2023 IL App (1st) 220829-U
SIXTH DIVISION August 25, 2023
No. 1-22-0829
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 JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 21 CR 2913 ) KEVON SCURLOCK, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE TAILOR delivered the judgment of the court. Presiding Justice Mikva concurred in the judgment. Justice C.A. Walker dissented.
ORDER
¶1 Held: The defendant did not receive ineffective assistance of counsel.
¶2 Following a bench trial, defendant, Kevon Scurlock, was convicted of two counts of
unlawful use or possession of a weapon by a felon based on his possession of firearm
ammunition. Scurlock was sentenced to four years’ imprisonment to run consecutively with 1-22-0829
sentences he received for convictions on two other unrelated matters for which he pled guilty.
Scurlock now appeals and argues that he received ineffective assistance of counsel. For the
following reasons, we affirm the judgment of the trial court.
¶3 BACKGROUND
¶4 On February 4, 2021, at approximately 11 a.m., Chicago Police Officers Lawrence Kerr
and Delgado Fernandez were part of a team that executed a search warrant at a single-family
home located at 7749 South Saint Lawrence Avenue in Chicago. The officers knocked on the
door of the home and co-defendant Raymound Sankey 1 answered. While the officers were at the
door with co-defendant, Scurlock approached. Officers Kerr and Fernandez detained Scurlock
and Raymound while the rest of the team entered the residence to execute the search warrant.
¶5 Officer Kerr remained in the living room with Scurlock and Raymound while the other
officers secured the rest of the residence and determined there were no other occupants. Once the
residence was secure, Officer Kerr photographed every room before the other officers began
searching. The first floor of the single-family residence had a small foyer and a living room to
the right of the entrance. After he completed photographing the first floor, Officer Kerr
photographed the second floor, including two bedrooms. The bedroom on the west side of the
second floor had a television stand and a bed, and the bedroom on the east side of the second
floor appeared to be a child’s bedroom. Officer Kerr then went to the basement. There was a
bedroom on the east side of the basement with a living area or “common area” adjacent to the
bedroom.
1 Raymound and Scurlock were tried in simultaneous bench trials and were represented by the same attorney at trial. Raymound is not a party to this appeal.
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¶6 Officer Kerr observed in the basement bedroom on the windowsill a temporary state of
Illinois identification card in Scurlock’s name, a credit card in Scurlock’s name, and a piece of
mail that was forwarded from another address to the South Saint Lawrence Avenue house
addressed to Scurlock, dated December 9, 2020. Officer Kerr also observed a photograph of
Scurlock with another unknown male “wedged into the window frame.” Officer Kerr
photographed the items he observed in the windowsill and Officer Fernandez recovered and
inventoried the items.
¶7 In the closet of the basement bedroom, Officers Kerr and Fernandez observed a plastic
dresser with three drawers. Officer Fernandez located one .45 caliber bullet in the top drawer,
three photographs of Scurlock, two of Scurlock with a female and one of Scurlock licking a
human foot. The items were photographed and recovered.
¶8 In the common area of the basement, adjacent to the bedroom, Officer Kerr observed a
pool table and a counter area with drawers beneath the counter. A few of the drawers were
“pulled out.” In the top-drawer Officer Kerr observed pieces of mail with Scurlock’s name. In
the drawer below, Officer Kerr observed an extended magazine and three .40 caliber bullets.
Three pieces of mail addressed to Scurlock were located on the top of the counter above the
drawers. There were six pieces of mail addressed to Scurlock that were recovered from the
counter and drawers in the common area. Three of the six pieces had been forwarded from a
previous address to the South Saint Lawrence Avenue address and “the other ones had the Cook
County Sheriffs’ information regarding his person.” One of the pieces of mail recovered from the
top of the counter was an order confirmation or “receipt” from Saks Fifth Avenue for an order
placed on January 16, 2021, in Scurlock’s name, with the delivery address of 7749 South Saint
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Lawrence Avenue, the address where the warrant was executed. Officer Kerr photographed the
items and Officer Fernandez recovered them.
¶9 The parties stipulated that Scurlock was a convicted felon under case number 17CR
003556 for the offense of aggravated unlawful use of a weapon and that conviction was entered
on June 9, 2017. The State rested, and the defense made a motion for “acquittal of defendants,”
which was denied.
¶ 10 Kenyada Lester, Scurlock’s mother, testified for the defense. Kenyada testified that she
leased the residence at 7749 South Saint Lawrence Avenue. She lived there with her four
children: Darrialmond Sankey, Ja-Mah Sankey, Nevaeh Lester and Heaven Lester, all under the
age of 15. She indicated that she moved into the residence in March of 2020. Scurlock, who is
her oldest son, had come to live with her in November or December of 2020 because he was on
electronic monitoring. Kenyada acknowledged on cross examination that Scurlock was living at
the residence on South Saint Lawrence Avenue on February 4, 2021, the day the warrant was
executed, and that he lived in the basement.
¶ 11 Raymound is the father of her other four children, but he had had been living in Missouri
since April of 2019 with his mother. Raymound came to stay with Kenyada in February of 2021
and stayed in her bedroom on the second floor. Raymound was on house arrest and received mail
at the residence. Kenyada’s ten-year-old daughter stays in the other bedroom on the second
floor. The defense rested.
¶ 12 During closing argument, defense counsel argued that the State failed to prove
constructive possession of the ammunition because Scurlock was not the lessee of the residence
and was not present in the unlocked room where the bullet was found. In addition, defense
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counsel argued that the ammunition and magazine were found in a common room where “it
seems that every resident of the house would have access to that area.” Furthermore, defense
counsel highlighted that there were no fingerprints on the ammunition and no locks on the
basement bedroom door. Also, Scurlock had not made any admissions regarding the
ammunition or the magazine. Based on this, counsel argued that “there is no evidence of
knowledge by [Scurlock]” and “no argument that can be made that [Scurlock] had exclusive
control” of the bedroom and common area in the basement.
