ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Hayes, 2011 IL App (1st) 100127
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CURMILLER HAYES, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-10-0127
Filed November 15, 2011
Rehearing denied December 12, 2011
Held Defendant’s conviction for aggravated battery with a firearm was upheld
(Note: This syllabus over his contentions that he was not proved guilty beyond a reasonable
constitutes no part of doubt where the prosecution witnesses admitted lying to the police and
the opinion of the court his testimony that he acted in self-defense was unimpeached and
but has been prepared corroborated by the physical evidence, that his counsel was ineffective in
by the Reporter of failing to introduce evidence of the victim’s violent character and that the
Decisions for the prosecutor’s closing argument improperly distracted the jury from the
convenience of the relevant facts.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-25627; the
Review Hon. Joseph M. Claps, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Curmiller Hayes, appeals his conviction after a jury trial of aggravated battery
with a firearm and his sentence of 10 years’ imprisonment. On appeal, Hayes contends (1)
the State did not prove him guilty beyond a reasonable doubt where State witnesses admitted
lying to the police and Hayes’ testimony that he acted in self-defense was unimpeached and
corroborated by the physical evidence; (2) he was denied effective assistance of counsel
where trial counsel failed to introduce admissible evidence of the victim’s violent character
to support Hayes’ theory of self-defense; and (3) the prosecutor improperly remarked during
closing argument that the jury would receive a copy of prior inconsistent statements of
defense witness Erica Teasley, which placed undue focus on that evidence and distracted the
jury from the relevant facts of the case. We affirm.
¶2 JURISDICTION
¶3 The trial court sentenced Hayes on December 17, 2009, and he filed a timely notice of
appeal on December 17, 2009. Accordingly, this court has jurisdiction pursuant to article VI,
section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,
governing appeals from a final judgment of conviction in a criminal case entered below. Ill.
Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶4 BACKGROUND
¶5 In the early morning hours of November 24, 2007, shots were fired between Hayes and
John Morrissette at the Hole-N-Da-Wall, a private social club located at 813 S. Pulaski in
Chicago. Hayes was charged with attempted murder and aggravated battery with a firearm
of Morrissette and John Wilson.
¶6 At Hayes’ jury trial, Bertha Morrissette testified for the State. Bertha stated that she was
part owner of the club, and on November 24, 2007, a woman known as Thumb was there
with six or seven others to celebrate her birthday. Hayes was part of the group celebrating
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Thumb’s birthday. Bertha observed Hayes and a patron named Cowboy pushing each other
around, and some of the men at the club broke up the fight. The women at the party with
Hayes started pushing him out the door, but he did not leave quietly. Hayes was “fussing and
fighting and cursing,” trying to get back into the club. After finishing their drinks, the other
members of Thumb’s party also left the club.
¶7 The club had a main exterior door, and after proceeding down a small vestibule, there
was an interior glass and aluminum door. After the Thumb party left, Bertha locked the
interior door. About 30 minutes later, Hayes returned to the club and started banging on the
glass window of the interior door. Bertha informed him that the club was closed and they
were getting ready to leave. Hayes left through the main door, but soon after returned and
kicked open the interior door. He had a pistol in his hand. Hayes then said, “now what” and
fired the gun down the middle of the aisle. Bertha fell to the floor and heard two or three
more shots. Hayes then ran out of the club. Bertha did not see anyone else with a gun that
night.
¶8 After Hayes left, Bertha saw that her boyfriend, John Wilson, had been shot in the foot.
She grabbed some towels to wrap up his foot. When police came in, they pulled her aside to
ask her questions. She had heard that a person she knew as Lil Hole followed the shooter
after he left the club. At the police station, Bertha identified Hayes in a lineup.
¶9 Bertha stated that she could no longer close the interior door after the incident although
the door showed no signs of physical damage; only the lock on the door was affected. She
also denied that her son, John Morrissette, kept a shotgun at the bar of the club and denied
he shot a gun that night. She acknowledged that her son is a convicted felon and is not
supposed to have a gun.
