People v. Veach

2016 IL App (4th) 130888, 50 N.E.3d 87

• Court: Appellate Court of Illinois
• Decided: March 11, 2016
• Docket: 4-13-0888
• Status: Unpublished

Opinion

2016 IL App (4th) 130888 FILED March 11, 2016 Carla Bender NO. 4-13-0888 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Coles County BLACKIE VEACH, ) No. 12CF479 Defendant-Appellant. ) ) Honorable ) Mitchell K. Shick, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Holder White concurred in the judgment and opinion. Justice Appleton dissented, with opinion.

OPINION ¶1 Following a July 2013 trial, a jury convicted defendant, Blackie Veach, of two

counts each of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a) (West 2010)) and aggra-

vated battery (720 ILCS 5/12-3.05(a)(1), (f)(1) (West 2010)). The trial court later imposed con-

secutive prison sentences of 16 years on defendant's attempt convictions. (Defendant's aggravat-

ed battery convictions were lesser-included offenses on which the court imposed no sentences.)

¶2 Defendant appeals, arguing only that he was denied the effective assistance of tri-

al counsel when his counsel stipulated to the admission, during his trial, of video recordings con-

taining prior consistent statements and bad character evidence. Because we conclude that we

may be required to consider matters outside the record to adjudicate defendant's claim on direct

appeal, we affirm. ¶3 I. BACKGROUND

¶4 A. The State's Charges

¶5 In December 2012, the State charged defendant with the aforementioned offenses.

Pertinent to this appeal are the State's attempt (first degree murder) charges, which were amend-

ed in July 2013. Specifically, the State alleged that on December 12, 2012, defendant "per-

formed an act which constituted a substantial step toward the killing of *** individual[s] in that

[defendant] cut the throat of" Matthew Price and Renee Strohl.

¶6 B. The Pertinent Evidence Presented at Defendant's Trial

¶7 Because defendant challenges only his trial counsel's effectiveness, we limit the

following discussion to those facts that place defendant's claim in its proper context.

¶8 On the third day of defendant's July 2013 trial and outside the jury's presence, the

State and defense counsel stipulated to the admission of People's exhibit No. 24, a compact disc

(CD) containing a video recording of the December 12, 2012, interview between Johnny Price,

who was present during the events at issue, and a police detective. The trial court then addressed

defendant directly and determined that (1) he had spoken with his counsel about the stipulation

and (2) by stipulating, he waived any foundational objections to the recording. After defendant

agreed to the CD's admission, the court confirmed that the content therein was being offered as

substantive evidence. After reconvening the jury, the State called Johnny to the stand.

¶9 1. Johnny's Testimony

¶ 10 a. Direct Examination

¶ 11 On December 12, 2012, Johnny—who was 18 years old and lived in Toledo, Illi-

nois—rode with his grandmother to Charleston, Illinois, to visit his cousin, Matthew, at the home

Matthew shared with his girlfriend, Renee. Throughout that day, visitors came and went, but

-2- that evening, only Matthew, Renee, Johnny, and defendant remained in the front room of the

house. Matthew was smoking "fake marijuana," otherwise known as K2, Renee was drinking

beer, and Johnny was drinking beer and smoking cannabis. Defendant was "drinking and smok-

ing fake marijuana" while talking with Matthew.

¶ 12 Sometime thereafter, Johnny was seated on a sofa, facing a "loveseat," where

Matthew and Renee were seated. Defendant was sitting behind Matthew. Johnny momentarily

looked away, but when he looked back, he saw defendant—who was now standing behind the

loveseat—cut Matthew's neck. Matthew jumped up, holding his neck, and told defendant to

"back the fuck up." As Renee picked up her telephone, defendant "cut" her as well. Matthew

then pushed defendant down onto a mattress, which was against the wall. During that time,

Johnny made his way to the kitchen and exited through the back door of the house. When John-

ny looked back, he saw defendant "chasing after [him]."

¶ 13 Johnny ran to the local restaurant and called his grandmother. He was "shaking

and crying," and too "scared" to dial 9-1-1. Johnny told the restaurant employees that his

cousin's neck had "been sliced." Sometime later, police arrived and transported Johnny to the

police station for an interview.

¶ 14 b. Johnny's Recorded Interview

¶ 15 Thereafter, the State moved to admit into evidence exhibit No. 24, which was the

CD containing Johnny's interview with the police. After the trial court confirmed that defense

counsel had no objection, the court admitted exhibit No. 24 into evidence, and at the State's re-

quest, it published the recording for the jury's consideration.

¶ 16 During his interview with the police, Johnny recounted the entire incident (to

which he had testified during his direct examination), describing the knife attack six times.

-3- Johnny also stated that (1) on the evening at issue, defendant claimed to be a member of a street

gang; (2) defendant was making gang signs and wanted Johnny to mimic his gestures; (3) de-

fendant compelled Johnny to smoke drugs that night; (4) defendant began having "problems"

with Johnny; (5) Matthew warned defendant that if he wanted to confront Johnny, defendant

would have to go through Matthew—or "that's what [Johnny was] guessing they said"; (6) after

Matthew told defendant he would have to go through him, defendant cut Matthew's throat; and

(7) defendant cut Renee and chased Johnny because defendant wanted to kill all the witnesses.

¶ 17 After playing Johnny's recorded interview with police, the trial court instructed

the jury that Johnny had been convicted of retail theft, and the jury could consider that convic-

tion only as it might affect his believability.

¶ 18 c. Cross Examination

¶ 19 Johnny admitted that during his police interview, he "probably" told the police

that he did not know if defendant had been smoking anything in Matthew's house. But he was

"confused" at the time, and now, in retrospect, Johnny knew defendant had been smoking. John-

ny also explained that during his interview, he was "confused," "scared," "high," and "drunk"

when he told the detective that he had jumped over the couch in the front room. Actually, he

"didn't jump over nothing." Johnny first tried to escape through the front door but could not get

it open, and so he headed for the back door.

¶ 20 2. Matthew's Testimony

¶ 21 a. Direct Examination

¶ 22 Prior to Matthew's direct testimony, the trial court informed the jury that (1) Mat-

thew had been convicted of three felonies and (2) the jury could consider his convictions only as

they might affect his believability.

-4- ¶ 23 Matthew, who was 22 years old, testified that in December 2012, he lived with his

then fiancée, Renee, in a home located in Charleston. Defendant, Matthew's longtime "best

friend," whom he had "always called [his] brother," "stay[ed] with [them] quite often."

¶ 24 On December 12, 2012, around 8:30 or 9 p.m., defendant visited Matthew's home,

bringing with him two 40-ounce containers of malt liquor as well as "the baseball bat he always

carried," which Matthew described as a small Louisville Slugger, a little longer than Matthew's

forearm. Defendant "[s]tarted talking and playing music." In addition to drinking alcohol, de-

fendant was smoking K2 with Matthew. Matthew remembered that he had earlier cut some

speaker wires with a kitchen knife that remained in the front room of the home. Later that even-

ing, Matthew saw defendant pick up the knife as defendant was going to the back door to answer

the knock of some visitors.

¶ 25 Eventually, the visitors left except for defendant and Johnny. Matthew and Renee

were sitting on the loveseat, Johnny was sitting on a sofa, and defendant was sitting on a black

chair. Sometime thereafter, Matthew and Renee got up from the loveseat and went into the bath-

room, where they had sexual intercourse. About 20 minutes later, they left the bathroom. As

they did so, defendant, who was standing outside the bathroom door, said, " 'What the hell' " and

" 'that's bogus.' " Unable to comprehend what defendant was complaining about, Matthew re-

turned to the loveseat with Renee. Johnny remained on the sofa. Defendant sat back down on

the black chair and resumed playing with the stereo radio.

¶ 26 After a while, defendant asked Matthew to meet him at the back porch, where no

one was located. After doing so, defendant told Matthew that "he had to put a hit out for Renee

[for] beating up his aunt [Debbie Davis,] who isn't actually his aunt." Matthew told defendant

that "it was just a female fight," and although Davis "got her ass whooped," Renee was charged

-5- with aggravated battery. Matthew urged defendant to "let it go." Eventually, defendant stated,

"[a]ll right, all right bro, I got you." Thereafter, they returned to the front room of the house.

¶ 27 Upon their return, Matthew sat down on the loveseat, beside Renee, and defend-

ant "walked around [as if] he was going to sit in the black chair again," but after a couple of se-

conds, he "went behind the loveseat to a black foldout chair." With defendant sitting behind

him, Matthew and defendant had a conversation about two street gangs. Defendant then told

Matthew, " 'You're not my brother. You never have been.' " Matthew did not get a chance to

respond, because, the next thing he knew, there was a "warmness running down [his] neck."

