FIFTH DIVISION
August 24, 2007
No. 1-05-2510
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
BENNIE BOBO, )
) Honorable
Defendant-Appellant. ) Garritt Howard,
) Judge Presiding.
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Following a jury trial, defendant Bennie Bobo was convicted of aggravated kidnapping
and aggravated criminal sexual abuse and sentenced to consecutive 20- and 5-year terms in the
Illinois Department of Corrections. Defendant argues that the trial court deprived him of his
right to a fair trial by erroneously: (1) admitting approximately 30 irrelevant photographs of
women’s feet as impermissible propensity evidence; (2) allowing the State to renege on an
agreement not to introduce defendant’s statements; and (3) allowing the State to use a prior
statement made by defendant that was not disclosed in discovery. Defendant also contends that
his trial attorney provided ineffective assistance of counsel by requesting a jury instruction that
included the “great bodily harm” element for aggravated kidnapping. Furthermore, defendant
alleges that the trial court improperly denied his request for new counsel to assist him in his pro
se posttrial allegations of ineffective assistance of counsel as required by People v. Krankel, 102
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Ill. 2d 181 (1984). In addition, defendant contends that the trial court erred in finding no prima
facie case of racial discrimination in the State’s use of its peremptory challenges. Finally,
defendant argues that the 20-year sentence imposed for aggravated kidnapping is excessive.
BACKGROUND
On July 27, 2003, 26-year-old J.L. was sexually assaulted. At trial, J.L. testified that she
arrived home at about 4 a.m. She parked her car in front of her house. As she was walking
inside, she heard a crash and saw another car hit her car from behind. J.L. identified Bennie
Bobo as the driver of the car that crashed into hers. As she was writing down defendant’s
information, he grabbed her from behind and forced her into his car. She struggled, and he asked
her, “Don’t you think I have a gun? I could kill you.” Defendant punched J.L. numerous times.
At one point, he choked her with both hands and demanded that she stop screaming. Defendant
drove off, then stopped suddenly at an intersection. J.L. slid into the footwell of defendant’s car
and started screaming. Defendant hit and punched J.L. several more times, then grabbed her by
her hair so she could not move. When defendant stopped the car, he grabbed J.L.’s foot. J.L.
struggled with the defendant and managed to pull a necklace off his neck. The defendant began
licking and biting J.L.’s foot and toes. Then, he ordered J.L. to hold her foot on his penis and
wiggle her toes. This lasted for approximately 10 minutes. After defendant sexually gratified
himself using J.L.’s foot he took J.L. home.
When J.L. got out of the car, she immediately called her boyfriend. Her boyfriend and
her sister’s boyfriend took her to the police station. At the station, J.L. gave a description of her
attacker, a description of his car, and several digits of his license plate number. From there, she
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went to Glenbrook Hospital, where she underwent various tests including a DNA swab of her
feet. When she was released from the hospital, J.L. showed Detective Metrick of the Northbrook
Police Department where defendant had sexually assaulted her.
On July 30, 2003, Northbrook Officer Michael Terry stopped a maroon Dodge car that
matched the description of the car driven by J.L.’s attacker. The driver of the car, Bennie Bobo,
was arrested. J.L. later viewed a six-person lineup and identified Bobo as her attacker. DNA
was obtained from a buccal swab of defendant’s cheek. An officer collected samples of blood on
the dashboard and hairs on the floor of the car driven by defendant. J.L.’s earrings were also
found in the car. On defendant’s cell phone, officers found approximately 30 pictures of
women’s feet.
Forensic scientist Kenneth Pfoser from the DNA section of the Northern Illinois Police
Crime Lab testified as an expert in the field of forensic biology DNA analysis. He tested the
swabs, blood samples and buccal samples for DNA. He determined the saliva from J.L.’s left
foot was consistent with defendant.
Later, defendant gave three statements. These statements were contradictory to each
other. In the first statement, defendant told the police he had consensual sex with J.L. In the
second statement, defendant did not admit to any sexual contact; however, he admitted hitting
J.L.’s car with his car, striking J.L. with his two closed fists, telling her to get into his car and
“tussling” with her in his car as he drove around. In his third statement, he again admitted hitting
J.L.’s car with his car, but added that he grabbed her and she got into his car. He further admitted
striking J.L. while she was in his car and described sucking on her toes and licking her feet which
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he admitted he liked to do sexually. At trial, the defense presented the theory that J.L.’s
boyfriend had beaten her, and defendant came to her rescue. Defendant denied having any sexual
contact with J.L.
Four motions relevant to this appeal were raised throughout defendant’s trial: a motion in
limine to preclude admission of approximately 30 photographs of women’s feet; a motion in
limine seeking to bar the prosecution from using an oral statement the State produced in violation
of discovery requirements; a motion for mistrial based on the State reneging on its agreement not
to use defendant’s statement at trial, and a motion for new trial alleging a Batson violation in jury
selection. The trial court denied all four motions.
Before sentencing, defendant submitted a pro se motion, alleging ineffective assistance of
counsel. After hearing defendant’s concerns, the trial court decided that this motion was without
merit and denied it. Defendant was subsequently sentenced to a total of 25 years in prison. This
appeal followed.
ANALYSIS
I. Cumulative Impact of Alleged Trial Errors
Defendant argues that the cumulative impact of three alleged trial errors deprived him of
his right to a fair trial. These alleged errors were: (1) admitting approximately 30 irrelevant
photos of women’s feet as impermissible propensity evidence; (2) allowing the State to renege on
its promise not to introduce defendant’s statements; and (3) allowing the State to use a prior
statement that was not disclosed in discovery. We address each alleged error in turn.
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A. Photographs
Defendant contends that he was denied a fair trial because the State improperly
introduced approximately 30 highly prejudicial and irrelevant photographs of women’s feet at
trial.
To be admitted, evidence must have the tendency to make the existence of any fact of
consequence more or less probable than it would be without the evidence. People v. Peeples,
155 Ill. 2d 422, 455-56 (1993). The primary requirements for the admissibility of photographs
are accuracy and relevancy. People v. Myles, 131 Ill. App. 3d 1034, 1042 (1985). It is the trial
court’s function to decide the admissibility of evidence, and such findings will not be disturbed
absent a showing of abuse of discretion. People v. Kirchner, 194 Ill. 2d 502, 539 (2000).
