People v. Strickland

Opinion

FIRST DIVISION March 8, 2010

No. 1-08-1304

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 07 CR 6122 ) LEONARD STRICKLAND, ) The Honorable ) Daniel P. Darcy, Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

Following a jury trial, the defendant was convicted of one

count of delivery of a controlled substance containing less than

one gram of heroin and sentenced to 15 years in prison. The

defendant contends the trial court committed reversible error by

refusing to rule on his motion brought pursuant to People v.

Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971), until after he

testified, thereby interfering with his ability to knowingly

exercise his constitutional right to testify. The defendant

further contends the trial court violated his right to an

impartial jury by failing to ensure that the individual jurors

understood and accepted the principles set forth in People v.

Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), now embodied in

Illinois Supreme Court Rule 431(b) (Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). No. 1-08-1304

Lastly, the defendant contends he was denied his right to

effective assistance of counsel where the defense theory was that

the State failed to present physical evidence tying the defendant

to the drugs, yet trial counsel elicited from a State witness

testimony allegedly defeating that theory.

Because we find the defendant forfeited his Montgomery-based

claim by failing to testify, the jury was properly admonished

pursuant to Supreme Court Rule 431(b), and defense counsel

provided effective assistance, we affirm.

BACKGROUND

Prior to trial, both parties submitted motions in limine

regarding the admissibility of the defendant's prior convictions

for impeachment purposes. The court deferred its ruling: "I am

going to rely on a U.S. case, which is Luce versus U.S., [469

U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984),] and I will

have to make my decision if and when the defendant should testify

in order to make the proper ruling." Defense counsel objected

and asked the court to issue a ruling prior to trial; the court

did not.

The evidence at trial established that on February 18, 2007,

the defendant was arrested in front of his home at 940 North

Monticello in Chicago, with another individual, Derrick Crowder.

No currency or drugs were found on the defendant's person or in

the area.

Five police officers testified to the circumstances of the

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defendant's arrest. The officers were part of a 10-member team

sent to the area of Monticello and Augusta in Chicago with

instructions to purchase drugs with marked police funds, referred

to as section 1505 funds. Officers Singleton and Randolph, two

plainclothes officers, conducted surveillance of the area from

separate, parked, unmarked vehicles. Undercover officers Mar and

Contreras acted as purchase officers and arrived in the area in

an unmarked vehicle. All four officers were in radio contact

with enforcement officers Bates and Liss, who were stationed

nearby.

When they arrived at the intersection of Monticello and

Augusta, Officers Mar and Contreras saw an individual they

identified at trial as the defendant. Officer Mar testified the

defendant was standing in the middle of the street about 20 feet

away. Officer Contreras, who was seated in the passenger side of

the vehicle, testified the defendant was standing on the west

side of Monticello. The officers described the defendant as

wearing a black coat, gray, hooded sweatshirt, blue jeans and tan

boots. The defendant was not waving down cars, just standing in

the street.

Officers Mar and Contreras drove up to the defendant with

the driver's side window rolled down and Officer Mar engaged the

defendant in conversation. The defendant inquired as to what

Officer Mar needed. Officer Mar asked for "three blows," meaning

heroin. The defendant directed Officer Mar to park his vehicle

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near 958 North Monticello. The defendant then walked southbound

and entered a gangway a few buildings away. When the defendant

entered the gangway, both Officers Mar and Contreras and the

surveillance officers, Singleton and Randolph, lost sight of the

defendant.

The officers testified the defendant soon emerged from the

gangway, approached within a foot and a half of the driver's side

window of Officer Mar's vehicle and facing Officer Mar directly,

exchanged two foil packets for $30 of section 1505 funds.

Although expecting three foil packets, Officer Mar drove away

immediately after receiving two packets. As he drove away,

Officer Mar communicated a description of the defendant to

Officers Liss and Bates.

Officer Singleton, who had witnessed the transaction from

his vehicle, testified that after Officer Mar drove way, the

defendant walked southbound on Monticello, appearing to count the

funds he had been handed. The defendant then met an unidentified

black man dressed in dark clothing who had emerged from the same

gangway the defendant had entered earlier. The men shook hands

and the unidentified individual walked back into the gangway, out

of Officer Singleton's sight. The defendant remained on

Monticello, but Officer Singleton could no longer see any United

States currency in the defendant's hands. Officer Singleton did

not include the defendant's encounter with the unidentified man

in his incident report. Officer Randolph did not see this

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encounter.

The defendant was subsequently approached by a second

individual, identified by the officers at trial as Derrick

Crowder. As Crowder approached the defendant, the enforcement

officers arrived. The enforcement officers detained both

individuals. Before either individual was handcuffed, Officers

Mar and Contreras returned. From inside their vehicle, about 20

feet away, Officers Mar and Contreras identified the defendant as

the individual that sold them the foil packets.

A custodial search of the defendant recovered no drugs or

section 1505 funds. After placing the defendant in his unmarked

vehicle, Officer Liss searched the gangway the defendant had

entered and the surrounding area for the individual the defendant

had encountered as related by Officer Singleton. Officer Liss

did not see another individual; no section 1505 funds were ever

recovered.

A forensic scientist testified the foil packets tested

positive for the presence of heroin.

The defendant did not testify at trial and the defense

presented no evidence. The defense theory was that the State

failed to prove the defendant was the individual that sold the

officers the heroin because no currency or drugs were found on

the defendant. During cross-examination of the officers, defense

counsel elicited that recording capabilities were available

during the surveillance, but not used, and that the foil packets

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were not checked for fingerprints. Defense counsel sought to

further bolster this theory during her cross-examination of the

forensic scientist. In response to defense counsel's

questioning, the forensic scientist testified that his lab did

not routinely check items like the foil packets for fingerprints,

explaining that, although he was not an expert, it was his

opinion that it was unlikely that fingerprints could be

successfully lifted from the foil packets. On redirect, the

State elicited testimony that either party could have requested a

fingerprint examination of the packets but neither party did. It

is this exchange that the defendant premises his ineffective

assistance of counsel claim.