¶ 28 Matthew flung up his hand and "realized [he] was cut," and now his hand "started

to get cut," too. As Matthew "ducked down and spun around *** to the left," he saw defendant

"scooting over and cutting Renee." Defendant had in his hand the kitchen knife that Matthew

had earlier used. Matthew yelled, "['N]o[!]' " and "swung over the couch." Matthew believed

that he had grazed defendant somewhere in the face, causing him to drop the knife and fall

backward on a guest bed they had in their front room. Defendant said "not to call 9-1-1." As

Matthew walked toward defendant, Johnny ran between them, en route to the back door (the

front door was nailed shut). The resulting collision staggered Matthew back, giving defendant an

opportunity to "take off after [Johnny] and get out himself."

¶ 29 Renee was on the telephone, but because she was not coherent, Matthew took the

telephone from her and told the 9-1-1 operator on the other end to hurry up because their throats

had been slit and they were "bleeding out." The police and an ambulance arrived, and they were

transported to the hospital, where Matthew received stitches and was released that night. The

next day, December 13, 2012, Matthew went to the Charleston police department and provided a

statement, which the police recorded.

-6- ¶ 30 b. Matthew's Recorded Interview

¶ 31 The State then moved to admit into evidence the first track of People's exhibit No.

28, a CD containing two separate audio recordings, the first of which was Matthew's interview

with the police. After the trial court confirmed that defense counsel and defendant had stipulated

to the admission of that audio recording, the court admitted that portion of exhibit No. 28 into

evidence, and, thereafter, published the recording for the jury's consideration.

¶ 32 In his statement to the police, Matthew repeated the details of defendant's knife

attack four times, and he stated three times that defendant's motive was to retaliate for the beat-

ing Renee inflicted on Davis. Matthew also stated that defendant "was a real big alcoholic, and

that's all he does now is drink." Matthew denied that on the night of the stabbing, any conflict

existed between defendant and Johnny.

¶ 33 c. Cross-Examination

¶ 34 Matthew admitted that, once or twice, he had threatened to kill himself over

Renee—not by using a knife but, rather, by hanging himself. He denied, however, that he ever

threatened Renee with a knife. He also denied telling other people that it was Johnny who had

cut him and Renee.

¶ 35 3. Renee's Testimony

¶ 36 a. Direct Examination

¶ 37 Renee, who was 24 years old, testified that she had a "rocky relationship" with

Matthew from March 2011 to February 2013. In December 2012, they lived together in a two-

bedroom house in Charleston. Renee noted that defendant (1) was at their home almost every

day and (2) stopped by around 5 p.m. on December 12, 2012. Thereafter, Renee testified con-

-7- sistently with the accounts provided by Johnny and Matthew regarding the circumstances preced-

ing defendant's actions.

¶ 38 Renee noted that after exiting the bathroom with Matthew, they both sat on a

loveseat located in their front room. Defendant used the bathroom and returned to where he had

been seated. After a while, defendant stood up, took a folding chair that was leaning against a

wall, unfolded it, set it behind the loveseat, and sat down. Renee, then stated that "[t]he next

thing I remember was something along the lines of [']brother,['] something to do with

[']brother,['] and then I felt a sharp pain." Renee then stood up from the loveseat. Defendant was

sprawled sideways on a bed, on his back, and Matthew was standing over him, telling her, " 'Call

9-1-1. We need an ambulance. We've both been cut.' " Defendant said, " 'Don't call 9-1-1. It's

not that bad, and I'll help.' " Renee told defendant, " [']I'm sorry, I have to call 9-1-1. I think I'm

going to need stitches.['] " Matthew continued to say, " 'Call them, call them,' " and he struck

defendant. Renee did not see Johnny during this encounter and acknowledged that she did not

see who had cut her throat.

¶ 39 b. Renee's Recorded Interview

¶ 40 The following day, December 13, 2012, Renee provided a statement to the police,

which was recorded. The State moved to admit into evidence the second audio track of exhibit

No. 28—which contained Renee's statement—and publish it to the jury. After confirming with

defense counsel, as well as defendant, that they were stipulating to both the admission and publi-

cation of the second audio track of exhibit No. 28, the trial court granted the State's oral motion.

¶ 41 In her recorded statement, Renee recounted the events of December 12, 2012.

Renee also stated the following: (1) when defendant is intoxicated, he gets violent; (2) defend-

ant's mother told Renee that she had " 'heard stories of other people that had been hurt by [de-

-8- fendant] when he drinks hard alcohol' "; (3) defendant threatened to kill someone if he ever en-

countered that person; and (4) Matthew told Renee that defendant may have cut their throats be-

cause of the fight between Renee and Davis. Renee denied that any controversy existed between

defendant and Johnny. Renee also disputed that Matthew told defendant he would have to con-

front him first if defendant wanted to fight Johnny.

¶ 42 c. Cross-Examination

¶ 43 On cross-examination, Renee noted that in the summer of 2012, Matthew began

accusing her of having a physical relationship with defendant. Despite this claim, Renee stated

that Matthew never confronted defendant about his suspicions.

¶ 44 4. The Remaining Evidence Presented by the State

¶ 45 Justin Carder, a Charleston police officer, testified that defendant was arrested a

few minutes after the knife attack. Defendant had a smudge of blood on the left side of his face

and on both of his hands. Carder learned that other people had run out of the Charleston home.

Defendant identified those other people as Robert Jones and Darrell Enlow. As testified to by

another Charleston police officer, defendant claimed that Jones and Enlow had slashed the necks

of Matthew and Renee.

¶ 46 Forensic deoxyribonucleic acid (DNA) testing revealed that (1) Matthew's DNA

was on defendant's face, left hand, and left shoe and (2) Renee's DNA was on defendant's pants.

Other DNA samples, including the one from the knife, were unsuitable for comparison.

¶ 47 Alvina Wright testified that she had known Matthew for many years. Two days

after the stabbing, she saw Matthew at a local gas station and she asked him what had happened.

(The State objected on the ground of hearsay, and the trial court "sustain[ed] the objection for the

purpose of showing who cut Matthew's throat," but the court allowed the testimony for the lim-

-9- ited purpose of impeaching Matthew's testimony.) Wright stated that Matthew told her that

Johnny had cut his throat. (Previously, on cross-examination by defense counsel, Matthew de-

nied telling Wright that Johnny had cut his throat, adding that he did not even know Wright.)

¶ 48 5. Defendant's Testimony

¶ 49 At approximately 5:30 or 6 p.m. on December 12, 2012, defendant stopped by the

Charleston home occupied by Matthew and Renee. Observing that a social gathering was occur-

ring, defendant decided to stay. Defendant noted that along with Matthew and Renee, Johnny

was at the home as well as others who visited throughout the evening. At one point, defendant

answered a knock at the door. As he did so, defendant took the miniature baseball bat that he

customarily carried around with him, instead of the knife in the living room. Apparently, one of

the guests brought hydrocodone pills, which were being pulverized in the kitchen. Defendant

observed (1) Matthew and Renee snorting the hydrocodone powder and drinking alcohol; (2)

Matthew smoking cannabis and K2; and (3) Johnny drinking alcohol and smoking cannabis and

K2. Defendant stated that he was merely drinking alcohol.

¶ 50 Defendant denied forcing Johnny to smoke K2. Previously, on the one and only

occasion when defendant tried K2, he almost died, and he would not have forced anyone to

smoke something that had almost killed him. Defendant denied that he (1) was a member of any

gang, (2) told Johnny he was a member of a gang, and (3) flashed gang symbols at Johnny. De-

fendant asserted, instead, that Matthew and Johnny were the ones making gang symbols and

claiming to be members of a street gang. Defendant also denied threatening Johnny.

¶ 51 Later that evening, all the guests had left except Johnny and himself. Eventually,

Matthew and Renee left the loveseat where they were seated and went into the bathroom togeth-

er, where they stayed for 20 minutes. This inconvenienced defendant because he had to go to the

- 10 - bathroom. When Matthew and Renee finally reemerged from the bathroom, defendant men-

tioned that it was bogus to use the bathroom for that purpose when the bedroom was right down

the hall. Defendant then used the bathroom, but when he came out, Matthew pulled him to the

back room and had a talk with him.

¶ 52 After the talk in the back room, defendant had to use the bathroom again. The

radio was on in the living room, and he heard no screaming or nothing unusual. When he came

out of the bathroom and returned to the living room, Johnny was nowhere to be seen, and Mat-

thew was bleeding from the neck. Matthew pushed defendant down onto a bed, grazing and

bloodying defendant's nose. Renee was screaming at Matthew to get off defendant. She gave

Matthew a shove and then ran to a bedroom. This gave defendant the opportunity to run out the

back door of the house. Defendant did not see Johnny, although someone (he could not tell who)

was running about 10 feet ahead of him.

