People v. Peel

2018 IL App (4th) 160100 FILED
August 20, 2018

NO. 4-16-0100 Carla Bender

4th District Appellate

IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

Plaintiff-Appellee, ) Circuit Court of

v. ) McLean County

ROBERT PEEL, ) No. 14CF225

Defendant-Appellant. )
) Honorable

) Scott D. Drazewski,

) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Justices Holder White and Cavanagh concurred in the judgment and opinion.

OPINION
¶1 In February 2014, defendant, Robert Peel, was arrested and charged with reckless

discharge of a firearm. In September 2015, a jury found defendant guilty. At the January 2016

sentencing hearing, the trial court sentenced defendant to 30 months’ probation and 4 days’

imprisonment, with 4 days of presentence credit for time served.

¶2 On appeal, defendant argues (1) this court should overturn his conviction because

the evidence shows the handgun was fired into the ground; (2) the trial court erred in not

answering the jury’s explicit question; (3) the court erred by hastening the jury deliberations; and

(4) he was denied effective assistance of counsel due to counsel not requesting an explicit answer

to the jury’s question, not requesting a limiting instruction for evidence, not objecting during the

State’s closing arguments, and not presenting evidence promised in opening statements. We

affirm.
¶3 I. BACKGROUND

¶4 In February 2014, defendant, a nurse and veteran of the United States Marine

Corps, fired a handgun from somewhere in the vicinity of the front door of his home located in a

residential subdivision of Heyworth, Illinois. According to defendant, he decided to test-fire a

Smith & Wesson 9-millimeter semiautomatic handgun in his front yard sometime after 8 p.m. on

the evening of February 13, 2014, because his girlfriend was going to be using it while

qualifying for her concealed carry permit. Defendant said test-firing was necessary because the

gun had jammed previously and he was trying new ammunition at the suggestion of his father.

¶5 Defendant testified he exited his front door after consuming one or two beers,

went down the front steps, and fired a number of rounds into the ground in his front yard, in a

location he previously cleared of snow for his dogs. He said the snow had fallen earlier that day

and was light and fluffy, and there was no ice in that particular location. He could not recall the

exact number of rounds fired, but he estimated it to be “five to nine.” He saw the holes where the

rounds landed and did not see any ricochet. Defendant described his angle of fire as, “I would

guess 30 degrees, less than 45 degrees right out in front of me.” The empty shell casings were

ejected back and to the right of defendant as he fired. He said he fired the rounds as quickly as

possible because that was when the gun jammed previously, and he estimated it took no more

than three to four seconds. According to defendant, since it was cold outside and he was wearing

only jeans, tennis shoes, and a fleece pullover with no socks or underwear, he ran outside, fired

the rounds, and ran back in. Once back inside, he consumed one more Bud Light before the

police arrived.

¶6 Defendant said he was unaware of any police presence at his residence until

sometime between 9 p.m. and 9:30 p.m. As he was getting ready to go to bed, he saw a vehicle

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parked in front of his house with its parking lights on and heard voices outside. He exited the

front door to investigate. Defendant testified he did not hear anyone knocking at the door before

he exited the residence because he was “all over the house,” no one rang the doorbell, and his

dogs gave no indication someone was at the door. Once outside, he said he initially did not

realize the people in his front yard were police officers when a man approached him holding an

AR-15 rifle and told him to put his hands up. He then recognized one of the other officers as a

deputy sheriff when he also approached pointing a semiautomatic handgun at defendant.

Defendant said he “froze” with his hands in the air, acknowledged he was in possession of a

handgun when asked, and raised his shirt by the shoulders, as directed, in order to expose his

waistband and the location of the pistol.

¶7 After he was disarmed, defendant was handcuffed and taken into custody. He

denied struggling with the officers and said the reason he told the officers not to enter the house

was because his girlfriend was sleeping naked in bed. At the police station, he was eventually

handcuffed to a bench because he continued to stand up when told to be seated during the

booking process. Defendant said it was because he was uncomfortable as a result of the snow in

his shoes.

¶8 The State presented two occurrence witnesses who were neighbors of defendant.

