People v. Wilson

2021 IL App (1st) 192295-U

Opinion

2021 IL App (1st) 192295-U No. 1-19-2295 Order filed December 16, 2021 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 19 CR 4554 ) CALVIN WILSON, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for armed habitual criminal over his contentions that the trial court erred by denying his motion to suppress statements and that he was denied effective assistance of counsel.

¶2 Following a jury trial, defendant Calvin Wilson was found guilty of armed habitual

criminal (720 ILCS 5/24-1.7(a) (West 2018)) and sentenced to six years in prison. On appeal,

defendant contends that the trial court erred by denying his motion to suppress his statements to No. 1-19-2295

officers who used an unconstitutional “question first, warn later” interrogation strategy. He further

argues he was denied effective assistance when trial counsel conceded his guilt. We affirm.

¶3 Defendant was charged by indictment with armed habitual criminal and five counts of

unlawful possession of a weapon by a felon following his February 22, 2019 arrest.

¶4 Prior to trial, defendant filed a motion to suppress statements alleging that officers used a

“question first, warn later” interrogation strategy in violation of Missouri v. Seibert, 542 U.S. 600

(2004), and failed to take “curative measures” after administering the warnings under Miranda v.

Arizona, 384 U.S. 436 (1966).

¶5 At the hearing on the motion, Chicago police officer David Jeffrey testified that on the

morning of February 22, 2019, he and his partner Officer Juan Tapia helped execute a search

warrant in the 1600 block of South Sawyer Avenue. Prior to arriving, Jeffrey learned the target’s

name and viewed his photograph. He identified defendant in court as that person.

¶6 At the address, officers removed defendant from a vehicle. Jeffrey escorted defendant to

the front of a patrol car, but did not remember sitting him on its hood or whether defendant was

handcuffed. Jeffrey asked “general questions,” but did not provide Miranda warnings. After

defendant stated that he found a pistol, Jeffrey told him to stop talking and Mirandized him. Jeffrey

then further questioned defendant, who related that he found a pistol and gave its location in the

house.

¶7 The defense published Jeffrey’s body camera footage. Jeffrey narrated the video, which is

included in the record on appeal and depicts him speaking to defendant while other officers appear

at the left and center of the frame and oftentimes speak at the same time as defendant and Jeffrey.

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The video lasts approximately six minutes. The audio quality is poor and cuts out at several points,

and a transcript contained in the record notes that multiple statements are inaudible.

¶8 In the video, defendant sits in a vehicle and Jeffrey asks his name, where he lives, and

which floor. Defendant replies, and Jeffrey tells defendant that he is being recorded and asks

whether defendant has anything on him. Defendant answers no as Tapia cuffs him and he is

allowed to sit on the hood of the police vehicle.

¶9 As Jeffrey says that he wants to explain something, defendant offers his keys so that the

front door is not broken. Jeffrey asks if defendant understands what is happening. Defendant

answers yes, and Jeffrey states that officers have a search warrant. Defendant then says he knows

all about that “bull s***” and “[a]in’t nothing in there.” Another officer enters the frame, and a

voice asks if anyone is inside and defendant answers no. Jeffrey asks whether there is “anything

in there” and tells defendant to be honest before officers “start tearing up the house.” A voice off

camera asks whether anyone is inside. According to the transcript, an officer asks if there is a dog

in the house. At this point, there are three other officers in the frame. Defendant answers that he

will tell the truth and that he found an “old raggedy pistol.” As another officer says “Okay,”

defendant mutters something inaudible, and Jeffrey tells defendant to stop talking.

¶ 10 As defendant continues to speak, Jeffrey asks another officer for an “FOP” book

(containing the Miranda warnings), again tells defendant to stop talking, and says he will

“Mirandize” defendant. While Jeffrey recites the Miranda warnings, other officers ask about the

firearm and defendant talks about his keys and says other inaudible things. Jeffrey tells defendant

to “hold on” several times, finishes the Miranda warnings, and asks whether defendant wishes to

speak to officers. Defendant agrees to answer questions. Jeffrey asks what is inside the house that

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officers need to know about, and defendant says he found an old pistol and gives its location within

the house.

