People v. Sharp

2015 IL App (1st) 130438
No. 1-13-0438
Opinion filed January 21, 2015.

Third Division
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 11 CR 12357
)
KEYSHON SHARP, )
) The Honorable
Defendant-Appellant. ) Luciano Panici,
) Judge, presiding.
)
______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

OPINION

¶1 Defendant Keyshon Sharp was charged with multiple offenses in the shooting of

Nicholas Coleman. The first of his two jury trials ended in a mistrial. The second jury found him

guilty of attempted first degree murder and aggravated battery with a firearm. The court

sentenced Sharp to a total of 55 years' imprisonment.

¶2 Sharp claims the trial court erred by not ordering a mistrial when it learned at least five of

the jurors in his second trial had received telephone calls falsely informing them that the court
 No. 1-13-0438

time had been delayed two hours. Sharp argues the trial judge should have questioned the jurors

more extensively than he did, particularly about their ability to be fair after the improper contact,

and admonished the affected jurors not to speak to the remaining jurors about the calls. We

decline Sharp's invitation to review this claim under the plain error doctrine, finding his

argument has not met either prong of the doctrine.

¶3 Sharp next contends the trial court deprived him of his right to a fair trial before a

properly instructed jury by accepting the State's non-Illinois Pattern Jury Instruction (IPI) for the

offense of attempted first degree murder. The modified instruction accurately stated the law as it

applied to Sharp and, therefore, the trial court did not abuse its discretion when it instructed the

jury with the State's proffered non-IPI jury instruction. Defendant's alternate argument that his

trial counsel was ineffective for failing to object to the jury instruction modification likewise

fails.

¶4 Sharp further argues the trial court erred by allowing gang evidence into the trial. Sharp

complains of three instances which he argues prejudiced the jurors against him: (1) voir dire

questions about the possible use of gang evidence; (2) the use of defendant's nickname, "Baby

Stone"; and (3) the State's introduction of a "wanted" poster, which included Sharp's nickname.

The trial court properly asked the prospective jurors about their ability to consider possible gang

evidence for the limited purpose it might be offered, i.e., to ensure the jurors would not be

prejudiced against Sharp should gang evidence come out at trial. Moreover, evidence of Sharp's

nickname and the "wanted" poster do not imply gang affiliation. The information was solicited

by the State for the proper purpose of establishing how the eyewitnesses identified Sharp.

¶5 Next, Sharp argues his trial counsel was ineffective for failing to: (1) object to the voir

dire questions concerning potential gang evidence; (2) object to the introduction of the "wanted"

-2-
 No. 1-13-0438

poster; (3) object to the State's proposed jury instructions; (4) present the two alibi witnesses that

were called in the first trial; (5) make a threshold showing sufficient for the admission of

evidence that another individual confessed to the crime; (6) move for a mistrial when the parties

learned some jurors received phone calls falsely informing them of a delayed start time; and (7)

object when only 10 of the 12 jurors were polled. Sharp's claims fail because he cannot show

counsel's decisions were deficient and that he was prejudiced as a result. The record shows trial

counsel presented a viable, consistent defense and acted as an advocate for Sharp.

¶6 Sharp argues he was denied assistance of counsel during the posttrial proceedings and at

the sentencing hearing, claiming posttrial counsel failed to obtain transcripts from Sharp's trial,

failed to participate in the posttrial proceedings, did not file or argue a posttrial motion on

Sharp's behalf and presented no evidence or arguments in mitigation during Sharp's sentencing

hearing. Defendant has failed to overcome the strong presumption that posttrial counsel's alleged

inaction was part of his trial strategy. Moreover, even if defendant could, he has not shown how

he was prejudiced by posttrial counsel's actions and, therefore, his claim fails.

¶7 Sharp also argues his 55-year sentence for attempted first degree murder is excessive in

light of his "substantial rehabilitative potential" and strong family ties. The trial court did not

abuse its discretion in sentencing Sharp. His sentence is within the statutory range and is

proportionate to the nature of the offense. We further find no merit to Sharp's contention that the

30-year firearm enhancement that was applied to his sentence is void because it is

unconstitutionally vague both on its face and as applied. We affirm his sentence.

¶8 Lastly, Sharp argues, and the State concedes, that the mittimus must be amended to

reflect the correct offense name and class, and the proper statutory citation. We agree.

Accordingly, we uphold the judgment of the trial court and correct the mittimus to reflect that

-3-
 No. 1-13-0438

Sharp was found guilty of attempted first degree murder, Class X (720 ILCS 5/8-4(a), 9-1(a)(1)

(West 2010)).

¶9 BACKGROUND

¶ 10 Procedural History

¶ 11 Sharp was charged with multiple counts of attempted first degree murder, aggravated

battery with a firearm, aggravated discharge of a firearm and aggravated battery in the shooting

of Nicholas Coleman. Sharp demanded a jury trial. Before trial, the State nolled all the counts

except for one count of attempted first degree murder and aggravated battery with a firearm.

¶ 12 In connection with voir dire, the State asked the court to question the prospective jurors

about whether they knew any police officers or lawyers and whether they were acquainted with

anyone in a street gang. The State contended the information would be important because Sharp

listed Emani Fort, the granddaughter of El Rukn gang leader Jeff Fort, as a potential witness and

defendant was identified as "Baby Stone" by two eyewitnesses, which could show an allegiance

to the Black P. Stones gang. The State asked for a proffer as to what Emani would testify to

because she was not an occurrence witness and was not named as an alibi witness in Sharp's

original filing of his affirmative defense.

¶ 13 Defense counsel did not object to the gang affiliation inquiry of the venire. As a proffer,

counsel stated the purpose of Emani's testimony was to refute Nicholas's statement that he

previously met or saw Sharp through her. Emani would testify that she never met Sharp and that

Nicholas did not meet Sharp through her.

¶ 14 The court admonished the venire:

"You may hear evidence of street gang membership by the Defendant.

Although street gangs have a negative connotation, the purpose of this evidence

-4-
 No. 1-13-0438

would be limited and should not be considered as evidence of the defendant's

propensity to commit crimes."

"Do you have any personal knowledge of anyone in a street gang; and, if so,

what gang?"

¶ 15 At the first trial, the defense theory was that Sharp did not commit the shooting because

he was picking up his sister's children from daycare at the time. Three witnesses testified on

Sharp's behalf—a daycare employee, Sharp's sister, and a friend Sharp was with before picking

up the children. Sharp did not testify. At the close of its case, defense counsel requested a

continuance, stating new evidence had come to light concerning the "real offender." Counsel

claimed that Emani Fort and Mercedes Green would testify that Ronald Jackson told them he

was responsible for the shooting. The judge denied defense counsel's request, finding the

evidence lacked an indicia of reliability and further noted that he believed the timing of the new

evidence was suspicious.

¶ 16 When jury deliberations proved unsuccessful, the jury hung and the court declared a

mistrial. The court immediately set the case for retrial.

¶ 17 The State again, without objection, had the judge ask the two gang-related questions to

the venire. The judge stated that all of his in limine rulings from the original trial would remain

in effect, he denied defense counsel's request for a continuance to investigate the evidence of a

third party confession, and ruled that defense counsel could not introduce the evidence of the

confession through Emani Fort.

¶ 18 The parties selected 12 jurors and 2 alternates. One juror was excused the first day for her

language abilities and an alternate was seated. The parties agreed to proceed with only one

alternate.

-5-
 No. 1-13-0438

¶ 19 At the conclusion of the evidence, the jurors were told to return to court at 9 a.m the next

day for closing arguments and deliberations.

¶ 20 Shortly after 9a.m. the following morning, only 9 out of the 13 jurors were present. The

deputy sheriff called the missing jurors, getting ahold of three of them, and learned that they had

been called the night before and told to report two hours later. When the late jurors arrived, the

trial judge brought them into chambers individually and asked, "Why were you late this

morning?"

¶ 21 The first juror questioned, D.B., stated that a woman called his home and informed him

the court time had changed to 11 a.m. D.B. received the call at the number he provided on his

juror information card. The trial judge asked if anything else was said and the juror replied no.

The first juror left and the second was brought in.

¶ 22 The second juror, N.V., was asked the same question. She responded that she had

received a call at 4 p.m. the day before at the number she listed on her juror card. The woman

caller told N.V. she was the trial judge's secretary and that the judge would like to change the

arrival time to 11 a.m. N.V. asked the caller, "Let me get this straight. He's changed it to

eleven?" and the caller said, "Yes." N.V. showed the trial judge the number that placed the call to

her and stated that her caller I.D. displayed "Cook County Government Building" or something

to that affect. She told the trial judge she was upset she was late and he told her not to be. The

trial judge told her it was "no problem" she was late.