¶ 13 Defense counsel reminded the court that “both [Scurlock and Raymound] came to the
front door” when the police arrived. Raymound ‘voluntarily opened doors for the officers.”
Defense counsel argued that Scurlock’s actions could not be considered consistent with the
actions “of people who are aware of or have knowledge of any contraband in the house” because
“it’s not your usual scramble to toss or conceal any contraband.” Defense counsel noted that
Scurlock was polite to the officers and did not attempt to flee. He also reiterated that the State
failed to establish “all the necessary elements of constructive possession.”
¶ 14 The trial court found Scurlock and Raymound guilty. With respect to Scurlock the court
found:
“But aside from the pictures, the police also find the following things significant:
When lawyers use the term “proof of residence,” that’s a misnomer. They don’t have to
prove that [defendant] lived there, which apparently the evidence showed he did anyway.
They have to really prove he had access and control and knowledge. Not that he lived
there.
***
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What does he have there that’s important? A Saks Fifth Avenue shipping
summary bill dated January 16th. So what are we talking about, two weeks later is the
arrest, a little over two weeks later. ***What else did they find that’s significant
regarding [Scurlock]? It’s a credit card of some sort or another ***. Something you want
to know where it’s at and keep is a credit card. You don’t want somebody else getting
your credit cards. And then additionally***a statement of some sort, notice of decision,
State of Illinois Department of Human Services. Beginning January 1st, 2021, your
benefits will change as follows. Medical benefits***that’s important to keep around, a
record of what you’re going to get as far as money from some other resource.
Scurlock's mother, which was or is the other man’s girlfriend, former girlfriend, current
girlfriend, whatever, basically put altogether, indicates beyond a reasonable doubt in my
opinion that Scurlock stayed in the basement. Her son stayed in the basement with the
stuff in the basement and that her former or current boyfriend, whatever, the father of
four of her children stayed upstairs in the bedroom with her which is where they found
the gun in the bedroom and all the other stuff attributable to Sankey in the same bedroom
and the bullet downstairs in the basement attributable, in my opinion, to Kevon Scurlock.
Hardly an earth-shattering offense, having one bullet. But nonetheless, one maybe
three or four altogether. A minimum of one anyway. They found other stuff down there,
too. Hardly an earth-shattering offense but nonetheless your client’s convicted for an
offense, he cannot possess any weapons or ammunition for weapons. They have to use
discrete judgment. If you don’t do it, it constitutes a crime. Is it like a capital offense kind
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of a case to have a bullet with a felony conviction? It’s not a capital offense, but,
nonetheless, it’s against the law to have one. I don't get involved with morals and stuff
like that, whether one doesn’t mean anything or 25 means something, it’s illegal to have
even a bullet.
As far as upstairs with Sankey, he can't have any guns at all as a convicted felon.
And I don’t believe that the testimony of Sankey’s former girlfriend aids the case of the
defense at all. As a matter of fact apparently she wasn’t even there at the time on
February 4th. Basically she shows, from the evidence I heard, (unintelligible) anyways --
I'm not critical of the defense for calling her – established that they both lived there.
When Sankey’s questioned about the bedroom -- questioned about where he lives,
upstairs, you know. The evidence shows it wasn’t the little girl’s bedroom, the gun and
other stuff they found.”
¶ 15 The trial court ruled, “as far as both, the State has proved beyond a reasonable doubt both
charges, the charges against [Scurlock]*** one, maybe three or four bullets, and for [Raymound]
the gun.” The court sentenced Scurlock to four years’ imprisonment. Although the record
reflects that this matter was scheduled for post-trial motions on the same day as sentencing, a
written motion for a new trial does not appear in the common law record and no oral arguments
related to a motion for a new trial appear in the record of proceedings. Scurlock filed a timely
notice of appeal.
¶ 16 ANALYSIS
¶ 17 Scurlock does not challenge the sufficiency of the evidence against him and does not
point out any flaws in the State’s case that would call into question the court’s finding of guilty
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beyond a reasonable doubt. Instead, Scurlock argues that trial counsel was ineffective pursuant
to United States v. Chronic, 466 U.S. 648 (1984), where counsel, operating under a
misapprehension of the law, not only conceded that Scurlock constructively possessed the
contraband, but actually produced evidence establishing Scurlock’s possession. As a result,
defense counsel failed to subject the State’s case to a meaningful adversarial challenge. In the
alternative, Scurlock argues that counsel was ineffective under Strickland v. Washington, 466
U.S. 668 (1984).
¶ 18 When faced to challenges to trial counsel’s ineffectiveness, we generally apply the two-
prong test established in Strickland, 466 U.S. 668, and adopted in Illinois in People v. Albanese,
104 Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of counsel under
Strickland, a defendant must show that (1) counsel’s performance was deficient and (2) counsel’s
actions resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984); People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the first prong, a defendant must
demonstrate that his attorney’s performance fell below an objective standard of reasonableness.
Evans, 209 Ill. 2d at 220. Under the second prong, prejudice is shown where there is a reasonable
probability that the result would have been different but for counsel’s alleged deficiency. Id.
Failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance
of counsel. Strickland, 466 U.S. at 697.
¶ 19 However, the Strickland court also noted that there are some circumstances so likely to
prejudice a defendant that prejudice may be presumed. Strickland, 466 U.S. at 692. In United
States v. Cronic, 466 U.S. 648 (1984), the Court explained that with respect to ineffective
assistance of trial counsel claims, prejudice may be presumed where (1) the defendant “is denied
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counsel at a critical stage,” (2) counsel “entirely fails to subject the prosecution’s case to
meaningful adversarial testing,” or (3) counsel is called upon to represent a client in
circumstances under which no lawyer could provide effective assistance. Id. at 659-61. Here,
Scurlock argues that defense counsel’s performance at trial triggers the second Cronic exception
because he failed to subject the State’s case to meaningful adversarial testing. We disagree.