Darrell Karr lived diagonally across the street and south of defendant’s residence. He received a

phone call sometime between 8 p.m. and 8:30 p.m. from another neighbor, Tim Perschall. After

getting off the phone, he went outside, stood on his porch, and looked in the direction of

defendant’s home, which he estimated at trial to be about 300 feet away. (Defendant testified he

measured the distance at 270 feet.) While looking at defendant’s residence, he could see the

doorbell light and saw a series of four flashes followed by loud booms coming from the front

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door, straight across from the doorbell. He knew these were gunshots from his own experience

with guns. He admitted he could not see who was firing the gun because the flashes were even

with the doorframe. He also acknowledged it was possible the person was a few feet from the

front door, although he said the front porch light was on and he did not see anyone.

¶9 James Ingels was a neighbor who lived directly across the street from defendant.

He recalled hearing series of shots, which he described as “a few, five or so,” around 8 p.m. to

8:30 p.m. on the night in question. A few minutes later, he heard another group of shots similar

to the first, and then several minutes after that, a third group, louder than the first two. He

counted the last group of shots as seven or eight. At some point, Ingels saw several police cars

parked near defendant’s home and observed them knocking on the front door. He said when the

police first knocked, all the lights in the house were off, and then upstairs lights came on and

went off again. According to Ingels, the police stood at the front door for several minutes

knocking, and then he saw one approaching the front and another going around to the side of the

house. He acknowledged seeing no gunfire and was unable to identify anyone as the shooter

because he did not believe it was a good idea to go outside during the shooting.

¶ 10 Deputy Brian Hanner, Deputy Jason Simmons, and Deputy Jonathan Albee, all of

the McLean County Sheriff’s Department, were called to testify regarding the incidents

surrounding the investigation of shots being fired and the arrest of defendant. Other officers of

both the Heyworth Police Department and McLean County Sheriff’s Department were present

when Deputy Hanner first arrived, and after conferring, Deputy Hanner and Deputy Albee took

up a position to the south of the residence, where they could see both the rear and side of

defendant’s home. They waited there approximately 10 minutes before seeing Deputy Simmons

moving to the front of the house and overhearing commands to someone to “put your hands up.”

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Deputies Hanner and Albee then moved to the front in time to see Deputy Simmons and Sergeant

Tapke of the Heyworth Police Department confronting defendant and removing a firearm from

him.

¶ 11 Deputy Hanner, a five-year veteran with the sheriff’s department, testified to the

chain of custody of the handgun and its eight-shot magazine once taken from defendant. He also

indicated he was twice in close proximity to defendant that evening—both at the scene as they

took him into custody and later after transporting him to the police station for booking. On both

occasions, he observed the odor of an alcoholic beverage on defendant’s breath and observed his

eyes to be bloodshot and glassy. Deputy Hanner also identified seven shell casings, four brass

and three nickel, given to him by Deputy Albee and processed as evidence.

¶ 12 Deputy Simmons, a 17-year veteran of the sheriff’s department and a firearms

instructor, observed Sergeant Tapke approach defendant, and Deputy Simmons told defendant to

put his hands up. Since defendant was illuminated by the searchlight from Sergeant Tapke’s

squad car, the handgun tucked into the right side of his waistband was clearly visible when he

was told to raise his shirt. Deputy Simmons took possession of the handgun once Sergeant Tapke

removed it from defendant’s waistband. He also removed the magazine. Because the call had

been for shots fired recently, he smelled the handgun and noted an odor he recognized as being a

sign of recent discharge. Once he attempted to remove the handcuffed defendant from the

immediate area of the front yard, he noted defendant “physically obstructed my efforts to move

him toward the squad car.” He described defendant’s behavior as “combative” and said he had to

stop on the way, push defendant up against another squad car, and tell him to stop struggling and

move to his squad car. He also smelled the odor of an alcoholic beverage on defendant’s breath.

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Once in booking, he again had to admonish defendant, who refused to remain seated as directed

and eventually had to be handcuffed to the bench to complete processing.

¶ 13 Deputy Albee, who had been with the sheriff’s department for six years, testified

about responding to the call and observing defendant being taken into custody. He entered the

residence after the scene had been cleared, taking photographs both inside and outside on and

near the porch to document the location of various spent shell casings. He took photographs of a

casing found on the front step, three additional casings on the front porch, and one found inside

the house by the front door. Deputy Albee also took pictures of the residence in relation to those

of the witnesses in order to show the view of defendant’s residence available to the neighbors.

He also paced off the distance between defendant’s home and the residence across the street,

finding it to be approximately 138 feet. In all, he recovered seven shell casings, six he believed

to be on the front porch and one inside the door, which were turned over to Deputy Hanner for

processing as evidence.

