FIRST DIVISION
March 8, 2010
No. 1-08-1304
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 6122
)
LEONARD STRICKLAND, ) The Honorable
) Daniel P. Darcy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Following a jury trial, the defendant was convicted of one
count of delivery of a controlled substance containing less than
one gram of heroin and sentenced to 15 years in prison. The
defendant contends the trial court committed reversible error by
refusing to rule on his motion brought pursuant to People v.
Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971), until after he
testified, thereby interfering with his ability to knowingly
exercise his constitutional right to testify. The defendant
further contends the trial court violated his right to an
impartial jury by failing to ensure that the individual jurors
understood and accepted the principles set forth in People v.
Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), now embodied in
Illinois Supreme Court Rule 431(b) (Official Reports Advance
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007).
No. 1-08-1304
Lastly, the defendant contends he was denied his right to
effective assistance of counsel where the defense theory was that
the State failed to present physical evidence tying the defendant
to the drugs, yet trial counsel elicited from a State witness
testimony allegedly defeating that theory.
Because we find the defendant forfeited his Montgomery-based
claim by failing to testify, the jury was properly admonished
pursuant to Supreme Court Rule 431(b), and defense counsel
provided effective assistance, we affirm.
BACKGROUND
Prior to trial, both parties submitted motions in limine
regarding the admissibility of the defendant's prior convictions
for impeachment purposes. The court deferred its ruling: "I am
going to rely on a U.S. case, which is Luce versus U.S., [469
U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984),] and I will
have to make my decision if and when the defendant should testify
in order to make the proper ruling." Defense counsel objected
and asked the court to issue a ruling prior to trial; the court
did not.
The evidence at trial established that on February 18, 2007,
the defendant was arrested in front of his home at 940 North
Monticello in Chicago, with another individual, Derrick Crowder.
No currency or drugs were found on the defendant's person or in
the area.
Five police officers testified to the circumstances of the
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No. 1-08-1304
defendant's arrest. The officers were part of a 10-member team
sent to the area of Monticello and Augusta in Chicago with
instructions to purchase drugs with marked police funds, referred
to as section 1505 funds. Officers Singleton and Randolph, two
plainclothes officers, conducted surveillance of the area from
separate, parked, unmarked vehicles. Undercover officers Mar and
Contreras acted as purchase officers and arrived in the area in
an unmarked vehicle. All four officers were in radio contact
with enforcement officers Bates and Liss, who were stationed
nearby.
When they arrived at the intersection of Monticello and
Augusta, Officers Mar and Contreras saw an individual they
identified at trial as the defendant. Officer Mar testified the
defendant was standing in the middle of the street about 20 feet
away. Officer Contreras, who was seated in the passenger side of
the vehicle, testified the defendant was standing on the west
side of Monticello. The officers described the defendant as
wearing a black coat, gray, hooded sweatshirt, blue jeans and tan
boots. The defendant was not waving down cars, just standing in
the street.
Officers Mar and Contreras drove up to the defendant with
the driver's side window rolled down and Officer Mar engaged the
defendant in conversation. The defendant inquired as to what
Officer Mar needed. Officer Mar asked for "three blows," meaning
heroin. The defendant directed Officer Mar to park his vehicle
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No. 1-08-1304
near 958 North Monticello. The defendant then walked southbound
and entered a gangway a few buildings away. When the defendant
entered the gangway, both Officers Mar and Contreras and the
surveillance officers, Singleton and Randolph, lost sight of the
defendant.
The officers testified the defendant soon emerged from the
gangway, approached within a foot and a half of the driver's side
window of Officer Mar's vehicle and facing Officer Mar directly,
exchanged two foil packets for $30 of section 1505 funds.
Although expecting three foil packets, Officer Mar drove away
immediately after receiving two packets. As he drove away,
Officer Mar communicated a description of the defendant to
Officers Liss and Bates.
Officer Singleton, who had witnessed the transaction from
his vehicle, testified that after Officer Mar drove way, the
defendant walked southbound on Monticello, appearing to count the
funds he had been handed. The defendant then met an unidentified
black man dressed in dark clothing who had emerged from the same
gangway the defendant had entered earlier. The men shook hands
and the unidentified individual walked back into the gangway, out
of Officer Singleton's sight. The defendant remained on
Monticello, but Officer Singleton could no longer see any United
States currency in the defendant's hands. Officer Singleton did
not include the defendant's encounter with the unidentified man
in his incident report. Officer Randolph did not see this
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No. 1-08-1304
encounter.
The defendant was subsequently approached by a second
individual, identified by the officers at trial as Derrick
Crowder. As Crowder approached the defendant, the enforcement
officers arrived. The enforcement officers detained both
individuals. Before either individual was handcuffed, Officers
Mar and Contreras returned. From inside their vehicle, about 20
feet away, Officers Mar and Contreras identified the defendant as
the individual that sold them the foil packets.
A custodial search of the defendant recovered no drugs or
section 1505 funds. After placing the defendant in his unmarked
vehicle, Officer Liss searched the gangway the defendant had
entered and the surrounding area for the individual the defendant
had encountered as related by Officer Singleton. Officer Liss
did not see another individual; no section 1505 funds were ever
recovered.
A forensic scientist testified the foil packets tested
positive for the presence of heroin.
The defendant did not testify at trial and the defense
presented no evidence. The defense theory was that the State
failed to prove the defendant was the individual that sold the
officers the heroin because no currency or drugs were found on
the defendant. During cross-examination of the officers, defense
counsel elicited that recording capabilities were available
during the surveillance, but not used, and that the foil packets
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No. 1-08-1304
were not checked for fingerprints. Defense counsel sought to
further bolster this theory during her cross-examination of the
forensic scientist. In response to defense counsel's
questioning, the forensic scientist testified that his lab did
not routinely check items like the foil packets for fingerprints,
explaining that, although he was not an expert, it was his
opinion that it was unlikely that fingerprints could be
successfully lifted from the foil packets. On redirect, the
State elicited testimony that either party could have requested a
fingerprint examination of the packets but neither party did. It
is this exchange that the defendant premises his ineffective
assistance of counsel claim.