¶ 20 The second Cronic exception to Strickland’s prejudice requirement is “narrow” and
applies “infrequently.” People v. Cherry, 2016 IL 118728, ¶27 (quoting Florida v. Nixon, 543
U.S. 175, 190 (2004)). Our supreme court has explained that the second Cronic exception
applies only when “counsel’s effectiveness has fallen to such a low level as to amount not merely
to incompetence, but to no representation at all.” (Internal quotation marks omitted.) People v.
Caballero, 126 Ill. 2d 248, 267 (1989) (citing Cronic, 466 U.S. at 659)). Since Cronic, our
supreme court has only found per se ineffectiveness under the second Chronic exception twice.
People v. Cherry, 2016 IL 118728, ¶27. The first time was in People v. Hattery, 109 Ill. 2d 449
(1985), and the second was in People v. Morris, 209 Ill. 2d 137 (2004), overruled in part on
other grounds in People v. Pitman, 211 Ill. 2d 502 (2004). Cherry, 2016 IL 118725, ¶27.
¶ 21 In Hattery, the defendant was charged with the murders of a mother and her two children.
The defendant pleaded not guilty. Hattery, 109 Ill. 2d at 458. During his opening statement, one
of defendant’s attorneys conceded that defendant had committed the murders and was eligible
for the death penalty but argued that the only issue was whether the defendant should be
sentenced to death. Id. at 458-59. At trial, the defendant’s attorneys advanced no theory of
defense, presented no evidence, and did not make a closing argument. Id. Defense counsel did
attempt to establish through cross-examination that the defendant was compelled to kill the
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victims. Id. However, compulsion is not a defense to murder; it may merely serve as a
mitigating circumstance sufficient to preclude the imposition of the death penalty. Id.
¶ 22 Our supreme court held that defense counsel’s actions did not subject the prosecution’s
case to the meaningful adversarial testing as required by the sixth amendment. Id. at 464. The
Hattery court noted that the strategy employed by defense counsel–to show that the defendant
was guilty of murder but undeserving of the death penalty–was inconsistent with the defendant’s
plea of not guilty. Id. at 464. The court held that “[c]ounsel may not concede his client’s guilt in
the hope of obtaining a more lenient sentence where a plea of not guilty has been entered, unless
the record adequately shows that defendant knowingly and intelligently consented to his
counsel’s strategy.” Id. at 465.
¶ 23 In Morris, defense counsel “readily admitted” defendant’s guilt to the jury during
opening statement. 209 Ill. 2d at 182. This admission of guilt was intended to lay the
groundwork for a plea of jury nullification based on sympathy or compassion, which the Morris
court characterized as “a minimal, nonlegal defense.” Id. at 184. Notwithstanding, our supreme
court emphasized that “defense counsel’s performance in the case at bar cannot be considered
per se ineffective simply because the defense * * * offered at trial was a nonlegal plea for jury
sympathy.” Id. After admitting guilt and pursuing a nonlegal defense, defense counsel then
introduced evidence of the defendant’s involvement in an unrelated murder, even though the trial
court had previously found the evidence inadmissible at defense counsel’s request. Id. at 184-85.
The court found that trial counsel was per se ineffective based on the “unusual convergence of
errors” (id. at 187), stating, “[d]efense counsel’s erroneous understanding of the trial court’s
ruling on the [other] murder opened the door to the introduction of graphic details regarding the
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murder, to the State cross-examining defendant for 45 minutes about the crime, and to
defendant’s admission of guilt for that murder.” Id. This was not only inherently prejudicial to
the defendant but, “[o]nce defense counsel introduced the extensive and inflammatory evidence
regarding the [other] murder, the minimal but constitutionally acceptable strategy of appealing to
the jury’s sympathy regarding the murder [at issue] was utterly negated.” Id. at 187-88.
Accordingly, the court concluded that “there was a breakdown of the adversarial process during
defendant’s trial such that there was no meaningful adversarial testing of defendant’s case.” Id. at
188.
¶ 24 Unlike the defense attorneys in Hattery and Morris, who conceded guilt, defense counsel
in this case subjected the State’s case to meaningful adversarial testing. Given the overwhelming
evidence that Scurlock resided in the basement, the possible trial strategies available to defense
counsel were entirely limited. Nevertheless, as we explain further below, defense counsel
thoroughly represented Scurlock and challenged the State’s case by arguing that the State had
failed to prove constructive possession of the ammunition.
¶ 25 Here, the State alleged that Scurlock constructively possessed ammunition found in the
basement bedroom and basement common area of the home in which he resided. Constructive
possession exists where there is no actual, personal, present dominion over contraband, but
defendant had knowledge of the presence of the contraband and had control over the area where
the contraband was found. People v. Hunter, 2013 IL 114100, ¶ 19; People v. Davis, 2021 IL
App (3d) 180146, ¶ 72. Knowledge may be inferred from circumstantial evidence. People v.