Relevant photographs are admissible to prove a person’s identity. People v. Gerecke, 45 Ill. App.
3d 510, 514 (1977).
Generally, evidence of offenses, acts, and wrongs other than those for which defendant is
being tried is inadmissible. People v. Baptist, 76 Ill. 2d 19, 27 (1979). This is because such
evidence has too much probative value. People v. Romero, 66 Ill. 2d 325, 330 (1977). “ ‘The
law distrusts the inference that because a man has committed other crimes he is more likely to
have committed the current crime.’ ” People v. Romero, 66 Ill. 2d 325, 330 (1977), quoting
People v. Lehman, 5 Ill. 2d 337, 342 (1955). Evidence of other offenses or bad acts is admissible
to prove any material fact other than defendant’s propensity to commit a crime. People v.
Donoho, 204 Ill. 2d 159, 170 (2003). Such evidence can be admitted to show motive, intent,
identity, absence of mistake or accident, modus operandi or the existence of a common plan or
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design. People v. Wilson, 214 Ill. 2d 127, 135-36 (2005); People v. Hansen, 313 Ill. App. 3d
491, 500 (2000). Moreover, other extrinsic acts evidence may include acts which are not crimes.
People v. Davis, 260 Ill. App. 3d 176, 190-91 (1994) (evidence of defendant’s noncriminal
sexual activity with consenting adults was relevant and admissible in prosecution for sexual
activity with minors).
In the instant case, the court allowed approximately 30 pictures of women’s feet to be
admitted in evidence during defendant’s trial for aggravated kidnapping and aggravated criminal
sexual abuse. These pictures were found on defendant’s cell phone at the time of arrest. In
resolving defendant’s motion in limine to preclude the admission of these photographs, the court
found that the pictures were relevant and that their probative value was not outweighed by their
prejudicial impact. Thus, the court allowed the pictures to be admitted into evidence, published
to the jury, and sent back to the jury room. The State referenced these pictures in both its
opening and closing statements to show identity and defendant’s intent to sexually gratify
himself.
First, we examine the use of the photographs by the State to prove identity. Identity was
at issue in this case because the defense theory was that J.L.’s boyfriend beat her, not defendant.
J.L. described sexual abuse in connection with defendant using her foot to complete the sexual
assault upon her. This complaint was corroborated by bite marks and DNA traces that were
found on her foot. Defendant was charged with aggravated criminal sexual abuse in that he
committed an act of sexual conduct by the use of force or threat of force, “to wit: forced her foot
to touch his penis” for his own sexual arousal or gratification. The pictures found in defendant’s
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cell phone provided circumstantial evidence that it was defendant who was responsible for
sexually gratifying himself by using J.L.’s foot.
Additionally, the photographs were relevant to show defendant’s intent. See People v.
Wilson, 214 Ill. 2d 127, 137-38 (2005) (aggravated criminal sexual abuse is a specific intent
crime and defendant’s intent is at issue where he denied committing the crime). Defendant
contended at trial that he did not have sexual contact with J.L. According to defendant, he
picked J.L. up in his car and comforted her after she was in a fight with her boyfriend. Under
this theory, defendant did not commit any kidnapping or sexual assault. To disprove this theory
of innocence, the prosecution had to show that defendant intended to sexually gratify himself by
his contact with J.L. People v. Illgen, 145 Ill. 2d 353, 373 (1991) (defendant’s involvement in
other acts was offered to prove absence of innocent frame of mind or presence of criminal
intent). The photographs of women’s feet, found on defendant’s phone, demonstrated that the
defendant was attracted to feet. J.L. described her sexual attack by defendant as including his
licking and biting her foot then forcing her foot down his pants to masturbate himself. Defendant
contested this version of what happened. Accordingly, the photographs were relevant to
defendant’s identity and to his intent to sexually gratify himself.
We are mindful that relevant evidence is inadmissible if the prejudicial effect of
admitting that evidence substantially outweighs any probative value. People v. Santos, 211 Ill.
2d 395, 419 (2004). When arguing in his brief that the pictures are irrelevant, defendant
contends that the photographs of feet are “benign” and do not indicate any prurient interest. The
photos do not show defendant touching the feet or using them for sexual pleasure. However, the
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defendant also contends that the pictures are highly prejudicial and should not have been allowed
at trial. As explained above, the pictures are probative to show identity and intent. The trial
court, when presented with all the facts and circumstances surrounding the pictures, concluded
that the probative value of the pictures was not substantially outweighed by the potential for
prejudice. Based on the record, we do not believe the trial court abused its discretion in deciding
this matter.
Moreover, any error in admitting the photographs into evidence is harmless beyond a
reasonable doubt. The evidence in the instant case was not closely balanced. J.L.’s testimony
was credible and convincing, she identified the defendant within three days of the crime,
defendant’s DNA evidence was recovered from J.L.’s foot, the defendant made incriminating
statements, and J.L.’s property was recovered from the car driven by defendant when he was
arrested. Based on the strength of the evidence, we conclude that a trial without the pictures
being admitted into evidence would have produced no different result. See People v. Mertz, 218
Ill. 2d 1, 65-66 (2005) (in prosecution for first degree murder, home invasion, and aggravated
criminal sexual assault, any error in admitting descriptions of defendant’s tattoos and e-mail
address was harmless beyond a reasonable doubt in light of the overwhelming evidence); People
v. Pulliam, 176 Ill. 2d 261, 276-77 (1997) (in prosecution for first degree murder, aggravated
criminal sexual assault, and aggravated kidnapping, admission of book found in defendant’s
apartment titled “The Force of Sex” was harmless error because the properly admitted evidence
of guilt was overwhelming); People v. Sykes, 341 Ill. App. 3d 950, 980 (2003) (in prosecution for
predatory criminal sexual assault, attempted first degree murder, and aggravated kidnapping, any
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error in admitting and publishing an inflammatory and irrelevant photograph of defendant was
harmless, as evidence was not closely balanced).
B. Defendant’s Statements
In preparing for trial, defendant relied on the State’s representation that it did not plan to
use defendant’s statements to the police in its case in chief. Defendant contends he was unfairly
prejudiced when the prosecution reneged on that position halfway through trial because it
rendered defendant’s trial strategy useless.
