind. The defendant tripped. It’s at

that time they were able to roll out the handcuffs and place him into custody.”

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¶ 22 Defendant argues that the prosecutor’s comments during opening statement regarding how

the police responded to a call of a battery in progress and saw a distraught female clearly implied

that he had battered his girlfriend, priming the jury to see him as a domestic abuser. Defendant

contends that the prosecutor’s comments were improper because they had no bearing on his guilt

for armed habitual criminal and could only arouse the jurors’ hostility toward him and that there

was no sound strategic reason for counsel’s failure to object to them.

¶ 23 Defendant’s argument is unavailing. The prosecutor’s comments during opening statement

accurately apprised the jury of what the State intended to prove at trial to show the course of the

police investigation and, in fact, did prove. Evidence regarding the police investigation was

relevant and admissible. See People v. Simms, 143 Ill. 2d 154, 174 (1991) (“a police officer may

recount the steps taken in the investigation of a crime, and may describe the events leading up to

the defendant’s arrest, where such testimony is necessary and important to fully explain the State’s

case to the trier of fact”). As the prosecutor’s comments accurately recounted the evidence that the

State intended to prove at trial, and where such evidence was relevant and admissible to recount

the course of the police investigation, they were a proper subject of opening statements and

therefore defense counsel committed no ineffective assistance by failing to object to them.

Klingelhoets, 2013 IL App (1st) 112412, ¶ 29. In so holding, we note that when discussing the

course of the police investigation during opening statement, the prosecutor never stated anything

beyond what the evidence would show, i.e., he did not state that defendant committed a battery or

even if a battery took place. Accordingly, there was no cause for objection by defense counsel.

¶ 24 The only portion of the prosecutor’s comments during opening statement that was not

provable at trial was the remark that Diamond was inside the vestibule of the building and that the

officers heard her sobbing through the closed door. The evidence at trial showed that Diamond

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was actually outside the vestibule and crying when the officers arrived at the scene. Defendant

argues that his counsel should have known that the officers encountered Diamond while she was

outside the vestibule, as Officer Webb’s police report indicated as such, and therefore that counsel

should have objected to the prosecutor’s comment during opening statement that she was inside

the vestibule and could be heard sobbing through the closed door when the officers arrived. We

fail to see how the result of the trial would have been different had counsel so objected, as

defendant’s armed habitual criminal conviction did not turn on whether or not Diamond was inside

or outside the vestibule when the officers arrived at the scene. Accordingly, defendant’s claim of

ineffective assistance fails.

¶ 25 Next, defendant contends that the court erred by overruling his objection to the following

testimony of Officer Webb on redirect examination:

“Q. When you spoke [to Diamond] was she sobbing?

A. Yes.”

¶ 26 Defendant contends that the State’s question of Officer Webb was a leading question that

improperly suggested that defendant had harmed his girlfriend Diamond.

¶ 27 A question that suggests the answer to the person being interrogated, especially a question

that may be answered by a mere “yes” or “no” (such as the one at issue here) is considered leading.

People v. Miles, 351 Ill. App. 3d 857, 866 (2004). Generally, it is improper for counsel to ask a

leading question of his own witness. People v. Bunning, 298 Ill. App. 3d 725, 732 (1998). In the

present case, though, any error in the leading question asked of Officer Webb was harmless, where

her testimony that she saw that Diamond was sobbing was cumulative to the following testimony

of Officer Williams during his direct examination:

“Q. And you said you saw another civilian on [the] scene, is that right?

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A. Yes, ma’am.

Q. And you said that was a female?

A. Yes.

Q. Where was that female located?

A. The female was located at like 8117. She was *** crying.

Q. What did you do when you arrived on scene?

A. I immediately noticed the young lady crying. The officers were standing right

there. I even pointed her out to the officers, to let them know *** that she [was] crying.

That was the first thing that I noticed.”

¶ 28 Given that Officer Williams’s testimony regarding his observation that Diamond was

crying was not the result of any leading questions, and was properly admitted without any

objections, Officer Webb’s cumulative testimony that she, too, saw that Diamond was crying

constitutes harmless error even if it was result of a leading question. See People v. Wilson, 2012

IL App (1st) 101038, ¶ 56 (error in the admission of evidence that is cumulative to properly

admitted evidence is harmless).

¶ 29 Defendant contends that the State asked Officer Webb two other leading questions on

redirect examination regarding her seeing Diamond crying, and that defense counsel was

ineffective for failing to object to them or raise the issue in his posttrial motion. Officer Webb

testified:

“Q. Officer Webb, did you hear any crying when you [arrived] on the scene?

A. [Diamond] was definitely shaken and when she was talking to you, you could

definitely tell she had been crying, yes.

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Q. Did you see any tears on her face?

A. When I walked up to her *** after we arrested the defendant, yes, there were

tears on her face.”

¶ 30 As this testimony was also cumulative to the properly admitted testimony of Officer

Williams and therefore harmless, defendant’s claim that his counsel was ineffective for failing to

object thereto or raise the issue in his posttrial motion fails for lack of prejudice.

¶ 31 Next, defendant contends that his counsel was ineffective for failing to object when the

State twice referenced his alias while reading the stipulation that he had been convicted of prior

qualifying felony offenses. Defendant argues that the stipulation could have been read to the jury

without the references to his alias, and that the inclusion of the alias improperly suggested to the

jury that he has a reputation for unsavory activity.

¶ 32 Counsel committed no ineffective assistance by failing to object to the State’s references

to his alias. People v. Howard, 147 Ill. 2d 103 (1991), is informative. In Howard, defense counsel

failed to object when the trial judge twice referenced defendant’s alias when reading the indictment

to the prospective jurors. Id. at 141. Defense counsel also failed to object to the prosecutor’s two

references to defendant’s alias during opening statement or to the prosecutor’s reference to the

alias when questioning a detective and an assistant State’s Attorney at trial. Id. Our supreme court

found no reversible error where “the references to the defendant’s use of another name were

infrequent; there was no attempt made to argue or present the information in a negative manner;

indeed, at no time was the term ‘alias’ even used.” Id. at 142.

¶ 33 In the present case, the references to defendant’s use of another name were even more

infrequent than in Howard, as the alias was only mentioned twice during the reading of the

stipulation. As in Howard, no attempt was made to argue or present defendant’s alias in a negative

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manner, and at no time was the term “alias” even used. Accordingly, defendant was not prejudiced

thereby, and in the absence of prejudice, defendant’s claim of ineffective assistance fails.

¶ 34 Defendant argues that the cumulative effect of the various alleged errors requires that he

be granted a new trial. There is no reversible error on any individual issue and no cumulative error.

¶ 35 For all the foregoing reasons, we affirm the circuit court.

¶ 36 Affirmed.

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