¶ 14 The State also called an Illinois State Police forensic scientist from the Morton

Forensic Science Laboratory to identify each of the shell casings as having been fired from

defendant’s gun. He also confirmed when casings are ejected from defendant’s handgun, they are

ejected up and to the right, as the gun is designed to do.

¶ 15 As a result of the incident, the State charged defendant with reckless discharge of

a firearm (720 ILCS 5/24-1.5(a) (West 2012)), alleging defendant discharged a firearm in a

reckless manner, which endangered the bodily safety of an individual. In September 2015, the

trial court conducted a three-day jury trial. During deliberations, the jury asked two questions.

The first was, “[d]oes endangering the bodily safety of an individual include the defendant as an

individual himself?” The court replied with an instruction stating, “[y]ou have received all of the

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jury instructions in this matter. Please review those instructions in reaching your decision.” The

second question was a request for the transcript of defendant’s expert, who discussed the safety

of discharging a firearm into the ground and how gun casings eject back and to the right. The

court responded, “I have checked with the court reporter, and she indicated a transcript of

[defendant’s expert] will take at least an hour and a half to prepare. Are you still interested in

receiving it?” The jury came back 20 to 30 minutes later with its unanimous verdict, finding

defendant guilty of reckless discharge of a firearm. In January 2016, the court sentenced

defendant to 30 months of probation and 4 days of imprisonment, with 4 days of presentence

credit for time served.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 A. Sufficiency of the Evidence

¶ 19 Defendant argues his conviction should be overturned where the evidence showed

he fired a handgun into the ground, there was no evidence of ricochet, and no one was near him

when he discharged his weapon. We disagree.

¶ 20 “[P]roof of a criminal charge beyond a reasonable doubt is constitutionally

required.” In re Winship, 397 U.S. 358, 362 (1970). When reviewing a challenge to the

sufficiency of the evidence, “the relevant question is 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.” (Emphasis in original.) Jackson v. Virginia,

443 U.S. 307, 319 (1979). “A person commits the offense of reckless discharge of a firearm

when he (1) recklessly discharges a firearm, and (2) endangers the bodily safety of an

individual.” People v. Collins, 214 Ill. 2d 206, 212, 824 N.E.2d 262, 265 (2005).

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 “A person is reckless or acts recklessly, when he consciously

disregards a substantial and unjustifiable risk that circumstances

exist or that a result will follow, described by the statute defining

the offense; and such disregard constitutes a gross deviation from

the standard of care which a reasonable person would exercise in

the situation.” (Internal quotation marks omitted.) People v.

Watkins, 361 Ill. App. 3d 498, 500, 837 N.E.2d 943, 945 (2005).

“[I]n order to satisfy the element of ‘endangerment’ contained in the statute, the State must

establish that a defendant’s reckless conduct created a dangerous situation—such that an

individual was in peril of probable harm or loss.” Collins, 214 Ill. 2d at 215.

¶ 21 Defendant argues he shot into the ground, a practice he believed to be safe

because it lessened the possibility of any ricochet. Moreover, he said he saw no evidence of

ricochet when he fired. The testimony of Karr, however, was that he saw a series of four flashes

followed by loud booms coming from the front door, straight across from the doorbell at a height

just below the deadbolt lock on the front door. Defendant also points to the location of the spent

shell casings on the front porch as corroborative of his version. The State not only introduced

evidence of one casing found inside the front doorway, but also, through cross-examination of

defendant’s expert, elicited testimony a person could have been standing in locations other than

indicated by defendant and still would have caused the shell casings to land where they were

found. It was also noted how the locations where casings were found were discovered only after

a number of people had entered and exited the house. Defendant admitted on cross-examination

he initially told police he had not fired a gun that night. Defendant said he was test-firing the

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handgun because it had jammed previously, so he had loaded it with new Federal brand

ammunition, yet the police recovered casings of two different types, brass and nickel.

¶ 22 Although defendant said he never heard the police at his door, his neighbor said

when the police first knocked, upstairs lights went on and then off again, and according to the

officers, no one answered the door for approximately 10 minutes. These are all matters of

conflicting evidence from which the trier of fact could decide which witnesses were more

credible. Defendant confuses conflicting circumstantial evidence with the State’s burden of

proof, contending since the State’s evidence conflicted with defendant’s version, the State has

failed to prove their case. These credibility determinations and decisions regarding the weighing

of circumstantial evidence are uniquely those of the fact finders. It is up to the jury to weigh the

evidence, determine the credibility of the witnesses, and decide which story to believe. See

People v. Williams, 303 Ill. App. 3d 264, 267, 707 N.E.2d 729, 731 (1999).