The jury returned a guilty verdict. In his motion for a new
trial, of the three issues brought here, the defendant raised
only his claim that the trial court erred in refusing to rule on
his Montgomery motion until after he testified. This timely
appeal followed.
ANALYSIS
Montgomery Motion
The defendant first argues that the trial court committed
reversible error by refusing to rule on his motion in limine to
bar the admission of evidence of his prior convictions pursuant
to Montgomery until after the defendant testified. The defendant
contends that by doing so, the trial court interfered with his
"constitutional right to testify."
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No. 1-08-1304
Though the defendant phrases this issue as centering on his
"constitutional right to testify," we see no reason to frame our
analysis on such a right. Though it appears no longer an open
question that such a constitutional right exists1, we discern the
controlling issue to be whether the trial court's decision to
defer ruling on the defendant's motion in limine prevented the
defendant from testifying. See People v. Knox, 58 Ill. App. 3d
761, 767, 374 N.E.2d 957 (1978).
Against the backdrop of a constitutional right to testify,
the Knox court concluded that the dispositive question is whether
the defendant "was prevented from testifying." Knox, 58 Ill.
App. 3d at 767. In what now might be described as a motion
pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045
(1984), the defendant in Knox filed a pro se " 'affidavit in
support of motion' *** [wherein he] stated that his attorney had
prevented him from testifying in his own behalf, even though
1
"We concur with [the statement by federal courts that a
defendant has a constitutional right to testify in his own
behalf.] Furthermore, we believe it would be anomalous indeed
that the sixth and fourteenth amendments to the United States
Constitution guaranteed a criminal defendant the right to make
his own defense by representing himself as pro se counsel
[citation], yet that same defendant possessed no constitutional
right to testify in his own defense." People v. Knox, 58 Ill.
App. 3d 761, 766, 374 N.E.2d 957 (1978).
7
No. 1-08-1304
defendant had desired to do so." Knox, 58 Ill. App. 3d at 763.
The court found no support in the record that "his right to
testify was violated by his trial counsel." Knox, 58 Ill. App.
3d at 763. Rather, the court held that if trial counsel advises
his client not to testify and "the client acquiesces in his
counsel's conduct in this regard he should be bound by such
action. [Citation.] Like any other right, the right to testify
may be waived." Knox, 58 Ill. App. 3d at 767.
Based on Knox, we determine that the instant defendant's
contention is implicitly a claim that he was prevented from
testifying by the circuit court's refusal to rule on his motion
in limine prior to trial. The issue, in terms of waiver, is
whether the defendant waived the issue of the trial court's
deferral of its ruling on the defendant's motion in limine when
he failed to take the stand. Stated differently, in light of the
defendant's decision not to exercise his right to testify based
on the trial court's refusal to rule first, is it a matter of
speculation that the defendant would have testified had the trial
court timely ruled on the motion in limine regarding the
admissibility of his prior convictions for impeachment purposes
under Montgomery? See People v. Patrick, 233 Ill. 2d 62, 78, 908
N.E.2d 1 (2009) ("any possible harm flowing from the trial
court's denial of a motion in limine to bar impeachment by a
prior conviction is wholly speculative absent the defendant's
testimony"), citing Luce v. United States, 469 U.S. 38, 41-43, 83
8
No. 1-08-1304
L. Ed. 2d 443, 447-48, 105 S. Ct. 460, 463-64 (1984).
In his main brief, the defendant asserts that because "[t]he
trial court abused its discretion where it cited a blanket policy
to defer ruling on Strickland's Montgomery motion *** this Court
should reverse Strickland's conviction and remand for a new
trial." The State denies there is any support in the record for
such a "blanket policy" finding. Certainly, there is no
statement by the trial court here that it does not issue
"advisory opinions" when presented with such a motion as was
present in Patrick. Patrick, 233 Ill. 2d at 74. Nonetheless,
even assuming arguendo that such a blanket policy underlies the
trial judge's decision in this case, we determine that such a
finding alone is insufficient to warrant a new trial given the
supreme court's decision in Patrick.
The defendant is essentially asking that we remand for a new
trial without requiring of the defendant a showing that the trial
on remand will be different from the trial that concluded with
his conviction, that is, the defendant would once again elect not
to testify. To grant a new trial based on no more than a showing
of an abuse of discretion, as the defendant requests, would be to
engage in the very speculation that spurred the supreme court's
decision in the companion case in Patrick.
The speculative nature of the defendant's claim of prejudice
here is best demonstrated by a contrast of Patrick and its
companion case, Phillips. The contrasting circumstances show why
9
No. 1-08-1304
defendant Patrick was prejudiced by the trial court's deferral of
its ruling on his motion in limine and, in defendant Phillips'
case, why speculation abounded, making his claim not subject to
review.
In Patrick, the circuit court declined to rule on the
Montgomery-based motion in limine until the defendant had
testified in accordance with the circuit court's blanket policy
against such "advisory opinions." Patrick, 233 Ill. 2d at 74.
The supreme court ruled that the circuit court's deferral of its
ruling on the motion in limine prejudiced defendant Patrick
because "Patrick's counsel was unable to inform the jury whether
Patrick would testify and was anticipatorily unable to disclose
Patrick's prior convictions to lessen the prejudicial effect the
convictions would have on his credibility." Patrick, 233 Ill. 2d
at 75. In other words, defendant Patrick's trial might well have
been different, at least as to his opening statement and direct
testimony.