¶ 11 During cross-examination, Jeffrey testified that the search warrant described narcotics

rather than a firearm. When executing a search warrant, police secure the area to protect officer

and citizen safety. Defendant was outside, but Jeffrey did not know who or what was in the

building. Although the video depicted another officer asking defendant if anyone else was inside,

Jeffrey denied personally asking defendant “those types of questions.” When defendant responded

to the other officer’s question and stated that he found a pistol, Jeffrey told defendant to stop talking

and recited the Miranda warnings but defendant continued to speak.

¶ 12 After completing the Miranda warnings, Jeffrey asked defendant if he wanted to talk and

defendant agreed. Jeffrey asked defendant what officers needed to know was in the house, and

defendant mentioned the pistol and its location. Prior to defendant’s statement, Jeffrey had no

reason to believe a pistol was in the house. During redirect, Jeffrey testified that he did not believe

he had radio contact with other officers while speaking with defendant, and did not relay the

information he received to other officers.

¶ 13 In denying the motion, the trial court noted that defendant interjected “thoughts and

comments” while officers questioned him, and the video showed a “tremendous amount of

disorganization.” Jeffrey and other officers were not communicating with the team entering the

residence, officers on the video interrupted each other, and the court found no strategy in “three

people interrogating someone on the street” while Miranda warnings were read. Jeffrey issued the

warnings immediately after hearing about the pistol, and then asked if defendant wished to speak

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to the police. The court noted that defendant interrupted questions “before they were completely

made” and concluded that the statements were voluntary.

¶ 14 The State proceeded on the charge of armed habitual criminal at trial. During opening

statements, defense counsel submitted that defendant found a firearm outside his house, placed it

in a storage room to keep it from his children and grandchildren, and “did what he thought was

best.” Thus, according to counsel, the State could not prove that defendant’s “intent was to possess

that firearm.”

¶ 15 The State called Jeffrey, whose testimony largely comported with his testimony at the

suppression hearing. On February 22, 2019, Jeffrey and Tapia wore body cameras. After

Mirandizing defendant, Jeffrey asked about the firearm and defendant stated he found an “old,

raggedy” pistol and gave its exact location in “the first room on the left.” Jeffrey also asked

defendant whether he was a convicted felon and defendant answered yes. Jeffrey then entered the

residence and retrieved the loaded pistol. Jeffrey’s body camera video was published.

¶ 16 During cross-examination, Jeffrey testified that defendant truthfully answered general

questions about his name and address, complied with the request to exit the vehicle, and did not

resist handcuffing. Jeffrey did not advise defendant of the Miranda warnings prior to asking

whether “anything” was in the house, and asked defendant to be honest. At that point, defendant

stated he found a pistol. Jeffrey then read the Miranda warnings and asked whether officers needed

to know about anything inside the house. Defendant repeated that he found an old raggedy pistol

and related its exact location. When Jeffrey recovered the pistol, it lacked the cylinder release.

¶ 17 Tapia testified that he detained defendant, and removed the keys from the vehicle’s

ignition. He then asked defendant which keys operated particular locks at the residence, and used

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them to enter the basement apartment. The footage from Tapia’s body camera, which was

published and is included in the record on appeal, shows Tapia cuffing defendant, removing the

keys from the vehicle, and unlocking the doors and gates to a basement apartment.

¶ 18 The State entered a stipulation that defendant was previously convicted of the qualifying

felony offenses of possession of a controlled substance with intent to deliver in case number 07

CR 06747-01, and burglary in case number 03 CR 10845-02.

¶ 19 Defendant testified that he had a 2014 conviction for possession of a controlled substance.

One day in late January 2019, his wife observed a pistol beside the house. Since the pistol was

“not safe” outside, defendant put the pistol in a storage room where his children and grandchildren

did not go. Defendant did not call the police because he had not had “good encounters” with them

and “figure[d]” they would take him “straight back to prison.” He also feared being arrested if he

took the pistol to a “buyback” program. Defendant did not intend to possess the pistol and never

removed it from the storage room.

¶ 20 During cross-examination, defendant testified that the storage room was always locked and

that he believed it was locked on February 22, 2019. He gave the officers his keys so that they

would not “tear the house up.”