At a pretrial motion in limine hearing, the prosecution moved to bar defense counsel from
mentioning defendant’s statements to the police in opening statements. In discussing this
evidence, defense counsel stated that “the statements are going to go in, in which the defendant
says in those statements that he engaged in that conduct.” The State informed the court that it did
not intend to introduce the defendant’s statements in its case in chief. The State further indicated
an objection based on hearsay “to counsel bringing it up in opening statements or ask[ing] any
questions regarding that statement.” The defense responded, “[a]s long as the State is saying they
are not going to do it in their case in chief, we won’t bring it up in opening.” The court then
indicated its understanding that both sides were in agreement. The State said that it would notify
the defense of any strategic change on this issue.
At trial, the defense during its opening comments to the jury did not mention defendant’s
statements. However, during trial, the defense did cross-examine witnesses on the issue of
identity. Based on that defense strategy, the State decided to introduce defendant’s statements.
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The trial court made the following ruling:
“The State’s initial strategy was that they did not intend to put in
the statements of the defendant. But through defendant’s cross, the
strategy has been to make this an ‘identification’ case. So, I’m not
surprised that the State has decided to change their strategy. There
is nothing improper about it.”
We are mindful that when a defendant initiates inquiry into a subject, he cannot complain
about the testimony he invited. People v. Davis, 53 Ill. App. 3d 424 (1977). Based on the
record, we conclude the experienced trial judge correctly ruled that the prosecution could
introduce defendant’s statements after he initiated a challenge to his identification as the
perpetrator through cross-examination of the prosecution’s witnesses.
C. Late Discovery Disclosure
Defendant contends that he was denied a fair trial by the trial court erroneously allowing
the prosecution to use a prior statement that was not disclosed during discovery.
Under Illinois Supreme Court Rule 412, the State is required to disclose to defense
counsel “any written or recorded statements and the substance of any oral statements made by the
accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such
statements.” 188 Ill. 2d R. 412(a)(ii). The State’s duty to disclose is ongoing and requires
prompt notification to the defendant of discovery of any additional material, up to and during
trial. People v. Hendricks, 325 Ill. App. 3d 1097, 1103 (2001).
If the State fails to comply with discovery requirements, a trial judge can impose a range
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of sanctions. The trial court may order the offending party to “permit discovery of material and
information not previously disclosed, grant a continuance, exclude such evidence, or enter such
other order as it deems just under the circumstances.” 134 Ill. 2d R. 415(g)(I); People v. Damico,
309 Ill. App. 3d 203, 213 (1999). Sanctions should be tailored to the circumstances of the case
with the ultimate objective of compelling compliance, not punishing the offending party. People
v. Levin, 207 Ill. App. 3d 923, 933 (1991). Several factors should be considered in imposing an
appropriate sanction, including the strength of the undisclosed evidence, the likelihood that
earlier notice might have helped defense counsel discount the evidence, and the willfulness of the
State in its failure to disclose. People v. Manzo, 183 Ill. App. 3d 552, 557-58 (1989). The trial
court’s choice of sanction is given great deference and will only be disturbed by a showing of
abuse of discretion. Manzo, 183 Ill. App. 3d at 558.
In the instant case, in preparing for trial, the State spoke with the arresting officers and
discovered that defendant made a brief oral statement to the officers which had not been
previously disclosed to the defense in discovery. In that first statement, defendant described his
sexual contact with J.L. as consensual. The State then typed that statement up and tendered a
copy of that statement to defense counsel the next morning, which was the morning of trial. The
court considered what would be a proper sanction for the late disclosure and determined that
precluding the prosecution from using the statement would not be in the best interests of justice.
Instead, the court decided that the appropriate sanction was to grant defense counsel a
continuance. The defense refused this continuance and made a motion to exclude the statement.
The court denied this motion.
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We note that, similar to the instant case, the Illinois Supreme Court in People v. Hood
addressed the defendant’s election to forego more moderate measures than exclusion to deal with
a purported discovery violation by the State. See People v. Hood, 213 Ill. 2d 244 (2004). In
Hood, the court ruled that defendant had waived any objection to the State’s presentation of its
previously undisclosed expert testimony. Hood, 213 Ill. 2d at 262-63. In support of its ruling,
the court reasoned:
“The record reveals that the trial court allowed defendant the
opportunity to speak with the State’s rebuttal witnesses in advance
of their testimony. The trial court expressly advised defendant:
‘Go talk to them if you want to. We’ll give you time.’ Nothing in
the record indicates that defendant acted on the trial court’s advice.
In addition, defendant never requested a continuance to secure his
own expert or to consider more fully Dr. Hindman’s expected
testimony. Instead, the only relief defendant sought was complete
exclusion of Dr. Hindman’s rebuttal testimony. *** When
defendant elected to forgo more moderate measures available
during trial to deal with the State’s purported discovery violation,
and instead proceeded with trial, the claimed error, if any, was
waived. Hood, 213 Ill. 2d at 262-63.
In the instant case, defense counsel did object to the admissibility of the statement,
contending that it was a discovery violation. However, similar to defense counsel in Hood,
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defense counsel in the instant case did not request a continuance; rather, the only relief sought
was complete exclusion of defendant’s statement. Defense counsel did not ask for additional
time to prepare for or to consider more fully the newly disclosed statement. Moreover, defense
counsel refused the trial court’s offer of a continuance for additional time to prepare. As such,
defense counsel elected to forgo the more moderate measures available during trial to deal with
the purported discovery violation. Under the principles articulated in Hood, the claimed error, if
any, was waived. Hood, 213 Ill. 2d at 262-63.
Even if not waived, in the instant case, the disclosure was made before trial began and the
trial court’s offer to defense counsel of a continuance was fairly designed to give defendant an
opportunity for additional preparation or investigation. See People v. Hawkins, 235 Ill. App. 3d
39, 42 (1992) (where trial had not begun, exclusion of defendant’s confession was too severe a
discovery sanction). See People v. Harris, 259 Ill. App. 3d 106, 109 (1994) (where prosecution
did not disclose alleged statement until after jury selection, trial court did not abuse its discretion
in granting a recess so defense counsel could speak to witness about statement made to her by
defendant). The defendant’s statement was brief and immediately disclosed by the State upon its
discovery. Defendant made two other statements, and both statements were determined to be
admissible at trial. The record does not reflect defendant was prejudiced. See People v.