¶ 23 As our supreme court has stated in Collins, part of the danger inherently caused

by a reckless discharge of a firearm is the ricochet effect when bullets hit the ground. Collins,

214 Ill. 2d at 218. Further, the supreme court noted a defendant’s conduct need not actually

endanger anyone but instead could be conduct that might result in harm, citing the legislative

history for section 24-1.5 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.5

(West 2012)). They pointed out how prior to enactment of the reckless discharge of a firearm

statute, there were only two choices for someone firing a firearm recklessly—a Class A

misdemeanor for reckless conduct or a Class 1 felony for aggravated discharge of a firearm.

Representative Homer stated the following when the bill was discussed on the floor:

“ ‘But what happens if somebody just recklessly discharges a

firearm? Doesn’t necessarily aim it at someone or aim it into a [sic]

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 occupied building, but goes around town or out in the country or

wherever it is shooting off a gun recklessly, with reckless

abandon? Under current law, that would be a Class A

misdemeanor [(reckless conduct)]. And so the Gentleman says we

should have some middle ground here and call it reckless discharge

of a firearm. That’s what this Bill does.’ ” (Emphasis omitted.)

Collins, 214 Ill. 2d at 216 (quoting 88th Ill. Gen. Assem., House

Proceedings, April 22, 1993, at 210 (statements of Representative

Homer)).

¶ 24 Defendant appears to erroneously argue the State must show there was an

identifiable “someone” in his vicinity when he fired his handgun in order to establish reckless

endangerment under the statute. This is a misreading of People v. Moreno, 2015 IL App (3d)

130119, 29 N.E.3d 660, and contrary to the supreme court’s express finding in Collins. In

Collins, the court noted how the specific identity of the victim is not an essential element and the

danger or peril need only be potential or a possibility. Collins, 214 Ill. 2d at 215-19. The Moreno

court merely noted how, under the facts of the case, the only potential victims were behind the

defendant when he fired, and the danger due to a potential ricochet was “virtually zero.” Moreno,

2015 IL App (3d) 130119, ¶ 44. The court’s reasoning in Moreno cannot be used to say firing

into the ground is inherently safe either, as the possibility of a round ricocheting off the ground

when fired at an angle is always possible. In this case, it was midwinter, which, as we can note

just as well as the jury, means the ground is possibly frozen or nearly so. The facts before this

court do not fall under the narrow exception for which Moreno applies. Defendant faced toward

the house of his neighbor, Ingels, by his own description as he fired and would have been

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standing closer than the 138 feet measured by the deputy. This significantly undermines the

supposed safety of defendant’s own version of events.

¶ 25 Here, even if defendant’s version of events was accepted, he fired “five to nine”

rounds, not straight or nearly straight down into wintertime, recently snow-covered ground, but

at an angle of he “would guess 30 degrees, less than 45 degrees right out in front of” him, in the

immediate vicinity of a number of neighbors’ houses. More importantly, if the jury did not

believe defendant’s version, he fired a number of rounds off his front porch, almost straight out

from the doorway, and these were not the only rounds fired that night. According to Ingels, the

rounds observed by Karr were the last of a series of three. The first two, not as loud as the third,

were fired somewhere and consisted of “five or so” each time. It is reasonable for the jury to

conclude defendant was firing from at least two different locations since the first two series of

shots were not seen by neighbors and were not as loud as those off the front porch. Contrary to

defendant’s argument, this sounds exactly like the sort of conduct for which this statute was

intended:

“ ‘But what happens if somebody just recklessly discharges a

firearm? Doesn’t necessarily aim it at someone or aim it into a [sic]

occupied building, but goes around town or out in the country or

wherever it is shooting off a gun recklessly, with reckless

abandon?’ ” (Emphasis omitted.) Collins, 214 Ill. 2d at 216

(quoting 88th Ill. Gen. Assem., House Proceedings, April 22, 1993,

at 210 (statements of Representative Homer)).

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¶ 26 Looking at the evidence in the light most favorable to the State, we find there was

enough evidence in the record upon which a jury could find defendant guilty of reckless

discharge of a firearm.

¶ 27 B. Jury Instructions

¶ 28 Defendant argues the trial court erred by not answering an explicit question posed

by the jury. We disagree.