¶ 21 In rebuttal, Tapia testified that he and another officer entered and “clear[ed]” the residence,

including a room to the left that had an open door without locks. Additional footage from Tapia’s

body camera was then published. This footage is included in the record on appeal and depicts

officers entering the basement apartment. The first door on the right is closed with items piled in

front, there are two additional open doors on the right, and one open door to the left, as well as a

doorway at the end of the hall.

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¶ 22 In closing argument, the State asserted that defendant testified regarding his

uncorroborated thoughts and feelings, but the video showed that the storage room was not locked.

In response, trial counsel argued that defendant acted conscientiously when he took a firearm off

the street and “buried” it in a box in a storage room. According to counsel, defendant was truthful

with officers and never intended to possess the pistol. In rebuttal, the State argued that defendant

constructively possessed the firearm when he put it in a storage bin in his home and that his

intentions did not matter.

¶ 23 The jury found defendant guilty of armed habitual criminal. Defendant filed a motion for

a new trial alleging, relevant here, that the trial court erred when it denied his motion to suppress

statements and that he was not proven guilty beyond a reasonable doubt. At a hearing on the

motion, trial counsel argued that the State failed to establish that defendant intended to possess the

firearm. The trial court denied the motion, and following a hearing, sentenced defendant to six

years in prison. Defendant filed a motion to reconsider sentence, which the trial court denied.

¶ 24 On appeal, defendant first contends that the trial court erred in denying his motion to

suppress his statements preceding the Miranda warnings where he was subjected to custodial

interrogation without first being advised of his rights. Additionally, he posits that any statements

made after being advised of his rights should be suppressed because Jeffrey used a “question first,

warn later” interrogation tactic without curative measures.

¶ 25 We review the trial court’s ruling on a motion to suppress under a two-part standard. People

v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard, we give deference to the court’s

findings of fact, reversing them only where they are contrary to the manifest weight of the

evidence. People v. Cosby, 231 Ill. 2d 262, 271 (2008). However, we review de novo the court’s

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ultimate legal ruling as to whether suppression was warranted. Id. We may consider the trial

testimony and testimony from the suppression hearing. People v. Slater, 228 Ill. 2d 137, 149

(2008). “Where a defendant challenges the admissibility of a confession through a motion to

suppress, the State bears the burden of proving the confession was voluntary by a preponderance

of evidence.” Id.

¶ 26 In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that a

person questioned by police must first “be warned that he has the right to remain silent, that any

statement he does make may be used as evidence against him, and that he has a right to the presence

of an attorney, either retained or appointed,” as long as that person has been “taken into custody

or otherwise deprived of his freedom of action in any significant way.” Id. at 444. “The finding of

custody is essential, as the preinterrogation warnings required by Miranda are intended to assure

that any inculpatory statement made by a defendant is not simply the product of the compulsion

inherent in custodial surroundings.” (Internal quotation marks omitted.) Slater, 228 Ill. 2d at 149-

50. Accordingly, Miranda is not triggered when officers conduct “general investigatory on-the-

scene questioning as to the facts surrounding a crime.” People v. Hannah, 2013 IL App (1st)

111660, ¶ 42; see also Miranda, 384 U.S. at 477-78 (differentiating between general questioning

and the “compelling atmosphere inherent in the process of in-custody interrogation”).

¶ 27 Here, even assuming that defendant was in custody when he made his initial statement to

Jeffrey, the questioning falls under the public safety exception to Miranda established in New York

v. Quarles, 467 U.S. 649 (1984).

¶ 28 In that case, two police officers were approached by a woman who stated that she had just

been raped, described the offender, and said he was armed. After entering a store, one officer saw

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the defendant, who matched the description, and eventually detained him. After a search revealed

the defendant was wearing an empty shoulder holster, an officer asked the location of the firearm.

The defendant stated that “ ‘the gun is over there,’ ” nodding at an empty carton nearby. Id. at 652.

The officer retrieved a loaded firearm from the carton, arrested the defendant, and read him the

Miranda warnings. Id. The trial court suppressed the statement and the firearm because the officer

did not Mirandize the defendant prior to questioning.