As to defendant Phillips, "[t]he trial judge granted the
motion in limine in part and determined that one of Phillips'
convictions would be excluded, but stated he could not determine
whether three other convictions *** were more probative than
prejudicial until he heard Phillips' testimony." Patrick, 233
Ill. 2d at 67. The trial court never issued its ruling on the
remaining three convictions because defendant Phillips never
testified, leading to the supreme court's ruling that "any
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No. 1-08-1304
possible harm flowing from the trial court's denial of a motion
in limine to bar impeachment by a prior conviction is wholly
speculative." Patrick, 233 Ill. 2d at 78. Just as in Luce, it
appears defendant Phillips made "no commitment *** that he would
testify if the motion were granted, nor did he make a proffer to
the court as to what his testimony would be." Luce, 469 U.S. at
39, 83 L. Ed. 2d at 446, 105 S. Ct. at 462. Thus, the claimed
harm was not the only speculative component to defendant
Phillips' claim; it was also a matter of speculation that
defendant Phillips would have testified had the circuit court
made a timely ruling on his motion in limine.
Of course, a defendant is under no obligation to testify,
which means that only when a defendant knows in advance of trial
that he will be taking the stand will he so inform the jury in
his opening statement. Under circumstances where a defendant is
unsure whether he will testify, defense counsel will not
represent to the jury that the defendant will take the stand. In
other words, even with a pretrial ruling, a defendant will not
inform the jury that he will take the stand unless he, in fact,
plans to testify, as defendant Patrick did.
Of course, only if a defendant testifies does an
anticipatory disclosure of admissible prior convictions, to
lessen the prejudicial impact on his credibility, come into play.
If the defendant does not take the stand, the opportunity to own
up to prior convictions before the jury in his direct testimony
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No. 1-08-1304
is of no moment.
Under Knox, we examine whether the trial court's refusal to
rule on the motion in limine prevented the defendant from
testifying. Had the ruling in defendant Phillips' case been made
pretrial, some or all three of his remaining convictions would be
ruled admissible as impeachment or not. Under the worst case
scenario, all three of his prior convictions would have been
found admissible for impeachment. Under the best case scenario,
some or all three of his prior convictions would have been found
more prejudicial than probative, barring their disclosure to the
jury.
Under the worst case scenario, no speculation is involved in
our conclusion that the record does not support a finding that
the defendant was prejudiced by the trial court's decision to
defer its ruling on the admissibility of the three remaining
convictions. This is so because the trial court's deferral of
its ruling could have made no difference in the defendant's
decision not to testify. If the defendant were intent on
testifying, his expectation under the worst case scenario would
have been that all three convictions would be introduced for
impeachment purposes. His failure to testify demonstrates that
the absence of a pretrial ruling where the trial court would have
found all three prior convictions admissible under Montgomery did
not prevent the defendant from testifying, causing him no
prejudice.
12
No. 1-08-1304
It is under the best case scenario that defendant Phillips'
claim is grounded in speculation. When considering a motion in
limine to exclude prior convictions, the circuit court must weigh
the probative value of a prior conviction against the prejudicial
effect to the defendant. It is not simply that the circuit
court's delay in ruling on the motion in limine prejudiced
defendant Phillips; rather, necessary to defendant Phillips'
claim that he was prejudiced is a demonstration that the record
supports a favorable ruling by the trial court on his motion in
limine. The defendant must urge that we speculate on the trial
court's ruling under Montgomery to support his claim that he was
prejudiced by the trial court's failure to issue a timely
decision.
In other words, defendant Phillips' true claim is that the
trial court would have granted, in whole or in part, his motion
to bar the admissibility of his three remaining convictions
(otherwise the worst case scenario would obtain). We cannot
review a decision by the circuit court that was never made. "A
reviewing court is handicapped in any effort to rule on subtle
evidentiary questions outside a factual context." Luce, 469 U.S.
at 41, 83 L. Ed. 2d at 447, 105 S. Ct. at 463. This is
especially true when, under an abuse of discretion standard, our
review must accord deference to the circuit court's ruling. See
People v. Donoho, 204 Ill. 2d 159, 186, 788 N.E.2d 707 (2003)
(under an abuse of discretion standard, "[t]he reviewing court
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No. 1-08-1304
owes some deference to the trial court's ability to evaluate the
impact of the evidence on the jury"). More to the point, as best
we can tell, no argument was made by defendant Phillips that the
circuit court should have barred some or all of his prior
convictions for purposes of impeachment.
In any event, we find it improbable that any record would
support a showing that the circuit court would have issued a
favorable ruling on a defendant's motion in limine when, by
virtue of the defendant not testifying, no ruling was ever
issued. "On the record such as here, it would be a matter of
conjecture whether the District Court would have allowed the
Government to attack petitioner's credibility at trial by means
of the prior conviction." Luce, 469 U.S. at 42, 83 L. Ed. 2d at
448, 105 S. Ct. at 463. Of course, it remains a matter of
conjecture that were a new trial granted to defendant Phillips,
his new trial would differ from the trial that resulted in his
conviction, that is, he would elect to testify.
Thus, the prejudice identified in defendant Patrick's
situation would only arise if a defendant testifies. When a
defendant does not testify, any claim of prejudice owing to not
knowing in advance of trial the circuit court's ruling on his
Montgomery motion is speculative. In other words, a defendant in
Phillips' situation can make no showing that his trial would have
been different had the trial court timely ruled on his motion in
limine when he fails to testify. That the trial court's deferral
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No. 1-08-1304
of its ruling did not prevent the defendant from testifying is
demonstrated in a very practical sense when we consider that the
trial court deferred its ruling in defendant Patrick's trial, yet
defendant Patrick testified.