The jury returned a guilty verdict. In his motion for a new

trial, of the three issues brought here, the defendant raised

only his claim that the trial court erred in refusing to rule on

his Montgomery motion until after he testified. This timely

appeal followed.

ANALYSIS

Montgomery Motion

The defendant first argues that the trial court committed

reversible error by refusing to rule on his motion in limine to

bar the admission of evidence of his prior convictions pursuant

to Montgomery until after the defendant testified. The defendant

contends that by doing so, the trial court interfered with his

"constitutional right to testify."

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Though the defendant phrases this issue as centering on his

"constitutional right to testify," we see no reason to frame our

analysis on such a right. Though it appears no longer an open

question that such a constitutional right exists1, we discern the

controlling issue to be whether the trial court's decision to

defer ruling on the defendant's motion in limine prevented the

defendant from testifying. See People v. Knox, 58 Ill. App. 3d

761, 767, 374 N.E.2d 957 (1978).

Against the backdrop of a constitutional right to testify,

the Knox court concluded that the dispositive question is whether

the defendant "was prevented from testifying." Knox, 58 Ill.

App. 3d at 767. In what now might be described as a motion

pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045

(1984), the defendant in Knox filed a pro se " 'affidavit in

support of motion' *** [wherein he] stated that his attorney had

prevented him from testifying in his own behalf, even though

1 "We concur with [the statement by federal courts that a

defendant has a constitutional right to testify in his own

behalf.] Furthermore, we believe it would be anomalous indeed

that the sixth and fourteenth amendments to the United States

Constitution guaranteed a criminal defendant the right to make

his own defense by representing himself as pro se counsel

[citation], yet that same defendant possessed no constitutional

right to testify in his own defense." People v. Knox, 58 Ill.

App. 3d 761, 766, 374 N.E.2d 957 (1978).

7 No. 1-08-1304

defendant had desired to do so." Knox, 58 Ill. App. 3d at 763.

The court found no support in the record that "his right to

testify was violated by his trial counsel." Knox, 58 Ill. App.

3d at 763. Rather, the court held that if trial counsel advises

his client not to testify and "the client acquiesces in his

counsel's conduct in this regard he should be bound by such

action. [Citation.] Like any other right, the right to testify

may be waived." Knox, 58 Ill. App. 3d at 767.

Based on Knox, we determine that the instant defendant's

contention is implicitly a claim that he was prevented from

testifying by the circuit court's refusal to rule on his motion

in limine prior to trial. The issue, in terms of waiver, is

whether the defendant waived the issue of the trial court's

deferral of its ruling on the defendant's motion in limine when

he failed to take the stand. Stated differently, in light of the

defendant's decision not to exercise his right to testify based

on the trial court's refusal to rule first, is it a matter of

speculation that the defendant would have testified had the trial

court timely ruled on the motion in limine regarding the

admissibility of his prior convictions for impeachment purposes

under Montgomery? See People v. Patrick, 233 Ill. 2d 62, 78, 908

N.E.2d 1 (2009) ("any possible harm flowing from the trial

court's denial of a motion in limine to bar impeachment by a

prior conviction is wholly speculative absent the defendant's

testimony"), citing Luce v. United States, 469 U.S. 38, 41-43, 83

8 No. 1-08-1304

L. Ed. 2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984).

In his main brief, the defendant asserts that because "[t]he

trial court abused its discretion where it cited a blanket policy

to defer ruling on Strickland's Montgomery motion *** this Court

should reverse Strickland's conviction and remand for a new

trial." The State denies there is any support in the record for

such a "blanket policy" finding. Certainly, there is no

statement by the trial court here that it does not issue

"advisory opinions" when presented with such a motion as was

present in Patrick. Patrick, 233 Ill. 2d at 74. Nonetheless,

even assuming arguendo that such a blanket policy underlies the

trial judge's decision in this case, we determine that such a

finding alone is insufficient to warrant a new trial given the

supreme court's decision in Patrick.

The defendant is essentially asking that we remand for a new

trial without requiring of the defendant a showing that the trial

on remand will be different from the trial that concluded with

his conviction, that is, the defendant would once again elect not

to testify. To grant a new trial based on no more than a showing

of an abuse of discretion, as the defendant requests, would be to

engage in the very speculation that spurred the supreme court's

decision in the companion case in Patrick.

The speculative nature of the defendant's claim of prejudice

here is best demonstrated by a contrast of Patrick and its

companion case, Phillips. The contrasting circumstances show why

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defendant Patrick was prejudiced by the trial court's deferral of

its ruling on his motion in limine and, in defendant Phillips'

case, why speculation abounded, making his claim not subject to

review.

In Patrick, the circuit court declined to rule on the

Montgomery-based motion in limine until the defendant had

testified in accordance with the circuit court's blanket policy

against such "advisory opinions." Patrick, 233 Ill. 2d at 74.

The supreme court ruled that the circuit court's deferral of its

ruling on the motion in limine prejudiced defendant Patrick

because "Patrick's counsel was unable to inform the jury whether

Patrick would testify and was anticipatorily unable to disclose

Patrick's prior convictions to lessen the prejudicial effect the

convictions would have on his credibility." Patrick, 233 Ill. 2d

at 75. In other words, defendant Patrick's trial might well have

been different, at least as to his opening statement and direct

testimony.