¶ 10 John Wilson testified that on November 24, 2007, he was in a relationship with Bertha,
although at the time of trial they were no longer dating. On that date, he went to the club and
played some poker on the machine, drank a beer then went to the back room to sleep. Later,
Wilson returned to the bar and got another beer. A man he subsequently identified as Hayes
kept trying to get into the club but Bertha told him it was closed. Hayes went out, then came
back to the interior door, which he kicked open. He walked toward the bar, reached down to
his side and pulled out a pistol. Wilson testified that he did not see anyone else with a gun
at that point. When Hayes was about three or four feet away, he shot Wilson in the top of his
right foot. Wilson grabbed his leg and rolled under the nearby pool table. Although he could
not see what was happening while he was under the pool table, Wilson did hear a few more
shots and another person crawled on top of him under the table. When the shooting stopped
and he heard people say, “he’s gone,” Wilson took off his boot, which was full of blood. He
then saw John Morrissette at the bar holding a pump shotgun. Bertha asked her son, “[D]id
you get him?”
¶ 11 The police and paramedics arrived, and Wilson was transported to Mt. Sinai Hospital,
where a doctor informed him that he had 22 or 23 holes in his foot. Wilson admitted that he
did not tell police that night that he had seen Morrissette with a shotgun because he was in
a relationship with Bertha at the time. Before the shooting, he had never seen Morrissette
handling the shotgun although he knew he kept a shotgun in the disc jockey (DJ) booth. He
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had also informed Bertha about the gun before the shooting.
¶ 12 John Morrissette testified that he has a 2006 conviction for burglary and a 2008
conviction for aggravated unlawful use of a weapon. In the early morning hours of November
24, 2007, he was DJ for a party at the club. Although he was not aware of any altercation
involving Hayes, he did observe some ladies trying to get him out of the club. Hayes,
however, was wrestling and scuffling because he did not want to leave. Hayes was very
angry. Morrissette stated that he did not help to escort Hayes out of the club, nor did he ever
punch him. The other members of his party stayed for another 20 minutes before leaving.
¶ 13 Approximately 30 minutes later, Hayes returned, “bamming” on the interior door.
Morrissette told him that the club was closed and made a motion across his neck indicating
that fact. Morrissette testified that it was his first face-to-face encounter with Hayes.
Morrissette returned to the DJ stand to play a couple more songs when Hayes kicked the
door, which flew open. Hayes had a revolver and fire was coming from the barrel of the gun.
People were running and ducking. After seeing that Hayes had a gun, Morrissette grabbed
his shotgun, which he kept in the DJ booth for protection. Hayes had fired the first shot and
Morrissette tried to aim at Hayes, but then Wilson’s niece ran past and he accidentally shot
toward the floor. Hayes shot once more before running away. Morrissette stated that he was
shot in the foot, and he later discovered that his shot hit Wilson in the foot.
¶ 14 When police arrived, Morrissette did not tell them he had a shotgun because he was on
felony probation at the time and he was not supposed to be around weapons. Doctors at Rush
Hospital later removed the bullet from his foot. Morrissette identified Hayes in a lineup at
the police station on November 24, 2007. He did not tell the investigator that he had a
shotgun that night, nor did he tell the assistant State’s Attorneys. Morrissette only admitted
having the gun when he discovered that Wilson would testify at trial that he had a gun.
¶ 15 Ozay McNeely testified that on November 24, 2007, between 1:30 and 2 a.m., he was at
the club talking to someone he later discovered was Hayes’ sister-in-law. About four or five
other women were also present. Hayes kept asking him why he was “messing” with his
sister-in-law and McNeely told him that he had known her for a long time. The women tried
pushing Hayes out of the way, and McNeely kept talking to them. After bringing the women
some drinks, McNeely had no other contact with Hayes. McNeely left the club about an hour
or two later and he sat alone in his car, smoking and listening to music. While in his car,
McNeely observed Hayes and the other women come outside. The women were trying to
keep Hayes from going back inside the club. Hayes then went to his car, opened the trunk,
and took out a jack iron. The women stopped him from going back into the club. Hayes then
threw the jack in the back of his car, got into the car, and drove away.