¶ 23 The third juror, D.P., was brought into chambers next. When asked why she was late, she

responded that she received a call shortly after she returned home that came up as "Cook County

Sherriff" or something similar and she was told to come in at 11 a.m. The trial court confirmed

-6-
 No. 1-13-0438

that was all that was said and that the number she received the call at was the one listed on her

juror card.

¶ 24 The trial judge had a discussion with the parties and stated that it was clear that someone

from a Cook County number called the jurors and that it should be looked into. The judge

concluded that it was clear that "nothing else was said, other than to come in at 11:00 o'clock."

When counsel suggested the calls had "to do with delaying this case," the court responded,

"Okay. That is enough. I don't see anything improper so, therefore, we're going to continue." The

judge recessed the proceedings until 11 a.m. to wait for the fourth delayed juror.

¶ 25 When another juror indicated to the sheriff that she had received a call, she was brought

into chambers. The juror stated that she received two calls from "Cook County" between 4:30

and 5 p.m. the night before. She did not answer because she did not recognize the number. She

called the number back and reached a recording indicating it was a Cook County number. The

number she received the call on was the one listed on her juror card.

¶ 26 When the last of the missing jurors, A.R., arrived, he was brought into chambers. A.R.

stated that he received a call that he should return to court at 11 a.m. A.R. did not get the call on

his cell phone, which was the number listed on his juror card, but rather, on his house phone. The

trial judge excused A.R. from chambers and separated him from the other jurors. The court found

it suspicious that this particular juror was the only one to receive the call at a number not listed

on his juror card, so the court excused him.

¶ 27 Defense counsel objected to A.R. being excused. In response to defense counsel's

suggestion that more information was needed before the juror could be excused, the court stated:

"Well, the problem is this. This is a retrial and the last time there was

alleged—it just so happened that the only hold-out was a person that had concerns

-7-
 No. 1-13-0438

about gang members that belong to the same gang as the defendant milling around

her car. So it was a hung jury.

I then took action to segregate the jurors, but apparently, somehow, *** this

has not stopped and, somehow, I don't know what the heck is going on but

whatever is going on, its raises a red flag, especially if he would have told me he

got a phone call on the number that he put on the jury card, then it would have

been similar to the rest of them.

He says that he put the cell number, a cell phone number on the jury card, but

then got a call at home and that definitely, raises a red flag.

So I am going to dismiss that juror and I am going to impanel the other

alternate."

The alternate juror was impaneled over defense counsel's objection.

¶ 28 The jury returned and heard closing arguments, was instructed and deliberated. At the

conclusion of the second trial, the jury found Sharp guilty of attempted first degree murder and

aggravated battery with a firearm.

¶ 29 After the finding of guilt, Sharp's privately retained trial counsel was given leave to

withdraw and new counsel was granted leave to file an appearance. After a nine month delay, the

trial court denied Sharp's motion for a continuance, as well as his motion to reconsider. The court

sentenced Sharp to 25 years' for attempted first degree murder and 30 years' for discharge of a

firearm.

¶ 30 Factual History

¶ 31 Around 5 p.m. on June 21, 2011, Nicholas Coleman pulled his car into the driveway of

the home he shared with his mother in Harvey, Illinois. Nicholas's father, Joseph Coleman, was a

-8-
 No. 1-13-0438

passenger in the car. Both Nicholas and Joseph saw Sharp standing by the fence near Nicholas's

house. Nicholas knew Sharp and testified he had never had any problems with him, so when he

saw Sharp by the fence, he believed he was "just walking by." Nicholas got out of the car and

began walking toward the house. Joseph got out of the car, too, to remind Nicholas not to forget

his cell phone. Joseph then got back in the car.

¶ 32 Nicholas had a dog that was on the other side of the fence. As Sharp walked toward

Nicholas's house, he asked Nicholas about his dog. Sharp stood 10 feet away from Nicholas,

face-to-face. Nicholas testified he was so close to Sharp, he could see him bite his lip and reach

for his hip.

¶ 33 From the car, Joseph saw Sharp walk up to Nicholas and make a motion like he was

going to "hug" him. Joseph saw Sharp pull out a gun. Nicholas testified he saw the gun in Sharp's

hand and saw that it was pointed at him. Sharp fired the gun at Nicholas, but Nicholas was not

hit. Nicholas ran and Sharp chased him. Joseph got out of the car and ran into the street for help.

¶ 34 As Nicholas ran, Sharp shot him in the back of the leg. Joseph saw Sharp shoot and

watched as his son fell to the ground. After Nicholas fell, he immediately turned over onto his

back and covered his head with his arms. Nicholas testified he did not cover his eyes and

watched as Sharp ran toward him. Nicholas saw Sharp aim his gun and fire. Sharp stood over

Nicholas with his arm extended toward him with the gun.

¶ 35 Joseph watched from the street as Sharp stood over Nicholas, aimed his gun and

repeatedly fired into Nicholas's body. Nicholas testified he could see Sharp's face clearly.

¶ 36 When Sharp stopped firing, he jumped over the fence toward the alley behind Nicholas's

house. Nicholas was conscious and tried to stand, but was unable to. A woman came to his aid

and called 911.

-9-
 No. 1-13-0438

¶ 37 Joseph saw Sharp come out of the alley and go over to Mauryce Brown's car. Mauryce

had lived next door to Nicholas for two years and sold him the puppy. Brown testified he was

around the corner and heard four or five gunshots. About 30 seconds after the last gunshot, Sharp

approached his car and asked to "get in." Brown saw Sharp was holding a gun. He did not let

him in. Sharp ran; Brown did not see where. Brown drove down the street a few feet, until he

saw Nicholas lying on the ground. He then he got out to help.

¶ 38 Detective Jason Banks arrived at the scene within 10 minutes of the shooting and spoke

with Brown, who identified the shooter as "Baby Stone" and believed his name was "Keyshon."

Brown told detective Banks he had seen Sharp with a gun right after the shots were fired.

¶ 39 The day after the shooting, detective Banks put together a photographic array, which

included a photo of Sharp. Brown identified Sharp as the individual he had seen the day before

with a gun. Detective Banks created a "wanted" poster with Sharp's first and last name,

description, nickname and photo. Joseph also viewed the photo array containing Sharp, but did

not identify anyone.

¶ 40 On July 7, detective Banks was able to speak with Nicholas at the hospital and ask who

shot him. Nicholas responded, "Baby Stone." Detective Banks showed Nicholas a photo array

and Nicholas identified Sharp as the person who shot him.

¶ 41 Nicholas was shot seven times in his calf, thigh, groin, chest, elbow, neck and under his

arm. He underwent surgery to put in a tracheotomy tube so he could breathe, as well as to repair

the damage done to a main artery by one of the bullets. Nicholas could not speak or eat for two

weeks and remained hospitalized for three weeks. When he was released, Nicholas still had

trouble breathing and could not speak in full sentences without stopping to take a breath. His

vocal cords are permanently damaged and he has severe nerve damage in his left arm.

-10-
 No. 1-13-0438

¶ 42 On July 13, Sharp turned himself into the police. He told the police he was picking up his

sister's children at Great Expectations Day Care the day of the shooting. That same day,

Detective Banks asked Brown, Nicholas and Joseph to view a physical lineup at the police

station. The three men viewed the lineup separately. Brown identified Sharp as the individual he

saw with a gun on the day of the shooting and Nicholas and Joseph both identified Sharp as the

shooter.

¶ 43 At the conclusion of the State's case-in-chief, the court denied Sharp's motion for a

directed finding. The defense presented the same alibi it did during Sharp's first trial—that he

was picking up his sister's children from daycare at the time of the shooting—but, at the second

trial, the defense only presented one witness, Kenneth Woods, the director of Great Expectations.

Woods testified the daycare kept sign-in sheets for each child and required parents to sign the

children in and out each day. On June 21, Sharp's name was on the sign-out sheet for his sister's

children, with the time listed as 5:30 p.m. Woods testified he had no personal knowledge of

anyone who signed in or out on any particular day and that the sheets were kept in a book on a

table and remained out for a month before being filed in his office. He testified that other sign-

out sheets for Sharp's sister's children did not have anyone listed for sign-out, so the sheets were

left blank. Woods acknowledged that the sign-out sheet sits out in the open and is vulnerable to

being filled out at a later date. Also, sometimes children are picked up without anyone signing

the sign-out sheet. Woods further acknowledged that Sharp did not have authorization to pick up

his sister's children. The sign-out sheet was admitted into evidence and the defense rested.