¶ 29 “[A] [trial] court bears the burden of seeing that the jury is instructed on the

elements of the crime charged, on the presumption of innocence and on the question of burden of

proof.” People v. Parks, 65 Ill. 2d 132, 137, 357 N.E.2d 487, 489 (1976). “[O]ur legislature

intended the term ‘an individual’ to mean someone other than the ‘person’ who is charged with

the offense of reckless discharge of a firearm.” People v. Grant, 2017 IL App (1st) 142956, ¶ 24,

73 N.E.3d 585.

¶ 30 Here, the jury, during deliberations, asked the question, “[d]oes endangering the

bodily safety of an individual include the defendant as an individual himself?” After consulting

with the parties, the trial court accepted the response, which the parties had jointly prepared,

“[y]ou have received all of the jury instructions in this matter. Please review those instructions in

reaching your decision.”

¶ 31 “[T]he general rule is that the trial court has a duty to provide instruction to the

jury where it has posed an explicit question or requested clarification on a point of law arising

from facts about which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29,

636 N.E.2d 534, 539 (1994). This duty remains even if the jury is originally properly instructed.

Childs, 159 Ill. 2d at 229. “When a jury makes explicit its difficulties, the court should resolve

them with specificity and accuracy.” Childs, 159 Ill. 2d at 229. The failure to answer or giving a

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response that does not provide an answer to the question posed by the jury “has been held to be

prejudicial error.” Childs, 159 Ill. 2d at 229.

¶ 32 The State argues defendant affirmatively acquiesced to the error by agreeing to

the proposed answer to the jury. We agree defendant affirmatively acquiesced and cannot raise

the issue on appeal. In People v. Heller, 2017 IL App (4th) 140658, ¶ 67, 71 N.E.3d 1113, this

court found the defendant could not claim error due to an improper jury instruction on other-

crimes evidence where the parties agreed to the incorrect instruction. Likewise, defendant cannot

claim error when defense counsel and the State reached an agreement about the instruction to

give to the jury. Defendant contends even if the argument was waived, plain-error analysis

should apply. However, “[p]lain-error analysis applies to cases involving procedural default

[citation], not affirmative acquiescence.” People v. Bowens, 407 Ill. App. 3d 1094, 1101, 943

N.E.2d 1249, 1258 (2011).

¶ 33 C. Jury Deliberations

¶ 34 Defendant argues the trial court hastened the jury’s deliberations by asking the

jury if they still wanted the transcript after telling them it would take the clerk nearly an hour and

a half to transcribe her notes. We disagree.

¶ 35 “The integrity of the jury’s verdict must be protected from coercion, duress or

influence.” People v. Patten, 105 Ill. App. 3d 892, 894, 435 N.E.2d 171, 172 (1982). “[T]he test

is whether under the circumstances the language [the trial court] used actually coerced or

interfered with the deliberations of the jurors to the prejudice of the defendant.” People v.

Gregory, 184 Ill. App. 3d 676, 681, 540 N.E.2d 854, 857 (1989). Because coercion is a highly

subjective concept that does not lend itself to precise testing, “the reviewing court’s decision

often turns on the difficult task of ascertaining whether the challenged comments imposed such

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pressure on the minority jurors that it caused them to defer to the conclusions of the majority for

the purpose of expediting a verdict.” People v. Fields, 285 Ill. App. 3d 1020, 1029, 675 N.E.2d

180, 186 (1996). “In determining the propriety of the trial court’s comments, the test is whether

under the totality of the circumstances the language used actually interfered with the jury’s

deliberations and coerced a guilty verdict.” People v. Defyn, 222 Ill. App. 3d 504, 515-16, 584

N.E.2d 220, 228 (1991).

¶ 36 Here, as mentioned previously, defendant cannot complain of error in an

instruction where he affirmatively acquiesced. Defendant and the State agreed to allow the trial

court to advise the jury the transcript would take an hour and a half to transcribe and to ask if the

jury still wanted it. Thus, the claim can only be viewed under a claim of ineffective assistance of

counsel as the issue of the propriety of the instruction was forfeited. See Bowens, 407 Ill. App.

3d at 1101.

¶ 37 However, even if we were to review the claim, the record itself belies any

evidence of coercion. The jury left the courtroom to begin deliberating on September 15 at 2:22

p.m. At approximately 5:15 p.m., they sent out the note relating to “individual” discussed above.