Washington, 182 Ill. App. 3d 168, 174 (1989) (where State omitted list of rebuttal witnesses in
answers to discovery, but defendant did not request a continuance and failed to demonstrate
prejudice, trial court did not abuse its discretion by failing to exclude the witnesses’ testimony).
This discovery violation was not willful, trial had not yet begun and the State disclosed the
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information as soon as it reasonably could. Moreover, defense counsel rejected the trial judge’s
offer for additional time to prepare. Accordingly, we find no abuse of discretion and we will not
disturb the finding of the trial court on this issue.
For the reasons previously discussed, we reject defendant’s argument that the cumulative
impact of these alleged trial errors denied defendant a fundamentally fair trial. Defendant’s
reliance on People v. Blue, 189 Ill. 2d 99, 138 (2000), is not persuasive. In Blue, the Illinois
Supreme Court held that a pattern of intentional prosecutorial misconduct may so seriously
undermine the integrity of judicial proceedings as to support reversal of a criminal conviction. In
Blue, the supreme court reversed and remanded defendant’s murder conviction because of errors
involving the improper introduction and display of a dead police officer’s uniform on a headless
torso, inflammatory testimony by the victim’s father concerning the distress and sorrow felt by
the family over the loss of the victim, inflammatory testimony from a police commander,
inflammatory testimony from the prosecutors, and improper prosecutorial argument. In the
instant case, no similar intentional prosecutorial misconduct occurred. Unlike Blue, the rulings
by the trial court, as well as the conduct of the prosecution did not deny defendant a fair trial. If
any errors were made by the trial court, we conclude that, based on the strength of the evidence,
they were harmless beyond a reasonable doubt.
II. Defendant’s Trial Strategy Regarding Jury Instruction Does Not
Rise to the Level of Ineffective Assistance of Counsel
Defendant argues that his defense counsel was ineffective for objecting to the State’s
request to eliminate the element of great bodily harm in the aggravated kidnapping instruction.
In support of that argument, defendant contends that this decision by his trial counsel prejudiced
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him because it resulted in defendant receiving consecutive sentences for aggravated kidnapping
and aggravated criminal sexual abuse.
In order to establish a violation of the constitutional right to effective assistance of
counsel, a criminal defendant must first show that counsel’s performance was deficient in that it
was objectively unreasonable, and second, that the deficient performance so prejudiced the
defense that defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Albanese, 104 Ill. 2d 504 (1984).
In People v. Albanese, the Illinois Supreme Court adopted the Strickland rule, stating that “ ‘[t]he
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.’ ” Albanese, 104 Ill. 2d at 525-26, quoting Strickland, 466 U.S. at
686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. A defendant has the burden of demonstrating
that he has received ineffective assistance of counsel. People v. Lundy, 334 Ill. App. 3d 819, 829
(2002). A defendant’s failure to make a requisite showing of either deficient performance or
sufficient prejudice defeats an ineffective assistance of counsel claim. Strickland, 466 U.S. at
697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Evaluation of counsel’s conduct cannot properly extend into areas involving the exercise
of judgment, discretion or trial tactics even where the appellate counsel or the reviewing court
would have acted differently. People v. Mitchell, 105 Ill. 2d 1, 12 (1984). Trial strategy cannot
be a basis for finding counsel ineffective. People v. Smith, 177 Ill. 2d 53 (1997). “Neither
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mistakes in strategy nor the fact that another attorney with the benefit of hindsight would have
handled the case differently indicates the trial lawyer was incompetent.” People v. Negron, 297
Ill. App. 3d 519, 538 (1998). Ineffective assistance claims are to be analyzed without “the
distorting effects of hindsight.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct.
2065. Defense counsel’s choice of jury instruction is considered a tactical decision, within the
discretion of defense counsel. People v. Shlimon, 232 Ill. App. 3d 449, 458 (1992); People v.
Houston, 363 Ill. App. 3d 567, 576 (2006). Similarly, the decision not to object to an instruction
may be considered a matter of professional judgment (People v. Lostutter, 227 Ill. App. 3d 1052,
1054 (1992) or trial strategy (People v. Jenkins, 209 Ill. App. 3d 249, 258-60 (1991)). Mistakes
in strategy or tactics do not, alone, amount to ineffectiveness of counsel. People v. Palmer, 162
Ill. 2d 465, 476 (1994).
In the instant case, defendant was charged with aggravated kidnapping based on both
infliction of great bodily harm during the offense and the commission of aggravated criminal
sexual abuse. During the instruction conference the prosecution discussed dismissing count IV,
alleging aggravated kidnapping based on infliction of great bodily harm during the offense. That
count was in fact nolle prossed by the prosecution before closing argument. Count II, which was
the remaining aggravated kidnapping charge, was based on infliction of great bodily harm during
the offense or commission of another felony, to wit: aggravated criminal sexual abuse. During
the jury instruction conference, the prosecution referenced the complexity of the jury instructions
and discussed eliminating the great bodily harm element from the remaining aggravated
kidnapping count. However, defense counsel took the position that the great bodily harm
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element should be included in the aggravated kidnapping instructions, stating as follows: “It is
not superfluous, and it’s defined in the statute, and it was read to the jury, and it was based on the
indictment.”
We are mindful that if the great bodily harm element had been eliminated in the instant
case, the aggravated sexual abuse would have been a predicate offense for the aggravated
kidnapping, and a separate conviction for the aggravated sexual abuse would have been
improper. People v. Smith, 183 Ill. 2d 425, 431-32 (1998) (multiple convictions are improper if
they are based on predicate offenses). The State agrees that had defense counsel not objected to
the instruction, defendant’s convictions for aggravated criminal sexual abuse would have merged
into his conviction for aggravated kidnapping, eliminating the requirement of consecutive
sentencing.
As a result of defense counsel’s requested instruction, the prosecution, in order to prove
aggravated kidnapping, had to prove that defendant inflicted great bodily harm on J.L. or
committed aggravated sexual abuse on her. The jury found defendant guilty of aggravated
kidnapping and returned a general verdict form. The jury did not specify under which theory it
was convicting or whether it was convicting under both theories. Thus, the court could presume
that defendant was found guilty under both theories. See People v. Morgan, 197 Ill. 2d 404
(2001) (where an indictment contains several counts arising out of a single transaction and a
general verdict is returned, the effect is that the defendant is guilty as charged in each count). We
note our review of the record demonstrates more than ample evidence to sustain a conviction for
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aggravated kidnapping under both theories. Thus, consecutive sentencing was justified by the
evidence of aggravated kidnapping based on great bodily harm together with the evidence
supporting the separate conviction for aggravated criminal sexual abuse.