¶ 53 Defendant admitted telling the police, falsely, that Jones and Enlow had kicked in

the door of the house and entered with guns and that he, defendant, had chased them out of the

house. Actually, he never saw either of them in the house, and the last time he saw Jones was

earlier that afternoon.

¶ 54 C. The Jury's Verdict and the Trial Court's Sentence

¶ 55 Following argument, the jury convicted defendant of all four counts alleged—that

is, two counts each of attempt (first degree murder) and aggravated battery. The trial court later

imposed consecutive prison sentences of 16 years on defendant's attempt convictions but did not

impose a sentence on defendant's aggravated battery convictions because the court determined

that these two counts were lesser-included offenses.

¶ 56 This appeal followed.

- 11 - ¶ 57 II. ANALYSIS

¶ 58 As noted earlier, defendant's only argument on appeal is that he was denied the

effective assistance of counsel. Specifically, defendant alleges his counsel's decision to stipulate

to the admission of prior consistent statements and bad character evidence during his trial was

reversible error.

¶ 59 A. Defendant's Right to the Effective Assistance of Counsel

¶ 60 In Maryland v. Kulbicki, ___ U.S. ___, ___, 136 S. Ct. 2, 2-3 (2015), the United

States Supreme Court discussed the sixth amendment right to the effective assistance of counsel,

as follows:

"A criminal defendant 'shall enjoy the right *** to have the Assis-

tance of Counsel for his defence.' U.S. Const., [amend. VI]. We

have held that this right requires effective counsel in both state and

federal prosecutions, even if the defendant is unable to afford

counsel. Gideon v. Wainwright, 372 U. S. 335, 344 (1963). Coun-

sel is unconstitutionally ineffective if his performance is both defi-

cient, meaning his errors are 'so serious' that he no longer functions

as 'counsel,' and prejudicial, meaning his errors deprive the de-

fendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984)."

¶ 61 In People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601, the Supreme Court

of Illinois recently discussed the defendant's burden when raising an ineffective-assistance-of-

counsel claim, writing as follows:

- 12 - "To show ineffective assistance of counsel, a defendant must

demonstrate that 'his attorney's representation fell below an objec-

tive standard of reasonableness and that there is a reasonable prob-

ability that, but for counsel's errors, the result of the proceeding

would have been different.' People v. Patterson, 192 Ill. 2d 93,

107, 735 N.E.2d 616 (2000) (citing Strickland v. Washington, 466

U.S. 668, 687, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for

this test). A 'reasonable probability' is defined as 'a probability suf-

ficient to undermine confidence in the outcome.' Strickland, 466

U.S. at 694, 104 S. Ct. 2052. A defendant must satisfy both prongs

of the Strickland test and a failure to satisfy any one of the prongs

precludes a finding of ineffectiveness. Patterson, 192 Ill. 2d at

107, 735 N.E.2d 616."

¶ 62 The United States Supreme Court has also cautioned that when reviewing an inef-

fective-assistance-of-counsel claim, " 'a court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.' " Woods v. Donald,

___ U.S. ___, 135 S. Ct. 1372, 1375 (2015) (quoting Strickland, 466 U.S. at 689). In Kulbicki,

the Court criticized a federal court of appeals for having "indulged in the 'natural tendency to

speculate as to whether a different trial strategy might have been more successful.' " Kulbicki, __

U. S. at ___, 136 S. Ct. at 4 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).

¶ 63 The Supreme Court of Illinois has also addressed this subject, writing as follows:

"We have also made it clear that a reviewing court will be highly deferential to trial counsel on

matters of trial strategy, making every effort to evaluate counsel's performance from his perspec-

- 13 - tive at the time, rather than through the lens of hindsight." People v. Perry, 224 Ill. 2d 312, 344,

864 N.E.2d 196, 216 (2007). The Supreme Court of Illinois has also provided the following

guidance: "[I]n order to establish deficient performance, the defendant must overcome the

strong presumption that the challenged action or inaction may have been the product of sound

trial strategy. [Citations.] Matters of trial strategy are generally immune from claims of ineffec-

tive assistance of counsel." People v. Manning, 241 Ill. 2d 319, 327, 948 N.E.2d 542, 547

(2011).

¶ 64 B. Concerns That Arise in Direct Appeals in Which Defendants Argue They Received Ineffective Assistance of Counsel

¶ 65 1. The Kunze Doctrine

¶ 66 Twenty-six years ago, in People v. Kunze, 193 Ill. App. 3d 708, 550 N.E.2d 284

(1990), the defendant argued to this court on direct appeal, in part, that he was deprived of his

right to the effective assistance of trial counsel because of his counsel's (1) failure to investigate

his prior criminal history and (2) incompetence in advising him to exercise his right to testify.

After this court noted that the record before it contained no evidence that either addressed these

issues or pertained to conversations between the defendant and his trial counsel, the court wrote

the following:

"Where, as here, consideration of matters outside of the

record is required in order to adjudicate the issues presented for re-

view, the defendant's contentions are more appropriately addressed

in proceedings on a petition for post-conviction relief. (Ill. Rev.

Stat. 1987, ch. 38, pars. 122-1 through 122-8.) We therefore de-

cline to adjudicate in this direct appeal [defendant's] contentions

concerning the alleged incompetence of [defendant's] trial counsel.

- 14 - An adjudication of a claim of ineffective assistance of counsel is

better made in proceedings on a petition for post-conviction relief,

when a complete record can be made and the attorney-client privi-

lege no longer applies." Kunze, 193 Ill. App. 3d at 725-26, 550

N.E.2d at 296.

¶ 67 2. Cases Following Kunze

¶ 68 The Illinois Appellate Courts have widely followed the Kunze doctrine. See, e.g.,

People v. Kirklin, 2015 IL App (1st) 131420, ¶ 127, 29 N.E.3d 481 ("[a] collateral proceeding is

generally a better forum for adjudication of ineffective assistance claims"); People v. Clark, 406

Ill. App. 3d 622, 640, 940 N.E.2d 755, 772 (2010) (Second District: "claims of ineffective assis-

tance of trial counsel are preferably brought on collateral review rather than direct appeal");

People v. Pelo, 404 Ill. App. 3d 839, 870-71, 942 N.E.2d 463, 490 (2010) (Fourth District: be-

cause the record before the appellate court contained nothing to review regarding defense coun-

sel's trial strategy relating to an instruction limiting other-crimes evidence, the appellate court

was unwilling to deem counsel's failure to submit a limiting instruction ineffective assistance and

instead would await the defendant's pursuit of such a claim under the Post-Conviction Hearing

Act (Act)); People v. Richardson, 401 Ill. App. 3d 45, 48, 929 N.E.2d 44, 47 (2010) (First Dis-

trict: "Where information not of record is critical to a defendant's claim [of ineffective assistance

of trial counsel], it must be raised in a collateral proceeding"); People v. Parker, 344 Ill. App. 3d

728, 737, 801 N.E.2d 162, 169 (2003) (Third District: " 'Where disposition of a defendant's inef-

fective[-]assistance[-]of[-]counsel claim requires consideration of matters beyond the record on

direct appeal, it is more appropriate that the defendant's contentions be addressed in a proceeding

for postconviction relief, and the appellate court may properly decline to adjudicate the defend-

- 15 - ant's claim in his direct appeal from his criminal conviction, (quoting People v. Burns, 304 Ill.

App. 3d 1, 11, 709 N.E.2d 672, 680 (1999))"); People v. Calvert, 326 Ill. App. 3d 414, 421-22,

760 N.E.2d 1024, 1030 (2001) (Fourth District: because the record before the appellate court

contained nothing to review with respect to why defense counsel stipulated to the State's use of

the defendant's prior aggravated battery conviction for impeachment purposes, the appellate

court declined to consider the defendant's ineffective-assistance-of-counsel claim on direct ap-

peal and instead invited the defendant to pursue his claim under the Act); People v. Holloman,

304 Ill. App. 3d 177, 186, 709 N.E.2d 969, 975 (1999) (Fourth District: "[B]ecause the record is

devoid of factual findings on the issues pertinent to defendant's claim" of ineffective assistance

of counsel, we "decline the opportunity to consider these questions. Rather, defendant may pur-

sue his claim under the [Act]."); People v. Flores, 231 Ill. App 3d 813, 828, 596 N.E.2d 1204,

1214 (1992) (Fourth District: "Without any explanation from defendant's trial counsel ***, it is

extraordinarily difficult [for this court] to conclude *** that *** counsel's trial level omissions

do not constitute areas 'involving the exercise of judgment, discretion[,] or trial tactics' " (quoting

People v. Mitchell, 105 Ill. 2d 1, 12, 473 N.E.2d 1270, 1275 (1984))).