¶ 29 The Supreme Court found a public safety exception to Miranda and held that a police

officer may ask limited questions to a suspect without first giving him Miranda warnings if

reasonably necessary “to secure” the safety of the officer or the public. Id. at 658-59. The Court

noted that the firearm posed a danger to public safety because an accomplice might use it or a

customer or an employee may have come upon it in the busy store. Id. at 657. The police officer

asked about the firearm immediately after apprehending the defendant and was concerned about

the whereabouts of a weapon that he believed the defendant had discarded in the store. Id.

¶ 30 The Court described the exigent circumstances under which the public safety exception

would apply as those where the police must decide “in a matter of seconds,” “in a kaleidoscopic

situation” where “spontaneity rather than adherence to a police manual is necessarily the order of

the day.” Id. at 655-57. Requiring Miranda warnings under such circumstances would oblige

officers to decide whether to ask the question without the warnings and render the evidence

inadmissible, or give the warnings and possibly prevent the defendant from giving the information

needed to neutralize a volatile situation. Id. at 657-58. Accordingly, the exception is narrow and

based upon the exigencies of the circumstances facing the officers during the inquiry. Id. at 658-

59. The Court therefore found, based on this public safety exception, that the defendant’s statement

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and the firearm were admissible. Id. at 659-60. See also United States v. Newton, 369 F.3d 659,

677-78 (2d Cir. 2004) (quoting Quarles, 467 U.S. at 659 n.8) (rather than focusing on the officers’

subjective motivation, the exception applies as long as the questioning “ ‘relate[s] to an objectively

reasonable need to protect the police or the public from any immediate danger’ ”).

¶ 31 In People v. Williams, 173 Ill. 2d 48 (1996), our supreme court similarly recognized the

public safety exception. In that case, a suspect was handcuffed and subjected to a pat-down

pursuant to an arrest for a recent shooting. When officers asked whether the defendant had any

weapons or needles “on him,” the defendant responded he had a firearm in the attic. Id. at 56.

¶ 32 In affirming the denial of his motion to suppress, our supreme court relied on the

observation in Quarles that “ ‘the need for answers to questions in a situation posing a threat to

the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s

privilege against self-incrimination.’ ” Williams, 173 Ill. 2d at 77 (quoting Quarles, 467 U.S. at

657); cf. Hannah, 2013 IL App (1st) 111660, ¶ 47 (finding that the public safety exception did not

apply when an officer had already recovered the weapon and then asked a handcuffed suspect

“ ‘whose gun is this?’ ”).

¶ 33 In the present case, officers were about to enter defendant’s home, a two story building,

pursuant to a search warrant. The building and its occupants and layout were unknown to the

officers. Jeffrey asked about anything the officers needed to know before entering the building.

Jeffrey testified that he had no reason to believe a firearm was inside, but considering the building

was locked, he could reasonably have believed that other individuals, hidden weapons, unknown

conditions, or objects inside could endanger the officers. As such, we find that Jeffrey’s inquiry

was justified for ensuring officer safety, and did not constitute illicit interrogation in violation of

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Miranda. See United States v. Are, 590 F.3d 499, 505-07 (7th Cir. 2009) (applying the public

safety exception when a defendant was handcuffed in his home pursuant to search warrant, was

asked whether weapons were in the house, and stated an automatic weapon was under a dresser);

Newton, 369 F.3d at 678-79 (applying the public safety exception when the defendant was

handcuffed in apartment and asked whether he had “ ‘contraband,’ ” where officers knew a firearm

was present and the family was involved in a domestic dispute); United States v. Williams, 181

F.3d 945, 953-54 (8th Cir. 1999) (applying the public safety exception when an officer asked, “ ‘is

there anything we need to be aware of?’ ” because officers were unaware whether armed

individuals or other “hazardous weapons” were inside the apartment).

¶ 34 We are unpersuaded by defendant’s reliance on People v. Fort, 2014 IL App (1st) 120037.

In that case, police officers “forcibly” entered the defendant’s home with drawn firearms. Id. ¶ 3.