As to defendant Phillips, "[t]he trial judge granted the

motion in limine in part and determined that one of Phillips'

convictions would be excluded, but stated he could not determine

whether three other convictions *** were more probative than

prejudicial until he heard Phillips' testimony." Patrick, 233

Ill. 2d at 67. The trial court never issued its ruling on the

remaining three convictions because defendant Phillips never

testified, leading to the supreme court's ruling that "any

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possible harm flowing from the trial court's denial of a motion

in limine to bar impeachment by a prior conviction is wholly

speculative." Patrick, 233 Ill. 2d at 78. Just as in Luce, it

appears defendant Phillips made "no commitment *** that he would

testify if the motion were granted, nor did he make a proffer to

the court as to what his testimony would be." Luce, 469 U.S. at

39, 83 L. Ed. 2d at 446, 105 S. Ct. at 462. Thus, the claimed

harm was not the only speculative component to defendant

Phillips' claim; it was also a matter of speculation that

defendant Phillips would have testified had the circuit court

made a timely ruling on his motion in limine.

Of course, a defendant is under no obligation to testify,

which means that only when a defendant knows in advance of trial

that he will be taking the stand will he so inform the jury in

his opening statement. Under circumstances where a defendant is

unsure whether he will testify, defense counsel will not

represent to the jury that the defendant will take the stand. In

other words, even with a pretrial ruling, a defendant will not

inform the jury that he will take the stand unless he, in fact,

plans to testify, as defendant Patrick did.

Of course, only if a defendant testifies does an

anticipatory disclosure of admissible prior convictions, to

lessen the prejudicial impact on his credibility, come into play.

If the defendant does not take the stand, the opportunity to own

up to prior convictions before the jury in his direct testimony

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is of no moment.

Under Knox, we examine whether the trial court's refusal to

rule on the motion in limine prevented the defendant from

testifying. Had the ruling in defendant Phillips' case been made

pretrial, some or all three of his remaining convictions would be

ruled admissible as impeachment or not. Under the worst case

scenario, all three of his prior convictions would have been

found admissible for impeachment. Under the best case scenario,

some or all three of his prior convictions would have been found

more prejudicial than probative, barring their disclosure to the

jury.

Under the worst case scenario, no speculation is involved in

our conclusion that the record does not support a finding that

the defendant was prejudiced by the trial court's decision to

defer its ruling on the admissibility of the three remaining

convictions. This is so because the trial court's deferral of

its ruling could have made no difference in the defendant's

decision not to testify. If the defendant were intent on

testifying, his expectation under the worst case scenario would

have been that all three convictions would be introduced for

impeachment purposes. His failure to testify demonstrates that

the absence of a pretrial ruling where the trial court would have

found all three prior convictions admissible under Montgomery did

not prevent the defendant from testifying, causing him no

prejudice.

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It is under the best case scenario that defendant Phillips'

claim is grounded in speculation. When considering a motion in

limine to exclude prior convictions, the circuit court must weigh

the probative value of a prior conviction against the prejudicial

effect to the defendant. It is not simply that the circuit

court's delay in ruling on the motion in limine prejudiced

defendant Phillips; rather, necessary to defendant Phillips'

claim that he was prejudiced is a demonstration that the record

supports a favorable ruling by the trial court on his motion in

limine. The defendant must urge that we speculate on the trial

court's ruling under Montgomery to support his claim that he was

prejudiced by the trial court's failure to issue a timely

decision.

In other words, defendant Phillips' true claim is that the

trial court would have granted, in whole or in part, his motion

to bar the admissibility of his three remaining convictions

(otherwise the worst case scenario would obtain). We cannot

review a decision by the circuit court that was never made. "A

reviewing court is handicapped in any effort to rule on subtle

evidentiary questions outside a factual context." Luce, 469 U.S.

at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463. This is

especially true when, under an abuse of discretion standard, our

review must accord deference to the circuit court's ruling. See

People v. Donoho, 204 Ill. 2d 159, 186, 788 N.E.2d 707 (2003)

(under an abuse of discretion standard, "[t]he reviewing court

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owes some deference to the trial court's ability to evaluate the

impact of the evidence on the jury"). More to the point, as best

we can tell, no argument was made by defendant Phillips that the

circuit court should have barred some or all of his prior

convictions for purposes of impeachment.

In any event, we find it improbable that any record would

support a showing that the circuit court would have issued a

favorable ruling on a defendant's motion in limine when, by

virtue of the defendant not testifying, no ruling was ever

issued. "On the record such as here, it would be a matter of

conjecture whether the District Court would have allowed the

Government to attack petitioner's credibility at trial by means

of the prior conviction." Luce, 469 U.S. at 42, 83 L. Ed. 2d at

448, 105 S. Ct. at 463. Of course, it remains a matter of

conjecture that were a new trial granted to defendant Phillips,

his new trial would differ from the trial that resulted in his

conviction, that is, he would elect to testify.

Thus, the prejudice identified in defendant Patrick's

situation would only arise if a defendant testifies. When a

defendant does not testify, any claim of prejudice owing to not

knowing in advance of trial the circuit court's ruling on his

Montgomery motion is speculative. In other words, a defendant in

Phillips' situation can make no showing that his trial would have

been different had the trial court timely ruled on his motion in

limine when he fails to testify. That the trial court's deferral

14 No. 1-08-1304

of its ruling did not prevent the defendant from testifying is

demonstrated in a very practical sense when we consider that the

trial court deferred its ruling in defendant Patrick's trial, yet

defendant Patrick testified.