¶ 69 Some decisions of the appellate court have referred to a decision of the United

States Supreme Court, Massaro v. United States, 538 U.S. 500 (2003), in which that Court pro-

vided a thorough analysis regarding why it is almost always preferable that ineffective-assistance

claims be considered on collateral review rather than on direct appeal. In People v. Durgan, 346

Ill. App. 3d 1121, 1141-42, 806 N.E.2d 1233, 1249 (2004), the Fourth District Appellate Court

cited Kunze and Massaro, as well as Holloman, in declining to consider the defendant's ineffec-

tive-assistance argument on direct appeal and indicated instead that the defendant could pursue

his claim under the Act. At issue in Durgan was defendant's claim that trial counsel was ineffec-

- 16 - tive because he failed to file a motion to suppress evidence. Id. at 1142, 806 N.E.2d at 1250. In

rejecting this argument, the appellate court noted that "the argument defendant makes is almost

never appropriate on direct appeal because absent a motion to suppress, it is highly unlikely that

the State would garner its resources to prove the propriety of the officers' actions." Id.

¶ 70 In People v. Bew, 228 Ill. 2d 122, 886 N.E.2d 1002 (2008), the Illinois Supreme

Court addressed the defendant's claim that her counsel was ineffective for failing to file a motion

to suppress evidence. The Third District Appellate Court in Bew, in an order (People v. Bew,

No. 3-03-0779 (Dec. 21, 2006) (unpublished order under Illinois Supreme Court Rule 23)), had

agreed with that claim, reversed the defendant's conviction, and remanded for a new trial. Bew,

228 Ill. 2d at 124, 886 N.E.2d at 1004. The supreme court reversed the Third District and, citing

Massaro, held that the record on direct appeal was insufficient to address the argument for sup-

pression of evidence. Id. at 135, 886 N.E.2d at 1009. The Bew court concluded, as follows:

"Therefore, even though we find that defendant has, on this record, failed to prove ineffective

assistance of counsel, we note that defendant may raise these alternative grounds for suppression

under the [Act] [citation]. This disposition allows both defendant and the State an opportunity to

develop a factual record bearing precisely on the issue." (Internal quotations marks omitted.) Id.

at 135, 886 N.E.2d at 1009-10.

¶ 71 C. Types of Cases in Which Defendants Argue That They Received Ineffective Assistance of Counsel

¶ 72 To clarify which direct appeals raising ineffective assistance of counsel may be

appropriately addressed by an appellate court, we suggest that such cases be divided into three

separate categories, which we describe as follows:

¶ 73 • Category A cases: direct appeals raising ineffective assistance of counsel that

the appellate court should decline to address.

- 17 - ¶ 74 • Category B cases: direct appeals raising ineffective assistance of counsel that

the appellate court may address because they are clearly groundless.

¶ 75 • Category C cases: direct appeals raising ineffective assistance of counsel that

an appellate court may address because trial counsel's errors were so egregious.

¶ 76 1. Category A Cases: Direct Appeals Raising Ineffective Assistance of Counsel That an Appellate Court Should Decline To Address

¶ 77 Category A cases are direct appeals in cases like Kunze and its progeny, in which,

for various reasons, the appellate court concludes that the record on appeal is not adequate to re-

solve the defendant's contention. Experience shows that Category A cases comprise a very large

percentage of the direct appeals raising ineffective assistance of counsel, which should come as

no surprise. After all, most such claims raise (at least implicitly) the following questions regard-

ing what defense counsel allegedly did wrong: (1) What did defense counsel tell the defendant

and what specific suggestions or questions did counsel raise?; (2) What concerns did the defend-

ant express to his counsel?; (3) If the defendant made specific requests of his counsel regarding

the handling of the case, such as witnesses who could be contacted and called, how specific was

defendant and what information in support of these suggestions did he provide to counsel?; (4)

How did counsel respond to any of the suggestions he received from his client?; (5) If counsel

took no action in response to such suggestions, why not?; and (6) What overall strategy did de-

fense counsel have for the case, and what tactics did he employ (and why) pursuant to that strat-

egy?

¶ 78 Given the privileged nature of the matters described in the preceding paragraph, it

would be most extraordinary for the trial court record on direct appeal to contain any information

pertinent to any of these questions. This absence explains why the prudent and judicious course

for an appellate court dealing with a defendant's claim of ineffective assistance of counsel on di-

- 18 - rect appeal is almost always to (1) decline to address the issue (while explaining its reason for

doing so), (2) affirm the trial court's judgment, and (3) indicate that the defendant may raise the

ineffective-assistance-of-counsel claim in a postconviction petition. We note again that this ac-

tion is what the Supreme Court of Illinois took in Bew, cited above.

¶ 79 Instead of taking this prudent and judicious course of action, some appellate

courts have elected in Category A cases to address the defendant's argument on the merits. The

problem with this course of action is that an appellate court is essentially just guessing at the an-

swers to the many questions that the record does not contain. Taking this course of action is a

disservice to all parties concerned. Claims of ineffective assistance of counsel are usually raised

only in the most serious cases, and given the high stakes, the parties deserve an adjudication

based on a record that is complete and adequate, not on judicial speculation.

¶ 80 We find further support for the Kunze approach of not addressing claims of inef-

fective assistance of counsel on direct appeal in the recent decision of the Seventh Circuit Court

of Appeals in United States v. Flores, 739 F.3d 337, 340 (7th Cir. 2014), in which that court

wrote about the difficulty an appellate court confronts when the trial court record is not adequate

for the appellate court to address a defendant's claim that he received ineffective assistance of

trial counsel. The Seventh Circuit also noted decisions of the United States Supreme Court that

hold that "counsel's strategic choices are presumed to be competent. As a practical matter[,] that

presumption cannot be overcome without an evidentiary hearing at which the defendant explains

his view of what went wrong and counsel can justify his choices." Id.

¶ 81 Unfortunately, the sound policy the Fourth District first applied in Kunze has not

always been followed. An example is People v. Campbell, 332 Ill. App. 3d 721, 773 N.E.2d 776

(2002), in which the defendant, convicted of first degree murder, raised ineffective assistance of

- 19 - his trial counsel in his direct appeal. Specifically, the defendant argued that his trial counsel was

ineffective because, among other reasons, he failed to call two disinterested eyewitnesses. Id. at

731-32, 773 N.E.2d at 784. The record contained no information (as would almost always be the

case) regarding either what defense counsel was told about these witnesses or why he did not call

them to testify. Id. Nevertheless, the Fourth District Appellate Court erroneously treated this

case as a Category B appeal and rejected the defendant's argument on the merits. The court con-

cluded that "none of the testimony which defendant claims [these two witnesses] would have

given would have exonerated defendant," and the failure to call them was a matter of trial strate-

gy. Id. at 732, 773 N.E.2d at 785.

¶ 82 Campbell then sought habeas corpus relief, which the federal district court de-

nied. However, the Seventh Circuit Court of Appeals granted, in part, habeas corpus relief. The

Seventh Circuit ruled that Campbell presented a reasonable claim in the federal habeas corpus

proceeding for ineffective assistance of counsel and that the decision of the Fourth District hold-

ing otherwise was an unreasonable application of clearly established federal law as determined

by Supreme Court precedent. Campbell v. Reardon, 780 F. 3d 752, 762-772 (7th Cir. 2015).

The Seventh Circuit remanded for an evidentiary hearing to be conducted by the federal district

court, noting that a hearing was "needed to develop the record on (1) the extent of counsel's actu-

al pretrial investigation and (2) what these witnesses would have said if called to testify at trial."

Id. at 772. Of course, had the Fourth District in Campbell declined to address defendant's inef-

fective-assistance claim on direct appeal and awaited his filing a postconviction petition, what

the Seventh Circuit ordered on remand is precisely the record that a circuit court hearing on a

postconviction petition could have developed.

- 20 - ¶ 83 Further, had the Fourth District treated Campbell's appeal as a Category A case

(as it should have), then (1) it could have avoided the embarrassment of having the Seventh Cir-

cuit deem its decision "an unreasonable application of clearly established federal law as deter-

mined by Supreme Court precedent" and (2) the hearing needed to develop an appropriate record

to address Campbell's claims would have occurred much earlier, benefitting everyone.

¶ 84 2. Category B Cases: Direct Appeals Raising Ineffective Assistance of Counsel That the Appellate Court May Address Because They Are Clearly Groundless

¶ 85 On rare occasions, an appellate court may appropriately address a defendant's ar-

gument on direct appeal raising ineffective assistance of counsel because the claim is groundless.