Terrell, 2017 IL App (1st) 142726, ¶ 18. Proof of defendant’s mere presence in the premises
where contraband is found is not sufficient; instead, there must be evidence that the defendant
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controlled the premises or the contraband itself, which may be shown by defendant’s habitation
in the premises where contraband is discovered. People v. Spencer, 2012 IL App (1st) 102094, ¶
17. Proof of residency in the form of rent receipts, utility bills, and clothing in closets is
relevant to show that defendant lived on the premises and therefore controlled them. Terrell,
2017 IL App (1st) 142726, ¶ 19.
¶ 26 Defense counsel entered a plea of not guilty, and extensively cross-examined the two
State witnesses. Through cross-examination of the officers, defense counsel was able to establish
that Scurlock was not found in actual possession of any contraband or in close proximity to the
contraband, that no fingerprints were recovered from the bullets, and that the officers did not see
Scurlock in the basement bedroom or common area where the ammunition was found. In
addition, defense counsel established that Scurlock never attempted to flee the residence or
discard contraband when the police arrived. In addition, defense counsel called Kenyada, who
established that she was the lessee of the residence and that six other people also lived in the
residence. Kenyada’s testimony enabled defense counsel to argue that the State could not meet
its burden to establish the knowledge and control elements of constructive possession.
¶ 27 Scurlock, however, argues that defense counsel did not go far enough in questioning
Kenyada, stating that “[w]ithout evidence that others used the basement living room and/or
bedroom, the fact that someone else could have accessed the living room or bedroom is
immaterial. Counsel needed to show that other residents or guests used the basement bedroom
and/or living room. But Kenyada never testified that she or anyone else resided in the basement
or used the living room.” We disagree.
¶ 28 As a threshold matter, Scurlock’s argument rests entirely on speculation that Kenyada
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would have offered such testimony if defense counsel had merely inquired. We see no reason to
draw that conclusion. More to the point, however, Kenyada testified that she was the lessee of
the property and that six other people lived in the home at the time, which was enough for
defense counsel to then argue that the ammunition could have belonged to any of the other six
people who resided in the house and that the State failed to prove beyond a reasonable doubt that
Scurlock had knowledge of and control over the area where the ammunition was recovered.
From Kenyada’s testimony a reasonable factfinder could infer that Kenyada and the six other
people living in the house at 7749 South Saint Lawrence on February 4, 2021, could have had
access to and control of the common areas and Scurlock’s unlocked bedroom. People v.
Campbell, 146 Ill. 2d 363, 374-75 (1992) (the trier of fact is allowed to draw reasonable
inferences from basic facts to ultimate facts.) Although we recognize that others’ access to the
ammunition found in the basement does not necessarily defeat the possibility of Scurlock
possessing them (People v. Hill, 226 Ill. App. 3d 670, 673 (1992)), it does provide an
explanation for how such items could have made their way into the home without Scurlock’s
knowledge.
¶ 29 Without Kenyada’s testimony about the six other people who resided in the home at the
time of Scurlock’s arrest, there would have been no evidence in the record upon which defense
counsel could have advanced such an argument in closing. Based on evidence elicited in cross
of the State’s witnesses, and Kenyada’s testimony on direct, defense counsel’s theory at trial
that, although Scurlock lived in the basement bedroom, he did not constructively possess the
ammunition at issue, was not entirely inconceivable. Nor was it unreasonable.
¶ 30 A number of cases illustrate why counsel was not per se ineffective because of the
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defense theory he employed. In People v. Maldonado, 2015 IL App (1st) 131874, upon
execution of a search warrant, the police found heroin hidden in a statue on a bedside table and
ammunition in a box on a bedroom dresser and in a kitchen drawer. Although the defendant was
not present at the time of the search, the State asserted that he resided at the location. Id. at ¶26.
With respect to the heroin and ammunition, this court concluded that even if the State proved
that the defendant had control over the premises, it failed to prove that the defendant had
knowledge of the contraband. Regarding the heroin, we observed that the State failed to present
any evidence that would suggest or allow the inference that the defendant was aware of the drugs
inside the enclosed statue. Id. at ¶ 41. As for the ammunition found in the kitchen drawer,
although the kitchen was a common area for all occupants, the State failed to present any
evidence “that the defendant was in proximity to the ammunition at or after it was placed in the
kitchen to allow a reasonable inference that he knew of its presence.” Id. Similarly, in People v.
Wolski, 27 Ill. App. 3d 526 (1975), the police executed a search warrant in the apartment where
the defendant and his brother resided. Other people also had access to the apartment. During the
search, the officers discovered marijuana. Id. at 527. This court held that the State failed to prove
that the defendant constructively possessed the contraband, because it did not offer any evidence
connecting the marijuana to the defendant, as opposed to the defendant’s brother or the other
number of people who frequented the apartment. Id. at 528–29.
¶ 31 Because a reasonable factfinder could infer that Scurlock did not constructively possess
the ammunition based upon Kenyada’s testimony and defense counsel’s argument, defense
counsel did not pursue such an unreasonable strategy that we must assume Scurlock was per se
prejudiced. That the trial court found Kenyada’s testimony “basically put [the case] altogether”
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does not in any sense establish that defense counsel was per se ineffective. We note that the court
went on to say that “I’m not critical of the defense for calling her.” We therefore find no per se
ineffectiveness under Cronic.
¶ 32 Scurlock, however, argues that pursuant to People v. Salgado, 200 Ill. App. 3d 550
(1990), we must find counsel ineffective under Cronic. In Salgado, the defendant was charged
along with two of his codefendants with residential burglary and theft. At trial neither the State
nor defense counsel made opening statements. Although neither of his codefendants testified at
trial, defense counsel called defendant as a witness and during direct examination elicited a
confession to the offense of residential burglary. In addition, defense counsel presented no
defense other than to assert during closing argument that defendant had a right to explain his
participation in the crime. Id. at 553. The court found Salgado guilty of residential burglary and
his codefendants guilty of theft. In so finding, the trial judge stated that prior to defendant’s
testimony, he anticipated finding defendant guilty of just theft, but because defendant admitted
that he committed the residential burglary, the court had no choice but to convict him of that
offense. We found that defense counsel’s conduct amounted to ineffective assistance because
“by pleading not guilty, defendant was entitled to have the issue of his guilt or innocence of
residential burglary presented to the court as an adversarial issue.” Id.