The speculative nature of defendant Phillips' claim leads us
back to the dispositive question before us under Knox: whether
the absence of a pretrial ruling prevented the defendant here
from testifying. As in Phillips' case, the answer must be in the
negative when the defendant does not testify. Under the worst
case scenario, with a ruling that all of the defendant's prior
convictions were admissible, it is inescapable that the defendant
would not have testified just as he did not testify when no
timely ruling of his motion in limine was made. Under the best
case scenario, that all prior convictions were inadmissible,
essential to a finding that the deferral prevented the defendant
from testifying is a necessary finding that the circuit court
would have ruled the prejudicial impact outweighed the probative
value of the evidence. However, we cannot review a ruling by the
trial court that was never made. Nor does the defendant argue
that his motion in limine should have been granted; he argues
only that he was entitled to a ruling.
When the defendant does not testify, it is grounded on
conjecture to find the defendant was prevented from testifying
because some or all of his prior convictions should have been
ruled inadmissible. The very ruling by the circuit court
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No. 1-08-1304
necessary for his claim of prejudice is foreclosed by his failure
to testify. We reject the implied argument by the defendant that
he was prevented from testifying because he expected a favorable
ruling by the trial court on his motion in limine that was never
issued.
In Patrick, the supreme court found not only that defendant
Phillips suffered no prejudice when he did not testify, the court
reversed the appellate court's ruling that the circuit court
abused its discretion in deferring its ruling on the
admissibility for impeachment purposes of the three remaining
prior convictions until after the defendant testified. Patrick,
233 Ill. 2d at 77. The supreme court reasoned "that the issue of
the trial court's refusal to rule on Phillips' motion in limine
seeking to bar the use of prior convictions for impeachment was
not preserved for review because Phillips chose not to testify."
Patrick, 233 Ill. 2d at 77. As support, the supreme court relied
on the very case the trial judge here read as granting him
authority to defer ruling on the defendant's motion in limine--
Luce, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460. Luce held
that a trial court's denial of a motion in limine to bar the
introduction of impeaching prior convictions was not reviewable
on appeal where the defendant did not testify. Luce, 469 U.S. at
41-43, 83 L. Ed. 2d at 447-48, 105 S. Ct. at 463-64. Consistent
with federal court cases that have found nonreviewable a trial
court's refusal to rule on the admissibility of prior convictions
16
No. 1-08-1304
until a defendant has testified (see People v. Phillips, 371 Ill.
App. 3d 948, 952, 908 N.E.2d 823 (2007), rev'd, 233 Ill. 2d 62,
908 N.E.2d 1 (2009) (and cases cited therein)), our supreme court
read Luce to bar review even of the trial court's decision not to
rule on a defendant's motion in limine. Patrick, 233 Ill. 2d at
79. Thus, the appellate court in Phillips was wrong to find an
abuse of discretion on the part of the trial judge even though it
rejected reviewing the defendant's claim of prejudice because the
defendant did not testify. Patrick, 233 Ill. 2d at 79.
As the defendant points out in his brief, the supreme court
has granted leave to appeal in two cases that share circumstances
with the two cases addressed in Patrick. The supreme court has
granted review to determine whether a circuit court's "blanket
policy" (as in defendant Patrick's case) of deferring its ruling
on a motion in limine warrants granting relief even if the
defendant does not testify (as in defendant Phillips' case).
People v. Tucker, No. 1-06-2619 (May 12, 2008) (unpublished under
Supreme Court Rule 23), appeal allowed, 231 Ill. 2d 684, 904
N.E.2d 985 (2009); People v. Averett, 381 Ill. App. 3d 1001, 886
N.E.2d 1123 (2008), appeal allowed, 231 Ill. 2d 671, 904 N.E.2d
985 (2009).
Based on Patrick, the initial question before the supreme
court in the pending cases is whether the trial court's deferral
of its ruling is subject to review for an abuse of discretion,
much as the appellate court ruled in Phillips. If the supreme
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No. 1-08-1304
court determines that the issue may be reviewed for an abuse of
discretion and, under the facts, finds an abuse of discretion
occurred, then the question becomes whether the defendant was
prejudiced by the trial court's deferral as the supreme court
determined in defendant Patrick's appeal.
Here, however, the defendant makes no showing that he was
prevented from testifying by the trial court's failure to issue a
pretrial ruling on the defendant's motion in limine. In other
words, we are offered no basis to find harm to the defendant when
he makes no showing that the new trial he seeks would differ from
the trial that resulted in his conviction. We decline the
defendant's invitation to grant a new trial based solely on a
purported blanket policy by the trial court of deferring to rule
on a motion in limine, at least until the supreme court tells us
otherwise. As we noted, the State denies the record here
supports a "blanket policy" finding.2
Nonetheless, under the analysis followed by the supreme
court in Patrick, we conclude that the defendant must show
prejudice to warrant a new trial even where it can be said the
trial court "refuse[d] to exercise any specific discretion."
Patrick, 233 Ill. 2d at 74. The defendant makes no such showing
2
There is no difference in outcome had the defendant
asserted the less serious infraction that the circuit court
abused its discretion by deferring its ruling even where it had
no blanket policy, as the State contends here.
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No. 1-08-1304
of prejudice here; nor does the defendant contend that the
exception to the rule requiring actual prejudice should apply.
See People v. Dixon, 23 Ill. 2d 136, 137, 177 N.E.2d 206 (1961).