¶ 16 McNeely returned to the club for about an hour before going out to his car to smoke a
cigarette. After a while, someone named Sharon came out and pointed to a car driving away.
She said that “he” had just fired some shots in the club. McNeely noted that the car was the
same one he had seen Hayes drive off in earlier. McNeely, however, never saw Hayes come
back to the club nor did he see who was driving the car now. He followed the car and dialed
911. He told the operator that he was following a person who had fired shots in a tavern.
McNeeley remained on the phone. He followed the car until he saw Hayes get out of the car
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and walk to a large building. Hayes shouted at a woman on the third floor and then went into
the building. When he came out of the building, about 10 to 12 police cars were coming and
he started to run. McNeely pointed out the direction Hayes was running and police began
their chase. Police soon returned with Hayes and asked McNeely to identify him. At trial,
McNeely denied telling police that he had actually witnessed the crime. He also testified that
he knew John Morrissette but had never seen him with a shotgun.
¶ 17 Chicago police officer Carmen Hernandez and her partner were working the early
morning hours of November 24, 2007, when they heard a call of a person shot and a witness
following the offender. Following the directions, they arrived at 3500 North Franklin where
they found McNeely. McNeely told them he was a witness to the shooting and pointed out
Hayes, who was 25 to 30 feet away. They joined seven or eight other officers in chasing
Hayes. They shouted, “Police, stop” but Hayes kept running. As Officer Hernandez and her
partner got halfway down Drake, Hayes popped out through a yard and tripped in front of the
officers. Hernandez and her partner detained Hayes, placed him in a squad car, and brought
him to McNeely, who identified him as “the guy that shot people in the club.”
¶ 18 Detective Kevin Bor and his partner also monitored the call of a private citizen following
an offender on November 24, 2007. They observed Hayes being placed into custody and they
met with McNeely, who told them that he had witnessed the shooting. When they arrived at
the club, they observed that the interior door did not appear damaged. There was blood on
the floor immediately inside the door and a pool of blood by some stools and tables. There
was another pool of blood near the pool table. Both pools contained metal fragments, which
the police recovered. They did not recover a weapon, however. Bor interviewed Bertha, John
Morrissette, and John Wilson and no one mentioned that John Morrissette had a shotgun, nor
did Morrissette ever mention firing a shotgun. At the police station, forensic investigator
Strzepek conducted a gunshot residue test on Hayes. A metal object was removed from John
Morrissette’s foot on November 28, 2007.
¶ 19 Robert Berk, who works in the trace evidence section of the police crime lab, examined
the swabs taken from Hayes and determined that Hayes had discharged a firearm, contacted
a gunshot residue (GSR)-related item or had his right hand in the environment of a
discharged firearm. Leah Kane, a firearm and toolmark examiner at the crime lab, determined
that the metal object taken from John Morrissette’s foot was a 9-millimeter/.38-caliber bullet.
The metal fragments found on the floor did not contain any characteristics making them
suitable for comparison.
¶ 20 Erica Teasley testified for the defense. She stated that she and Hayes lived at 2922 West
Fillmore with their three children. Hayes’ mother and father lived on the first floor. On
November 24, 2007, she and her sister, Thumb, went to the club to celebrate both their
birthdays with friends. Hayes arrived about a half hour later. Around 3 a.m., she and Hayes
got into an argument because he wanted to leave but she did not. They did not hit each other.
John Morrissette then came over and punched Hayes, who fell down. Teasley knew
Morrissette as the bouncer of the club. Hayes did not punch back, but Morrissette asked him
to leave. Hayes left and drove off while Teasley and her group stayed another five minutes
before leaving.
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¶ 21 Teasley testified that she did not know McNeely, but she knew a person by the name Lil
Hole. She admitted that Lil Hole and Thumb had a conversation at some point, but denied
that Hayes had an argument with Lil Hole. She did not recall whether she told police that
Hayes had a conversation with an unknown black male or that Hayes pushed that person who
then punched Hayes in the face. She spoke with an assistant State’s Attorney, but did not
recall whether she said Hayes was involved in a tense conversation with an older man at the
bar, or that Hayes pushed the man and the man punched Hayes in the face. She admitted to
signing a handwritten statement, but said she did so because she was tired and wanted to
leave.