In the instant case, the defense strategy as demonstrated in its cross-examination and
closing argument was to challenge the prosecution’s version of what happened between
defendant and J.L. Defense counsel repeatedly questioned the credibility, certainty and motives
of the prosecution’s witnesses. The great bodily harm element was used by defense counsel as a
centerpiece for his challenge to the credibility of J.L. For several pages during closing argument
defense counsel referenced facts developed during trial which demonstrated that the harm
suffered by J.L. did not constitute great bodily harm. He used that argument, which was
corroborated by facts he developed through cross-examination, to support his theory of defense
that there was a critical difference between the impression the prosecution wanted to create for
the jury with its witnesses and the reality of what had in fact occurred between defendant and J.L.
In attacking the credibility of the prosecution’s case, defense counsel argued regarding the
element of great bodily harm that the prosecution had the burden of proving to the jury beyond a
reasonable doubt that J.L. suffered great bodily harm, but the verbal and nonverbal conduct of
J.L. was inconsistent with a person suffering from great bodily harm. He argued that J.L. came
into the hospital alert and coherent, and according to the examining physician, all her major tests
were unremarkable or normal. She was discharged within a few hours from the hospital and
immediately began assisting the police in working on the case. Defense counsel further
commented on the lack of evidence that “she was laid up or missed any time from work.” The
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theory of defense was that if J.L. was not believable in connection with the allegation of great
bodily harm, then her credibility regarding her version of what happened that night regarding the
sexual contact she described was also not believable. Had defense counsel been successful, the
jury could have found defendant not guilty of both the aggravated kidnapping and the aggravated
sexual abuse charges. However, the strength of the evidence defeated that strategy.
When confronted by overwhelming evidence, as in the instant case, defense counsel faces
a difficult job. There was no misapprehension of the law by defense counsel in the instant case
but, rather, a strategic decision to mount a challenge to the prosecution’s case by vigorously
attacking the evidence produced by the prosecution in connection with the element of great
bodily harm. Under the defense theory, if defense counsel demonstrated J.L. was not believable
the jury would find the prosecution failed to prove defendant guilty beyond a reasonable doubt.
Defense counsel was well aware of the law, as it was clearly and accurately explained during the
discussion of defendant’s proposed instruction by the experienced trial judge. Defense counsel
acknowledged that he understood the law contained in the instructions.
The choice of defense theory is ordinarily a matter of trial strategy, and counsel has the
ultimate authority to decide this trial strategy. See People v. Ramey, 152 Ill. 2d 41, 53-55 (1992).
In reviewing the conduct of trial counsel, we note defendant is entitled to effective, not perfect,
representation (People v. Odle, 151 Ill. 2d 168, 173 (1992)), and this is to be determined from the
totality of counsel’s performance (People v. Evans, 186 Ill. 2d 83, 94 (1999)).
In the instant case, counsel presented a theory of defense which required the State to
prove its case beyond a reasonable doubt. Here counsel pursued a strategy consistent with
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defendant’s testimony and challenged the State’s evidence. The record reflects that defense
counsel vigorously challenged the prosecution’s case through cross-examination and closing
argument. He made appropriate objections, pretrial and posttrial motions, and demonstrated an
understanding of the law, as well as an understanding of the possible effect of strategic decisions
he made in challenging the State’s case. Although counsel’s motions and defense strategy were
unsuccessful, counsel subjected the State’s case to meaningful adversarial testing. For the
reasons previously discussed, based on the totality of counsel’s performance, we reject
defendant’s argument that his trial counsel was ineffective.
III. The Trial Court Conducted an Adequate Inquiry into Defendant’s
Posttrial Pro Se Claims of Ineffective Assistance of Counsel
Defendant argues that the trial court failed to conduct any inquiry into his pro se
allegations of ineffective assistance of counsel, as required by People v. Krankel, 102 Ill. 2d 181
(1984). Defendant is seeking remand for appointment of new counsel and litigation of his
ineffective assistance allegations. In support of the Krankel argument, defendant further relies on
People v. Nitz, 143 Ill. 2d 82, 134-35 (1991), and contends that if any of his allegations of
ineffective assistance of counsel “demonstrates ‘possible neglect,’ ” then remand for appointment
of counsel is necessary.
In People v. Krankel, the defendant’s trial counsel did not contact an alibi witness or
present an affirmative alibi defense at trial. Krankel, 102 Ill. 2d at 187. The defendant raised a
pro se posttrial challenge to his attorney’s competence at trial. Krankel, 102 Ill. 2d at 187. The
Illinois Supreme Court held that the trial court should have appointed alternate counsel to
represent defendant at the posttrial hearing regarding his claim of ineffective assistance.
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Krankel, 102 Ill. 2d at 189. This case was remanded for a new hearing on the defendant’s motion
with newly appointed counsel. Krankel, 102 Ill. 2d at 189.
In interpreting Krankel, the Illinois Supreme Court in Nitz recognized there is no per se
rule that new counsel must be appointed every time a defendant presents a pro se motion for a
new trial alleging ineffective assistance of counsel, concluding as follows:
“If the trial court conducts a preliminary investigation of the
defendant’s allegations and determines them to be spurious or
pertaining only to trial tactics, no new counsel should be appointed
to represent the defendant. If, however, the defendant’s allegations
of incompetence indicate that trial counsel neglected the
defendant’s case, the court should appoint new counsel to argue
defendant’s claims of ineffective assistance of counsel.” People v.
Nitz, 143 Ill. 2d 82, 134-35 (1991).
In People v. Moore, the Illinois Supreme Court further explained the procedures that trial
courts should use to resolve these posttrial pro se claims of ineffectiveness of counsel. People v.
Moore, 207 Ill. 2d 68 (2003). The trial court is not required to automatically appoint new
counsel in every case, rather, the trial court should evaluate the factual basis of the defendant’s
claim. Moore, 207 Ill. 2d at 77-78. This can be accomplished in several ways. Moore, 207 Ill.