¶ 44 The State called Detective Banks in rebuttal. He testified it would take four minutes to

drive from Nicholas's house to Great Expectations. The State rested. The jurors were released for

the day and told to return at 9 a.m. the following morning.

-11-
 No. 1-13-0438

¶ 45 As discussed, some of the jurors returned late after receiving a phone call improperly

informing them the court time had been delayed until 11 a.m. One of the jurors was dismissed

and the alternate impaneled.

¶ 46 The parties presented closing arguments and the jury was instructed with the State's

proposed instruction for attempt first degree murder rather than the Illinois pattern instruction.

"A person commits the offense of attempt first degree murder when he, with

the intent to kill an individual, does any act which constitutes a substantial step

towards the killing of an individual.

That during the commission of the offense of attempt first degree murder, the

defendant personally discharged a firearm that proximately caused great bodily

harm to another.

The killing attempted need not have been accomplished."

The court instructed the jury that to sustain a conviction of attempted first degree murder, the

State had to prove all three propositions and that, "If you find from your consideration of all the

evidence that each one of these propositions has been proved beyond a reasonable doubt, you

should find the defendant guilty."

¶ 47 When the jury returned a guilty verdict of attempted first degree murder and aggravated

battery with a firearm, it was polled, with only 10 jurors being questioned. Defense counsel filed

posttrial motions; however, because Sharp sought a new attorney, trial counsel asked for leave to

withdraw, which the court granted.

¶ 48 On March 6, 2012, Sharp's new counsel, Michael Oppenheimer, was granted leave to file

an appearance. Defendant's presentence investigative report was tendered to counsel; counsel

acknowledged receipt on the record. The case was continued.

-12-
 No. 1-13-0438

¶ 49 The following court date, April 27, Oppenheimer informed the court trial transcripts had

been ordered to "fully brief the motion for new trial," but had not yet been received. The court

cautioned, "I'm not going to wait forever, counsel." Counsel indicated he understood. The court

continued the matter to June 10, with defendant's brief due June 8 and the hearing scheduled for

June 21.

¶ 50 On June 22, Oppenheimer filed a petition for the court to provide a free transcript

claiming Sharp was indigent and he was representing him pro bono. Counsel acknowledged he

had a partial transcript from Sharp's trial attorney. The State responded, arguing counsel's request

should be denied because even though he appeared on Sharp's behalf on March 6, April 16, and

April 27, he never represented to the court that Sharp was indigent or he was representing him

pro bono. The trial court denied Oppenheimer's request for free transcripts. The court informed

defense counsel it would proceed on posttrial motions at the next court date regardless of

whether counsel had the transcripts.

"Next court date, we're proceeding on the motion. I don't care whether you have

the transcripts or not, we're going ahead. I will give you enough time. If you want

to get your transcripts you could get them. I will give you an August date but

that's it. We're going to a hearing on posttrial motions."

The court continued the matter to August.

¶ 51 On August 24, defense counsel stated he was unable to supplement the formerly filed

posttrial motion for a new trial because he did not have transcripts. Oppenheimer argued Sharp's

"due process rights were violated" by the court's denial of his request for a free transcript.

Counsel indicated that without the transcripts, he could not proceed. The court denied counsel's

request for a continuance and proceeded to the hearing.

-13-
 No. 1-13-0438

¶ 52 Oppenheimer argued:

"Judge, there is nothing to proceed on with regard to the hearing. I don't have the

benefit of the transcript in order to argue anything but a bare bones motion for a

new trial. Just so the record is clear because you have denied his right to a free

transcript."

The court denied counsel's motion for a new trial. Counsel requested 30 days to file a motion to

reconsider; the court denied the request. The judge told counsel to file a motion to reconsider if

he wished and proceeded to sentencing over defense counsel's objection.

¶ 53 Counsel indicated he was "not prepared" for sentencing and suggested it was because all

that had been set was posttrial motions, which the court ruled on "without the benefit of counsel's

argument" or the transcript. In response, the court stated:

"Okay. Well, let me explain something. The reason there has been no argument

[is] because you chose not to do any argument on this matter. ***[Y]ou come in

here, and you represented to this Court back in February that you would have

everything read and ready to go in April. It's continued from April to June. In

June, you came in on a motion to have a free transcript. It is the policy of this

Court that transcripts are not given to private Counsel. If you are going to

represent somebody pro bono, you will then represent him pro bono to the full

extent that is required to properly represent him. You don't pick and choose to

represent him pro bono, and then ask for free transcripts. That is not the case

because every lawyer would then come in on that basis to ask for free transcripts

by this Court. That is not going to happen. You decided to represent him pro

bono, therefore, it is incumbent upon you to obtain whatever documents are

-14-
 No. 1-13-0438

necessary for you to proceed. You have chosen not to get those documents. It's

not the Court's fault. I have given you six months from the date that you filed your

appearance to get those transcripts, and you have done—have not done so. So it's

not the Court's fault. It's your fault for not proceeding on it. So, we're ready to

go."

Posttrial counsel renewed his request for a continuance to prepare for sentencing and to file a

motion to reconsider the court's denial of defendant's motion for a new trial. The court indicated

it would pass the case for 30 minutes to allow defense counsel to prepare and file a motion to

reconsider. Counsel indicated he would not prepare his motion during that time and argued it was

"absolutely ridiculous" for the court to grant the State's request requiring him to do so. The State

argued it was "absolutely ridiculous" for defense counsel "to ask for a motion to reconsider on a

motion that [he] refuse[d] to argue." The court denied posttrial counsel the opportunity to file a

motion to reconsider and continued to sentencing. Again, posttrial counsel indicated he was not

prepared for sentencing.

¶ 54 Sentencing

¶ 55 The court indicated it had defendant's presentence investigative report (PSI) and asked

the parties if there were any corrections, deletions or modifications that needed to be made. The

State asked that the PSI be corrected to reflect two convictions for armed robbery rather than

simply robbery. Posttrial counsel indicated he was not prepared for sentencing and informed the

court that he had not read the PSI. Again, he requested a continuance. The State informed the

court the PSI was prepared and distributed after Oppenheimer was granted leave to appear on

defendant's behalf. The court denied posttrial counsel's request for a continuance and the State

presented evidence in aggravation.

-15-
 No. 1-13-0438

¶ 56 The State called Christopher Lundy of the Riverdale police department, who testified that

on July 13, 2006, he investigated an armed robbery. Lundy, along with other officers, pursued

the robbers in a high-speed chase; Sharp was the driver. Sharp was later identified by the victims

of the armed robbery. Defense counsel objected to the introduction of this evidence and informed

the court "I am definitely not prepared to deal with this witness." The court informed counsel the

armed robbery evidence was part of defendant's PSI and overruled counsel's objection. Posttrial

counsel did not conduct cross-examination of the witness.

¶ 57 The State presented detective Banks, who testified he investigated the attempted murder

of Rodney Bowles and that Bowels told him that "Baby" had caused his injuries. Posttrial

counsel objected a few times throughout Banks' testimony and conducted cross-examination.

During cross, Banks acknowledged the Bowels' case file was never tendered to either party and

he did not seek to have Sharp charged in the case.

¶ 58 The State also called Franky White, who testified that on June 9, 2011, he was shot in the

thigh by Sharp as he sat on the porch with his girlfriend. Oppenheimer objected a few times

throughout and renewed his request for a continuance before cross-examining and re-cross-

examining White.

¶ 59 Following presentation of its live testimony, the State presented Nicholas's victim impact

statement. At the conclusion of the State's presentation in aggravation, defense counsel renewed

his request for a continuance, which the court denied.

¶ 60 Defense counsel presented no mitigation evidence and no argument.

¶ 61 The trial court discussed both mitigation and aggravation in detail before sentencing

Sharp to 25 years' for attempted first degree murder and 30 years' as an enhancement for the

discharge of the firearm during the commission of the crime. The court stated it had reviewed

-16-
 No. 1-13-0438

Sharp's presentence investigative report and acknowledged Sharp's prior criminal background.

The court found it troubling that Sharp told a probation officer he quit the Black P. Stone Nation

street gang in 2009, but then told the officer when he was arrested that he is a member of the

gang. The court acknowledged defendant's family, specifically that he is a father.