¶ 33 We find Salgado factually distinguishable from the case at bar. This was not a case
where defense counsel conceded Scurlock’s guilt or failed to provide a defense. As previously
stated, defense counsel’s strategy was restricted by the overwhelming evidence that Scurlock
resided in the basement bedroom and the defense theory of seeking to sow doubt of Scurlock’s
guilt by offering evidence that others in the household had access to the basement bedroom and
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common room where the ammunition was found was not entirely unreasonable. Scurlock has
not shown that his defense counsel entirely failed to subject the prosecution’s case to meaningful
adversarial testing.
¶ 34 We now turn to Scurlock’s ineffective assistance of counsel claim under Strickland.
Scurlock argues that but for counsel’s comments and Kenyada’s testimony, he would not have
been convicted. Specifically, Scurlock argues that his trial counsel was ineffective because
counsel admitted that the basement bedroom was Scurlock’s in opening and closing when he
said, “[Scurlock’s] room” and that “[Scurlock] was staying with his mother,” and then called
Scurlock’s mother as a witness to corroborate this. Kenyada testified that Scurlock had been
living with her since being placed on electronic home monitoring in December. Kenyada further
testified that Scurlock “stay[ed] in the basement.” Scurlock also argues that defense counsel had
a fundamental misunderstanding of the law of constructive possession in that defense counsel
relied on his mistaken belief that the State could not prove constructive possession, despite the
fact that Scurlock lived in the basement, because Scurlock’s name was not on the lease, his
mother could have entered the basement if she wanted to, and he did not admit to possessing the
bullets. Scurlock argues that defense counsel basically admitted that Scurlock constructively
possessed the ammunition in this case.
¶ 35 To review, under the first prong of Strickland, a defendant must demonstrate that his
attorney’s performance fell below an objective standard of reasonableness. Evans, 209 Ill. 2d at
220. Under the second prong, prejudice is shown where there is a reasonable probability that the
result would have been different but for counsel’s alleged deficiency. Id. Failure to satisfy either
prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland,
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466 U.S. at 697.
¶ 36 “[T]he choice of defense theory is ordinarily a matter of trial strategy, and counsel has the
ultimate authority to decide this trial strategy. [Citation.] This court will generally not review a
claim of ineffectiveness of counsel based on inadequate trial strategy.” People v. Guest, 166 Ill.
2d 381, 394 (1995). An exception is “where counsel entirely fails to conduct any meaningful
adversarial testing.” The fact that another attorney might have pursued a different strategy or that
the strategy chosen by counsel ultimately proved unsuccessful, does not demonstrate
incompetence or suggest ineffective representation. People v. Fuller, 205 Ill. 2d 308, 331 (2002).
¶ 37 The State presented significant evidence of Scurlock’s control over the basement
bedroom where the ammunition was found. Scurlock was present at the residence when the
police arrived. Inside the basement bedroom, officers found a temporary State identification
card in Scurlock’s name, a credit card in Scurlock’s name, several photographs of Scurlock, and
a piece of mail dated December 9, 2020, that was addressed and forwarded to Scurlock at the
residence on South Saint Lawrence Avenue from another address. In addition, the State
presented evidence of Scurlock’s control over the counter and drawers in the basement common
area where the additional ammunition was located. On top of the counter there were multiple
pieces of mail addressed to Scurlock, including correspondence from the Cook County Sheriff’s
Office, and a receipt for items ordered from a department store to be delivered to Scurlock at the
South Saint Lawrence Avenue residence.
¶ 38 Defense counsel attempted to challenge Scurlock’s constructive possession of the
ammunition in this case by arguing that Scurlock was not the lessee of the residence, Kenyada
was. Defense counsel also argued that although Scurlock’s personal items and mail were found
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in the basement bedroom and in and on top of the drawers in the common area of the basement,
other people resided in the home and had equal access to those areas so that the ammunition
could have belonged to someone other than Scurlock. Furthermore, defense counsel highlighted
that there was no physical evidence presented that established that the ammunition belonged to
Scurlock and that the officers did not see Scurlock in the bedroom or the common area of the
basement.
¶ 39 We disagree that defense counsel’s performance was unreasonable for these reasons and
for the reasons discussed in resolution of Scurlock’s Cronic argument. Defense counsel’s
theory in this case was that while Scurlock lived in the basement, there were six other people
who lived in the house at that time who had access to both the basement bedroom and the
common area in the basement. Kenyada’s testimony established that other people were living in
the home and therefore, the ammunition and magazine could have belonged to anyone. As we
see it, based on the evidence that the State presented, this was defense counsel’s only viable
strategy.
¶ 40 Scurlock relies on People v. Chandler, 129 Ill. 2d 233 (1989), to support his argument
that counsel’s performance in this case was deficient. In Chandler, the defendant and his
codefendant were charged with murder, residential burglary, and aggravated arson. Id. at 238.
At trial, the defendant’s attorney conceded that the defendant had entered the victim’s house but
argued that it was the codefendant who had stabbed the victim. Id. at 239. Counsel apparently
mistakenly believed that the jury could find the defendant not guilty if it believed that he had not
personally inflicted the fatal wounds. Id. at 247. Nevertheless, the jury was instructed on both
felony murder and accountability and thus “had no choice but to find [the] defendant guilty of
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murder.” Id. Defense counsel also failed to cross-examine several key witnesses, and called no
witnesses to testify, not even the defendant, whom counsel had asserted would be called during
opening statement. Hence, the Chandler court held that defense counsel was ineffective. “By
failing to comprehend the law of accountability and felony murder, counsel’s strategy and
actions amounted to no real defense at all. The prosecution’s case, therefore, was not subject to
meaningful adversarial testing, and defendant was deprived of a fair trial.” Id. at 249. The court
stated:
“Even when presented with a difficult case, counsel must provide reasonably effective
assistance to a defendant. Counsel failed to do so here. Counsel’s defective performance
clearly prejudiced defendant, as the jury was forced to convict defendant of the offenses
charged. We also find that there is a reasonable probability that but for counsel’s
deficient performance, the result of the trial would have been different.” Id. at 250.