2d at 78. The court could simply ask the trial counsel about the circumstances surrounding the
claim or ask defendant questions about his claim. Moore, 207 Ill. 2d at 78. Alternatively, the
court can base its determination on its personal knowledge of defense counsel’s performance at
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trial or on the facial insufficiency of defendant’s allegations. Moore, 207 Ill. 2d at 79. If a
defendant’s claim lacks merit or relates only to matters of trial strategy, the trial court may deny
the motion without appointing new counsel. Moore, 207 Ill. 2d at 78.
In the instant case, defendant presented the trial court with three posttrial motions on
August 2, 2005. One of these motions, the two-page “Motion for Appointment of Counsel Other
than Public Defender,” alleged ineffective assistance of counsel as follows: (1) failed to visit
frequently enough; (2) failed to investigate past conviction of defendant; (3) failed to obtain a
handwriting expert to analyze the signature on defendant’s statement; (4) failed to challenge the
“initial and signing of confession, that the defendant claim was not his”; (5) failed to file certain
pretrial motions; and (6) failed to challenge the prosecution’s discovery violation by not
disclosing to the defense DNA evidence of hair and blood. The court instructed defendant to
have a seat while he reviewed the motions. Then, the court told defendant that some of these
claims were contained in the motion for a new trial that defendant’s attorney had submitted.
Defendant wanted to proceed with his ineffectiveness claims. The court told defendant that it
would proceed with the sentencing hearing because there were witnesses waiting, but afterwards
it would consider defendant’s other issues.
The court heard defense counsel’s motion for a new trial and sentencing information
provided by both the defense and prosecution. Before imposing sentence, the court then listened
to defendant’s allegations regarding ineffectiveness of counsel and resolved defendant’s Krankel
motion. Defendant explained the facts and circumstances surrounding his allegations. The court
asked questions about certain allegations and allowed defendant to clarify what he believed his
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attorney should have done. Defendant complained that his trial attorney should have obtained an
expert in handwriting to challenge his signature and initials on his confession. Defendant further
argued that his attorney failed to challenge that the “State withheld DNA blood and hair” and that
“[t]hey never got trace analyst on the hair or the blood” so that “we have no clue who it is.” The
court specifically addressed defendant’s concern and asked whether defendant was “aware of the
DNA evidence on the victim’s foot.” In response, first defendant claimed he was not aware of
this evidence, then admitted that in fact he was aware of the evidence.
In specifically addressing defendant’s pro se motion for appointment of new counsel, the
experienced trial judge noted that defense counsel Robert Goodman faced an extremely difficult
case because the prosecution’s evidence was overwhelming. The record reflects defense counsel
filed several motions, including a motion to quash arrest, an amended motion to quash
identification, a motion to suppress statements and a Batson motion for mistrial. Defendant also
filed various motions in limine including one to preclude admission of defendant’s oral statement
and one to bar admission of defendant’s prior convictions. The trial judge commented that
Goodman put up a “very vigorous defense.” The judge stated: “[Goodman] argued strongly and
vigorously for an acquittal in the face of overwhelming evidence to the contrary.”
After giving defendant an opportunity to argue, explain and support his allegations and
after listening to defendant, the trial judge specifically addressed the defendant as follows:
“THE COURT: Thank you, Mr. Bobo. Please have a seat
at counsel table.
Mr. Bobo spent most of his right to allocution talking about
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his pro se motions that he filed, so I will deal with those first,
because you are entitled to answers to those questions you asked,
Mr. Bobo.
You are absolutely correct, you have a right to effective
assistance of counsel. You don’t have a right to perfect
representation of counsel.
I presided over the case. Your attorney, Mr. Goodman,
faced with an extremely difficult case for the defense because in
this particular case, the State’s case against you is an extremely
strong case. The evidence against you is overwhelming.
The fact of that, I thought Mr. Goodman put up a very
vigorous defense on your behalf.
I was absolutely surprised, for want of a better word, he
was able to put up with as good a defense given the evidence he
was confronted with in this particular case. He argued strongly and
vigorously for an acquittal in the face of overwhelming evidence to
the contrary.
You received highly competent representation in this
particular case. That is why I denied your motion for appointment
of other counsel. That is why I am denying your motion saying
your right to effective assistance of counsel was in fact violated.
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An attorney isn’t required to exhaust all particular avenues,
such as a handwriting expert or further DNA testing. Could it have
brought something to light that maybe would have been favorable
to your defenses? Sure, it is possible, but it is unlikely.
Even if that had been done, there is no way I could see that
could have affected the outcome of your particular case in light of
all the evidence that the State had.
[DEFENDANT]: Can I say something?
THE COURT: No, you had your chance. Now it is my
turn, sir.
I reviewed all the allegations in your motion for
appointment of counsel other than the public defender. Your
memorandum points for retrial and your motion for discovery
violation, I find all of them to be without merit. Those are all
denied as well.”
The trial judge then proceeded to sentence defendant. The record reflects that the trial
judge’s actions were appropriate. An adequate inquiry was conducted as to defendant’s
allegations of ineffective assistance of counsel. Consistent with the principles articulated by the
Illinois Supreme Court in Moore as to whether there is ineffective assistance of counsel, the trial
court can base the decision on a discussion of the claim with the defendant or defendant’s
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counsel or base its evaluation on its knowledge of defense counsel’s performance at trial and the
insufficiency of the allegations on their face. Moore, 207 Ill. 2d at 78-79.
In Moore, the Illinois Supreme Court made it clear that new counsel is not automatically
required in every case in which a defendant alleges ineffective assistance of counsel in a pro se
motion. Moore, 207 Ill. 2d at 77. If a defendant’s claim lacks merit or relates to only matters of
trial strategy, then the trial court is not required to appoint new counsel and may deny the pro se
motion. Moore, 207 Ill. 2d at 78. In the instant case, the trial court based its evaluation on its
knowledge of defense counsel’s performance at trial, on the insufficiency of the allegations in the
context of the trial record, and on discussion with defendant.
Upon review of the defendant’s argument, the operative concern is whether the trial court
conducted an adequate inquiry into the defendant’s pro se allegations of ineffective assistance of
counsel. People v. Johnson, 159 Ill. 2d 97, 125 (1994). The record in the instant case reflects the
trial court reviewed defendant’s motion and specifically gave defendant the opportunity to argue,
explain, and support his allegations. See People v. Cummings, 351 Ill. App. 3d 343, 352-53
(2004) (trial court conducted adequate inquiry because it read defendant’s motion and gave
defendant the opportunity to argue, explain, and support his allegations). The trial judge listened
to defendant and discussed his allegations of ineffective assistance of counsel with him. The
record reflects that the trial court’s actions were appropriate and demonstrated adequate review
and inquiry into defendant’s allegations of ineffective assistance of counsel. For the reasons
previously discussed, we reject defendant’s argument that the case should be remanded to the
trial court for appointment of new counsel to conduct further proceedings in connection with
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defendant’s claims of ineffective assistance of counsel.