¶ 22 Teasley stated that she never told police that John Morrissette had punched Hayes in the
face because “They didn’t ask.” Although she acknowledged that the police treated her well,
she stated that she was at the police station and had not slept from midnight to 10 a.m. She
had coffee, but she did not eat anything.
¶ 23 Hayes testified in his defense. He stated that he and Teasley lived with their children at
2922 West Fillmore in Chicago. On November 24, 2007, he and Teasley went to the club to
celebrate with Thumb and some friends. When Hayes got to the club around 1 a.m., Teasley
was already there. He had two beers, and around 2:30 or 3 a.m., he and Teasley got into an
argument because he wanted to leave. While arguing with Teasley, however, someone came
over and asked him to leave. Hayes denied threatening that person. Hayes stated that he did
not talk to any older men, nor did any older man punch him. He also stated that he had never
seen McNeely before that night. As he and Teasley were arguing, Morrissette came over and
punched Hayes in the face. Hayes fell to the floor and asked, “Why the fuck did you hit me?”
Morrissette told him to leave and he got into his car and drove around. Hayes was angry and
drove to cool off.
¶ 24 He went back to the club to check on Teasley, knocking on the interior door, which was
locked. He saw people inside, but he could not tell whether Teasley was still there. Hayes
denied that the bouncer made a motion across his throat indicating that the club was closed.
He knocked a couple more times and a young lady opened the door. Hayes denied kicking
in the door. When he walked in, people ran toward Morrissette. Morrissette had a shotgun,
which he held in the direction of Hayes. Morrissette fired the gun and Hayes saw a flare of
light and heard a bang. Hayes then took his gun from the back of his pants and fired toward
Morrissette’s feet to protect himself. He stated that he had the gun with him the entire night.
Hayes then fired two more shots at the floor so he could escape.
¶ 25 Hayes testified that he threw the gun out of his car at Pulaski and Harrison. He went to
Teasley’s mother’s house, where he asked Teasley to come down. At that point, 10 to 12
police cars arrived and Hayes started running because he was scared. He was soon caught and
taken to the station. Hayes denied telling police that he had retrieved the .38-caliber weapon
from the railroad tracks by his house before going back to the club. He also denied stating
that he kept the gun there because he did not want his children playing with the gun at home.
He stated that he did not tell police the bouncer at the club had a handgun that he fired into
the floor.
¶ 26 In rebuttal, the State called Assistant State’s Attorney (ASA) Emily Stevens, who spoke
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with Teasley on November 24, 2007. Teasley told her that the police never threatened her,
and they treated her well. Teasley gave a statement in which she said Hayes and an older man
had a tense conversation at the club. Hayes pushed the older man and the man punched
Hayes in the jaw. Teasley stated that she did not see anyone in the club with a weapon at the
time. Hayes was really angry when he got into the car. Teasley never told ASA Stevens that
a bouncer hit Hayes or that John Morrissette hit him.
¶ 27 Detective Bor in rebuttal stated that he spoke to Hayes in an interview room. Detective
Jacobson, who was also in the room, advised Hayes of his Miranda rights and Hayes stated
that he understood. Hayes stated that he went to the club for a party around 12:30 p.m. He
met up with Teasley and some friends. He and Teasley got into an argument about her
staying out too late and a bouncer came over. Hayes told the bouncer that he was going to
“beat [his] ass” and the bouncer hit Hayes in the face. Hayes went outside and tried to get a
tire iron out of his trunk, but he instead got into his car and left. Hayes went to his house on
Fillmore and retrieved a .38-caliber handgun from the railroad tracks by his house. He kept
the gun there because he did not want his small children to get to it. When he returned to the
club, he knocked on the door but it was locked. He kicked open the door and he saw that the
bouncer had a handgun. The bouncer fired one time into the floor. Defendant told Bor that
he threw his gun out the car window at Pulaski and Harrison, but police never recovered the
weapon.