After the defendant and others were found inside, the defendant was escorted to another floor,

where an officer asked a question that she answered. Id. The defendant moved to suppress her

statements, as the officer did not give the Miranda warnings.

¶ 35 At the hearing on the motion, the officer testified that after the residents were gathered in

one room, the defendant asked if she could retrieve her baby from her bedroom. Id. ¶ 4. The officer

asked for a supervisor’s permission, escorted the defendant to the bedroom, and then asked “ ‘if

there [was] anything in the room [police] should know about.’ ” Id. The defendant then stated that

she had cocaine in her bedding. Id. The officer observed that the defendant wanted to enter a

“ ‘room that [was not] cleared of any weapons or type of instruments that could harm police

officers,’ ” and that he asked “ ‘if there was anything in the room for my safety and the safety of

the other officers.’ ” Id. ¶ 35. The defendant denied the interaction and the statement. Id. The trial

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court denied the motion to suppress statements, and following a bench trial, found the defendant

guilty of possession of a controlled substance. Id. ¶¶ 5-7. The defendant appealed, contending that

the trial court erred in denying her motion to suppress statements.

¶ 36 On appeal, this court noted that the defendant was questioned in her home after officers

made “a considerable show of force” by entering with drawn firearms and “round[ing] up” most

of the inhabitants. Id. ¶ 14. Moreover, the defendant was separated from her infant, requested

permission to retrieve the infant, and was then accompanied by an officer. Id. ¶ 15. Considering

these circumstances, this court determined that the defendant was in custody during questioning,

and therefore, reversed the denial of the motion to suppress statements. Id. ¶¶ 15-16, 18.

¶ 37 Initially, we note that the Fort majority did not discuss the application of the public safety

exception. Moreover, the questioning in that case occurred after officers entered the home with

drawn weapons and secured the residence and its occupants. In the case at bar, police officers

encountered defendant outside the premises to be searched and were unaware of possible threats

inside the locked building. Considering that the building could have contained people, dangerous

conditions or circumstances which could threaten officer safety, Jeffrey’s inquiry was motived by

concern for officer safety rather than a desire to induce defendant to incriminate himself, and

therefore, fall under the public safety exception to Miranda. Accordingly, the trial court properly

denied the motion to suppress defendant’s statement preceding the Miranda warnings.

¶ 38 Defendant next contends that his post-Miranda statement should have been suppressed

because Jeffrey used an unconstitutional “question first, warn later” interrogation technique.

¶ 39 “A confession is voluntary if it is the product of free will, rather than the product of the

inherently coercive atmosphere of the police station.” People v. Nicholas, 218 Ill. 2d 104, 118

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(2005). As a guard against self-incrimination, statements made in response to custodial

interrogation must be suppressed unless they are preceded by Miranda warnings. Miranda, 384

U.S. at 478-79. However, the failure to Mirandize a defendant before his initial inculpatory

statement does not necessarily require the suppression of statements made after the defendant was

so warned. Oregon v. Elstad, 470 U.S. 298, 314 (1985).

¶ 40 Although “Miranda requires that the unwarned admission must be suppressed, the

admissibility of any subsequent statement should turn in these circumstances solely on whether it

is knowingly and voluntarily made.” Elstad, 470 U.S. at 309. The Court explained that:

“absent deliberatively coercive or improper tactics in obtaining the initial statement, the

mere fact that a suspect has made an unwarned admission does not warrant a presumption

of compulsion. A subsequent administration of Miranda warnings to a suspect who has

given a voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement. In such circumstances, the

finder of fact may reasonably conclude that the suspect made a rational and intelligent

choice whether to waive or invoke his rights.” Id. at 314.

¶ 41 In Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme Court condemned

the “question first, warn later” interrogation technique and mandated the suppression of statements

that resulted from use of that tactic. Pursuant to this technique, an officer interrogates a suspect

and obtains an incriminating statement, then provides the Miranda warnings, and repeats the

question until the accused repeats the original answer. Id. at 611-12. The Court reasoned that

Miranda warnings given after eliciting a confession would be ineffective in conveying to a

defendant the nature of his rights, including the right to remain silent, and the consequences of

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abandoning those rights. Id. at 613-14. In his concurrence, Justice Kennedy advocated a narrower

test, finding the plurality’s test was too broad because it applied to both intentional and

unintentional two-step interrogations. Id. at 621-22 (Kennedy, J., concurring). In contrast, Justice

Kennedy’s test would apply only where police deliberately employed a two-step interrogation in

a calculated effort to undermine Miranda warnings. Id. at 622 (Kennedy, J., concurring).