We note defendant includes in his briefs several examples of ineffective assistance that
the trial judge was not specifically confronted with in the context of defendant’s pro se motion
for new counsel. Defendant argues that his allegation that trial counsel failed to talk to him
necessarily incorporates the allegation of ineffective assistance for exposing defendant to greater
criminal liability when he decided to have the jury instructed on alternative bases for aggravated
kidnapping by including both infliction of great bodily harm and aggravated criminal sexual
abuse. The record rebuts defendant’s contention that in fact the trial judge was presented with
this allegation in the context of his motion for new counsel. However, for the reasons previously
discussed, the record does not reflect ineffective assistance of counsel regarding defense
counsel’s jury instruction strategy.
Similarly, defendant contends that his general allegation that his trial counsel failed to
preserve issues for appeal incorporates the specific allegation of ineffective assistance for trial
counsel’s failure to object to duct tape evidence. The record does not reflect the trial judge was
presented with this allegation in the context of defendant’s motion for new counsel. We
recognize the relaxed pleading requirements for pro se allegations of ineffective assistance of
counsel. See Moore, 207 Ill. 2d at 79 (to trigger an inquiry under Krankel, “a pro se defendant is
not required to do any more than bring his or her claim to the trial court’s attention”). However,
a defendant still must meet minimum requirements in order to trigger a preliminary inquiry by
the trial court. People v. Ward, 371 Ill. App. 3d 382, 431 (2007). A bald allegation of ineffective
assistance is insufficient; the defendant must raise specific claims with supporting facts before
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the trial court may consider the allegations. People v. Radford, 359 Ill. App. 3d 411, 418 (2005).
Where a defendant’s claims are conclusory, misleading, or legally immaterial, or do not bring to
the trial court’s attention a colorable claim of ineffective assistance of counsel, the trial court may
be excused from further inquiry. People v. Johnson, 159 Ill. 2d 97, 126 (1994) ; People v. Ford,
368 Ill. App. 3d 271, 276 (2006) (remand for further inquiry was not necessary where the
defendant’s allegations were facially insufficient; set forth in a general and conclusory manner;
and contradicted by other allegations, facts on record, and the prosecutor).
In the instant case, defendant failed to identify relevant facts regarding duct tape evidence
which would have alerted the trial judge as to the basis for the ineffective assistance claim.
Instead, defendant raised only a general conclusory allegation that his trial counsel failed to
preserve issues for appeal. Thus, defendant’s allegation did not require further inquiry (Radford,
359 Ill. App. 3d at 418) or the appointment of new counsel (see People v. Towns, 174 Ill. 2d 453,
465-68 (1996)).
Finally, defendant argues that his general allegation that defense counsel failed to visit or
talk with him necessarily incorporates an allegation of ineffective assistance for pursuing a
defense strategy based on defense counsel’s understanding that the prosecution could not use
defendant’s inculpatory statements in his case in chief. The record does not reflect that this
specific allegation was brought to the attention of the trial judge in the context of defendant’s
motion for new counsel. Radford, 359 Ill. App. 3d at 418 (defendant must raise specific
allegation with supporting facts before trial court may consider defendant’s claims).
Additionally, we reject that argument, because the record reflects only a conclusory allegation
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lacking any factual basis. See Towns, 174 Ill. 2d at 465-68 (when defendant fails to identify
relevant facts, appointment of new counsel is not required).
IV. Defendant Failed to Establish a Prima Facie Case of Racial
Discrimination in State’s Exercise of Peremptory Challenges
Defendant alleges the trial court erred in finding defendant failed to establish a prima
facie case of racial discrimination. In support of that argument, defendant contends the State
removed from the jury by use of its peremptory challenges two unbiased, qualified jurors solely
because of race. As a result, defendant seeks remand of the instant case for a second-stage
Batson proceeding during which the State must provide a racially neutral reason for the
challenge.
In Batson v. Kentucky, the United States Supreme Court established a three-step process
for evaluating a claim that the State has exercised its peremptory challenges in a racially
discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 79, 106 S. Ct. 1712
(1986). First, the defendant must establish a prima facie case of purposeful racial discrimination.
Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718. If a prima facie case is
established, the burden shifts to the State to provide a race-neutral reason for the challenge.
Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718. Finally, the court must evaluate
the reasons given and decide if purposeful racial discrimination occurred. Batson, 476 U.S. at
87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718.
To show prima facie racial discrimination, the defendant must prove that there are
relevant circumstances that raise an inference that the State used peremptory challenges to
remove prospective jurors based upon their race. Batson, 476 U.S. at 88, 90 L. Ed. 2d at 82, 106
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S. Ct. at 1718. Courts consider the following circumstances in determining whether a defendant
has established a prima facie case of racial discrimination in jury selection: (1) racial identity
between the defendant and the excluded venireperson; (2) a pattern of strikes against African-
Americans; (3) a disproportionate use of peremptory challenges against African-Americans; (4)
the level of representation of African-Americans in the venire as opposed to the jury; (5) the
prosecutor’s questions and statements during voir dire examination and while exercising
peremptory challenges; (6) whether the excluded African-American venirepersons were a
heterogeneous group sharing race as their only common characteristics; and (7) the race of the
defendant, victim and witnesses. People v. Rivera, 221 Ill. 2d 481, 501(2006), quoting People v.
Williams, 173 Ill. 2d 48, 71 (1996). A trial judge’s determination of whether a defendant has
demonstrated a prima facie case of discriminatory jury selection will not be overturned unless it
is against the manifest weight of the evidence. People v. Williams, 173 Ill. 2d at 71.
A trial court’s third-stage finding on the ultimate issue of purposeful racial discrimination
“rests largely on credibility determinations.” People v. Rivera, 221 Ill. 2d 481, 502 (2006). As a
consequence, review of third-stage findings is deferential and reversal is proper only if the trial
court’s decision is clearly erroneous. Rivera, 221 Ill. 2d at 502. Where a Batson objection
reaches the second stage, but the defendant does not object when the State fails to give a race-
neutral reason for a peremptory strike, the argument is waived. People v. Primm, 319 Ill. App.