The speculative nature of defendant Phillips' claim leads us

back to the dispositive question before us under Knox: whether

the absence of a pretrial ruling prevented the defendant here

from testifying. As in Phillips' case, the answer must be in the

negative when the defendant does not testify. Under the worst

case scenario, with a ruling that all of the defendant's prior

convictions were admissible, it is inescapable that the defendant

would not have testified just as he did not testify when no

timely ruling of his motion in limine was made. Under the best

case scenario, that all prior convictions were inadmissible,

essential to a finding that the deferral prevented the defendant

from testifying is a necessary finding that the circuit court

would have ruled the prejudicial impact outweighed the probative

value of the evidence. However, we cannot review a ruling by the

trial court that was never made. Nor does the defendant argue

that his motion in limine should have been granted; he argues

only that he was entitled to a ruling.

When the defendant does not testify, it is grounded on

conjecture to find the defendant was prevented from testifying

because some or all of his prior convictions should have been

ruled inadmissible. The very ruling by the circuit court

15 No. 1-08-1304

necessary for his claim of prejudice is foreclosed by his failure

to testify. We reject the implied argument by the defendant that

he was prevented from testifying because he expected a favorable

ruling by the trial court on his motion in limine that was never

issued.

In Patrick, the supreme court found not only that defendant

Phillips suffered no prejudice when he did not testify, the court

reversed the appellate court's ruling that the circuit court

abused its discretion in deferring its ruling on the

admissibility for impeachment purposes of the three remaining

prior convictions until after the defendant testified. Patrick,

233 Ill. 2d at 77. The supreme court reasoned "that the issue of

the trial court's refusal to rule on Phillips' motion in limine

seeking to bar the use of prior convictions for impeachment was

not preserved for review because Phillips chose not to testify."

Patrick, 233 Ill. 2d at 77. As support, the supreme court relied

on the very case the trial judge here read as granting him

authority to defer ruling on the defendant's motion in limine--

Luce, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460. Luce held

that a trial court's denial of a motion in limine to bar the

introduction of impeaching prior convictions was not reviewable

on appeal where the defendant did not testify. Luce, 469 U.S. at

41-43, 83 L. Ed. 2d at 447-48, 105 S. Ct. at 463-64. Consistent

with federal court cases that have found nonreviewable a trial

court's refusal to rule on the admissibility of prior convictions

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until a defendant has testified (see People v. Phillips, 371 Ill.

App. 3d 948, 952, 908 N.E.2d 823 (2007), rev'd, 233 Ill. 2d 62,

908 N.E.2d 1 (2009) (and cases cited therein)), our supreme court

read Luce to bar review even of the trial court's decision not to

rule on a defendant's motion in limine. Patrick, 233 Ill. 2d at

79. Thus, the appellate court in Phillips was wrong to find an

abuse of discretion on the part of the trial judge even though it

rejected reviewing the defendant's claim of prejudice because the

defendant did not testify. Patrick, 233 Ill. 2d at 79.

As the defendant points out in his brief, the supreme court

has granted leave to appeal in two cases that share circumstances

with the two cases addressed in Patrick. The supreme court has

granted review to determine whether a circuit court's "blanket

policy" (as in defendant Patrick's case) of deferring its ruling

on a motion in limine warrants granting relief even if the

defendant does not testify (as in defendant Phillips' case).

People v. Tucker, No. 1-06-2619 (May 12, 2008) (unpublished under

Supreme Court Rule 23), appeal allowed, 231 Ill. 2d 684, 904

N.E.2d 985 (2009); People v. Averett, 381 Ill. App. 3d 1001, 886

N.E.2d 1123 (2008), appeal allowed, 231 Ill. 2d 671, 904 N.E.2d

985 (2009).

Based on Patrick, the initial question before the supreme

court in the pending cases is whether the trial court's deferral

of its ruling is subject to review for an abuse of discretion,

much as the appellate court ruled in Phillips. If the supreme

17 No. 1-08-1304

court determines that the issue may be reviewed for an abuse of

discretion and, under the facts, finds an abuse of discretion

occurred, then the question becomes whether the defendant was

prejudiced by the trial court's deferral as the supreme court

determined in defendant Patrick's appeal.

Here, however, the defendant makes no showing that he was

prevented from testifying by the trial court's failure to issue a

pretrial ruling on the defendant's motion in limine. In other

words, we are offered no basis to find harm to the defendant when

he makes no showing that the new trial he seeks would differ from

the trial that resulted in his conviction. We decline the

defendant's invitation to grant a new trial based solely on a

purported blanket policy by the trial court of deferring to rule

on a motion in limine, at least until the supreme court tells us

otherwise. As we noted, the State denies the record here

supports a "blanket policy" finding.2

Nonetheless, under the analysis followed by the supreme

court in Patrick, we conclude that the defendant must show

prejudice to warrant a new trial even where it can be said the

trial court "refuse[d] to exercise any specific discretion."

Patrick, 233 Ill. 2d at 74. The defendant makes no such showing

2 There is no difference in outcome had the defendant

asserted the less serious infraction that the circuit court

abused its discretion by deferring its ruling even where it had

no blanket policy, as the State contends here.

18 No. 1-08-1304

of prejudice here; nor does the defendant contend that the

exception to the rule requiring actual prejudice should apply.

See People v. Dixon, 23 Ill. 2d 136, 137, 177 N.E.2d 206 (1961).

In Dixon, our supreme court determined the exception to the

rule requiring a showing of prejudice applies where it "would be

impossible or inordinately difficult to make [a showing of

prejudice,] for it can not be shown how the testimony might have

differed had the motion [to exclude] been allowed." Dixon, 23

Ill. 2d at 140. In Dixon, the trial judge denied the defendant's

motion to exclude witnesses based solely on his practice to the

contrary: " 'Well, I don't like to do that.' " Dixon, 23 Ill. 2d

at 137. While the supreme court ultimately determined that it

remains within the trial court's discretion whether to grant such

a motion, "a motion to exclude witnesses should normally be

allowed." Dixon, 23 Ill. 2d at 140. "In order to uphold the

denial of a motion to exclude, the record should disclose a sound

basis for such denial. *** Where the record discloses an

arbitrary denial of a motion to exclude witnesses, as in the

present case, it is not necessary for the defendant to establish

that he has been prejudiced thereby." Dixon, 23 Ill. 2d at 140.