¶ 42 Justice Kennedy recognized situations where officers do not deliberately withhold Miranda

warnings, and that “[a]n officer may not realize that a suspect is in custody and warnings are

required,” or “may not plan to question the suspect or may be waiting for a more appropriate time.”

Id. at 620 (Kennedy, J., concurring). Since Elstad and Seibert were decided, the Elstad standard

has been applied, except where police deliberately attempted to evade Miranda by not offering the

warnings until after a defendant has confessed. See People v. Lopez, 229 Ill. 2d 322, 360-61 (2008).

¶ 43 In Lopez, our supreme court adopted Justice Kennedy’s concurrence in Seibert, and

reiterated that the relevant framework is to first determine if the police deliberately engaged in a

“question first, warn later” technique while interrogating a defendant. Id. at 360. Absent evidence

of deliberate conduct, the Seibert analysis ends. Id. “ ‘[I]n determining whether the interrogator

deliberately withheld the Miranda warning, courts should consider whether objective evidence and

any available subjective evidence such as an officer’s testimony, support an inference that the two-

step interrogation procedure was used to undermine the Miranda warning.’ ” Id. at 361 (quoting

United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)). Relevant evidence includes the

timing, setting, and completeness of the prewarning interrogation; the continuity of police

personnel; and the overlapping content of the unwarned and warned statements. Id. at 361-62.

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¶ 44 In Lopez, our supreme court noted that the detective involved denied using the question

first, warn later technique. Id. at 362. Regarding the objective evidence of the technique, the court

noted that the police brought the 15-year-old defendant into an interrogation room at a police

station at approximately 1 p.m., and stated that another person implicated him in a murder. Id. The

defendant provided some information and was then left alone in the room for four or five hours

with the door closed while the detectives continued to investigate. Id. The same detectives spoke

with the defendant at 6 p.m., again stated he was implicated in the murder, and revealed that the

other person had confessed. Id. Without providing Miranda warnings, the detectives asked the

defendant whether he was involved, and the defendant made an oral inculpatory statement. Id.

After the confession, detectives gave the defendant the Miranda warnings, and he thereafter gave

a handwritten statement. Id. at 362, 365.

¶ 45 Our supreme court found that the detectives used a “question first, warn later” interrogation

strategy by confronting the defendant with a statement implicating him, and after about five hours

again confronting him with the same statement resulting in an oral confession, all without

providing the Miranda warnings. Id. at 362-63. The court could “think of no legitimate reason why

the detectives failed to give defendant his Miranda warnings prior to the 6 p.m. confrontation,

other than a deliberate decision to circumvent Miranda in hopes of obtaining a confession, which

would ultimately lead to a handwritten statement.” Id. at 363-64.

¶ 46 Applying Lopez to the case at bar, no evidence, subjective or objective, indicates that the

officers intentionally prevented defendant from asserting his Miranda rights, or that Jeffrey

deliberately delayed the Miranda warnings. According to Jeffrey, he only asked general questions

as to defendant’s identity and address, and whether officers needed to know anything before

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entering the house. Detaining defendant was not a coercive measure intended to induce an

admission, but had a legitimate reason—the officers’ safety when executing the search warrant.

Once defendant made the initial statement about the firearm, Jeffrey immediately told him to stop

talking, and related the Miranda warnings. The video shows that Jeffrey, defendant, and other

officers were all speaking at the same time, and defendant ignored Jeffrey’s repeated attempts to

have defendant stop speaking during the Miranda warnings.