¶ 28 The jury found Hayes guilty of aggravated battery with a firearm of John Morrissette, but
not guilty of aggravated battery of a firearm of John Wilson, not guilty of the attempted
murder of Morrissette, and not guilty of the attempted murder of Wilson. The trial court
sentenced Hayes to 10 years’ imprisonment. Hayes filed this timely appeal.
¶ 29 ANALYSIS
¶ 30 Hayes first contends that the State failed to prove him guilty beyond a reasonable doubt
of aggravated battery with a firearm of John Morrissette. He argues that the witnesses who
identified him as the aggressor provided contradictory, improbable testimony and had a
motive to lie, whereas he consistently testified that he acted in self-defense and his testimony
was corroborated by the physical evidence. When faced with a challenge to the sufficiency
of the evidence, this court must determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.)
(Emphasis omitted.) People v. Young, 128 Ill. 2d 1, 49 (1989). If a defendant raises the
affirmative defense of self-defense, the State must also prove beyond a reasonable doubt that
he did not act in self-defense. The elements of self-defense are: (1) unlawful force was
threatened against a person; (2) the person threatened was not the aggressor; (3) danger of
harm was imminent; (4) use of force was necessary; (5) the threatened person actually
believed a danger existed requiring the use of force; and (6) the threatened person’s beliefs
were objectively reasonable. People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995). The State
satisfies its burden if it negates any one of these elements. Jeffries, 164 Ill. 2d at 127-28.
¶ 31 Furthermore, it is the jury’s function to assess the credibility of the witnesses and the
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weight to be given their testimony by resolving any conflicts or inconsistencies in the
evidence. People v. Tenney, 205 Ill. 2d 411, 428 (2002). Whether a defendant acted in self-
defense is also a question for the jury to determine. People v. Goliday, 222 Ill. App. 3d 815,
821-22 (1991). A reviewing court will not reweigh the evidence or substitute its judgment
on these matters for that of the jury. Tenney, 205 Ill. 2d at 428. On appeal, a conviction will
be affirmed “unless the proof is so improbable, unsatisfactory, or unconvincing as to raise
a reasonable doubt of defendant’s guilt.” People v. Gill, 264 Ill. App. 3d 451, 459 (1992).
¶ 32 Bertha and Morrissette testified that they observed some women trying to get Hayes out
of the club and that he was wrestling and cursing because he did not want to leave.
Morrissette stated that Hayes was very angry, and Hayes himself testified that he was angry.
In an interview with police shortly after the incident, Hayes stated that after leaving the club,
he went to his car to get a tire iron but then he just got into the car and drove away.
McNeely’s testimony corroborated this statement. Hayes also stated that he retrieved a .38-
caliber weapon hidden by some railroad tracks, although he denied making the statement at
trial.
¶ 33 Bertha testified that Hayes returned to the club, kicked open the locked interior door, and
fired the first shot. Her testimony was corroborated by John Wilson and Morrissette. John
Wilson also testified that when Hayes came in with the gun, he did not observe anyone else
in the club with a weapon. However, he did see Morrissette holding a shotgun after the
shooting was over. Morrissette testified that he grabbed his shotgun from the DJ booth after
seeing Hayes with a gun. Both Wilson and John Morrissette suffered gunshot wounds to the
foot and the bullet taken out of Morrissette came from a .38-caliber weapon. A gunshot
residue test conducted on Hayes showed that he had discharged a firearm, contacted a GSR-
related item or had his right hand in the environment of a discharged firearm. Viewed in the
light most favorable to the prosecution, the evidence supports a finding that Hayes
committed aggravated battery of a firearm of John Morrissette beyond a reasonable doubt.
Furthermore, it supports the finding beyond a reasonable doubt that Hayes cannot claim self-
defense because he was the aggressor.