Whether a judicial practice of deferring a ruling on a

motion in limine should give rise to a presumption of prejudice

in preventing a defendant from testifying in the same way a

judge's practice of arbitrarily refusing to exclude witnesses

makes unnecessary a showing of prejudice, we must leave to our

19 No. 1-08-1304

supreme court to determine in the cases pending before it. If

the supreme court should determine such a claim is reviewable,

even in the absence of a defendant testifying, and, still

further, should find prejudicial error to warrant a new trial,

then we expect our decision here to be vacated.

Because we find the issue before us settled law, the outcome

here is predetermined. See Averett, 381 Ill. App. 3d at 1020

("defendant's failure to testify eliminates the circuit court's

refusal to rule as a reviewable issue"), appeal allowed, 231 Ill.

2d 671, 904 N.E.2d 985 (2009); People v. Harris, 123 Ill. 2d 113,

129, 526 N.E.2d 335 (1988) ("the precedential effect of an

appellate court opinion is not weakened by the fact that a

petition for leave to appeal has been granted and is pending in

that case"). The defendant's claim based on a motion brought

pursuant to Montgomery is not subject to review when he fails to

testify.

Supreme Court Rule 431(b)

The defendant next argues the trial court erred in

conducting voir dire by failing to ascertain the individual

understanding and acceptance of the Zehr principles of each juror

in violation of amended Illinois Supreme Court Rule 431(b)

(Official Reports Advance Sheet No. 8 (April 11, 2007), R.

431(b), eff. May 1, 2007), thereby depriving him of his

constitutional right to a fair and impartial jury.

In Zehr, the supreme court held the trial court erred by

20 No. 1-08-1304

refusing defense counsel's request to ask certain questions

during voir dire. Zehr, 103 Ill. 2d at 476-78. The supreme

court determined:

"[E]ssential to the qualification of

jurors in a criminal case is that they know

that a defendant is presumed innocent, that

he is not required to offer any evidence in

his own behalf, that he must be proved guilty

beyond a reasonable doubt, and that his

failure to testify in his own behalf cannot

be held against him." Zehr, 103 Ill. 2d at

477.

The supreme court found these guarantees go to the " 'heart of a

particular bias or prejudice which would deprive defendant of his

right to a fair and impartial jury' " and, thus, must be covered

during voir dire when requested by defense counsel. Zehr, 103

Ill. 2d at 477-78, quoting People v. Zehr, 110 Ill. App. 3d 458,

461, 442 N.E.2d 581 (1982). After Zehr was decided, the Illinois

Supreme Court amended Rule 431(b) in 1997 to require a trial

court to question venire members regarding the Zehr principles

when so requested by the defendant. In 2007, the rule was once

again amended to eliminate the need for a request by a defendant

before such questions must be asked. Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

The defendant admits his trial counsel did not object during

21 No. 1-08-1304

voir dire or include this issue in his posttrial motion; the

defendant seeks to invoke the plain error doctrine. The plain

error doctrine was outlined by our supreme court in People v.

Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005).

"[T]he plain-error doctrine bypasses

normal forfeiture principles and allows a

reviewing court to consider unpreserved error

when either (1) the evidence is close,

regardless of the seriousness of the error,

or (2) the error is serious, regardless of

the closeness of the evidence." Herron, 215

Ill. 2d at 186-87.

The defendant contends that he meets both prongs of the plain

error doctrine. However, before considering plain error, we must

first determine " 'whether error occurred at all.' " People v.

Harris, 225 Ill. 2d 1, 31, 866 N.E.2d 162 (2007), quoting People

v. Wade, 131 Ill. 2d 370, 376, 546 N.E.2d 553 (1989).

The entire jury selection process conducted by Judge Darcy

is contained in the record. Judge Darcy questioned two separate

groups of prospective jurors from which the jury was picked. As

to each group, Judge Darcy asked essentially the same questions:

"Ladies and gentlemen I am going to ask

you some questions as a whole. First one is

do any of you have a bias or prejudice

against a person simply because they are

22 No. 1-08-1304 charged with a crime. If you do, please

raise your hand.

Let the record reflect no hands raised.

Do you know of any reason why you can't

give both sides a fair trial and keep an open

mind throughout? If you won't be able to do

that, please let me know by raising your

hand.

Do all of you understand that the

defendant is presumed innocent and doesn't

have to offer any evidence on his own behalf

but must be proven guilty beyond a reasonable

doubt by the State? If you don't understand

that or disagree with that please raise your

If the defendant decides not to testify

in his own behalf, would any of you hold that

against him?" If you would, please raise

your hand.

***

If the State proves the defendant guilty

beyond a reasonable doubt would you hesitate

at all in returning a verdict of guilty? If

you would, please raise your hand.

23 No. 1-08-1304 If the State fails to prove the

defendant guilty beyond a reasonable doubt,

would any of you hesitate in returning a

verdict of not guilty? If you would, please

Would you follow the law as I give it to

you in the instructions regardless of what

you personally think the law should be?

Would you be able to do that? If you

wouldn't be able to do that, please raise

your hand."

In several instances, prospective jurors signaled a need to

address Judge Darcy by raising a hand. Three prospective jurors

expressed concerns over fully understanding the proceedings

because of language problems; another expressed concern about the

severity of drug sentencing in general. No prospective juror

indicated any difficulty in understanding or accepting any of the

four Zehr principles: (1) the presumption of innocence; (2) the

lack of a burden on the defendant to offer evidence; (3) the

State's burden to prove guilt beyond a reasonable doubt; and (4)

the defendant's failure to testify cannot be held against him.