¶ 47 Unlike Lopez, where the interrogation occurred at the police station sometime after the

offense being investigated, here, the questioning took place outside the home subject to the search

warrant. As the trial court noted, the setting and chaotic nature of the interaction indicates that

Jeffrey lacked the time or opportunity to create a strategy to circumvent Miranda. Moreover,

Jeffrey sought identification and safety information, and the questions posed by other officers

involved whether the house contained anything that should concern them. This was not

“systematic, exhaustive [questioning] managed with psychological skill.” See Seibert, 542 U.S. at

616.

¶ 48 Additionally, as soon as defendant mentioned the pistol, Jeffrey told him to stop talking

and attempted to relate the Miranda warnings. The immediacy of the Miranda warnings following

defendant’s statement is another objective factor showing that Jeffrey did not deliberately attempt

to engage in the question first, warn later interrogation technique. Although Jeffrey and defendant

did not relocate after Jeffrey advised him of the Miranda warnings and asked whether he wished

to speak with officers, nothing indicates that Jeffrey intended to induce an inculpatory statement.

Rather, this was part of the execution of the search warrant. Therefore, viewing all the objective

evidence in its totality, we conclude that Jeffrey did not deliberately attempt to engage in the

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question first, warn later technique to circumvent the Miranda requirements, and defendant’s

argument fails.

¶ 49 Defendant next contends that he was denied effective assistance when trial counsel

conceded his guilt at trial. He posits that although counsel argued that defendant acted with “good

intentions,” that was not a valid defense and counsel’s admission that defendant put the pistol in

the storage room “legally amounted” to knowing possession of a firearm. The State responds that

defendant received effective assistance when trial counsel worked “creatively” with the evidence,

which included a video showing that defendant admitted to having a firearm in the house.

¶ 50 Claims of ineffective assistance are evaluated under Strickland v. Washington, 466 U.S.

668 (1984). People v. Henderson, 2013 IL 114040, ¶ 11. To succeed, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonableness and a reasonable

probability that the outcome of the proceeding would have been different but for counsel’s errors.

Id. A defendant must establish both prongs in order to prevail on a claim of ineffective assistance.

People v. Cherry, 2016 IL 118728, ¶ 24. “We review a defendant’s claim of ineffective assistance

of counsel in a bifurcated fashion, deferring to the trial court’s findings of fact unless they are

contrary to the manifest weight of the evidence, but assessing de novo the ultimate legal question

of whether counsel was ineffective.” People v. Manoharan, 394 Ill. App. 3d 762, 769 (2009).

¶ 51 Prejudice may be presumed when a defendant “ ‘is denied counsel at a critical stage,’ ”

counsel “ ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ ” or

when counsel represents a client in circumstances under which no lawyer could provide effective

assistance. Cherry, 2016 IL 118728, ¶ 25 (quoting United States v. Cronic, 466 U.S. 648, 659-61

(1984)). The United States Supreme Court later clarified that where “the possibility of presuming

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prejudice [is] based on an attorney’s failure to test the prosecutor’s case, *** the attorney’s failure

must be complete.” Bell v. Cone, 535 U.S. 685, 696-97 (2002).

¶ 52 Here, defendant argues that prejudice must be presumed when trial counsel failed to subject

the State’s case to meaningful adversarial testing. Defendant argues that counsel conceded his guilt

by acknowledging that he put the pistol in the storage room, but never intended to possess it. Our

supreme court has stated that this second “Cronic exception” is narrow and infrequently applies,

and that the presumption of prejudice is triggered only where trial counsel’s performance amounts

to no representation at all. Cherry, 2016 IL 118728, ¶ 26.

¶ 53 The State charged defendant with being an armed habitual criminal, which requires proof

that the defendant possessed a firearm after having been convicted of two offenses enumerated in

the statute. 720 ILCS 5/24-1.7(a) (West 2018). The parties stipulated to defendant’s two prior

qualifying convictions, and thus the State only needed to prove defendant’s possession of a

firearm. At trial, the State introduced body camera footage in which defendant stated that he found

a “old raggedy pistol” and put it in a storage room in his house.