¶ 41 Here, in contrast to Chandler, defense counsel extensively cross-examined the State’s
witnesses and presented testimony that aligned with his theory of defense. It was the strength of
the evidence presented by the State that seriously undermined any claim of innocence that
Spurlock could muster, not counsel’s comments or Kenyada’s testimony.
¶ 42 In reality, defense counsel had two options in this case. The first was to call Kenyada to
establish that six other individuals were residing in the home on the date of the arrest and allow
the trier of fact to infer that those individuals had access to all the rooms in the home, including
Scurlock’s bedroom and the common areas of the basement. The second was to merely argue
that the State’s evidence was insufficient to establish his guilt beyond a reasonable doubt.
Counsel made a strategic decision to pursue the former strategy. We make every effort to
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evaluate counsel's performance from his perspective at the time, rather than through the lens of
hindsight. People v. Madej, 177 Ill. 2d 116, 157 (1997). We cannot now second-guess counsel’s
strategic decision in this case, particularly considering that the trial court denied defense
counsel’s motion for “acquittal of defendants” after the State rested its case. Defense counsel’s
strategy may have been risky, but it was a reasonable strategy nonetheless, particularly where the
trial court had denied the defense motion for “acquittal of defendants” after the State rested its
case.
¶ 43 We find this case to be more similar to People v. Shatner, 174 Ill. 2d 133 (1996), and
People v. Ganus, 148 Ill. 2d 466 (1992). In Shatner, the defendant was convicted of first-degree
murder, armed robbery, and arson. The defendant appealed and argued that defense counsel was
ineffective for failing to present a defense to the charge of felony murder. During closing
argument, defense counsel told the jury “ ‘if he’s guilty of anything, he’s guilty of robbery.’ ”
Shatner, 174 Ill. 2d at 143. The defendant argued that his counsel was ineffective because he
admitted to felony murder by conceding the defendant took part in a robbery during which the
victim was killed. Id. at 145. Our supreme court distinguished its decision in Chandler, stating
claims of ineffective assistance must be reviewed on a case-by-case basis. Id. at 147. The court
stated that its finding of ineffectiveness in Chandler was not based solely on the defendant’s
alleged failure to develop a theory of innocence, but also on counsel’s failure to cross-examine
witnesses and failure to call any witnesses to testify. Id. ¶ 180. The supreme court compared the
representation offered by the defense attorney in Shatner with the defense attorney in Chandler,
finding that in Shatner counsel “aggressively cross-examined” nearly every prosecution witness
and called witnesses on defendant’s behalf to attempt to discredit the State’s witnesses and
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bolster defendant’s credibility. The court noted defense counsel tried to minimize his client’s
admitted involvement in the robbery scheme and shift the blame for both the murder and robbery
onto another person who voluntarily accompanied the defendant to the crime scene. Defense
counsel “aggressively attacked the credibility of [this other person] and portrayed her as a
calculating cocaine addict who seduced defendant into assisting her in a robbery during which
she killed the victim.” Id. at 148. “It is apparent that defense counsel sought to convince the jury
that defendant’s minimal involvement in the scheme warranted either a finding of innocence or a
conviction for robbery only. While this strategy was risky, it was strategy nonetheless, and
perhaps the only strategy which could have been seriously pursued given defendant’s admissible
incriminating statements and the overwhelming evidence of his guilt.” The court further noted:
“Ultimately, it was the defendant’s own statements, both to the FBI and on the witness
stand, and not the actions or strategy of his counsel, which undermined any claim of
innocence that defendant may have had. If a defendant enters a not-guilty plea in the face
of overwhelming evidence of his guilt, we are unwilling to find that his counsel was
ineffective simply because he failed to contrive a leak-proof theory of innocence on
defendant’s behalf. To do so would effectively require defense attorneys to engage in
fabrication or subterfuge.” Id. at 148.
¶ 44 In Ganus, 148 Ill. 2d 466, the defendant was convicted of first-degree murder and argued
that trial counsel was ineffective because he elicited prejudicial testimony about gang activity
and the defendant’s ties to the gang. This testimony had been introduced in an effort to establish
an affirmative defense of compulsion, a defense not available to the defendant. Our supreme
court concluded that trial counsel was not ineffective, stating:
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“What the instant case presents is a situation where the defendant literally had no
defense. Evidence of his guilt was overwhelming. His counsel conceived a compulsion
defense which, though not a legal defense, could or might have persuaded a jury not to
convict. Jury nullification is always a possibility. It is not inconceivable that a
compulsion defense might have evoked empathy, compassion or understanding and
sympathy in the minds of the jurors. It is a truism that if a man is drowning, he will grasp
at a straw that comes floating by. A weak or insufficient defense does not indicate
ineffectiveness of counsel in a case where a defendant has no defense. In this case it
would appear that defense counsel used his imagination and resourcefulness to come up
with something where he had nothing to go on.” Id. at 473-74.
¶ 45 While we need not determine whether Scurlock suffered prejudice because a criminal
defendant must show both unreasonable performance and prejudice under Strickland, we
nevertheless find that Scurlock suffered no prejudice as a result of defense counsel’s comments
and his decision to elicit certain testimony from Kenyada. First, defense counsel’s comments
made during opening and closing arguments are not evidence. Second, notwithstanding
counsel’s comments and Kenyada’s testimony, given that the evidence that Scurlock lived in the
basement bedroom where the ammunition was found was so strong, there is simply no
“reasonable probability” that the result would have been different without those comments or
testimony. Based on the court’s comments in finding Scurlock guilty, it is clear that the court
relied on Scurlock’s personal items that were found in the bedroom and on the counter in the
common area to find Scurlock guilty and certainly not solely or even predominantly on the basis
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of Kenyada’s testimony. We simply cannot find any reasonable probability of a different result
because of this choice by defense counsel.