In Dixon, our supreme court determined the exception to the
rule requiring a showing of prejudice applies where it "would be
impossible or inordinately difficult to make [a showing of
prejudice,] for it can not be shown how the testimony might have
differed had the motion [to exclude] been allowed." Dixon, 23
Ill. 2d at 140. In Dixon, the trial judge denied the defendant's
motion to exclude witnesses based solely on his practice to the
contrary: " 'Well, I don't like to do that.' " Dixon, 23 Ill. 2d
at 137. While the supreme court ultimately determined that it
remains within the trial court's discretion whether to grant such
a motion, "a motion to exclude witnesses should normally be
allowed." Dixon, 23 Ill. 2d at 140. "In order to uphold the
denial of a motion to exclude, the record should disclose a sound
basis for such denial. *** Where the record discloses an
arbitrary denial of a motion to exclude witnesses, as in the
present case, it is not necessary for the defendant to establish
that he has been prejudiced thereby." Dixon, 23 Ill. 2d at 140.
Whether a judicial practice of deferring a ruling on a
motion in limine should give rise to a presumption of prejudice
in preventing a defendant from testifying in the same way a
judge's practice of arbitrarily refusing to exclude witnesses
makes unnecessary a showing of prejudice, we must leave to our
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No. 1-08-1304
supreme court to determine in the cases pending before it. If
the supreme court should determine such a claim is reviewable,
even in the absence of a defendant testifying, and, still
further, should find prejudicial error to warrant a new trial,
then we expect our decision here to be vacated.
Because we find the issue before us settled law, the outcome
here is predetermined. See Averett, 381 Ill. App. 3d at 1020
("defendant's failure to testify eliminates the circuit court's
refusal to rule as a reviewable issue"), appeal allowed, 231 Ill.
2d 671, 904 N.E.2d 985 (2009); People v. Harris, 123 Ill. 2d 113,
129, 526 N.E.2d 335 (1988) ("the precedential effect of an
appellate court opinion is not weakened by the fact that a
petition for leave to appeal has been granted and is pending in
that case"). The defendant's claim based on a motion brought
pursuant to Montgomery is not subject to review when he fails to
testify.
Supreme Court Rule 431(b)
The defendant next argues the trial court erred in
conducting voir dire by failing to ascertain the individual
understanding and acceptance of the Zehr principles of each juror
in violation of amended Illinois Supreme Court Rule 431(b)
(Official Reports Advance Sheet No. 8 (April 11, 2007), R.
431(b), eff. May 1, 2007), thereby depriving him of his
constitutional right to a fair and impartial jury.
In Zehr, the supreme court held the trial court erred by
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No. 1-08-1304
refusing defense counsel's request to ask certain questions
during voir dire. Zehr, 103 Ill. 2d at 476-78. The supreme
court determined:
"[E]ssential to the qualification of
jurors in a criminal case is that they know
that a defendant is presumed innocent, that
he is not required to offer any evidence in
his own behalf, that he must be proved guilty
beyond a reasonable doubt, and that his
failure to testify in his own behalf cannot
be held against him." Zehr, 103 Ill. 2d at
477.
The supreme court found these guarantees go to the " 'heart of a
particular bias or prejudice which would deprive defendant of his
right to a fair and impartial jury' " and, thus, must be covered
during voir dire when requested by defense counsel. Zehr, 103
Ill. 2d at 477-78, quoting People v. Zehr, 110 Ill. App. 3d 458,
461, 442 N.E.2d 581 (1982). After Zehr was decided, the Illinois
Supreme Court amended Rule 431(b) in 1997 to require a trial
court to question venire members regarding the Zehr principles
when so requested by the defendant. In 2007, the rule was once
again amended to eliminate the need for a request by a defendant
before such questions must be asked. Official Reports Advance
Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
The defendant admits his trial counsel did not object during
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No. 1-08-1304
voir dire or include this issue in his posttrial motion; the
defendant seeks to invoke the plain error doctrine. The plain
error doctrine was outlined by our supreme court in People v.
Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005).
"[T]he plain-error doctrine bypasses
normal forfeiture principles and allows a
reviewing court to consider unpreserved error
when either (1) the evidence is close,
regardless of the seriousness of the error,
or (2) the error is serious, regardless of
the closeness of the evidence." Herron, 215
Ill. 2d at 186-87.
The defendant contends that he meets both prongs of the plain
error doctrine. However, before considering plain error, we must
first determine " 'whether error occurred at all.' " People v.
Harris, 225 Ill. 2d 1, 31, 866 N.E.2d 162 (2007), quoting People
v. Wade, 131 Ill. 2d 370, 376, 546 N.E.2d 553 (1989).
The entire jury selection process conducted by Judge Darcy
is contained in the record. Judge Darcy questioned two separate
groups of prospective jurors from which the jury was picked. As
to each group, Judge Darcy asked essentially the same questions:
"Ladies and gentlemen I am going to ask
you some questions as a whole. First one is
do any of you have a bias or prejudice
against a person simply because they are
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No. 1-08-1304
charged with a crime. If you do, please
raise your hand.
Let the record reflect no hands raised.
Do you know of any reason why you can't
give both sides a fair trial and keep an open
mind throughout? If you won't be able to do
that, please let me know by raising your
hand.
Do all of you understand that the
defendant is presumed innocent and doesn't
have to offer any evidence on his own behalf
but must be proven guilty beyond a reasonable
doubt by the State? If you don't understand
that or disagree with that please raise your
hand.
If the defendant decides not to testify
in his own behalf, would any of you hold that
against him?" If you would, please raise
your hand.
***
If the State proves the defendant guilty
beyond a reasonable doubt would you hesitate
at all in returning a verdict of guilty? If
you would, please raise your hand.
***
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No. 1-08-1304
If the State fails to prove the
defendant guilty beyond a reasonable doubt,
would any of you hesitate in returning a
verdict of not guilty? If you would, please
raise your hand.
***
Would you follow the law as I give it to
you in the instructions regardless of what
you personally think the law should be?
Would you be able to do that? If you
wouldn't be able to do that, please raise
your hand."