¶ 54 A review of the record reveals that trial counsel subjected the State’s case to meaningful

adversarial testing while never conceding that defendant intended to possess the pistol. Prior to

trial, counsel filed a motion to suppress defendant’s statements regarding the pistol. At trial,

counsel presented a theory that defendant was too afraid of the police to contact them regarding

the pistol, so he hid it to protect his children and grandchildren. Counsel also cross-examined

Jeffrey regarding his questioning of defendant and when the Miranda warnings were given, and

presented defendant, who explained that he acted to protect his family, feared the police, and did

not intend to possess the pistol. In opening statement and closing arguments, trial counsel argued

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that defendant acted with good intentions and never intended to possess the pistol. Counsel

thereafter filed a motion for a new trial alleging that the court erred when it denied the motion to

suppress statements, and at the hearing thereon, argued that the State failed to establish that

defendant intended to possess the pistol.

¶ 55 This record establishes that trial counsel did not concede defendant’s guilt. Rather, counsel

challenged the State’s evidence, argued that defendant acted to protect his family, and explained

why he was reluctant to contact the police. Considering that the State presented an officer and a

video wherein defendant admitted he found a pistol and placed it in his home, counsel’s trial

strategy of justifying defendant’s actions cannot render his performance ineffective.

¶ 56 People v. Bloomingburg, 346 Ill. App. 3d 308 (2004), is instructive. In that case, the

defendant relied on Cronic to argue that he was denied effective assistance when trial counsel

conceded his guilt during opening statements and then presented a self-defense theory that was

inapplicable because he was the aggressor and not in imminent danger of great bodily harm. Id. at

316-17. On appeal, this court concluded that the presumption of prejudice did not apply when trial

counsel (1) made pretrial motions to suppress evidence, (2) advanced a defense theory, (3) cross-

examined most of the State’s witnesses, (4) objected to adverse evidence, and (5) made a closing

argument that defendant should not be convicted of first degree murder. Id. at 318. We determined

that trial counsel had not entirely failed to subject the State’s case to meaningful adversarial testing

when counsel did not concede every significant aspect of the defendant’s guilt and held the State

to its burden of proof. Id.

¶ 57 Similarly, in the case at bar, we decline to presume prejudice. That said, as discussed, to

succeed on an ineffective assistance claim, a defendant must demonstrate both that counsel’s

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performance fell below an objective standard of reasonableness and a reasonable probability that

the outcome of the proceeding would have been different but for counsel’s errors. Henderson,

2013 IL 114040, ¶ 11. To establish that counsel’s performance was deficient, a defendant must

overcome a strong presumption that the challenged action reflected sound trial strategy. People v.

Manning, 241 Ill. 2d 319, 327 (2011). It is insufficient that counsel’s strategy proved unsuccessful

with the benefit of hindsight. People v. Massey, 2019 IL App (1st) 162407, ¶ 31. Rather, a trial

strategy is unsound only where no reasonable defense attorney would pursue it under similar

circumstances. People v. Faulkner, 292 Ill. App. 3d 391, 394 (1997). Accordingly, our supreme

court has found that decisions regarding trial strategy are generally immune from ineffective

assistance claims. Manning, 241 Ill. 2d at 327.

¶ 58 Faced with video evidence of defendant admitting that he found a pistol and put it in his

home and stating where it was located in his home and police recovering the pistol from that

location, trial counsel first attempted to suppress defendant’s statements. When that was

unsuccessful, counsel presented a trial strategy to justify defendant’s decision to hide the pistol

rather than contact the police, and focused on his intent not to possess it. Manning, 241 Ill. 2d at

327. The mere fact that this strategy failed does not render counsel’s performance deficient.

¶ 59 Based on the record before this court, defendant cannot show a reasonable probability that

the outcome of his trial would have been different had counsel not acknowledged his admission

that he found the pistol and placed it in his home or presented defendant’s testimony to explain his

actions. See People v. Bew, 228 Ill. 2d 122, 135 (2008) (“Strickland requires actual prejudice be

shown, not mere speculation as to prejudice”). Considering that the evidence at trial included

defendant’s statement on video that he found the pistol and placed it in his home, defendant cannot

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establish prejudice from counsel’s complained-of actions, and his ineffective assistance claim fails.

Cherry, 2016 IL 118728, ¶ 24.

¶ 60 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 61 Affirmed.

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