¶ 46 Accordingly, we find that trial counsel was not ineffective as counsel’s representation
was not unreasonable and Scurlock suffered no prejudice where the evidence of Scurlock’s
constructive possession was sufficient.
¶ 47 CONCLUSION
¶ 48 Based on the foregoing, the judgment of the circuit court is affirmed.
¶ 49 Affirmed.
¶ 50 JUSTICE C.A. WALKER, dissenting:
¶ 51 I respectfully dissent because I would find counsel was ineffective pursuant to Strickland
by misapprehending the law on joint possession and mistakenly believing that Kenyada's
testimony precluded a finding of constructive possession. The majority found defense counsel
rendered effective assistance pursuant to United States v. Chronic, 466 U.S. 648 (1984), because
counsel subjected the State's case to meaningful adversarial testing by extensively cross-
examining two State witnesses and presenting Kenyada's testimony to establish doubt that
Scurlock had constructive possession of the ammunition. The majority also found counsel
rendered effective assistance pursuant to Strickland v. Washington, 466 U.S. 668 (1984), because
(1) counsel's performance was reasonable where he presented Kenyada's testimony as a viable
defense strategy and (2) no prejudice occurred where the State presented overwhelming evidence
that Scurlock had constructive possession of the contraband despite Kenyada's testimony. I
disagree with the majority's assessment of the case.
¶ 52 As the majority asserts, to state a claim of ineffective assistance of counsel under
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Strickland, a defendant must show (1) counsel's performance was deficient and (2) counsel's
actions resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984); People v. Evans, 209 Ill. 2d 194, 220 (2004). First, I will analyze the objective
reasonableness of defense counsel's conduct. The competence of trial counsel is to be determined
by the totality of the counsel's conduct. People v. Lemke, 349 Ill. App. 3d 391, 398 (2004).
"When a choice of trial strategy is based upon a misapprehension of the law, the claim is
reviewable and counsel may, in fact, have been ineffective." Id. at 399. To sustain Scurlock's
conviction, the State had to prove Scurlock had knowing possession of the ammunition found at
the Saint Lawrence Avenue residence and had a prior felony conviction. 720 ILCS 5/24-1.1(A)
(West 2020). Because Scurlock was not in actual possession of the contraband, the State had to
prove constructive possession. People v. Carter, 339 Ill. App. 3d 876, 879 (2003). Constructive
possession occurs when a defendant has knowledge of the presence of contraband and exercises
immediate and exclusive control over the area where the contraband was found. Id. The rule that
possession must be exclusive does not mean, however, that the possession may not be joint.
People v. Givens, 237 Ill. 2d 311, 335 (2010). "If two or more people share the intention and
power to exercise control, then each has possession." Id.
¶ 53 The majority states, given the State's overwhelming evidence, defense counsel's theory
that the ammunition could have belonged to anyone living at the residence was the only viable
strategy. Supra ¶ 38. However, I would find this strategy was not viable because it is contrary to
precedent that constructive possession may be established despite joint possession of the area
where the contraband is found. See Givens, 237 Ill. 2d at 335.
¶ 54 During trial, the State presented evidence that the police found one bullet inside a dresser
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drawer in the basement bedroom. Several items belonging to Scurlock were found in the
basement bedroom, including a piece of mail addressed to Scurlock that listed the Saint
Lawrence Avenue residence as the forwarding address, Scurlock's temporary state identification
card, a credit card in Scurlock's name, and pictures of Scurlock. In the common area of the
basement, the police found an extended magazine and three .40 caliber bullets inside a drawer. In
a different drawer and on a counter in the common area, the police found pieces of mail
addressed to Scurlock, three of which listed the Saint Lawrence Avenue residence as the
forwarding address. The police also found a store receipt for an order in Scurlock's name on top
of the counter.
¶ 55 Contrary to established law on joint possession, defense counsel argued that the State
could not prove Scurlock had constructive possession because Kenyada had access to the
basement and elicited testimony that Kenyada was the lessee of the residence. In doing so,
counsel also continuously admitted Scurlock lived in the basement bedroom, thereby conceding
that Scurlock had constructive possession of the contraband. Counsel stated during opening
statements, "the evidence will show that there was a sum total of one bullet found in Kevon
Scurlock's room." Counsel also called Kenyada as a defense witness where she testified on cross-
examination that Scurlock was on electronic monitoring at the Saint Lawrence Avenue
residence, was living at the residence, and was staying in the basement. She further narrowed
Scurlock's living arrangement to the basement when she testified that her 10-year-old daughter
and Scurlock's co-defendant each stayed in one of the two bedrooms upstairs. Kenyada also
testified that the co-defendant lived in Missouri and temporarily came to her residence for his
children's birthdays. At the end of the trial, counsel repeatedly mentioned that the basement
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bedroom belonged to Scurlock during closing arguments.