¶ 34 Hayes argues that his conviction should be reversed because the testimony of the State’s
witnesses was implausible and unreliable, while his consistent testimony supporting self-
defense provided a more probable account of the shooting. Hayes points to testimony that
he claims contradicted the physical evidence in the case. Wilson testified that Hayes fired the
first shot and hit him in the foot. The evidence showed, however, that Wilson had 22 or 23
holes in his foot. Hayes argues that the number of holes indicated Wilson was shot by a
shotgun rather than a handgun, and since Morrissette had the shotgun, he must have fired the
first shot. Also, the witnesses had different accounts of the manner in which Hayes fired the
shots. Furthermore, Bertha, Wilson and Morrissette all testified that Hayes kicked open the
locked interior door of the club. Hayes contends that this testimony is incredible because
upon inspection the door sustained no visible damage.
¶ 35 The testimony, however, did not necessarily contradict the physical evidence in the case.
As to the number of holes in Wilson’s foot, the State theorized that one of the holes could
have come from a shot fired from a handgun which is consistent with testimony that Hayes
fired the first shot. Although their testimony about how Hayes fired the shots differed,
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Bertha, Wilson, and Morrissette all testified that Hayes fired the first shot. Regarding the fact
that the interior door showed no signs of damage, Bertha testified that only the lock of the
door was affected such that the door no longer closed properly. It is the function of the jury
to resolve any conflicts or inconsistencies in the evidence, and the jury reasonably chose to
do so in favor of the State. See Tenney, 205 Ill. 2d at 428.
¶ 36 Hayes also questions the credibility of Bertha, Wilson, and Morrissette because all three
initially lied to police about Morrissette’s involvement in the shootings. Morrissette, a
convicted felon, was not supposed to possess or handle a firearm. Hayes argues that their
testimony identifying Hayes as the aggressor lacks credibility because they considered
themselves family and since they had lied before to protect Morrissette, they would lie again.
In contrast, Hayes never wavered from his initial statement that Morrissette fired the first
shot.
¶ 37 Although Bertha always maintained that she did not see Morrissette with a gun on the
night of the shooting, Morrissette and Wilson later acknowledged that he had a shotgun.
Wilson admitted that he did not initially tell police he saw Morrissette with a gun because
he was seeing Bertha at the time and wanted to protect Morrissette. However, at the time of
trial Wilson was no longer dating Bertha. He decided he wanted to tell the truth and testified
that he had seen Morrissette holding a shotgun that night, contradicting his statement to
police after the shooting. His testimony, in turn, forced Morrissette to acknowledge that he
did indeed possess and fire a shotgun. However, neither Wilson nor Morrissette wavered
from his initial statement that Hayes fired the first shot. The jury must assess the credibility
of witnesses and assign weight to their testimony. People v. De Oca, 238 Ill. App. 3d 362,
367 (1992). In making this determination, the jury here was aware of the inconsistencies and
of the witnesses’ possible motivations for testifying. Given the verdict, it clearly found
Bertha, Wilson, and Morrissette to be more credible witnesses than Hayes. The jury is not
required to believe Hayes’ version of the events. People v. Primbas, 404 Ill. App. 3d 297,
302 (2010). We find that, viewed in the light most favorable to the prosecution, the evidence
supporting Hayes’ conviction was not so improbable, unsatisfactory, or unconvincing as to
raise a reasonable doubt of his guilt.
¶ 38 Next, Hayes contends that his trial counsel provided ineffective assistance when he failed
to introduce evidence of Morrissette’s violent character, which would have been admissible
pursuant to People v. Lynch, 104 Ill. 2d 194 (1984). In order to prevail on an ineffective
assistance of counsel claim, Hayes must show that (1) his counsel’s performance was
deficient so as to fall below an objective standard of reasonableness; and (2) the deficient
performance prejudiced him so as to deny him a fair trial. Strickland v. Washington, 466 U.S.
668, 687-88, (1984). Hayes is entitled to competent, not perfect, representation. People v.
Palmer, 162 Ill. 2d 465, 476 (1994). A reviewing court will not second-guess “the exercise
of judgment, discretion, trial tactics or strategy even where appellate counsel or the reviewing
court might have handled the matter differently.” People v. Schmidt, 168 Ill. App. 3d 873,
882 (1988). To demonstrate sufficient prejudice, Hayes must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Since Hayes “must satisfy both prongs of
this test, the failure to establish either prong is fatal to the [ineffective assistance of counsel]
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claim.” People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010).