¶ 62 ANALYSIS

¶ 63 Jury Contact

¶ 64 Sharp contends the trial court should have ordered a mistrial when it learned certain

jurors had been improperly contacted and told they were to report two hours later than the judge

had instructed them. Sharp argues the trial judge failed to properly question the jurors who

received the suspicious phone calls and that the court's error deprived him of his right to a fair

trial before an impartial jury. Sharp contends the trial judge should have specifically asked each

affected juror if he or she could be fair in light of the external contact. Sharp further argues the

phone calls caused an appearance of impropriety and asks this court to presume prejudice.

¶ 65 The State maintains Sharp waived this issue and further contends the trial court properly

handled the incident without further inquiry when it found no harm was caused by the phone

calls. We agree. Sharp failed to object at trial or raise this issue in a posttrial motion, forfeiting

review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Recognizing this, Sharp urges the plain

error doctrine under which we may review a forfeited error when either (1) "the evidence in a

case is so closely balanced that the jury's guilty verdict may have resulted from the error and not

the evidence" or (2) "the error is so serious that the defendant was denied a substantial right, and

thus a fair trial." People v. Herron, 215 Ill. 2d 167, 178-79 (2005). The defendant bears the

burden of persuasion under both prongs. Id. at 187. If the defendant fails to meet this burden,

-17-
 No. 1-13-0438

"we must honor the procedural default" created by his or her failure to properly preserve the

claim for review. People v. McCoy, 405 Ill. App. 3d 269, 273 (2010).

¶ 66 The plain error exception to the waiver rule does not save Sharp's claim of error. The

evidence was not closely balanced in this case. Two eyewitnesses, one of which was the victim,

viewed defendant in broad daylight and from close proximity, fire his gun into Nicholas's body.

A third witness heard the gunshots and then was approached immediately after by defendant who

asked to enter his car. All three witnesses identified defendant as the shooter. The error is not

reversible under the first prong of the doctrine.

¶ 67 Under the second prong of the doctrine, this kind of error is only reversible when a

defendant can demonstrate that the error resulted in the impaneling of a biased jury. "Trial before

a biased tribunal would deprive defendant of a substantial right and constitute structural error

requiring reversal." People v. Runge, 234 Ill. 2d 68, 102 (2009) (citing People v. Rivera, 227 Ill.

2d 1, 20 (2007), aff'd, 556 U.S. 148 (2009)). Due process requires " 'a jury capable and willing to

decide the case solely on the evidence before it, and a trial judge ever watchful to prevent

prejudicial occurrences and to determine the effect of such occurrences when they happen.' "

Runge, 234 Ill. 2d at 103 (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). In reviewing a

judicial investigation of alleged juror misconduct, courts have recognized that " 'sometimes less

is more' " and "that a trial court, in exercising its investigatory discretion, must assess the

particular circumstances before it to ascertain whether questioning individual jurors might

compound the problem by drawing attention to it." Runge, 234 Ill. 2d at 104 (quoting United

States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004)). Whether jurors have been influenced and

prejudiced to the extent they cannot be fair and impartial involves a determination that rests

-18-
 No. 1-13-0438

within the trial court's sound discretion and, hence, will not be disturbed on review absent an

abuse of that discretion. Runge, 234 Ill. 2d at 104.

¶ 68 Sharp has not offered any evidence the jury was biased and, therefore, he has failed to

meet his burden under the second prong of the plain error doctrine. We agree with the State that

"there is no reason to presume prejudice based on the limited nature of the phone calls."

¶ 69 The trial judge properly questioned each juror about why he or she was late to court. The

trial judge limited the questioning to the content of the phone calls, specifically, what was said,

what time the call was received, and at what number the call was placed. Based on each juror's

response, the judge determined the calls were limited to the time the jurors were to return to

court the following day. Nothing linked either party to the making of the improper phone calls

nor did the judge say anything to the jurors that could have implied the calls came from either

side. None of the affected jurors stated anything to the judge that indicated that he or she could

not be impartial. The court clarified to the parties that it did not have a secretary and that the

improper calls should be looked into. Neither party objected to the court's questioning of the

jurors (defense counsel objected only when one of the jurors was excused because his

circumstances varied from the others—he received the call at a number not listed on his juror

information card—no objection was made to continuing the trial with the other affected jurors

still impaneled). The court properly exercised its discretion to determine that further questioning

or admonishments were unnecessary.

¶ 70 Having failed to meet his burden of persuasion under either prong of the plain error

doctrine, Sharp's forfeiture is not excused. We will not review Sharp's contention on its merits.

¶ 71 Modified Jury Instructions

-19-
 No. 1-13-0438

¶ 72 Next, Sharp argues he was deprived of a fair trial when the court instructed the jury with

modified instructions for attempted first degree murder that he claims "misstated the law and

contained confusing sentence fragments."

¶ 73 Sharp acknowledges he did not preserve this claimed error either and again asks that we

review it under the plain error doctrine. Sharp argues the "flawed instruction" was a substantial

defect that rendered his trial fundamentally unfair.

¶ 74 A defendant forfeits his or her right to review of a jury instruction error if he or she fails

to object to the instruction at trial and does not include the issue in a posttrial motion. People v.

Sargent, 239 Ill. 2d 166, 188-89 (2010). Illinois Supreme Court Rule 451(c) (eff. Apr. 8, 2013),

however, states that substantial defects in criminal jury instructions "are not waived by failure to

make timely objections thereto if the interests of justice require." This rule sets the same limits as

the plain error doctrine. Sargent, 239 Ill. 2d at 189.

¶ 75 The plain error doctrine allows a reviewing court to consider the unpreserved error if the

defendant is able to meet his burden of persuasion under either prong, regarding whether the

evidence was closely balanced or the error was so serious that it affected the fairness of his trial

and challenged the integrity of the judicial process. Herron, 215 Ill. 2d at 178-79. For there to be

plain error, there must first be error. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 76 Sharp relies heavily on the fact that the firearm enhancement is not an element of

attempted first degree murder, but a separate and distinct enhancement that must be presented to

the jury and proven beyond a reasonable doubt. 720 ILCS 5/8-4(a), 9-1(a) (West 2010); 725

ILCS 5/111-3(c-5) (West 2010). Sharp contends that by inserting a sentence fragment from the

firearm enhancement definition instruction into the attempted first degree murder definition

instruction, the instruction provided to the jury did not properly state the law and was confusing.

-20-
 No. 1-13-0438

¶ 77 The State replies that accepting its proposed non-IPI instruction was within the trial

court's discretion and proper because the modified instruction accurately stated the law as it

applied to Sharp. The State further maintains that defendant is unable to show prejudice. We

agree.

¶ 78 "[A] jury instruction error rises to the level of plain error only when it creates a serious

risk that the jurors incorrectly convicted the defendant because they did not understand the

applicable law, so as to severely threaten the fairness of the trial." (Internal quotation marks

omitted.) People v. Herron, 215 Ill. 2d 167, 193 (2005). This standard is "difficult" to meet.

People v. Sargent, 239 Ill. 2d 166, 191 (2010).

¶ 79 The court instructed the jury with a modified version of Illinois Pattern Jury Instructions,

Criminal, No. 6.05X (4th ed. 2000) (portions added to the IPI instruction underlined):

"A person commits the offense of attempt first degree murder when he, with

the intent to kill an individual, does any act which constitutes a substantial step

toward the killing of an individual. That during the commission of the offense of

Attempt First Degree Murder, the defendant personally discharged a firearm that

proximately caused great bodily harm to another. The killing attempted need not

have been accomplished."

The jury was also given a modified version of Illinois Pattern Jury Instructions, Criminal, No.

6.07X (4th ed. 2000), with the personal discharge of a weapon language added (underlined

below):

"To sustain the charge of attempt first degree murder, the State must prove the

following propositions: First Proposition: That the defendant performed an act

which constituted a substantial step toward the killing of an individual; and

-21-
 No. 1-13-0438

Second Proposition: That the defendant did so with the intent to kill an individual.

Third Proposition: That during the commission of the offense of Attempt First

Degree Murder, the defendant personally discharged a firearm that proximately

caused great bodily harm to another person. If you find from your consideration

of all the evidence that each one of these propositions has been proved beyond a

reasonable doubt, you should find the defendant guilty. If you find from your

consideration of all the evidence that any one of these propositions has not been

proved beyond a reasonable doubt, you should find the defendant not guilty."

¶ 80 We find no error regarding the jury instructions. Viewing the instructions as a whole, the

instructions fairly, fully, and comprehensively informed the jury of the proper legal principles.

Based on the evidence presented, the jury found Sharp guilty of attempted first degree murder

and found he personally discharged a firearm in the commission of the offense. Having found no

error, we decline defendant's invitation to review this issue under the plain error doctrine.