In such a case, answers to the questions mentioned earlier, that the trial court record typically

would not address, would not matter because the defendant's claim has no merit.

¶ 86 Some examples of category B cases are the following: People v. Davis, 2014 IL

App (4th) 121040, ¶ 24, 22 N.E.3d 1167 (to accept the defendant's argument, the trial court

would have to conclude that counsel was ineffective for failing to predict the future and to antic-

ipate a United States Supreme Court decision); People v. Rodriguez, 2014 IL App (2d) 130148,

¶ 88, 21 N.E.3d 466 (defense counsel's decision not to challenge an alleged discrepancy between

Illinois pattern jury instructions (IPI) instructions and a section of the criminal code did not con-

stitute deficient performance because the IPI instructions accurately stated the law and an objec-

tion to the instructions would have lacked merit); and People v. Shelton, 401 Ill. App. 3d 564,

584, 929 N.E.2d 144, 163 (1st Dist. 2010) (defendant's ineffective-assistance claim based upon

defense counsel's alleged failure to call witnesses and introduce certain evidence was rejected on

direct appeal where the record showed that defense counsel had in fact done just that).

- 21 - ¶ 87 3. Category C Cases: Direct Appeals Raising Ineffective Assistance of Counsel That an Appellate Court May Address Because Trial Counsel's Errors Were So Egregious

¶ 88 On rare occasions, an appellate court can determine that trial counsel's errors were

so egregious that the appellate court can determine trial counsel was constitutionally ineffective

without requiring further evidence. Such a case arises when answers to the questions discussed

earlier in this opinion simply would not matter. The appellate court can determine, based on the

record before it, that defendant's trial counsel's representation fell below an objective standard of

reasonableness and there is a reasonable probability that, but for counsel's errors, the result of the

proceeding would have been different. People v. Patterson, 192 Ill. 2d 93, 107, 735 N.E.2d 616,

626 (2000). In addition, for a case to fit within Category C, the appellate court must be able to

conclude that because no justifiable explanation by trial counsel for his errors could possibly ex-

ist, the court need not bother obtaining a record in which such an explanation might be forthcom-

ing.

¶ 89 A prime example of a case in which trial counsel's error was so egregious as to

constitute clear ineffective assistance based solely upon the record on direct appeal is the recent

decision of the Supreme Court of Illinois in People v. Simpson, 2015 IL 116512, ¶ 1, 25 N.E.3d

601, in which the supreme court affirmed a decision of the First District Appellate Court that had

reversed the defendant's conviction and remanded for a new trial, concluding that the defense

counsel was ineffective. At the defendant's first degree murder trial, a witness testified that he

was near the crime scene on the date of the murder but did not recall what the defendant said to

him or what he told the police that night. Id. ¶ 14, 25 N.E.3d 601. "The State then admitted [the

witness's] videotaped statement to police in which he stated that defendant told him that he hit

the victim 30 times with a bat. The State emphasized the statement in its closing argument." Id.

- 22 - ¶ 1, 25 N.E.3d 601. The Supreme Court agreed that defense counsel was ineffective in failing to

object to the introduction of the witness's statement where the "personal knowledge" requirement

for admission of a prior inconsistent statement was not satisfied under section 115-10.1(c)(2) of

the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1(c)(2) (West 2012)).

¶ 90 An earlier example of a case in which trial counsel's error was sufficiently egre-

gious as to constitute clear ineffective assistance based solely upon the record on direct appeal is

the Second District's decision in People v. Fillyaw, 409 Ill. App. 3d 302, 948 N.E.2d 1116

(2011). In that case, trial counsel (as in Simpson) obviously did not understand the admissibility

of prior inconsistent statements as substantive evidence under section 115-10.1 of the Code of

Criminal Procedure of 1963 and failed to object when the State confronted one of its witnesses

with his signed statement (inconsistent with his trial testimony) in which the witness wrote that,

among other things, defendant Fillyaw told the witness that Fillyaw went to rob some people,

kicked the door down, started shooting, and shot three people. Id. at 308-09, 948 N.E.2d at

1125. Of course, the witness was not present to actually see any of these actions Fillyaw told

him about, so he had no "personal knowledge" of these events, as required by section 115-10.1.

The Second District ultimately concluded that defendant had demonstrated the ineffective assis-

tance of his trial counsel, reversed his conviction, and remanded for a new trial. Id. at 317, 948

N.E.2d at 1131.

¶ 91 D. Determining Into Which Category Defendant's Ineffective-Assistance- of-Counsel Claim Should Be Placed

¶ 92 Although at first blush it is not clear why defendant's trial counsel agreed to the

admission of the video recordings at issue in this case, given defendant's assertion that those re-

cordings contained prior consistent statements and bad character evidence, we nonetheless con-

clude that this case is a Category A appeal. In other words, it is a direct appeal raising ineffec-

- 23 - tive-assistance-of-counsel claims that this court should decline to address. That is because the

record before us, like the very large percentage of other direct appeals raising this claim, is not

adequate for this court to resolve it. The record contains no indication whatsoever why defense

counsel agreed to the admission of the video recordings in question. To resolve defendant's

claim, this court would need to guess at counsel's motivation. For reasons earlier discussed in

this opinion, we decline to do so.

¶ 93 In reaching this conclusion, we are mindful of the previously mentioned decisions

of the United States Supreme Court and the Supreme Court of Illinois holding that (1) matters of

trial strategy are generally immune from claims of ineffective assistance of counsel and (2) a de-

fendant must overcome the strong presumption that the challenged action or inaction may have

been the product of sound trial strategy. See, e.g., Manning, 241 Ill. 2d at 327, 948 N.E.2d at

267.

¶ 94 We reiterate that for a direct appeal to be deemed a Category C case, no justifiable

explanation by trial counsel for his errors could possibly exist. Thus, in the present case, we

would need to conclude that any answer to the question as to why defendant's trial counsel

agreed to the admission of the video recordings simply would not matter. We cannot so con-

clude.

¶ 95 Accordingly, we deem the prudent and judicious course of action in this case is

(1) to decline to address defendant's ineffective-assistance-of-counsel claim in this direct appeal,

(2) to affirm defendant's convictions and sentences, and (3) paraphrasing the language used by

the Supreme Court of Illinois in Bew, to note that defendant may raise his claim pursuant to the

Act. If defendant were to take that course of action, then an opportunity to develop a factual rec-

ord bearing precisely on the issue in question would be available.

- 24 - ¶ 96 III. CONCLUSION

¶ 97 For the reasons stated, we affirm the trial court's judgment.

¶ 98 Affirmed.

- 25 - ¶ 99 JUSTICE APPLETON, dissenting:

¶ 100 For two reasons, I respectfully dissent from the majority's decision. First, delay-

ing the adjudication of defendant's claim of ineffective assistance of counsel until a

postconviction proceeding is inconsistent with binding precedent from the supreme court. Se-

cond, the record on appeal shows ineffective assistance.

¶ 101 Allow me to explain those reasons one at a time.

¶ 102 I. BECAUSE THE CLAIM IS BASED ON WHAT TRIAL COUNSEL DID ON THE RECORD, THE TIME TO RAISE THE CLAIM IS NOW, NOT LATER

¶ 103 If a constitutional claim "could have been *** raised" in the direct appeal, the

doctrine of procedural forfeiture bars the claim in a subsequent postconviction proceeding. Peo-

ple v. Kokoraleis, 159 Ill. 2d 325, 328, 637 N.E.2d 1015, 1017 (1994). "An ineffective assis-

tance of counsel claim permits no wholesale departure from [that principle]." Id. If the record

on appeal affords the means of raising a claim of ineffective assistance, the defendant must raise

the claim on direct appeal, on pain of forfeiting the claim. People v. Tate, 2012 IL 112214, ¶ 14,

980 N.E.2d 1100.

¶ 104 The crucial question for our purposes is, What is a claim of ineffective assistance

that "could have been *** raised" in the direct appeal? Kokoraleis, 159 Ill. 2d at 328, 637

N.E.2d at 1017. The supreme court has laid down the following rule. A claim of ineffective as-

sistance "based on what the record discloses counsel did, in fact, do is subject to the usual proce-

dural default rule." Tate, 2012 IL 112214, ¶ 14, 980 N.E.2d 1100. By contrast, a claim of inef-

fective assistance based on what counsel ought to have done, but failed to do, is not subject to the

rule of procedural forfeiture if the claim "depend[s] on proof of matters which could not have

- 26 - been included in the record precisely because of the allegedly deficient representation." People

v. Erickson, 161 Ill. 2d 82, 88, 641 N.E.2d 455, 459 (1994). To quote Erickson more fully:

"[T]he default may not preclude an ineffective-assistance claim for

what trial counsel allegedly ought to have done in presenting a de-

fense. [Citations.] An ineffective-assistance claim based on what

the record on direct appeal discloses counsel did, in fact, do is, of

course subject to the usual procedural default rule. [Citation.] But

a claim based on what ought to have been done may depend on

proof of matters which could not have been included in the record

precisely because of the allegedly deficient representation. [Cita-

tion.]" Id. at 88, 641 N.E.2d at 458-59.