¶ 39 At trial, Hayes’ counsel attempted to question Wilson about an unrelated incident that
took place after the shooting in which he had Morrissette arrested for putting a pistol in his
face. The State objected, and counsel explained the evidence was relevant to show Wilson’s
bias and motive to lie. The trial court sustained the objection and counsel did not try to
introduce the evidence again. Hayes now contends that the evidence was admissible and his
trial counsel was ineffective for failing to introduce it pursuant to our supreme court’s
holding in Lynch.
¶ 40 Lynch held that when the defendant raises self-defense as a theory in the case, evidence
showing the victim’s aggressive and violent character is relevant to support the defendant’s
version of the facts when conflicting accounts of the occurrence exist. Lynch, 104 Ill. 2d at
200. Although convictions for violent crimes are reasonably reliable evidence of violent
character, mere evidence of a victim’s arrest is generally not sufficient “since it does not
indicate whether the victim actually performed any of the acts charged.” People v. Ellis, 187
Ill. App. 3d 295, 301 (1989); Lynch, 104 Ill. 2d at 201. However, a prior altercation or arrest
without a conviction can sufficiently prove violent character if it is supported by firsthand
testimony as to the victim’s behavior. People v. Cook, 352 Ill. App. 3d 108, 128 (2004).
¶ 41 Here, the evidence of Morrissette’s arrest may have been sufficient because Wilson was
on the stand testifying firsthand as to the incident. However, counsel’s theory of the case was
that all of the State’s witnesses had lied and therefore their testimony that Hayes was the
aggressor in the shooting lacks reliability. If counsel wanted to admit this evidence to show
Morrissette’s violent character, he would have had the unenviable task of arguing to the jury
on one hand that Wilson is a liar, but when it comes to the circumstances surrounding
Morrissette’s arrest, he is telling the truth. Instead, counsel decided to present the evidence
under a rationale that was consistent with his theory of the case. This court will not second-
guess counsel’s exercise of judgment and trial strategy.
¶ 42 Furthermore, the jury had before it even more persuasive evidence of Morrissette’s
violent character. Morrissette himself testified that he had a 2006 conviction for burglary and
a 2008 conviction for aggravated unlawful use of a weapon. See Cook, 352 Ill. App. 3d at
128 (a conviction, as opposed to an arrest, is “persuasive proof” that the victim committed
the violent crime). He admitted that he kept a gun in the DJ booth and he did not hesitate to
shoot at Hayes even though he was not supposed to handle or possess a weapon. The
evidence of Morrissette’s arrest to show his violent character is merely cumulative of that
already presented to the jury, and thus, Hayes was not prejudiced by the failure of counsel
to present Wilson’s testimony. People v. Whiting, 365 Ill. App. 3d 402, 415 (2006) (Gilleran
Johnson, J., dissenting). Since Hayes cannot satisfy the prejudice prong of Strickland, his
ineffective assistance claim cannot stand.
¶ 43 Hayes’ final contention is that the prosecutor’s improper remarks in closing argument
deprived him of a fair trial. Specifically, the prosecutor told the jury during rebuttal closing
argument that it would receive a copy of Teasley’s prior inconsistent statement, although that
decision is normally left to the trial court’s discretion. Initially, we note that Hayes has
waived review of this issue since he did not object to the comments at trial. Failure to both
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object at trial and raise the issue in a posttrial motion forfeits consideration of the issue on
appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Hayes argues that he did object to
Teasley’s redacted statement going back to the jury during a conference after closing
arguments. However, even if Hayes’ argument is taken on its merits, we find no error here.
¶ 44 A prosecutor has great latitude in making closing arguments. People v. Nieves, 193 Ill.
2d 513, 532-33 (2000). A prosecutor may comment on the evidence at trial, as well as
reasonable inferences taken therefrom. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). He
or she may even state an opinion that a defendant or defense witness is lying if it is based on
the evidence or reasonable inferences drawn from the evidence. People v. Jackson, 140 Ill.