In several instances, prospective jurors signaled a need to
address Judge Darcy by raising a hand. Three prospective jurors
expressed concerns over fully understanding the proceedings
because of language problems; another expressed concern about the
severity of drug sentencing in general. No prospective juror
indicated any difficulty in understanding or accepting any of the
four Zehr principles: (1) the presumption of innocence; (2) the
lack of a burden on the defendant to offer evidence; (3) the
State's burden to prove guilt beyond a reasonable doubt; and (4)
the defendant's failure to testify cannot be held against him.
While conceding the trial court's admonishment may have
informed the potential jurors en masse of the principles outlined
in Zehr, the defendant contends the selection process followed by
24
No. 1-08-1304
Judge Darcy did not comply with the goal of Rule 431(b) of
ensuring that each of the prospective jurors understands and
accepts each of the principles. According to the defendant, the
trial court's failure to make an individual inquiry of each
prospective juror violated the rule. The defendant further
argues that the manner in which the trial court questioned the
potential jurors concerning the defendant's right not to testify
did not satisfy Rule 431(b) because Judge Darcy did not inform
the prospective jurors that "the defendant's failure to testify
cannot be held against him." (Emphasis added.) Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,
2007.
We reject the defendant's contentions that Judge Darcy's
questioning of the venire fell short of the dictates of Rule
431(b). In accordance with Rule 431(b), Judge Darcy directly
questioned the potential jurors, "in a group" on each of the four
Zehr principles. Official Reports Advance Sheet No. 8 (April 11,
2007), R. 431(b), eff. May 1, 2007. That some prospective jurors
responded to Judge Darcy's invitation to raise a hand to express
any concerns, confirms that each member of venire, after each of
the Zehr principles was addressed, had "an opportunity to respond
to specific questions concerning the principles set out" in the
Rule. Official Reports Advance Sheet No. 8 (April 11, 2007), R.
431(b), eff. May 1, 2007. Judge Darcy fully complied with the
dictates of Rule 431(b).
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No. 1-08-1304
We also disagree with the defendant's contention that the
trial court's admonishment regarding the defendant's decision not
to testify against him did not comply with Rule 431(b) because it
failed to track the language of the rule. We find Judge Darcy's
admonishments to the venire complied with the requirements of
Rule 431(b). There is no requirement that the specific language
of the rule be used. See People v. Vargas, No. 1-08-0383, slip
op. at 9, ("While [the trial court's approach] might not be the
most succinct approach to the inquiry [that the defendant's
failure to testify cannot be held against him], we nevertheless
perceive that it was sufficient to ascertain the understanding
and acceptance of the potential jurors of the principle
articulated").
Accordingly, we find no error in the trial court's inquiry
of the prospective jurors regarding the Zehr principles. Because
no error occurred, there can be no plain error.
Assistance of Counsel
Lastly, the defendant claims he was denied effective
assistance of counsel based on trial counsel's cross-examination
of the State's forensic scientist. The defense challenged the
State's case by pointing to the lack of physical evidence tying
the defendant to the foil packets purchased by the undercover
officers. In particular, defense counsel sought to cast doubt by
noting that the foil packets were never examined for
fingerprints. The State's forensic scientist, however, turned
26
No. 1-08-1304
the tables on defense counsel by observing that his lab did not
routinely test items like the foil packets for fingerprints
because, in his judgment, it was unlikely that fingerprints could
be successfully lifted from the packets. On redirect
examination, the State then elicited from the forensic scientist
that either party could have requested a fingerprint examination
of the foil packets, but neither side did.
Based on this exchange during cross-examination, the
defendant contends defense counsel rendered ineffective
assistance because the answer provided by the forensic scientist
deflated whatever benefit the defendant might have received by
the absence of fingerprint evidence. In his main brief, the
defendant argues: "This undermined the defense theory by
suggesting to the jury that if the results would have been
exculpatory the defense would have requested testing." Premised
on this claim, the defendant asks this court to grant him a new
trial where presumably this testimony would not be forthcoming.
A successful claim of ineffective assistance of counsel
requires a showing of both deficient representation and
prejudice. Strickland v. Washington, 466 U.S. 668, 694, 80 L.
Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v.
Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). A
defendant is denied effective assistance of counsel if counsel's
performance falls "below an objective standard of reasonableness
and that, but for this substandard performance, there is a
27
No. 1-08-1304
reasonable probability that the outcome of the proceeding would
have been different." People v. McPhee, 256 Ill. App. 3d 102,
106, 628 N.E.2d 523 (1993), citing Strickland, 466 US. at 687-94,
80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-68 and Albanese, 104
Ill. 2d at 525. To prove counsel's representation was deficient,
the defendant must overcome a strong presumption that counsel's
performance fell within the wide range of reasonable assistance.
People v. Coleman, 183 Ill. 2d 366, 398, 701 N.E.2d 1063 (1998).
We review this issue de novo. People v. Chapman, 194 Ill. 2d
186, 217, 743 N.E.2d 48 (2000).
Generally, cross-examination of witnesses is a matter of
trial strategy and defense counsel will not be found to have
rendered ineffective assistance unless his approach is
objectively unreasonable. People v. Pecoraro, 175 Ill. 2d 294,
326-27, 677 N.E.2d 875 (1997).
Defense counsel had little to cast doubt on the State's
case given the nature of the evidence against the defendant.
However, defense counsel pointed out to the jury, no marked
currency or drugs were found on the defendant or in the vicinity.
Only one of the two surveillance officers observed the defendant
meet with an unidentified individual after the drug transaction
and this officer did not record in his incident report his
observation of this meet. Defense counsel also brought out the
ability of the officers to have recorded the alleged drug
purchase, which they failed to do.