While conceding the trial court's admonishment may have

informed the potential jurors en masse of the principles outlined

in Zehr, the defendant contends the selection process followed by

24 No. 1-08-1304 Judge Darcy did not comply with the goal of Rule 431(b) of

ensuring that each of the prospective jurors understands and

accepts each of the principles. According to the defendant, the

trial court's failure to make an individual inquiry of each

prospective juror violated the rule. The defendant further

argues that the manner in which the trial court questioned the

potential jurors concerning the defendant's right not to testify

did not satisfy Rule 431(b) because Judge Darcy did not inform

the prospective jurors that "the defendant's failure to testify

cannot be held against him." (Emphasis added.) Official Reports

Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,

2007.

We reject the defendant's contentions that Judge Darcy's

questioning of the venire fell short of the dictates of Rule

431(b). In accordance with Rule 431(b), Judge Darcy directly

questioned the potential jurors, "in a group" on each of the four

Zehr principles. Official Reports Advance Sheet No. 8 (April 11,

2007), R. 431(b), eff. May 1, 2007. That some prospective jurors

responded to Judge Darcy's invitation to raise a hand to express

any concerns, confirms that each member of venire, after each of

the Zehr principles was addressed, had "an opportunity to respond

to specific questions concerning the principles set out" in the

Rule. Official Reports Advance Sheet No. 8 (April 11, 2007), R.

431(b), eff. May 1, 2007. Judge Darcy fully complied with the

dictates of Rule 431(b).

25 No. 1-08-1304 We also disagree with the defendant's contention that the

trial court's admonishment regarding the defendant's decision not

to testify against him did not comply with Rule 431(b) because it

failed to track the language of the rule. We find Judge Darcy's

admonishments to the venire complied with the requirements of

Rule 431(b). There is no requirement that the specific language

of the rule be used. See People v. Vargas, No. 1-08-0383, slip

op. at 9, ("While [the trial court's approach] might not be the

most succinct approach to the inquiry [that the defendant's

failure to testify cannot be held against him], we nevertheless

perceive that it was sufficient to ascertain the understanding

and acceptance of the potential jurors of the principle

articulated").

Accordingly, we find no error in the trial court's inquiry

of the prospective jurors regarding the Zehr principles. Because

no error occurred, there can be no plain error.

Assistance of Counsel

Lastly, the defendant claims he was denied effective

assistance of counsel based on trial counsel's cross-examination

of the State's forensic scientist. The defense challenged the

State's case by pointing to the lack of physical evidence tying

the defendant to the foil packets purchased by the undercover

officers. In particular, defense counsel sought to cast doubt by

noting that the foil packets were never examined for

fingerprints. The State's forensic scientist, however, turned

26 No. 1-08-1304 the tables on defense counsel by observing that his lab did not

routinely test items like the foil packets for fingerprints

because, in his judgment, it was unlikely that fingerprints could

be successfully lifted from the packets. On redirect

examination, the State then elicited from the forensic scientist

that either party could have requested a fingerprint examination

of the foil packets, but neither side did.

Based on this exchange during cross-examination, the

defendant contends defense counsel rendered ineffective

assistance because the answer provided by the forensic scientist

deflated whatever benefit the defendant might have received by

the absence of fingerprint evidence. In his main brief, the

defendant argues: "This undermined the defense theory by

suggesting to the jury that if the results would have been

exculpatory the defense would have requested testing." Premised

on this claim, the defendant asks this court to grant him a new

trial where presumably this testimony would not be forthcoming.

A successful claim of ineffective assistance of counsel

requires a showing of both deficient representation and

prejudice. Strickland v. Washington, 466 U.S. 668, 694, 80 L.

Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v.

Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). A

defendant is denied effective assistance of counsel if counsel's

performance falls "below an objective standard of reasonableness

and that, but for this substandard performance, there is a

27 No. 1-08-1304 reasonable probability that the outcome of the proceeding would

have been different." People v. McPhee, 256 Ill. App. 3d 102,

106, 628 N.E.2d 523 (1993), citing Strickland, 466 US. at 687-94,

80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-68 and Albanese, 104

Ill. 2d at 525. To prove counsel's representation was deficient,

the defendant must overcome a strong presumption that counsel's

performance fell within the wide range of reasonable assistance.

People v. Coleman, 183 Ill. 2d 366, 398, 701 N.E.2d 1063 (1998).

We review this issue de novo. People v. Chapman, 194 Ill. 2d

186, 217, 743 N.E.2d 48 (2000).

Generally, cross-examination of witnesses is a matter of

trial strategy and defense counsel will not be found to have

rendered ineffective assistance unless his approach is

objectively unreasonable. People v. Pecoraro, 175 Ill. 2d 294,

326-27, 677 N.E.2d 875 (1997).

Defense counsel had little to cast doubt on the State's

case given the nature of the evidence against the defendant.

However, defense counsel pointed out to the jury, no marked

currency or drugs were found on the defendant or in the vicinity.

Only one of the two surveillance officers observed the defendant

meet with an unidentified individual after the drug transaction

and this officer did not record in his incident report his

observation of this meet. Defense counsel also brought out the

ability of the officers to have recorded the alleged drug

purchase, which they failed to do.

28 No. 1-08-1304 The manner of counsel's cross-examination of the State's

forensic scientist was a matter of trial strategy. Defense

counsel either did not anticipate the response from the forensic

scientist or believed the point was worth making in any event. We

find counsel's cross-examination reasonable in light of the

defense theory that the police did not adequately conduct their

investigation in this case. We find no basis to second-guess

defense counsel in her decision to ask the fingerprint question.