¶ 81 Sharp's alternate argument that his trial counsel was ineffective for failing to object to the

jury instruction modification likewise fails.

¶ 82 To establish ineffective assistance of counsel, a defendant must show both that his

counsel's performance was deficient, falling below an objective standard of reasonableness, and

that he was prejudiced, meaning there is a reasonable probability that absent counsel's error, the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). The failure to satisfy either prong is fatal to the claim. People v. Givens, 237 Ill. 2d 311,

331 (2010).

¶ 83 Having found the instruction proper, defense counsel's failure to object to the instruction

did not prejudice defendant.

-22-
 No. 1-13-0438

¶ 84 Potential Gang Evidence

¶ 85 Sharp argues he is entitled to a new trial because the State was allowed to "repeatedly"

inject evidence of his alleged gang membership into the trial despite the fact that the State never

presented a motive for the shooting or any other basis on which gang evidence could be properly

admitted. Sharp argues the jury should not have been informed of his alleged status as a gang

member and because it was, he was prejudiced. Sharp complains of three specific instances: (1)

the court's instruction during jury selection that although the jurors may "hear evidence of street

gang membership by the defendant," the "purpose of this evidence will be limited" and "should

not be considered as evidence" of the defendant's propensity to commit a crime, as well as the

court's questioning about whether any of the potential jurors had "personal knowledge of anyone

who is or was involved in a street gang," and if so, what gang; (2) that the State elicited Sharp's

nickname, "Baby Stone;" and (3) that the State introduced a “wanted” poster created by the

Harvey police that contained Sharp's nickname.

¶ 86 Sharp acknowledges he did not properly preserve this error for review and asks that we

review it under the plain error doctrine.

¶ 87 The State responds that plain error review is not necessary because no error occurred.

The State maintains that the voir dire questions to the prospective jurors cannot be characterized

as gang evidence. The State further contends the evidence of Sharp's nickname, including the

"wanted" poster, was properly presented as identification testimony and as a narrative of his

arrest.

¶ 88 Sharp argues that because the State elicited multiple identifications of him from its

witnesses, his nickname was unnecessary and prejudicial. Sharp argues the State is incorrect that

his nickname, "Baby Stone," was not linked to his gang membership. During voir dire, the

-23-
 No. 1-13-0438

potential jurors were asked whether they were familiar with the "Black P Stone Nation" street

gang. Sharp argues evidence of his nickname was prejudicial because his nickname contains part

of the gang's name within it. Sharp argues that because the potential jurors were "primed to look

for Sharp's gang membership during voir dire," it was logical for them to make the connection

that Sharp's nickname meant he was affiliated with a gang. Sharp contends the court improperly

allowed the State to introduce this evidence without a limiting instruction.

¶ 89 We review a claim that the trial court's actions prevented the selection of an impartial

jury under an abuse of discretion standard. People v. Strain, 194 Ill. 2d 467, 476 (2000). The

primary responsibility for initiating and conducting voir dire lies with the trial court; the manner

and scope of that examination falls within the court's sound discretion. People v. Wilson, 303 Ill.

App. 3d 1035, 1041-42 (1999). The "purpose of voir dire is to assure the selection of an

impartial panel of jurors free from either bias or prejudice." People v. Williams, 164 Ill. 2d 1, 16

(1994). Courts recognize there is a strong prejudice against gangs and gang members.

"Conducting voir dire in gang cases presents particular challenges since gang membership is an

area of potential bias." People v. Strain, 306 Ill. App. 3d 328, 335 (1999), aff'd, 194 Ill. 2d 467

(2000).

¶ 90 The trial court asked the prospective jurors about their ability to consider gang evidence

for a limited purpose should it be admitted. The court cautioned that any such evidence could not

be considered evidence of defendant's propensity to commit a crime and asked the jurors if they

agreed. Defense counsel did not object to the State's proposed questioning of the potential jurors.

Each impaneled juror stated that he or she would be able to consider any gang evidence for the

limited purpose it was being presented and not as evidence of Sharp's propensity to commit

crime. This line of questioning ensured a fair and impartial jury. The court's questioning

-24-
 No. 1-13-0438

appropriately screened the potential jurors for bias and prejudice and allowed the parties to

intelligently exercise their challenges.

¶ 91 We find no error in how the court conducted voir dire. In doing so, we find our decision

in People v. Thompson, 2013 IL App (1st) 113105, instructive. In Thompson, although gang

evidence was not expected to be an "integral" part of the trial, the possibility of its admission was

left open. Id. ¶ 110. We held we could not "fault the trial court for being cautious in conducting

voir dire and addressing the possibility in its questioning of the venire." Id. Consistent with what

happened in this case, the court's voir dire questions in Thompson were the only reference to

gangs throughout trial. Id. Just as we did in Thompson, we find it significant that in response to

the trial court's admonishments, the prospective jurors all affirmatively indicated that they would

follow the law and not use gang evidence as proof of guilt. Id.

¶ 92 Regarding the use of Sharp's nickname, the State maintains that the evidence was

admitted for the limited purpose of showing the eyewitnesses' ability to identify Sharp as the

shooter. The State argues that even if the evidence was erroneously admitted, Sharp cannot show

he was unfairly prejudiced because the gang evidence was limited.

¶ 93 We review this issue under an abuse of discretion standard. People v. Lucas, 151 Ill. 2d

461, 489 (1992). Whether evidence is relevant and admissible is a decision we will not reverse

absent an abuse of discretion which results in manifest prejudice to the defendant. Id. Evidence is

properly admitted if it is relevant and its probative value is not substantially outweighed by its

prejudice. People v. Eyler, 133 Ill. 2d 173, 218 (1989). Evidence is relevant if it has "any

tendency to make the existence of a fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence." People v. Gonzalez, 142 Ill. 2d

481, 487-88 (1991).

-25-
 No. 1-13-0438

¶ 94 Our supreme court has held that because there is a "strong prejudice against street gangs,"

evidence that a defendant is a member of a street gang "is admissible only where there is

sufficient proof that membership or activity in the gang is related to the crime charged." People

v. Strain, 194 Ill. 2d 467, 477 (2000).

¶ 95 Sharp's contention that the use of his nickname was improper also fails. The trial court

did not abuse its discretion in holding the evidence was relevant and its probative value was not

substantially outweighed by the prejudice that could result from its admittance. We agree with

the parties that the reliability of the identification of Sharp as the shooter by the victim and other

eyewitnesses was critical. As Sharp puts it, the "sole issue at trial was the credibility of the

witnesses' identification of [defendant] as the shooter, balanced against [defendant's] alibi."

Because Sharp was not immediately apprehended after the shooting, the police investigation and

Sharp's eventual arrest become relevant facts necessary for the trier of fact to hear. Both Nicholas

and Brown identified Sharp to the police as "Baby Stone." None of the witnesses testified to the

meaning of Sharp's nickname or linked it to any gang or gang membership. From Brown's

description to the police of the shooter as "Baby Stone" and his statement that he believed the

shooter's name was "Keyshon," the police were able to create a photographic array, which

included Sharp's photo, for the witnesses to view. We disagree with Sharp's contention that the

use of his nickname injected irrelevant and prejudicial gang evidence into his trial.

¶ 96 Sharp's contention that the "wanted" poster did the same also fails. The "wanted" poster

offered at trial redacted any mention of Sharp's gang affiliation. It was discussed during

Detective Bank's testimony regarding how he investigated the shooting and eventually

apprehended Sharp after he was identified by Brown as the shooter. Detective Banks testified the

"wanted" poster contained defendant's first and last name, height, weight, general descriptors,

-26-
 No. 1-13-0438

last known address, nickname, "Baby Stone," and photograph. The poster was distributed to

members of the Harvey police. Defense counsel, not the State, asked that the "wanted" poster

with redactions go back with the jurors during deliberations.

¶ 97 The State never sought to have gang related evidence admitted. Without further

explanation, Sharp's nickname is simply a nickname. The jury was never offered any evidence

from which it could reasonably infer that Sharp's nickname meant he was a member of a street

gang. The evidence of Sharp's nickname was relevant to the jury's consideration of the police

investigation and to Sharp’s ultimate arrest as the shooter. We find no abuse of discretion in the

trial court's decision to admit this evidence for the limited purpose of showing the circumstances

surrounding Nicholas and Brown's identification of Sharp as the shooter.