See also People v. West, 187 Ill. 2d 418, 427, 719 N.E.2d 664, 670 (1999); Kokoraleis, 159 Ill.

2d at 328-29, 637 N.E.2d at 1017.

¶ 105 For example, in one of the cases the majority cites, Bew, the defendant claimed,

on direct appeal, that his trial counsel had rendered ineffective assistance by omitting to do some-

thing, namely, file a motion for suppression of evidence. Bew, 228 Ill. 2d at 124, 886 N.E.2d at

1004. Because no motion for suppression ever had been filed, the supreme court found the rec-

ord to be insufficient to address either party's argument on the issue of ineffective assistance. Id.

at 134, 886 N.E.2d at 1009. The supreme court added, however, that the defendant was free to

pursue his claim in a postconviction proceeding, in which an adequate factual record could be

developed. Id. at 135, 886 N.E.2d at 1009-10; see also People v. Henderson, 2013 IL 114040,

¶ 22, 989 N.E.2d 192 ("Bew and Massaro demonstrate that where, as here, the defendant's claim

of ineffectiveness is based on counsel's failure to file a suppression motion, the record will fre-

- 27 - quently be incomplete or inadequate to evaluate that claim because the record was not created for

that purpose.").

¶ 106 In another case the majority cites, Campbell, the Seventh Circuit remanded the

case for an evidentiary hearing on an alleged omission by defense counsel: the failure to inter-

view some witnesses who would have given testimony favorable to the defendant. Campbell,

780 F.3d at 772. The defendant's claim of ineffective assistance depended on proof of what the

witnesses would have said on the stand—proof that was absent from the record precisely because

of the alleged ineffective assistance, i.e., the failure to interview them and call them as witnesses

in the trial.

¶ 107 The present case is different from Bew and Campbell in that the ineffective assis-

tance is something trial counsel did, on the record. He explicitly agreed, on the record, to the

admission and publication of the CDs containing the statements that Johnny Price, Matthew

Price, and Renee Strohl had made to the police. It would be untenable for defendant to say that

his claim "depend[s] on proof of matters which could not have been included in the record pre-

cisely because of the allegedly deficient representation." Erickson, 161 Ill. 2d at 88, 641 N.E.2d

at 459. Consequently, Kokoraleis and its progeny give him no choice but to raise the claim of

ineffective assistance now, in his direct appeal. If defendant had waited until the postconviction

proceeding, the State would have filed a motion for dismissal on the ground of procedural forfei-

ture—and rightfully so: the alleged acts of ineffective assistance were memorialized in the rec-

ord on direct appeal. "Reason to relax the bar [of procedural forfeiture] occurs only when what

is offered in the papers [attached to the postconviction petition] also explains why the claim it

supports could not have been raised on direct appeal." Id. at 87-88, 641 N.E.2d at 458. Consid-

ering the nature of his claim of ineffective assistance, I cannot imagine what evidence defendant

- 28 - would need to attach to his postconviction petition beyond that which already is in the transcript

of the trial. See People v. Schaff, 281 Ill. App. 3d 290, 296, 666 N.E.2d 788, 791 (1996) (In the

affidavits attached to his postconviction petition, "[the] [d]efendant presents no evidence to sup-

port the claim of ineffective assistance which is not found in the trial record."). His claim is

based on agreements or stipulations that defense counsel made on the record, and thus the claim

can be adjudicated now.

¶ 108 By delaying the adjudication of defendant's claim—and claims like his—until a

postconviction proceeding, the majority not only prescribes a "wholesale departure from" the

rule of procedural forfeiture (Kokoraleis, 159 Ill. 2d at 328, 637 N.E.2d at 1017) and delays the

administration of justice, but the majority also puts the office of the State Appellate Defender in

a dilemma. On the one hand, the supreme court tells appellate counsel: "An ineffective-

assistance claim based on what the record on direct appeal discloses counsel did, in fact, do is, of

course, subject to the usual procedural default rule." Erickson, 161 Ill. 2d at 88, 641 N.E.2d at

459. On the other hand, the majority tells appellate counsel that only "[o]n rare occasions" (slip

op. at ¶ 88) may the appellate court "appropriately address a defendant's argument on direct ap-

peal raising ineffective assistance of counsel" (slip op. at ¶ 88) and that even in cases such as this

one—cases premised on what trial counsel did, on the record—the claim must be put off until a

postconviction proceeding.

¶ 109 Buffeted by these opposing directives, what is an appellate counsel to do? Waste-

ful hedging: that is what an appellate counsel must do. To be safe, appellate counsel has to

raise the claim on direct appeal, in obedience to Erickson. Then, in obedience to the Kunze line

of cases, appellate counsel has to raise the claim again, in a postconviction proceeding. Conse-

quently, the office of the State Appellate Defender, an already overburdened agency, has to do

- 29 - double the work—which would be unnecessary if appellate counsel could count on us to follow

the aforementioned cases from the supreme court.

¶ 110 II. INEFFECTIVE ASSISTANCE

¶ 111 Having explained why, in my opinion, it is a mistake to shunt off defendant's

claim of ineffectiveness to a postconviction proceeding, I now will explain why I consider his

claim to have merit.

¶ 112 A claim of ineffective assistance has two elements: (1) deficient performance and

(2) resulting prejudice. People v. Minneifield, 2014 IL App (1st) 130535, ¶ 70, 25 N.E.3d 34. I

will organize my discussion accordingly.

¶ 113 A. Deficient Performance

¶ 114 Defense counsel's performance was deficient if it was "objectively unreasonable

under prevailing professional norms." (Internal quotation marks omitted.) Id. ¶ 71, 25 N.E.3d

34.

¶ 115 It can be objectively unreasonable of defense counsel to agree to the admission of

inadmissible evidence (People v. Fillyaw, 409 Ill. App. 3d 302, 315, 948 N.E.2d 1116, 1130

(2011)), but it is not always objectively unreasonable of defense counsel to do so. It might ap-

pear, at the time, that the inadmissible evidence stands to benefit the defense more than hurt it, in

which case defense counsel could legitimately make a tactical decision to refrain from objecting.

People v. Graham, 206 Ill. 2d 465, 478-79, 795 N.E.2d 231, 240 (2003); People v. Jackson, 2013

IL App (3d) 120205, ¶ 29, 2 N.E.3d 374. We should allow "wide latitude" for such tactical deci-

sions (People v. Cunningham, 376 Ill. App. 3d 298, 301, 875 N.E.2d 1136, 1140 (2007)), look-

ing at all the circumstances from defense counsel's perspective at the time (People v. Nowicki,

385 Ill. App. 3d 53, 82, 894 N.E.2d 896, 924 (2008)).

- 30 - ¶ 116 While being careful to avoid the false superiority of hindsight (People v. Mabry,

398 Ill. App. 3d 745, 753, 926 N.E.2d 732, 739 (2010)), we should expect something of tactical

decisions. We should not treat them as categorically sacrosanct or immune from scrutiny. Even

a tactical decision, such as a decision not to object (People v. Perry, 224 Ill. 2d 312, 344, 864

N.E.2d 196, 210 (2007)), has to be "objectively reasonable." (Internal quotation marks omitted.)

People v. Manning, 241 Ill. 2d 319, 343, 948 N.E.2d 542, 556 (2011); see also People v. Simp-

son, 2013 IL App (1st) 111914, ¶ 19, 993 N.E.2d 527; People v. Moore, 2012 IL App (1st)

100857, ¶ 53, 964 N.E.2d 1276. A reviewing court decides de novo (People v. Hale, 2013 IL

113140, ¶ 15, 996 N.E.2d 607; People v. Morris, 2013 IL App (1st) 111251, ¶ 116, 997 N.E.2d

847) whether a defendant has rebutted the presumption that refraining from objecting could be

considered, under the circumstances, to be a sound trial strategy (People v. Macias, 2015 IL App

(1st) 132039, ¶ 82, 36 N.E.3d 373).