We reject the defendant's characterization of counsel's cross-

examination as objectively unreasonable.

We also reject the defendant's claim that defense counsel's

question during cross-examination "opened the door" to the

State's question on redirect that either party could have

requested a fingerprint examination of the foil packet. The

defendant offers no basis for his suggestion that the State could

not have asked that question during its case in chief. In any

event, accepting the forensic scientist's testimony that an

attempt to lift fingerprints from foil packets would likely have

proved unfruitful, the jury might just as well have concluded

that no exculpatory evidence was available from such a request,

which would explain the defendant's failure to request such an

examination. In any event, that counsel undertook an

unsuccessful strategy or that another attorney would have handled

the cross-examination differently adds little to the claim that

trial counsel rendered constitutionally deficient assistance.

29 No. 1-08-1304 See People v. Palmer, 162 Ill. 2d 465, 476, 643 N.E.2d 797

(1994)("counsel's strategic choices are virtually

unchallengeable").

Under the facts of this case, the defendant is unable to

overcome the strong presumption that trial counsel's performance

was the product of reasonable trial strategy, not incompetence.

See Coleman, 183 Ill. 2d at 398. Accordingly, the defendant is

unable to satisfy the first prong of Strickland.

However, even assuming, arguendo, that counsel's alleged

error constituted substandard representation, the defendant

cannot show he was prejudiced because the evidence overwhelmingly

pointed to his guilt. At trial, five Chicago police officers

consistently identified the defendant as the individual that

engaged in an on-the-street encounter with the undercover

officers. Four of the officers testified that each personally

witnessed the drug transaction. Officer Mar testified that the

defendant asked him if he "needed anything" and in response to

Officer Mar's statement that he needed "three blows," the

defendant directed him to park his vehicle at a certain location.

Officer Mar waited as the defendant entered a gangway and

returned to the driver's side window to exchange two foil

packets, which later tested positive for heroin, for $30. After

the defendant and another individual were detained by the

enforcement officers, Officers Mar and Contreras returned to the

scene of the drug sale to determine whether either of the

30 No. 1-08-1304 detained individuals sold them the heroin packets. The officers

picked out the defendant as that individual. Based on the

strength of this evidence, the defendant cannot show that but for

counsel's alleged deficiency during cross-examination of the

State's forensic scientist regarding fingerprint testing on the

foil packets, the outcome of his trial would have been different.

See McPhee, 256 Ill. App. 3d at 106.

As we noted, the absence of fingerprints on the foil packets

could not be taken as incriminating evidence against the

defendant. Nor, would the absence of fingerprint evidence

constitute evidence that the wrong person was identified by the

police. Accordingly, the defendant is unable to satisfy the

second prong of Strickland because he is unable to show

We conclude counsel was not deficient in her representation

of the defendant. In any event, the defendant cannot

demonstrate prejudice because the evidence was overwhelmingly

against him.

CONCLUSION

The defendant's first issue, that Judge Darcy's refusal to

rule on his motion in limine to exclude his prior convictions

prior to his testimony constituted error, is beyond our review

because the defendant did not testify. There is no merit to the

defendant's second issue as Judge Darcy complied with the voir

dire requirements of Rule 431(b). We reject the defendant's

31 No. 1-08-1304 final issue because, based on the evidence, no showing can be

made that his counsel was ineffective. We affirm the judgment

of the circuit court of Cook County.

Affirmed.

PATTI, J., concurs.

LAMPKIN, J., specially concurs.

32 No. 1-08-1304 JUSTICE LAMPKIN, specially concurring:

I recognize that we are bound by our supreme court's

holding in Patrick that a defendant must testify to preserve for

review the issue of the trial court's refusal to rule on a

motion in limine seeking to bar the use of prior convictions for

impeachment. Patrick, 233 Ill. 2d at 79. Nevertheless, I write

to emphasize that trial courts, as a simple matter of fairness,

need to make early rulings on motions in limine addressing the

admissibility of prior convictions. See Patrick, 233 Ill. 2d at

73. I further emphasize that a trial court's blanket policy not

to rule on a motion in limine in advance of the defendant's

decision not to testify constitutes an abuse of discretion.

Patrick, 233 Ill. 2d at 74-75. In addition, I believe our

supreme court should consider the availability of relief to

defendant Strickland, even though he did not testify, because

the record indicates the trial court had a blanket policy not to

rule on motions in limine.

A deferred ruling on a motion in limine to bar prior

convictions adversely impacts the defense's strategy and the

defendant's right to effective assistance of counsel. Counsel

cannot adequately advise a defendant on the important tactical

decision of whether to testify if counsel does not know whether

prior convictions will be admissible for impeachment purposes.

See Patrick, 233 Ill. 2d at 69. Furthermore, a trial court's

refusal to rule handicaps counsel during voir dire when counsel

33 No. 1-08-1304 presents defendant's issues to prospective jurors and later

during opening statements when counsel frames the issues to be

decided by the jury. Specifically, counsel must decide whether

to inform prospective and selected jurors about the defendant's

prior convictions or his election to testify. See Patrick, 233

Ill. 2d at 70. The admissibility of prior convictions affects

counsel's strategy in selecting prospective jurors and

questioning them about their feelings on relevant matters

involved in the case, like guns, street gangs or drug abuse. In

addition, the uncertainty that results from deferred rulings on

the admissibility of prior convictions may force a defendant to

forgo testifying and, thus, hardly serves the trial's purpose to

search for the truth.