¶ 98 Ineffective Assistance of Trial Counsel

¶ 99 Sharp contends his trial counsel was ineffective for failing to: (1) object to the voir dire

questions that were posed to the potential jurors about whether they knew anyone in a street

gang, as well as the trial court's admonishment that if gang evidence was introduced, it should

only be considered for a limited purpose; (2) object to the "wanted" poster being introduced at

trial; (3) object to the modified jury instructions; (4) call two alibi witnesses from the first trial;

(5) make a threshold showing sufficient for the admission of evidence that another individual

confessed to the crime; (6) move for a mistrial when the parties learned that certain jury

members were improperly contacted by phone and falsely told the court time had been delayed;

and (7) object when only 10 of the 12 jurors were polled.

¶ 100 Claims of ineffective assistance of counsel are resolved under the standard set forth in

Strickland, 466 U.S. 668. People v. Albanese, 104 Ill. 2d 504, 525 (1984). Under Strickland, a

defendant must show not only that counsel's performance was deficient, but also prejudice

-27-
 No. 1-13-0438

because of it. Strickland, 466 U.S. at 687. To show deficient representation, a defendant must

establish that counsel's performance fell below an objective standard of reasonableness. People

v. Edwards, 195 Ill. 2d 142, 162-63 (2001). To establish prejudice, the defendant must show

there is a reasonable probability that but for counsel's deficient representation, the result of the

proceeding would have been different. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Strickland, 466 U.S. at 694. If an ineffective assistance

of counsel claim may be disposed of on the ground of lack of sufficient prejudice, the court need

not consider the quality of the attorney's performance. Strickland, 466 U.S. at 697.

¶ 101 The right to effective assistance of counsel refers to competent, not perfect,

representation. People v. Palmer, 162 Ill. 2d 465, 476 (1994). Strickland requires only that a

defendant receive a fair trial—a trial free of errors so egregious that they, in all probability,

caused the conviction. People v. Griffin, 178 Ill. 2d 65, 91 (1997).

¶ 102 In determining whether counsel's performance was deficient, "a court must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Matters of trial strategy generally will

not support a claim of ineffective assistance of counsel unless counsel failed to conduct any

meaningful adversarial testing. People v. Henderson, 2012 IL App (1st) 101494, ¶ 8; People v.

Guest, 166 Ill. 2d 381, 394 (1995).

¶ 103 Sharp has failed to meet his burden to establish his first three claims of ineffective

assistance of counsel for counsel's failure to: (1) object to the voir dire questions that were posed

to the potential jurors about whether they knew anyone in a street gang, as well as the trial court's

-28-
 No. 1-13-0438

admonishment that if gang evidence was introduced, it should only be considered for a limited

purpose; (2) object to the "wanted" poster being introduced at trial; and (3) object to the modified

jury instructions.

¶ 104 Trial counsel did conduct meaningful adversarial testing of the State's case. Counsel

pursued a theory of innocence, requiring the State to prove its case beyond a reasonable doubt.

Although counsel's theory proved unsuccessful in the face of overwhelming evidence,

specifically three eyewitnesses to the shooting, one being the victim, counsel's strategy was not

unreasonable or deficient. Moreover, we already have determined the trial court's venire

questioning and its admittance of the "wanted" poster were not in error and, therefore, defendant

is unable to sustain a claim for ineffective assistance based on either action.

¶ 105 Regarding defendant's third claim—counsel's failure to object to the modified jury

instructions—defendant must show there is a reasonable probability that the verdict would have

been not guilty, but for counsel's alleged error, to show prejudice. Sharp is unable to meet his

burden where the instructions, as discussed above, fairly and comprehensively advised the jury

of the relevant legal principles and the evidence was overwhelming. Two eyewitnesses, one

being the victim, viewed Sharp in close proximity, and in broad daylight, fire his gun into

Nicholas's body. A third witness heard the shooting and identified Sharp as the individual who

approached him immediately after and asked to get in his car. Defendant's claim of ineffective

assistance of counsel based on the modified jury instructions fails.

¶ 106 We reject defendant's fourth and fifth claims: that counsel's failure to (4) call two alibi

witnesses from the first trial; and (5) make a threshold showing sufficient for the admission of

evidence that another individual confessed to the crime, were the result of deficient

representation. Counsel's decision about whether or not to present a particular witness is one of

-29-
 No. 1-13-0438

trial strategy and, accordingly, will generally not support an ineffective assistance of counsel

claim. People v. Flores, 128 Ill. 2d 66, 85-86 (1989).

¶ 107 The record shows trial counsel conducted a thorough investigation of the potential

defense witnesses and made a reasoned decision not to call two of the alibi witnesses from

defendant's first trial, Curtis Anderson and Katrina Sharp. Counsel's decision to only call the

daycare employee as an alibi witness was not the result of inadequate preparation, but trial

strategy. The other two witnesses did not do well during cross-examination in defendant's first

trial. The cross-examination of Curtis brought out that he was a member of the Black P. Stones

gang, a three-time convicted drug-dealing felon, and that he never told the police or the

prosecutor that he was with Sharp on the day of the shooting, even though he learned a week

after that that Sharp was in custody for the crime. Curtis's testimony was that after drinking two

or three beers and smoking marijuana, he drove defendant on a suspended license seven blocks

to the daycare, so defendant could pick up his sister's children. Katrina Sharp's cross-examination

was also not particularly helpful. Katrina testified that she learned the police were looking for her

brother on June 22, but did not tell him as much when she spoke with him two days later. Trial

counsel presented defendant's alibi with testimony from the most credible individual out of the

three potential witnesses, the daycare employee, Kenneth Woods. Doing so was a matter of

reasonable trial strategy. Defense counsel reasonably decided not to present the weaker

cumulative evidence from Curtis and Katrina and, instead, to focus the jury on defendant's alibi

defense through Woods. Defense counsel's actions were reasonable and, therefore, cannot

support defendant's claim of ineffective assistance.

¶ 108 As to (5), a threshold showing sufficient for the admission of evidence that another

individual confessed to the crime, the State contends counsel could not make a showing of

-30-
 No. 1-13-0438

reliability of the evidence because the evidence he sought to admit was unreliable. After the State

rested and defendant had put on his three alibi witnesses in the first trial, defense counsel was

approached by Emani Fort and Mercedes Green. The women informed defense counsel they

were part of a phone conversation with Ronald Jackson, in which he admitted to them that he

shot Nicholas. Defense counsel informed the court this was new information, making clear he

had spoken with Emani four or five days before and she had not mentioned the information. The

trial court found the statements did not have "objective indicia of trustworthiness" and held they

could not be admitted. At defendant's second trial, counsel again tried to have the testimony

admitted, but the court denied his motion, finding the information still lacked any indicia of

reliability.

¶ 109 Defendant fails to say what counsel's threshold showing should have been. He includes

no information on appeal about the reliability of the third-party confession or what Fort's or

Green's proposed testimony about the alleged confession would contain. It is arguable that the

failure of counsel to make an offer of proof is deficient performance; however, the record does

not support Sharp's claims that he was prejudiced by the alleged deficient performance of his

attorney because the alleged testimony is not preserved in the record. Without this evidence, we

cannot determine whether the trial court would have allowed defense counsel to have the

potentially exonerating evidence admitted. When the record before us on appeal does not allow

for such a determination, this court has consistently found a defendant's claims of ineffective

assistance more appropriately a matter for determination in the context of a postconviction

petition where a complete record can be made. See People v. Holloman, 304 Ill. App. 3d 177,

186-87 (1999); People v. Kunze, 193 Ill. App. 3d 708, 725-26 (1990).

-31-
 No. 1-13-0438

¶ 110 Concerning defendant's claim that counsel was ineffective for (6), failing to move for a

mistrial when the parties learned that certain jury members were improperly contacted by phone

and falsely told the court time had been delayed, we find defendant unable to show prejudice to

satisfy his burden under Strickland. See Henderson, 2012 IL App (1st) 101494, ¶ 8. (Defendant

must show a "reasonable probability that the motion would have been granted."). The phone calls

were limited in nature and no party was attached to them. The trial court properly determined

that none of the jurors were prejudiced against defendant because of the improper contact. Thus,

had defense counsel made a motion for a mistrial at this point, it would not have been successful

and, therefore, counsel's inaction cannot be shown to be ineffective assistance of counsel.

¶ 111 Lastly, defendant argues his trial counsel was ineffective for (7), failing to object when

only 10 of the 12 jurors were polled after the verdict. After the verdict was read, the trial court

asked defense counsel if he wished to have the jury polled; counsel indicated he did. The jury

was polled, with each juror being asked individually, "Were these your verdicts then and are

these your verdicts now?" Each juror answered affirmatively. Two of the jurors were not polled.