¶ 117 A logical preliminary question would be whether the statements Johnny Price,

Matthew Price, and Renee Strohl made to the police were indeed objectionable under the rules of

evidence, since professionally reasonable performance does not entail the making of unmeritori-

ous objections. See People v. Nieves, 193 Ill. 2d 513, 527, 739 N.E.2d 1277, 1284 (2000) (no

ineffective assistance if "any objection *** would rightfully have been overruled"). According

to defendant, the CDs were objectionable on two grounds: (1) they consisted (for the most part)

of prior consistent statements, i.e., statements substantially identical to those the witnesses al-

ready had made in their testimony on direct examination; and (2) they referred to uncharged bad

acts and bad character traits of defendant.

¶ 118 Both (1) and (2) would have been valid objections if defense counsel had made

them in the jury trial. I will explain why.

- 31 - ¶ 119 1. Prior Consistent Statements

¶ 120 Generally, a prior consistent statement is inadmissible hearsay. People v. House,

377 Ill. App. 3d 9, 19, 878 N.E.2d 1171, 1179 (2007). I use the qualifier "generally" because

there are two exceptions to that rule. A prior consistent statement is admissible "(1) where the

prior consistent statement rebuts a charge that a witness is motivated to testify falsely, and (2)

where the prior consistent statement rebuts an allegation of recent fabrication." Id.

¶ 121 "Under the first exception, the prior consistent statement is admissible if it was

made before the motive to testify falsely came into existence." Id. In other words, at the time

the declarant made the prior consistent statement, the declarant lacked any motive to tell a lie.

The declarant developed that motive only later, after the prior consistent statement.

¶ 122 "Under the second [exception], a prior consistent statement is admissible if it was

made prior to the alleged fabrication." Id.

¶ 123 The idea behind both exceptions is that a witness who has been accused of dis-

honesty can be rehabilitated by showing that the witness made the same statement earlier, when

the witness lacked any motive to be dishonest. This rehabilitation would be a sham—a pretext to

convince the jury by repetition—if earlier, when the witness made the prior consistent statement,

the witness had the same motive to be dishonest that the witness has now. A prior consistent

statement is admissible only if it was "made before the motive to fabricate arose." People v.

Harris, 123 Ill. 2d 113, 139, 526 N.E.2d 335, 346 (1988).

¶ 124 The State does not invoke either of those exceptions to the rule against prior con-

sistent statements. As far as I can see, there is no reason to suppose that Johnny Price, Matthew

Price, and Renee Strohl had a motive to fabricate that arose after they made their statements to

the police. If they had a motive to fabricate, they would have had that motive from the start.

- 32 - The CDs, instead of being truly rehabilitative, were intended to bolster their credibility with

hearsay. Because the CDs contained inadmissible hearsay in the form of prior consistent state-

ments, they were objectionable on that ground. See Ill. R. Evid. 802 (eff. Jan. 1, 2011).

¶ 125 2. Uncharged Bad Acts and Bad Character Traits

¶ 126 "Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith except" as provided in various sec-

tions of the Code of Criminal Procedure (725 ILCS 5/115-7.3, 115-7.4, 115-20 (West 2012)),

none of which are applicable here. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

¶ 127 Likewise, "[e]vidence of a person's character or a trait of character is not admissi-

ble for the purpose of proving action in conformity therewith on a particular occasion," except

that, in a criminal case, an accused may offer evidence of his or her own "pertinent trait of char-

acter," after which the prosecution may "rebut the same." Ill. R. Evid. 404(a), (a)(1) (eff. Jan. 1,

2011); see also People v. Pennington, 2015 IL App (1st) 132354, ¶¶ 83-84, __ N.E.3d __; People

v. Randle, 147 Ill. App. 3d 621, 625, 498 N.E.2d 732, 736 (1986) ("[C]haracter evidence offered

by the prosecution to show the accused's propensity to violence is generally inadmissible because

the danger of unfair prejudice to the defendant in being portrayed as a 'bad man' substantially

outweighs the probative value of the evidence. [Citation.] Such evidence of bad character may

be introduced by the prosecution only if the defendant first opens the door by introducing evi-

dence of good character to show that he is a quiet and peaceful person.").

¶ 128 Defendant argues the CDs were inadmissible not only because they abounded in

prior consistent statements but also because they accused him of uncharged bad acts and bad

character traits.

- 33 - ¶ 129 Specifically, defendant refers to the following representations in Johnny Price's

recorded statement to the police: (1) defendant claimed to be a member of the Latin Kings, a

street gang, and wanted Johnny Price to make gang signs; (2) he forced Johnny Price to consume

narcotics; (3) he had "problems" with Johnny Price; and (4) he cut Strohl's throat and chased af-

ter Johnny Price because he wanted to kill all the witnesses.

¶ 130 As for Matthew Price's recorded statement, defendant argues he "made the unfair-

ly prejudicial comment that defendant 'was a real big alcoholic, and that's all he does now is

drink.' "

¶ 131 Finally, defendant argues that Renee Strohl, in her recorded statement, made the

following unfairly prejudicial comments about his character: (1) "I don't like [defendant] coming

to my house whenever he's intoxicated because he gets violent. His mother has told me, I've

never experienced anything up until today, heard stories of other people that had been hurt by

him when he drinks hard alcohol"; (2) shortly before the incident, defendant's mother "called and

asked me to tell [defendant] that he had court at [9 a.m.] and if he was going to be home. And[] I

said, [']Blackie[,] you have court at nine.['] And he said, [']I'm gonna be home by 10['] "; (3)

during the evening hours, defendant asked Strohl to invite Lizzie G. over because he wanted to

have sex with her; (4) "The only thing that [defendant] said to me that made me angry was he

told me that that Lizzie girl had given him [oral sex] on my daughter's bed, and he was like[,]

['G]ive me a high five,['] and I just said[,] ['L]ook, I told you I did not want anybody doing any-

thing on that bed['] "; and (5) defendant "talked about if Derrall Enlow would come to the

house[,] [defendant] would for certain kill him and he wouldn't clean up any of the blood."

¶ 132 The State argues the evidence of uncharged bad acts of which defendant com-

plains was admissible because these bad acts were "intertwined" with the charged offenses, i.e.,

- 34 - the cutting of Matthew Price's and Renee Strohl's throats, and "provided the background for the

events immediately surrounding the charged conduct."

¶ 133 Evidence of other bad acts can be admissible if, without such evidence, things

people did at the time of the offense would seem implausible or inexplicable. People v.

Rutledge, 409 Ill. App. 3d 22, 26, 948 N.E.2d 305, 308 (2011); People v. Carter, 362 Ill. App. 3d

1180, 1190, 841 N.E.2d 1052, 1060 (2005); People v. Manuel, 294 Ill. App. 3d 113, 124, 689

N.E.2d 344, 351-52 (1997). In other words, evidence that the defendant committed uncharged

wrongs can be admissible if such evidence provides a necessary background to people's behavior

at the time of the charged crime—behavior that otherwise would make no sense to the jury. In

that case, the evidence of other bad acts would be offered not to prove that the defendant is a

wicked person who, by nature, is prone to commit crime; rather, the evidence would be offered

to present a coherent, logically intelligible narrative of the charged crime. Carter, 362 Ill. App.

3d at 1191, 841 N.E.2d at 1060-61.

¶ 134 That does not mean the evidence is automatically admissible for that purpose. I

have tried to be careful to say that, for the sake of presenting a coherent narrative, the evidence

of other bad acts can be admissible, because even when evidence of other bad acts has a relevant

purpose other than to show the defendant's propensity to commit crime, the trial judge must

weigh the probative value of the evidence against its unfairly prejudicial effect. People v. Illgen,

145 Ill. 2d 353, 365, 583 N.E.2d 515, 519 (1991).

¶ 135 Weighing probative value against unfair prejudice, the trial court probably would

have overruled a propensity objection to defendant's alleged remark that he would kill Derrall

Enlow if he entered the house, because that remark explained why defendant allegedly picked up

- 35 - the steak knife from the TV table when he went to answer the back door (apparently, he wanted

to be prepared in case it was Enlow who was knocking).

¶ 136 Likewise, the trial court probably would have overruled a propensity objection to

defendant's allegedly chasing Johnny Price, because chasing him arguably showed a desire to

intercept or eliminate witnesses—a desire defendant would have had only if he knew he was

guilty of cutting Matthew Price's and Renee Strohl's throats. In that regard, the purpose would

have been to show a consciousness of guilt, not a propensity to commit crime. "Evidence of oth-

er crimes is admissible if it is relevant for any purpose other than to show the defendant's pro-

pensity to commit crime." (Emphasis added.) People v. Pikes, 2013 IL 115171, ¶ 11, 998

N.E.2d 1247.