28
No. 1-08-1304
The manner of counsel's cross-examination of the State's
forensic scientist was a matter of trial strategy. Defense
counsel either did not anticipate the response from the forensic
scientist or believed the point was worth making in any event. We
find counsel's cross-examination reasonable in light of the
defense theory that the police did not adequately conduct their
investigation in this case. We find no basis to second-guess
defense counsel in her decision to ask the fingerprint question.
We reject the defendant's characterization of counsel's cross-
examination as objectively unreasonable.
We also reject the defendant's claim that defense counsel's
question during cross-examination "opened the door" to the
State's question on redirect that either party could have
requested a fingerprint examination of the foil packet. The
defendant offers no basis for his suggestion that the State could
not have asked that question during its case in chief. In any
event, accepting the forensic scientist's testimony that an
attempt to lift fingerprints from foil packets would likely have
proved unfruitful, the jury might just as well have concluded
that no exculpatory evidence was available from such a request,
which would explain the defendant's failure to request such an
examination. In any event, that counsel undertook an
unsuccessful strategy or that another attorney would have handled
the cross-examination differently adds little to the claim that
trial counsel rendered constitutionally deficient assistance.
29
No. 1-08-1304
See People v. Palmer, 162 Ill. 2d 465, 476, 643 N.E.2d 797
(1994)("counsel's strategic choices are virtually
unchallengeable").
Under the facts of this case, the defendant is unable to
overcome the strong presumption that trial counsel's performance
was the product of reasonable trial strategy, not incompetence.
See Coleman, 183 Ill. 2d at 398. Accordingly, the defendant is
unable to satisfy the first prong of Strickland.
However, even assuming, arguendo, that counsel's alleged
error constituted substandard representation, the defendant
cannot show he was prejudiced because the evidence overwhelmingly
pointed to his guilt. At trial, five Chicago police officers
consistently identified the defendant as the individual that
engaged in an on-the-street encounter with the undercover
officers. Four of the officers testified that each personally
witnessed the drug transaction. Officer Mar testified that the
defendant asked him if he "needed anything" and in response to
Officer Mar's statement that he needed "three blows," the
defendant directed him to park his vehicle at a certain location.
Officer Mar waited as the defendant entered a gangway and
returned to the driver's side window to exchange two foil
packets, which later tested positive for heroin, for $30. After
the defendant and another individual were detained by the
enforcement officers, Officers Mar and Contreras returned to the
scene of the drug sale to determine whether either of the
30
No. 1-08-1304
detained individuals sold them the heroin packets. The officers
picked out the defendant as that individual. Based on the
strength of this evidence, the defendant cannot show that but for
counsel's alleged deficiency during cross-examination of the
State's forensic scientist regarding fingerprint testing on the
foil packets, the outcome of his trial would have been different.
See McPhee, 256 Ill. App. 3d at 106.
As we noted, the absence of fingerprints on the foil packets
could not be taken as incriminating evidence against the
defendant. Nor, would the absence of fingerprint evidence
constitute evidence that the wrong person was identified by the
police. Accordingly, the defendant is unable to satisfy the
second prong of Strickland because he is unable to show
prejudice.
We conclude counsel was not deficient in her representation
of the defendant. In any event, the defendant cannot
demonstrate prejudice because the evidence was overwhelmingly
against him.
CONCLUSION
The defendant's first issue, that Judge Darcy's refusal to
rule on his motion in limine to exclude his prior convictions
prior to his testimony constituted error, is beyond our review
because the defendant did not testify. There is no merit to the
defendant's second issue as Judge Darcy complied with the voir
dire requirements of Rule 431(b). We reject the defendant's
31
No. 1-08-1304
final issue because, based on the evidence, no showing can be
made that his counsel was ineffective. We affirm the judgment
of the circuit court of Cook County.
Affirmed.
PATTI, J., concurs.
LAMPKIN, J., specially concurs.
32
No. 1-08-1304
JUSTICE LAMPKIN, specially concurring:
I recognize that we are bound by our supreme court's
holding in Patrick that a defendant must testify to preserve for
review the issue of the trial court's refusal to rule on a
motion in limine seeking to bar the use of prior convictions for
impeachment. Patrick, 233 Ill. 2d at 79. Nevertheless, I write
to emphasize that trial courts, as a simple matter of fairness,
need to make early rulings on motions in limine addressing the
admissibility of prior convictions. See Patrick, 233 Ill. 2d at
73. I further emphasize that a trial court's blanket policy not
to rule on a motion in limine in advance of the defendant's
decision not to testify constitutes an abuse of discretion.
Patrick, 233 Ill. 2d at 74-75. In addition, I believe our
supreme court should consider the availability of relief to
defendant Strickland, even though he did not testify, because
the record indicates the trial court had a blanket policy not to
rule on motions in limine.
A deferred ruling on a motion in limine to bar prior
convictions adversely impacts the defense's strategy and the
defendant's right to effective assistance of counsel. Counsel
cannot adequately advise a defendant on the important tactical
decision of whether to testify if counsel does not know whether
prior convictions will be admissible for impeachment purposes.
See Patrick, 233 Ill. 2d at 69. Furthermore, a trial court's
refusal to rule handicaps counsel during voir dire when counsel
33
No. 1-08-1304
presents defendant's issues to prospective jurors and later
during opening statements when counsel frames the issues to be
decided by the jury. Specifically, counsel must decide whether
to inform prospective and selected jurors about the defendant's
prior convictions or his election to testify. See Patrick, 233
Ill. 2d at 70. The admissibility of prior convictions affects
counsel's strategy in selecting prospective jurors and
questioning them about their feelings on relevant matters
involved in the case, like guns, street gangs or drug abuse. In
addition, the uncertainty that results from deferred rulings on
the admissibility of prior convictions may force a defendant to
forgo testifying and, thus, hardly serves the trial's purpose to
search for the truth.