The State suggests this was inadvertent. Defense counsel did not object to the incomplete polling

and failed to raise the issue in defendant's motion for a new trial. Accordingly, we consider this

issue under the plain error doctrine. See Enoch, 122 Ill. 2d at 186.

¶ 112 Having already found the evidence was not closely balanced, defendant cannot show he

was prejudiced by trial counsel's alleged error. See People v. White, 2011 IL 109689, ¶ 133

("[T]he closely-balanced-evidence prong of plain error is similar to an analysis for ineffective

assistance of counsel based on evidentiary error insofar as a defendant in either case must show

he was prejudiced ***."). Likewise, the error does not fall under the second prong of the plain

error doctrine. The court's failure to poll the jury on defendant's request is not the kind of error

-32-
 No. 1-13-0438

that mandates reversal regardless of whether the defendant was prejudiced by the error because it

does not affect the fairness of a defendant's trial or challenge the integrity of the judicial process.

People v. McGhee, 2012 IL App (1st) 093404, ¶ 26 (discussing the issue as matter of first

impression).

"Although some evidence that the verdict was not unanimous could potentially

satisfy the second prong of the plain-error doctrine, defendant in this case has not

offered us any evidence that the verdict was not unanimous other than the trial

court's failure to poll the jury. *** Without more, defendant cannot meet his

burden of persuasion and the second prong of the plain-error doctrine cannot

excuse his failure to preserve this issue." Id.

The same result is warranted here. The record shows a unanimous verdict. No juror objected

when the verdict was announced, the 2 unquestioned jurors were present during the polling and

did not voice an objection, the 10 polled jurors' answers did not indicate there was any dissent

from the other 2 jurors, and the two verdict forms were signed by all 12 jurors.

¶ 113 Given that the trial court's failure to poll the whole jury was not preserved and Sharp did

not satisfy his burden under either prong of the plain error doctrine, Sharp's trial counsel cannot

be faulted for failing to object to the court's polling of the jury. Sharp's ineffective assistance of

counsel claim based on the jury polling fails.

¶ 114 Defendant argues that the repeated failures of his trial counsel prejudiced him. "[S]heer

multiplicity of allegations does not translate into error." People v. Williams, 147 Ill. 2d 173, 250

(1991). The record shows Sharp was convicted and sentenced based on overwhelming evidence,

not on any alleged deficiencies by his trial counsel. We reject defendant's claims of ineffective

counsel.

-33-
 No. 1-13-0438

¶ 115 Ineffective Assistance of Posttrial Counsel

¶ 116 Sharp claims he was deprived of the effective assistance of counsel during posttrial

proceedings and sentencing. Following Sharp's conviction, new counsel appeared to represent

him through posttrial proceedings and sentencing. Posttrial counsel appeared on at least three

separate occasions over the course of several months before he advised the court he was

representing Sharp pro bono and requested free transcripts; the court denied the request. Sharp

argues his counsel "labored under an apparent misunderstanding that he was entitled to free

transcripts" and refused to participate in the posttrial proceedings following the court's denial of

his request. Sharp claims posttrial counsel failed to file or argue a posttrial motion and did not

offer any evidence or argument in mitigation at sentencing. Sharp asks that his sentence be

vacated and the cause remanded for new posttrial proceedings because he was "effectively

deprived of counsel at critical stages of the proceedings." Sharp maintains he "may as well have

had no counsel at all."

¶ 117 The State asserts that in raising his claim, Sharp tries to improperly bypass the two-prong

Strickland standard and rely on the narrow circumstances addressed in United States v. Cronic,

466 U.S. 648 (1984).

¶ 118 In Cronic, the United States Supreme Court announced a modified formulation of the

conventional test for assessing ineffective assistance of counsel. Under Cronic, the Supreme

Court recognized certain narrow circumstances in which a defendant is entitled to relief under

the sixth amendment without having to show actual prejudice because the circumstances

rendered the trial "presumptively unreliable." Id. at 658-60 (allowing lower courts to presume

prejudice from the "complete denial of counsel," among other claims). When a defendant alleges

he was denied the assistance of counsel altogether at a critical stage of the proceedings, " ' "[n]o

-34-
 No. 1-13-0438

specific showing of prejudice [is] required." ' " People v. Edwards, 197 Ill. 2d 239, 251 (2001)

(quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000), quoting Cronic, 466 U.S. at 659). In

this situation, the prejudice prong of Strickland is presumed. Edwards, 197 Ill. 2d at 251.

¶ 119 Regarding a complete denial of counsel, as Sharp claims here, we look to the following

cases for guidance: Bell v. Cone, 535 U.S. 685, 697-98 (2002) (declining to extend presumption

to capital case where defense counsel failed to investigate and present mitigating evidence and

waived sentencing-phase closing argument); Roe, 528 U.S. at 484 (no presumption of prejudice

where counsel failed to file notice of appeal; defendant must show he or she would have filed an

appeal absent counsel's failure to inform of right); Smith v. Robbins, 528 U.S. 259, 288-89

(2000) (same where appellate counsel failed to file merits brief).

¶ 120 We are unpersuaded by Sharp's contention that prejudice should be presumed. We do not

agree that this case is the type contemplated by Cronic and its progeny.

¶ 121 Posttrial counsel did not entirely fail to oppose the State's position throughout the

posttrial proceedings as Cronic requires. Although counsel failed to obtain additional transcripts,

counsel did file a "brief" posttrial motion for a new trial (in addition to the one from defendant's

original counsel) and objected to and cross-examined the State's witnesses during the sentencing

hearing. Specifically, posttrial counsel argued that without the benefit of the trial transcript he

could not argue the motion for a new trial or draft and file a motion to reconsider. In contrast to

Sharp's claims that counsel's performance was deficient because he only asked "perfunctory"

questions of the State's witnesses during cross-examination and opened the door for the State to

introduce damaging testimony, the record shows counsel, although not aggressively, did pursue

defendant's interests during the sentencing hearing. During the cross-examination of Detective

Banks, posttrial counsel successfully brought out that defendant was not charged with the beating

-35-
 No. 1-13-0438

of a certain individual. Among other examples, when Frank White testified defendant shot him,

posttrial counsel brought out that White made contradictory statements—one implicating

defendant and one not. Accordingly, we will address defendant's claim under the two-prong

Strickland standard.

¶ 122 To succeed on a claim of ineffective assistance of counsel during sentencing, a defendant

must show that counsel's performance fell below minimal professional standards and that a

reasonable probability exists that the defendant's sentence was affected. People v. Brisbon, 164

Ill. 2d 236, 246 (1995).

¶ 123 Although Sharp argues counsel's representation was deficient throughout the posttrial

proceedings, his main focus is on his claim that counsel failed to subject the State's aggravation

to meaningful adversarial testing and counsel's alleged failure to investigate or present any

mitigating evidence. Sharp contends that even though his presentence investigative report

contained "promising information"— his young age, college course enrollment, work history,

and a supportive family—his posttrial counsel developed none of these arguments in mitigation.

¶ 124 Counsel has a duty to investigate potential sources of mitigating evidence or must have a

reason not to make such an investigation. People v. Ruiz, 132 Ill. 2d 1, 27 (1989). Counsel failed

to offer any argument on behalf of defendant and instead, cited his earlier request for a

continuance and stated, "I am not giving any argument because I have not been able to prepare

for it."

¶ 125 Posttrial counsel's statement was a classic example of a strategic decision that sought to

create a surefire reversible issue. But it is well settled that an appellate court will not second-

guess tactical or strategic decisions without evidence that those decisions are based on

inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective

-36-
 No. 1-13-0438

evaluation. See Palmer, 162 Ill. 2d at 476. Sharp provides no such evidence, including on the

matter of preparation. Counsel did not explain why he had not been able to prepare for the

argument. His statement alone does not constitute sufficient evidence to support the claim of

deficient performance. It might just as well have been a ploy to further delay the proceedings.

¶ 126 Oppenheimer's strategic decision to stand on the posttrial motions and to offer no

argument during the sentencing phase was within the range of professionally reasonable

judgments. We find it particularly telling that the trial judge fairly warned posttrial counsel

repeatedly that the posttrial hearing and sentencing would occur regardless of whether counsel

secured transcripts from defendant's trial. Counsel was granted several continuances and

sufficient time to secure the transcripts, particularly in light of counsel's statements to the court

in April that the transcripts had been ordered and he would be able to proceed shortly. (We note

the hearing and sentencing did not actually occur until late September.) Counsel might have

recognized that the highly experienced judge before whom he appeared would make a thorough

review of the mitigation evidence before imposing the sentence, which is exactly what the judge

did. Nothing in the record indicates posttrial counsel was anything other than an experienced

attorney.