¶ 137 I do not see, though, how defendant's alleged declaration of membership in the

Latin Kings and his forcing Johnny Price to smoke K2 were probative of anything other than de-

fendant's supposed aggressive, violent, unsavory character. It would be one thing if Johnny Price

told the police, unequivocally: "Defendant wanted me to make gang signs, but I refused to do

so, and he forced me to smoke K2, but one hit is all I would take. He became irate at me because

of these refusals, and he threatened to beat me up. That's when Matthew Price told him, 'You'll

have to go through me first.' " If Johnny Price had told the police that, one might infer that de-

fendant "went through" Matthew Price by cutting his throat, in which case what happened before

would have been necessary to a coherent narrative. See Carter, 362 Ill. App. 3d at 1191, 841

N.E.2d at 1060-61. But Johnny Price merely told the police that defendant had unspecified

"problems" with him, and Johnny Price only speculated that defendant threatened to beat him up,

and he only speculated that Matthew Price replied that defendant would have to go through him

first ("that's what I'm guessing they said"). That Johnny Price could only speculate what defend-

- 36 - ant and Matthew Price told one another regarding him—if indeed they had any conversation at

all regarding him—made the probative value of these other bad acts low compared to the unfair

prejudice to defendant.

¶ 138 That defendant had been known to hurt people when he got drunk was blatant

propensity evidence, and if defense counsel had objected to it, there would have been nothing to

weigh. The only possible function of this evidence was to suggest that, as someone who had a

known history of hurting people when drunk, defendant was just the type of person who would

cut the throats of Matthew Price and Renee Strohl in a drunken rage.

¶ 139 It is unclear that the remaining evidence of which defendant complains even qual-

ifies as "other crimes, wrongs, or acts." Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). The court date

his mother called about could have been in a civil matter. And as for his eagerness to have sex

with Lizzie G., it seems unlikely a jury would think, "Since he's crude and licentious, he's just

the sort of person who would cut someone's throat."

¶ 140 But membership in the Latin Kings, forcing someone to smoke a dangerous nar-

cotic, and being a violent drunk clearly were bad acts or bad character traits. See id.; Ill. R. Evid.

404(a)(1) (eff. Jan. 1, 2011). I can discern no strategic reason to acquiesce to the presentation of

that inadmissible and unfairly prejudicial evidence.

¶ 141 Again, whether to object is a strategic decision. Perry, 224 Ill. 2d at 344, 864

N.E.2d at 210. Although we should give "wide latitude" to strategic decisions (Cunningham,

376 Ill. App. 3d at 301, 875 N.E.2d at 1140), we should expect them to be "objectively reasona-

ble" (Manning, 241 Ill. 2d at 343, 948 N.E.2d at 556). I realize that just because evidence is ob-

jectionable, defense counsel does not automatically have to object to it and that, pursuant to a

logical strategy, defense counsel could reasonably refrain from making what would have been a

- 37 - legally meritorious objection. Graham, 206 Ill. 2d at 478-79, 795 N.E.2d at 240. Nevertheless, I

am unable to see how it was objectively reasonable of defense counsel to agree to the wholesale

presentation of the statements that Johnny Price, Matthew Price, and Renee Strohl had made to

the police. The agreement is inexplicable; it makes no sense.

¶ 142 Defense counsel's stated reason for entering into the agreement was simply falla-

cious. He reasoned to the trial court that if he used the statements for impeachment, as he in-

tended to do, he would "open the door" anyway and the statements in their entirety would

"[come] in." Likewise, the prosecutor alluded to "the doctrine of completeness." Actually, as

defendant explains in his brief, the doctrine of completeness makes additional parts of a state-

ment admissible only to the extent necessary to "prevent the jury from being misled, to place the

admitted portion in context so that a true meaning is conveyed, or to shed light on the meaning of

the admitted portion." People v. Craigen, 2013 IL App (2d) 111300, ¶ 46, 997 N.E.2d 743. I do

not see how the impeaching parts of the statements would have been misleading in the absence

of a presentation of the statements in their entirety.

¶ 143 The all-or-nothing assumption was incorrect. See People v. Andersch, 107 Ill.

App. 3d 810, 820, 438 N.E.2d 482, 489 (1982). If a witness has been impeached with a prior

inconsistent statement, the party who called the witness may bring out additional portions of the

statement "to qualify or explain the inconsistency and rehabilitate the witness." People v. Har-

ris, 123 Ill. 2d 113, 142, 526 N.E.2d 335, 347 (1988). But any portion of the statement which

does not qualify or explain the inconsistency is inadmissible. Id.; Andersch, 107 Ill. App. 3d at

820, 438 N.E.2d at 489. So, defense counsel was mistaken in his assumption that he would open

the door to the statements in their entirety simply by using excerpts of the statements for im-

peachment.

- 38 - ¶ 144 There was no strategic reason for stipulating to the admission of the statements in

their entirety. The stipulations were objectively unreasonable, and one can only assume that de-

fendant personally consented to the stipulations only on the basis of defense counsel's mistaken

understanding of the law.

¶ 145 B. Resulting Prejudice

¶ 146 A defendant suffers prejudice from the deficient performance of defense counsel

if there is a "reasonable probability" that, but for the deficient performance, the outcome of the

proceeding would have been more favorable to the defendant. Minniefield, 2014 IL App (1st)

130535, ¶ 71, 25 N.E.3d 34. To establish a "reasonable probability," a defendant has to do more

than show that the deficient performance had "some conceivable effect on the outcome." Strick-

land v. Washington, 466 U.S. 668, 693 (1984). And, yet the defendant need not go so far as to

show that the deficient performance "more likely than not altered the outcome." Id. Rather, a

"reasonable probability" is "a probability sufficient to undermine confidence in the outcome."

Id. at 694.

¶ 147 The closer the case is, the more likely that defense counsel's deficient perfor-

mance altered the outcome. See People v. Butcher, 240 Ill. App. 3d 507, 510, 608 N.E.2d 496,

498 (1992). This was a close case. Johnny Price, Matthew Price, and Renee Strohl were flawed

witnesses.

¶ 148 That Johnny Price, who apparently was in possession of a cell phone, would re-

frain from calling 9-1-1 is somewhat troubling but perhaps is explainable in that he assumed his

grandmother, whom he apparently did call, would call 9-1-1. If Johnny Price, however, declined

Gayla Jenkins's offer to call 9-1-1 (as she testified he did), that is a real problem, considering

that, for all Johnny Price knew, his first cousin and his first cousin's girlfriend were at that very

- 39 - moment lying in their front room, bleeding to death. That Jenkins (as she also testified) saw

Johnny Price laughing while talking on his cell phone, immediately after he fled the scene of the

throat-cutting, could suggest he was not quite as devastated as he at first presented himself to be.

¶ 149 As for Matthew Price, he was a felon, and one can only wonder about his level of

consciousness after consuming alcohol, hydrocone powder, cannabis, and K2.

¶ 150 According to Matthew Price, defendant dropped the knife onto the floor when he

pushed defendant down onto the bed. Detective Anthony West testified, however, that he found

the knife on top of the television table, as pictured in People's exhibit No. 32.

¶ 151 There also was the discrepancy between what Matthew Price told Wright, Tina

Broom, and Adriana Pedigo and what he told the jury. It is unclear what motive those three

would have had to lie. They all described themselves as Matthew Price's longtime friends, and

Pedigo even testified that Matthew Price was like a brother to her. According to Wright's testi-

mony, Matthew Price told her that Johnny Price had cut his and Renee Strohl's throats because

Johnny Price had given them money to buy drugs for his own use and they had consumed the

drugs instead of giving them to him, Johnny Price. Pedigo testified that Matthew Price had told

her three times it was Johnny Price who had cut his throat. And Broom testified that Matthew

Price had told her both defendant and Johnny Price were standing behind him when his throat

was cut. Thus, the testimony of Matthew Price, a felon and a heavy drug user, was in direct con-

tradiction to what he supposedly had told his friends: Wright, Broom, and Pedigo.

¶ 152 As for Renee Strohl, she admitted she had no idea who had cut her throat.

Hydrocone and rum, consumed together, probably did not enhance her alertness.

¶ 153 In short, I would find a reasonable probability that the wholesale presentation of

the police statements made a difference in the outcome. "The danger in prior consistent state-

- 40 - ments is that a jury is likely to attach disproportionate significance to them. People tend to be-

lieve that which is repeated most often, regardless of its intrinsic merit, and repetition lends cred-

ibility to testimony that it might not otherwise deserve." People v. Smith, 139 Ill. App. 3d 21, 33,

486 N.E.2d 1347, 1355 (1985). In their statements to the police, Johnny Price and Matthew

Price repeated their accounts again and again. In addition to being influenced by this repetition,

the jury could have been inclined to think that a mean drunk who was a member of a street gang

was just the sort of person who would cut someone's throat. The record shows prejudice, and I

would reverse the trial court's judgment on the ground of ineffective assistance of trial counsel.

- 41 -