Only rare cases warrant a deferred ruling on motions in
limine to bar prior convictions, and the trial court must give
reasons for any deferment based on the specific facts of the
defendant's case. Patrick, 233 Ill. 2d at 73-74. During my 22
years of service as a criminal court judge, I considered motions
in limine to bar prior convictions and conducted the Montgomery
balancing test on many occasions. I never refused to rule on
those motions in limine because a defendant needs to know which
convictions may be used against him before he can make an
informed and intelligent decision about whether to testify. See
Patrick, 233 Ill. 2d at 69-70.
In Averett and Tucker, our supreme court has allowed leave
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No. 1-08-1304
to appeal "to consider whether relief might be available to a
defendant, even if he chose not to testify, if the trial court
had a 'blanket policy' not to rule on the motion in limine in
advance of the defendant deciding not testify." People v.
Patrick, Nos. 104077, 104445 cons., per curiam order at 1 (May
27, 2009) (explaining the consistent rationale for granting
review to defendants Averett and Tucker while denying Phillips
leave to file a motion to reconsider the denial of his petition
for rehearing). Furthermore, our supreme court has allowed
motions to reconsider in cases where additional investigation
uncovered "an indication of a blanket policy" and the issue was
properly preserved despite the defendants' decisions not to
testify. Patrick, per curiam order at 2 (referring to People v.
Cowans, No. 105982; People v. Townsend, No. 106547; and People
v. Earl, No. 107665).
Similarly, the record here indicates that the trial court
merely adhered to a blanket policy not to rule when the parties
filed cross motions in limine on the admissibility of
defendant's five prior convictions to impeach his credibility
should he elect to testify. At issue were defendant's
convictions for the 2005 offense of aggravated unlawful use of a
weapon, the 2003 offense of possession of a controlled
substance, the 2001 offense of possession of a stolen motor
vehicle, and the two 1999 offenses of delivery of a controlled
substance. Defendant argued that the danger of prejudice
35
No. 1-08-1304
outweighed any probative value, that some of his prior crimes
were similar to the current charge, and that the jury would
misuse the information as evidence of defendant's propensity to
possess and deliver narcotics. The trial court stated that it
relied on Luce and would have to decide the matter if and when
defendant testified "in order to make the proper ruling."
Furthermore, the trial court granted the State's motion in
limine to prohibit defendant from arguing that he pled guilty in
prior cases because he was in fact guilty but proceeded to trial
in his current case due to his innocence.
The trial court's reliance on Luce was misplaced. Luce,
contrary to the trial court's implication, does not stand for
the broad proposition that a trial court may or should weigh the
probative value and prejudicial effect after the defendant has
testified. See People v. Holloway, 393 Ill. App. 3d 317, 321
n.2, 912 N.E.2d 799, 802 n.2 (2009). Rather, Luce held that a
defendant who does not testify at trial may not challenge on
appeal an in limine ruling respecting the admission of a prior
conviction for purposes of impeachment under Rule 609(a) of the
Federal Rules of Evidence. Luce, 469 U.S. at 42-43, 83 L. Ed.
2d at 447-48, 105 S. Ct. at 463-64. That narrower holding was
based on the reviewing court's inability to adequately evaluate
the correctness of the trial court's ruling outside the specific
factual context of the trial as it unfolded, and the handicap
posed to the reviewing court's harmless-error determination when
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No. 1-08-1304
a defendant does not testify. Luce, 469 U.S. at 41-42, 83 L.
Ed. 2d at 447-48, 105 S. Ct. at 463.
The State argues that this case is controlled by our
supreme court's ruling in Patrick that defendant Ezekiel
Phillips failed to preserve this same issue for review because
he chose not to testify. See Patrick, 233 Ill. 2d at 77.
Defendant's situation, however, is distinguishable from
Phillips' case, where the trial court did not adhere to a
blanket policy not to rule but, rather, partially granted the
motion in limine to bar one of Phillips' prior convictions while
deferring on the other three. Here, in contrast, the trial
court did not address any of defendant's five convictions,
despite the obvious danger of prejudice from his three drug
convictions.
As in Patrick, the trial court here failed to give a reason
for its deferred ruling based on the specific facts of
defendant's case. Unlike the rare situation where a trial court
may not have sufficient information to weigh the probative value
and prejudicial effect before a defendant testifies, the record
here does not indicate a sound basis for deferment. The trial
court certainly had enough information to conduct the Montgomery
balancing test where the prejudicial effect of the use of
defendant's three drug convictions for impeachment purposes was
obvious. Consequently, the record indicates the trial court
adhered to a blanket policy to defer ruling on motions in limine
37
No. 1-08-1304
to preclude evidence of prior convictions until after hearing
the defendant's testimony.
38
No. 1-08-1304
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_______________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS
Plaintiff-Appellee,
v.
LEONARD STRICKLAND,
Defendant-Appellant.
________________________________________________________________
No. 1-08-1304
Appellate Court of Illinois
First District, First Division
Filed: March 8, 2010
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
PATTI , J., concurs.
LAMPKIN, J., specially concurs.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Daniel P. Darcy, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Anita Alvarez, State's Attorney, County of Cook
APPELLEE
James E. Fitzgerald
Douglas P. Harvath
Carol M. Gaines
Brian K. Hodes
Assistant State's Attorneys, Of Counsel
Richard J. Daley Center, Room 309
Chicago, IL 60602
For DEFENDANT- Michael J. Pelletier, State Appellate Defender
APPELLANT Patricia Unsinn, Deputy Defender
Holly J. K. Schroetlin
Assistant Appellate Defender
39
No. 1-08-1304
Office of the State Appellate Defender
203 N. LaSalle Street, 24th Floor
Chicago, IL 60601
40