Only rare cases warrant a deferred ruling on motions in

limine to bar prior convictions, and the trial court must give

reasons for any deferment based on the specific facts of the

defendant's case. Patrick, 233 Ill. 2d at 73-74. During my 22

years of service as a criminal court judge, I considered motions

in limine to bar prior convictions and conducted the Montgomery

balancing test on many occasions. I never refused to rule on

those motions in limine because a defendant needs to know which

convictions may be used against him before he can make an

informed and intelligent decision about whether to testify. See

Patrick, 233 Ill. 2d at 69-70.

In Averett and Tucker, our supreme court has allowed leave

34 No. 1-08-1304 to appeal "to consider whether relief might be available to a

defendant, even if he chose not to testify, if the trial court

had a 'blanket policy' not to rule on the motion in limine in

advance of the defendant deciding not testify." People v.

Patrick, Nos. 104077, 104445 cons., per curiam order at 1 (May

27, 2009) (explaining the consistent rationale for granting

review to defendants Averett and Tucker while denying Phillips

leave to file a motion to reconsider the denial of his petition

for rehearing). Furthermore, our supreme court has allowed

motions to reconsider in cases where additional investigation

uncovered "an indication of a blanket policy" and the issue was

properly preserved despite the defendants' decisions not to

testify. Patrick, per curiam order at 2 (referring to People v.

Cowans, No. 105982; People v. Townsend, No. 106547; and People

v. Earl, No. 107665).

Similarly, the record here indicates that the trial court

merely adhered to a blanket policy not to rule when the parties

filed cross motions in limine on the admissibility of

defendant's five prior convictions to impeach his credibility

should he elect to testify. At issue were defendant's

convictions for the 2005 offense of aggravated unlawful use of a

weapon, the 2003 offense of possession of a controlled

substance, the 2001 offense of possession of a stolen motor

vehicle, and the two 1999 offenses of delivery of a controlled

substance. Defendant argued that the danger of prejudice

35 No. 1-08-1304 outweighed any probative value, that some of his prior crimes

were similar to the current charge, and that the jury would

misuse the information as evidence of defendant's propensity to

possess and deliver narcotics. The trial court stated that it

relied on Luce and would have to decide the matter if and when

defendant testified "in order to make the proper ruling."

Furthermore, the trial court granted the State's motion in

limine to prohibit defendant from arguing that he pled guilty in

prior cases because he was in fact guilty but proceeded to trial

in his current case due to his innocence.

The trial court's reliance on Luce was misplaced. Luce,

contrary to the trial court's implication, does not stand for

the broad proposition that a trial court may or should weigh the

probative value and prejudicial effect after the defendant has

testified. See People v. Holloway, 393 Ill. App. 3d 317, 321

n.2, 912 N.E.2d 799, 802 n.2 (2009). Rather, Luce held that a

defendant who does not testify at trial may not challenge on

appeal an in limine ruling respecting the admission of a prior

conviction for purposes of impeachment under Rule 609(a) of the

Federal Rules of Evidence. Luce, 469 U.S. at 42-43, 83 L. Ed.

2d at 447-48, 105 S. Ct. at 463-64. That narrower holding was

based on the reviewing court's inability to adequately evaluate

the correctness of the trial court's ruling outside the specific

factual context of the trial as it unfolded, and the handicap

posed to the reviewing court's harmless-error determination when

36 No. 1-08-1304 a defendant does not testify. Luce, 469 U.S. at 41-42, 83 L.

Ed. 2d at 447-48, 105 S. Ct. at 463.

The State argues that this case is controlled by our

supreme court's ruling in Patrick that defendant Ezekiel

Phillips failed to preserve this same issue for review because

he chose not to testify. See Patrick, 233 Ill. 2d at 77.

Defendant's situation, however, is distinguishable from

Phillips' case, where the trial court did not adhere to a

blanket policy not to rule but, rather, partially granted the

motion in limine to bar one of Phillips' prior convictions while

deferring on the other three. Here, in contrast, the trial

court did not address any of defendant's five convictions,

despite the obvious danger of prejudice from his three drug

convictions.

As in Patrick, the trial court here failed to give a reason

for its deferred ruling based on the specific facts of

defendant's case. Unlike the rare situation where a trial court

may not have sufficient information to weigh the probative value

and prejudicial effect before a defendant testifies, the record

here does not indicate a sound basis for deferment. The trial

court certainly had enough information to conduct the Montgomery

balancing test where the prejudicial effect of the use of

defendant's three drug convictions for impeachment purposes was

obvious. Consequently, the record indicates the trial court

adhered to a blanket policy to defer ruling on motions in limine

37 No. 1-08-1304 to preclude evidence of prior convictions until after hearing

the defendant's testimony.

38 No. 1-08-1304

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _______________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,

v.

LEONARD STRICKLAND, Defendant-Appellant. ________________________________________________________________ No. 1-08-1304

Appellate Court of Illinois First District, First Division

Filed: March 8, 2010 _________________________________________________________________ JUSTICE GARCIA delivered the opinion of the court.

PATTI , J., concurs. LAMPKIN, J., specially concurs. _________________________________________________________________ Appeal from the Circuit Court of Cook County Honorable Daniel P. Darcy, Judge Presiding _________________________________________________________________

For PLAINTIFF- Anita Alvarez, State's Attorney, County of Cook APPELLEE James E. Fitzgerald Douglas P. Harvath Carol M. Gaines Brian K. Hodes Assistant State's Attorneys, Of Counsel Richard J. Daley Center, Room 309 Chicago, IL 60602

For DEFENDANT- Michael J. Pelletier, State Appellate Defender APPELLANT Patricia Unsinn, Deputy Defender

Holly J. K. Schroetlin Assistant Appellate Defender

39 No. 1-08-1304

Office of the State Appellate Defender 203 N. LaSalle Street, 24th Floor Chicago, IL 60601