3d 411, 423 (2000). Moreover, “challenges to the composition of a jury must be brought before
the jury is sworn.” People v. Fair, 159 Ill. 2d 51, 71 (1994). Thus, if a defendant does not object
to the State’s peremptory challenges before this time, the issue is waived on review. Batson, 476
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U.S. at 99, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724.
In the instant case, defense counsel preserved this issue for review by making a motion
for mistrial at the end of jury selection. In this motion, defense counsel noted that the State used
peremptory challenges to exclude two African-American jurors. Counsel also stated that
defendant and the excluded jurors shared the same race and that there were no African-
Americans on the panel.
We do not dispute that the State used two of the five peremptory challenges it exercised
to exclude two African-American jurors during jury selection. We are mindful that the number
of African-American venirepersons peremptorily challenged, without more, cannot establish a
prima facie case of discrimination. See People v. Garrett, 139 Ill. 2d 189, 203 (1990). We are
also mindful that the exclusion of even one venireperson because of race is unconstitutional and
violates Batson. People v. Peeples, 155 Ill. 2d 422, 468 (1993).
The record in the instant case does not reflect that the two African-American jurors were
excluded on the basis of race. The State’s questions and statements during voir dire did not
reflect purposeful racial discrimination. Moreover, the record reflects that the two excluded
venirepersons that were identified by defendant shared more than racial characteristics —
namely, a history of involvement with the legal process. Mr. Straughter’s daughter was
convicted of drug possession and he thought the State was a bit heavy handed in the prosecution
of his daughter’s case and he was “not sure” if he could limit his deliberations to apply the facts
to the law and not consider the punishment. Mrs. Cameron had previous jury experience at the
Daley Center which deliberated for approximately two weeks before concluding they could not
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resolve the case.
Finally, while the defendant was African-American and J.L. was Asian-American, the
record does not reflect that the crime was racially motivated. Based on our review of the record,
it was not against the manifest weight of the evidence for the trial court to conclude defendant
failed to establish a prima facie case of purposeful racial discrimination.
V. The Trial Court Did Not Abuse its Discretion by Sentencing Defendant
to 20 Years in Prison for Aggravated Kidnapping
Defendant alleges that the trial court’s sentence of 20 years in prison for aggravated
kidnapping was excessive, based on the circumstances of the offense, his limited prior record,
and his potential for rehabilitation.
A trial court’s imposition of a sentence is entitled to great deference. People v. O’Neal,
125 Ill. 2d 291, 297 (1988). A reviewing court has the authority to reduce excessive sentences
only where the trial court abused its discretion in imposing the sentence. 134 Ill. 2d R.
615(b)(4); People v. Porter, 277 Ill. App. 3d 194, 200 (1995). A reviewing court should not
substitute its judgment for that of the trial court and reduce an offender’s sentence just because it
would have weighed the factors differently and reached a different result. People v. Streit, 142
Ill. 2d 13, 19 (1991). The trial judge has a far better opportunity to consider these factors than a
reviewing court, which must rely solely on the record. Streit, 142 Ill. 2d at 19. Therefore, the
trial court’s decisions regarding sentencing are afforded great weight and deference. People v.
Perrequet, 68 Ill. 2d 149, 154 (1977). If the sentence imposed is within the statutory range, it
will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law
and the nature of the offense. People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987).
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The record reflects the experienced trial judge relied on proper aggravating and mitigating
factors in his sentencing decision and the sentence was an appropriate exercise of discretion.
Relevant factors in determining an appropriate sentence include the nature of the crime,
protection of the public, deterrence and punishment, as well as the defendant’s rehabilitative
prospects and youth. See People v. Whitehead, 171 Ill. App. 3d 900, 908 (1988). Additionally, a
trial court must base its sentencing determination on the particular circumstances of each case,
considering such factors as the defendant’s credibility, demeanor, general moral character,
mentality, social environment, habits, and age. Streit, 142 Ill. 2d at 18-19. The weight attributed
to each factor in aggravation and mitigation in imposing a sentence depends on the particular
circumstances in each case. People v. D’Arezzo, 229 Ill. App. 3d 428 (1992).
It is important to note that a trial court need not articulate the process by which it
determines the appropriateness of a given sentence. Wright, 272 Ill. App. 3d at 1045. However,
in the instant case, the record reflects the judge examined factors in aggravation and mitigation.
Further, the judge took into account the information contained in the presentence investigation
report. We find the record reflects that the judge balanced the factors in aggravation and
mitigation and crafted an appropriate sentence to punish as well as rehabilitate. The record
reflects that the proper factors in aggravation and mitigation were appropriately considered by the
judge before sentencing defendant.
Under Illinois law, aggravated kidnapping is a Class X felony, punishable by a range of 6
to 30 years’ imprisonment. 720 ILCS 5/10-2 (West 2004); 730 ILCS 5/5-8-1 (West 2004). In
the instant case, the sentence imposed was within the statutory range. Based on the record, the
trial court gave proper consideration to factors in aggravation. The trial court also properly
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considered the mitigation presented to him. See People v. Garrison, 209 Ill. App. 3d 979 (1991)
(holding that where mitigating evidence is before the trial judge, he is presumed to have
considered it absent some indication, other than the severity of the sentence itself, to the
contrary).
We defer to the trial court’s determination of the appropriate sentence, which was well
within statutory guidelines. For a reviewing court to modify a sentence within the statutory
limits, the sentence imposed must reflect a clear departure from the spirit and purpose of the
fundamental law and the constitutional requirement that the sentence be proportionate to the
nature of the offense. People v. Beck, 295 Ill. App. 1050 (1998). Based on our review of the
record, we do not find that the sentence imposed in this case is at odds with the spirit and
purpose of the law, or disproportionate to the nature of the offense.
CONCLUSION
For the reasons previously discussed, we affirm the conviction for aggravated criminal
sexual abuse and the conviction for aggravated kidnapping. We affirm the sentence of 20 years
in the Illinois state penitentiary for the aggravated kidnapping conviction and the consecutive
sentence of 5 years’ imprisonment for the aggravated criminal sexual abuse conviction.
Affirmed.
TULLY and GALLAGHER, JJ., concur.
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