¶ 127 A defense counsel's every error in trial strategy or mistake in judgment does not morph

into a deprivation of a constitutional right. Oppenheimer's refusal to supplement the posttrial

motions or argue at the sentencing phase is not per se ineffective assistance, but a failed strategy,

particularly in consideration of the sequence of Oppenheimer's statements to the trial court from

the inception of his representation. Under the circumstances, foregoing what might normally be

expected and engaging in months of delay and inaction in an attempt to force a reversal on the

basis of ineffective assistance of counsel might well have been perceived as the appropriate trial

-37-
 No. 1-13-0438

tactic and in Sharp's best interests. That the strategy failed does not make it ineffective assistance

of counsel in light of the record before us.

¶ 128 As we noted above, where the disposition of a defendant's 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. See People v. Morris, 229 Ill. App. 3d

144, 167 (1992) (declining to address defendant's ineffective assistance of counsel claim).

¶ 129 In any event, Sharp has failed to make a substantial showing that he was prejudiced by

counsel's performance, even were we to find it deficient. To establish prejudice, a defendant

must show there is a reasonable probability that, but for counsel's deficient performance, the

outcome would have been different. Strickland, 466 U.S. at 694. After a careful and thorough

review of the record, we find Sharp has failed to prove he suffered any prejudice due to

Oppenheimer's conduct. Although counsel failed to offer mitigating evidence on behalf of Sharp,

the court was apprised of the evidence through the PSI. Because defendant is unable to show that

there is a reasonable probability that, but for counsel's asserted unprofessional errors, the result

of the proceeding would have been different, his ineffective assistance of posttrial counsel claim

fails.

¶ 130 Sentencing

¶ 131 Sharp argues his 55-year sentence does not reflect his rehabilitative potential and,

therefore, is an abuse of the trial court's discretion. Sharp contends his sentence forecloses the

possibility of rehabilitation because he will be nearly 70 when he is eligible for release.

¶ 132 This issue has been waived. Challenges to defects in a sentencing hearing must be

included in a motion for a new sentencing hearing to avoid forfeiture. People v. Pasch, 152 Ill.

2d 133, 216 (1992). Sharp waived this issue by failing to object at the sentencing hearing and

-38-
 No. 1-13-0438

failing to raise the issue in a motion to reconsider. See People v. Burt, 168 Ill. 2d 49, 69 (1995).

Sharp acknowledges his counsel did not filed a motion to reconsider the sentence, but claims that

because his counsel "was effectively absent from the sentencing proceedings," his claim should

not be subjected to the normal rules of forfeiture.

¶ 133 The trial court's sentencing determination is entitled to great deference because the trial

court is generally in a better position than the reviewing court to determine the appropriate

sentence and to balance the need to protect society with the rehabilitation potential of the

defendant. People v. Stacey, 193 Ill. 2d 203, 209 (2000). As a reviewing court, we cannot

substitute our judgment for that of the sentencing court just because we would have weighed the

factors differently. Stacey, 193 Ill. 2d at 209. Furthermore, the existence of mitigating factors

does not automatically require the sentencing court to reduce the sentence from the maximum.

People v. Powell, 159 Ill. App. 3d 1005, 1011 (1987).

¶ 134 But, even where the sentence imposed is within the statutory range, we will find an

abuse of discretion and reduce the sentence when it is "greatly at variance with the purpose and

spirit of the law." People v. Center, 198 Ill. App. 3d 1025, 1032 (1990). All penalties are to be

determined both according to the seriousness of the offense and with the objective of restoring

the offender to useful citizenship. People v. Moss, 206 Ill. 2d 503, 520 (2003). The trial court's

decision will not be disturbed absent an abuse of discretion. People v. Streit, 142 Ill. 2d 13, 19

(1991).

¶ 135 The trial court chose a sentence authorized by law for the offense of attempted first

degree murder. The 25-year sentence Sharp received fell within the statutory range for which he

was eligible. 720 ILCS 5/8-4(c)(1) (West 2010) (sentencing range is 6 to 30 years). The jury also

found he personally discharged the firearm which caused Nicholas's injuries, an enhancement

-39-
 No. 1-13-0438

from which he could receive 25 years to natural life. 720 ILCS 5/8-4(c)(1)(D) (West 2010).

Sharp received 30 years. The record shows the sentencing court considered both the aggravating

and mitigating factors presented during the sentencing hearing, including Sharp's criminal

history:

"This Court presided over the trial where the horrific facts came out where the

defendant was, in fact, indentified by the father of the victim and the victim where

he shot the [victim] in the front porch or front driveway of the victim's house.

And then after he had shot him and the victim had fallen down, the defendant

proceeded to approach him and continue to shoot him six more times. But for the

grace of God he was not successful in killing *** the victim, and the victim

survived. And this horrific incident was witnessed by the father and another

independent witness. I have read the investigation, pretrial investigation."

The sentencing court found the nature of the offense supported the sentence. We agree.

¶ 136 We find the sentence Sharp received to be proportionate to the serious nature of the

offense he committed and consistent with the purpose of the law, including the balancing of the

seriousness of the offense with Sharp's rehabilitative potential. We find no abuse of discretion in

sentencing.

¶ 137 Defendant also contends the 25-to-life enhancement statute is unconstitutionally vague

and asks that this court reduce his sentence, strike or reduce the firearm enhancement or,

alternatively, vacate the sentence and remand for resentencing.

¶ 138 A vagueness challenge is a due process challenge that asks this court to examine whether

the statute gives a person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he or she may act accordingly. People v. Greco, 204 Ill. 2d 400, 415-16

-40-
 No. 1-13-0438

(2003). Due process requires that a criminal statute "provide explicit standards to regulate the

discretion of governmental authorities who apply the law." People v. Maness, 191 Ill. 2d 478,

484 (2000). A statute is unconstitutionally vague if its terms are so ill-defined that their meaning

will ultimately be determined by the opinions and whims of the trier of fact rather than any

objective criteria. People v. Pembrock, 62 Ill. 2d 317, 322 (1976). The constitutionality of a

statute is "a pure question of law" and, therefore, our standard of review is de novo. People v.

Jones, 223 Ill. 2d 569, 596 (2006).

¶ 139 Sharp contends the statue contains no criteria to guide judges in selecting a term of years

from the broad 25-to-life range, encouraging arbitrary sentencing. Sharp argues that because the

sentencing enhancement allows a judge to impose a natural life sentence—the most severe

sentence available—to individuals who did not commit murder, "at a minimum, explicit

guidance on what factors to consider in determining that such a sentence is warranted" must be

included in the statute.

¶ 140 Sharp further argues that in addition to being unconstitutionally vague on its face, the

state is unconstitutionally vague as applied to him. Sharp contends nothing in the record justifies

the court's increase beyond the minimum enhancement.

¶ 141 As the State points out, we recently decided this question in People v. Butler, 2013 IL

App (1st) 120923, appeal denied, No. 116420 (Sept. 25, 2013). We held the firearm

enhancement statute is not unconstitutionally vague, noting that, although the enhancement

allows for a wide range of sentences, there is a clear and definite scope of the sentencing range—

25-to-life—and the trial court has no discretion concerning whether to apply the enhancement.

We also found the standards for imposing the enhancement are clearly defined—it must be

applied when a defendant commits first degree murder and discharges a firearm that proximately

-41-
 No. 1-13-0438

causes great bodily harm, permanent disability, permanent disfigurement, or death. Id. ¶ 41; see

also People v. Thompson, 2013 IL App (1st) 113105, appeal denied, No. 116832 (Jan. 29, 2014).

¶ 142 We find the reasoning of our recent decisions persuasive and conclude that the 25-to-life

firearm enhancement is not unconstitutionally vague. We are also unpersuaded that the statute as

applied to defendant was unconstitutional. We affirm defendant's sentence in all respects.

¶ 143 Correction of Mittimus

¶ 144 Lastly, defendant contends, and the State concedes, that defendant's mittimus must be

amended to reflect the correct offense name, class and statutory citation of his conviction. Sharp

was convicted of attempted first degree murder, a Class X offense (720 ILCS 5/8-4(c)(1) (West

2010)). Accordingly, under authority of Illinois Supreme Court Rule 615(b)(1), we order

defendant's mittimus be corrected to accurately reflect his conviction: attempted murder, Class X

(720 ILCS 5/8-4(a), 9-1(a) (West 2010)). Ill. S. Ct. R. 615(b)(1).

¶ 145 CONCLUSION

¶ 146 Affirmed; mittimus corrected.

-42-