App. 3d 318, 324 (1986). In assessing a challenge to closing remarks, we must consider the
questionable comments in the context of the entire closing argument. People v. Tipton, 207
Ill. App. 3d 688, 701 (1990). We will not reverse a conviction based on improper prosecutor
comments unless the statements were a material factor in the conviction or caused substantial
prejudice to the defendant. Tipton, 207 Ill. App. 3d at 699-700.
¶ 45 In rebuttal closing argument, the prosecutor stated:
“But what that means is that you are able to take this statement back with you into
the jury room and take what is written in here as what we call substantive evidence. And
what that means is it is as if Erica Teasley told you what is in this statement while she
testified. She didn’t. She got up there and lied. But the law allows you to take what she
said in here the early morning hours after the incident as if she said it under oath on that
stand. This is the original. You are actually going to get what we call a redacted copy.
What that means is some stuff has been crossed out. You are only getting the portions of
the statement that she lied about on the witness stand. So don’t worry about what has
been crossed out. Erica Teasley had what we refer to as selective memory. She was only
able to remember the parts that helps her boyfriend, but she conveniently forgot
everything that was damaging. And all those damaging factors are in that handwritten
statement, and we encourage you to read it when you get back there.”
Hayes contends that the remarks improperly misstated the law and unduly emphasized
Teasley’s statement over the other evidence in the case.
¶ 46 The prosecutor did not misstate the law. Teasley’s statement was properly admitted into
evidence. Her fault, if any, was stating the presumption that the jury would receive the
statement when in fact it is a determination within the trial court’s discretion to make. See
People v. Caldwell, 39 Ill. 2d 346, 359 (1968). Outside the jury’s presence the trial court
admonished the prosecutor for saying that jurors would get to see the statement before they
had asked for it and before the trial court could make its determination. There was no
question, however, that the jury could have received the redacted statement as substantive
evidence. See People v. Lee, 243 Ill. App. 3d 1038, 1044 (1993). In fact, the trial court did
subsequently allow the statement to go back to the jurors upon their request.
¶ 47 Furthermore, the prosecutor made arguments based on the evidence and in response to
defense counsel’s closing argument. As Hayes acknowledges, witness credibility was a key
issue for both the State and the defense. In his closing statement, defense counsel argued at
length about how each of the State’s main witnesses lied. Counsel also acknowledged that
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Teasley’s statement that an older man fought with Hayes contradicted her trial testimony that
Morrissette punched Hayes. Counsel then stated, “But remember she told the State’s
Attorney at the police station that morning it was some older man. Couldn’t that be John
Morrissette? Was that really such a lie?” The prosecutor, in rebuttal, made the comments
Hayes now challenges on appeal. Prosecutor remarks are proper if made in response to
defense counsel’s argument. People v. Kliner, 185 Ill. 2d 81, 154 (1998).
¶ 48 Hayes also contends that the remarks improperly emphasized Teasley’s statement and
testimony over other evidence, distracting the jury from the facts of the case. Therefore, the
jury should not have received the statement. He cites People v. Panzer, 73 Ill. App. 3d 1
(1979), as support. In Panzer, the trial court refused to allow the defendant’s statement to go
to the jury because it believed doing so would place “undue emphasis on one piece of
evidence” and this court found no abuse of discretion. Panzer, 73 Ill. App. 3d at 8-9. Panzer,
however, merely reiterated the general law that the trial court has the discretion to determine
whether a statement should go to the jury, and its determination will not be overturned on
appeal absent an abuse of that discretion. Panzer, 73 Ill. App. 3d at 8.
¶ 49 Unlike the trial court in Panzer, the trial court here allowed Teasley’s redacted statement
to go to the jury. The statement was admitted as substantive evidence, and in light of the
contradictions between Teasley’s statement and trial testimony, “it is understandable that a
jury would find it valuable to review the same.” Lee, 243 Ill. App. 3d at 1044. The trial court
did not abuse its discretion. Furthermore, Hayes’ argument that the jury overemphasized the
significance of Teasley’s statement is without merit. The jury is instructed to weigh all of the
evidence in the case, and there is no indication that it did not consider or weigh the other
evidence.
¶ 50 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 51 Affirmed.
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