¶ 56 The trial judge's repeated admonishments further evinced counsel's misapprehension of
the law. The judge explained to counsel that Scurlock's failure to make an incriminating
statement was not proof that he did not possess the contraband. When counsel argued that there
was a lack of evidence of knowledge because Scurlock did not make an admission, the court
informed counsel that "[y]ou cannot argue either before a judge or a jury defendant did not
confess and argue that's in his favor. Because he has a right to remain silent and not say
anything. If he doesn't say anything, how is that helpful to him at all?" The judge even
interrupted counsel's closing remark and questioned his decision to mention Kenyada's
testimony, stating "She did say both lived there pretty much at the time of the incident. So what
did she add that's helpful to the defense that is?" See People v. Baines, 399 Ill. App. 3d 881, 898
(2010) ("Another factor which also contributes to a finding of ineffective assistance of counsel
resulting in prejudicial and reversible error is the necessity of frequent intervention by the trial
court to guide defense counsel through rudimentary trial procedures and to correct mistakes
made by counsel."). However, counsel adamantly argued that Kenyada's testimony showed
Scurlock did not have constructive possession of the contraband.
¶ 57 The judge and prosecutor recognized the importance of Kenyada's testimony and used it
as a basis for conviction. Highlighting Kenyada's testimony during closing arguments, the
prosecutor stated Kenyada "says that [Scurlock] was staying there, he lived there, he was in the
basement." The trial judge relied on Kenyada's testimony in its finding of guilt, stating
"Scurlock's mother *** indicates beyond a reasonable doubt in my opinion that Scurlock stayed
in the basement. Her son stayed in the basement with the stuff in the basement *,** and the
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bullet downstairs in the basement [was] attributable, in my opinion, to Kevon Scurlock."
¶ 58 The majority states that defense counsel had two available trial strategies: (1) call
Kenyada as a witness or (2) argue that the State's evidence was insufficient. Supra ¶41.
However, the majority fails to acknowledge that counsel's decision to call Kenyada was tainted
by a misapprehension of the law, and in turn, helped reinforce the State's case. Even assuming
counsel intended to make the State's evidence of constructive possession more tenuous through
Kenyada's testimony that six other individuals lived at the residence, his strategy failed when her
testimony established where each person stayed in the residence, including Scurlock. This type
of assistance cannot be viewed as reasonable. Given counsel's multiple assertions about
Scurlock's joint possession of the basement, which established Scurlock's guilt, I would find
counsel's performance was deficient.
¶ 59 Furthermore, I would find counsel's deficient performance prejudiced Scurlock. Contrary
to the majority's reasoning (supra ¶ 44), the State's evidence was not overwhelming. The State
presented several pieces of evidence of habitation including pieces of mail addressed to
Scurlock, photos of Scurlock, his credit card, and his identification card. Each item is only part
of the evidence used to support an inference that a defendant controlled the location where the
contraband was found. See generally People v. Castino, 2019 IL App (2d) 170298, ¶ 19
("[c]ircumstantial evidence is proof of facts and circumstances from which the trier of fact may
infer other connected facts that reasonably and usually follow according to common
experience"); see also People v. Maldonado, 2015 IL App (1st) 131874, ¶ 29 (noting that mail is
"part of the evidence used to support an inference that the defendant controlled the location
where the contraband was recovered").
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¶ 60 Indeed, this court found the aggregate of similar evidence insufficient to establish
constructive possession. See People v. Terrell, 2017 IL App (1st) 142726, ¶ 19-31 (finding large
men's clothes, two prescription bottles, an adult probation card bearing the defendant's name, a
passport, and a framed photo depicting the defendant recovered at the apartment was insufficient
evidence of habitation necessary to establish constructive possession). Additionally, the fact that
the ammunition was found either inside a dresser drawer in the bedroom or inside a drawer in the
common area further undermines the State's case. See People v. Macias, 299 Ill. App. 3d 480,
487 (1998) (finding no inference of defendant's knowledge of the contraband can be inferred
where the contraband was not in plain view to the defendant); Terrell, 2017 IL App (1st) 142736,
¶ 30 ("Assuming arguendo-due to the presence of his passport, the prescription bottles, the adult
probation card, the large men's clothes, and the framed picture in the living room and dining
room-that [defendant] had some connection with the residence, the fact that the contraband was
concealed in a compartment in the hallway closet undercuts the inference that he had knowledge
of its existence.").
¶ 61 Had defense counsel not called Kenyada, the State would have had trouble showing
defendant resided in the basement specifically, which would have weakened the inferences
needed to establish both control and knowledge. Without Kenyada testifying as to where
defendant and co-defendant stayed respectively, it would be difficult for the factfinder to
differentiate between who owned the firearm (found upstairs) and bullets (found downstairs). By
Kenyada testifying that co-defendant's area was upstairs, and defendant's area was in the
basement, the picture became much clearer, as the court itself acknowledged. Also, there was no
testimony of defendant's clothing in the basement bedroom. This is a fact defense counsel could
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have used to support an argument that the State's evidence suggested only transient presence. and
not residence such that inferences of control of the basement areas, and knowledge of the bullets,
became reasonable.
¶ 62 Considering the totality of the evidence, Kenyada's direct testimony that Scurlock lived in
the basement bedroom tipped the scale in favor of the State's circumstantial evidence. Kenyada's
testimony was the crux of the trial judge's finding that Scurlock had constructive possession of
the contraband. As previously stated, the judge found that Kenyada's testimony "indicates
beyond a reasonable doubt in my opinion that Scurlock stayed in the basement" and showed the
bullet found in the basement was "attributable" to Scurlock. Given the State's dubious evidence
of habitation and the court's finding that Kenyada's testimony connected Scurlock to the
basement bedroom, there is a reasonable probability that the results would have been different
had counsel not presented Kenyada's testimony.
¶ 63 I would find that defense counsel rendered ineffective assistance. By misapprehending
the law on joint possession, counsel conceded Scurlock had constructive possession of the
contraband. Counsel's performance prejudiced Scurlock where Kenyada's testimony tipped the
scale in favor the State's circumstantial evidence and was the crux of the trial court's finding that
Scurlock had constructive possession of the contraband. I would reverse Scurlock's conviction
and remand so that he may have a fair trial. Therefore, I respectfully dissent.
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