At approximately 5:50 p.m., the court gave the jury their instructions for the evening and sent

them home. The jury began deliberation again on the morning of September 16 at 9 a.m., and

shortly before 11:40 a.m. informed the court they were unable to reach a verdict. The court gave

them the Prim instruction (see People v. Prim, 53 Ill. 2d 62, 75-76, 289 N.E.2d 601, 609 (1972))

and sent them to lunch. Afterwards, they continued deliberating and by all appearances, the

question regarding the transcript came sometime before 3:20 p.m. because the court and counsel

were discussing the proposed answer at about that time. The jury then returned their verdict

between 3:45 p.m. and 3:50 p.m. During the discussion, the court made specific reference to its

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concern over whether part of its suggested response might be perceived as an effort to hasten a

verdict and ultimately accepted defense counsel’s suggestion to merely ask the jury, once they

were informed of the time it would take to produce, whether they still wanted a copy. This was

not the first time the jury heard how long a transcript might take—they were informed at the

outset of the trial of the time it takes to produce a transcript based on the length of the testimony

sought.

¶ 38 D. Ineffective Assistance of Counsel

¶ 39 A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney’s performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20, 808

N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “ ‘Effective assistance of counsel

refers to competent, not perfect representation.’ ” Evans, 209 Ill. 2d at 220 (quoting People v.

Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or

tactics do not necessarily render counsel’s representation defective. See People v. Benford, 349

Ill. App. 3d 721, 729-30, 812 N.E.2d 714, 721-22 (2004) (finding defense counsel’s decision not

to file a motion to suppress was a trial tactic and did not constitute ineffective assistance of

counsel).

¶ 40 To establish the second prong of Strickland, “[a] defendant establishes prejudice

by showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the

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result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890

N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability that would

be sufficient to undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4. “A

defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the

prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25

N.E.3d 601.

¶ 41 1. Jury Instruction on “an Individual”

¶ 42 Defendant argues he was denied effective assistance of counsel because defense

counsel did not request the trial court to inform the jury defendant himself could not be an

individual under the reckless discharge of a firearm statute. We disagree.

¶ 43 Section 24-1.5(a) of the Criminal Code provides: “A person commits reckless

discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily

safety of an individual.” 720 ILCS 5/24-1.5(a) (West 2012). Prior to the First District’s holding

in Grant, 2017 IL App (1st) 142956, no Illinois decision had interpreted the meaning of “an

individual” in the reckless discharge statute. The dispute in Grant centered on whether that

phrase could be interpreted to include the defendant. Grant, 2017 IL App (1st) 142956, ¶ 8.

Acknowledging the court in Moreno, a case upon which defendant also relies, did not address

whether “an individual” could include the person charged, the First District concluded the

substantial risk had to involve the bodily safety of others. Grant, 2017 IL App (1st) 142956,

¶ 17. “When deciding whether counsel was competent, we must look to the state of the law at the

time of trial.” People v. Carney, 317 Ill. App. 3d 806, 814, 740 N.E.2d 435, 441 (2000) (while

Carney cites no authority for this holding, we note it is merely a matter of common sense), rev’d

on other grounds, 196 Ill. 2d 518, 752 N.E.2d 1137 (2001). Defendant cites People v. Cathey,

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2012 IL 111746, 965 N.E.2d 1109, in his reply brief in response to Carney for the proposition

defense counsel could be objectively unreasonable where he failed to raise an issue that had been

addressed during the time of defendant’s appeal. However, Cathey is inapposite. In Cathey, the

defense counsel at trial raised the issue of the trial court waiting to rule on a motion in limine on

defendant’s conviction, stating it would create prejudice because the ruling affected the

defendant’s willingness to testify and the effectiveness of his testimony. Cathey, 2012 IL

111746, ¶ 27. However, on appeal, the appellate defense counsel did not raise the issue again,

though it was one upon which appellate courts had ruled during the pendency of the appeal.

Cathey, 2012 IL 111746, ¶ 27. As such, appellate counsel’s representation was found deficient

because of the current state of the law during the appeal. Cathey, 2012 IL 111746, ¶ 29. That

issue is not present here because we are focused exclusively on the effectiveness of trial counsel.

¶ 44 Contrary to defendant’s claim, there was no way for the trial court, or counsel for

that matter, to glean from reading then-published cases there would ultimately be a definitive

answer to the jury’s question. This too points out the unenviable but frequently encountered

circumstances presented to a trial judge during jury deliberations. Unlike counsel, who has had

months to read, research, and write his or her brief, the trial judge was confronted with a question

shortly after 5 p.m., the end of the court day, when most staff not directly involved in the trial

have probably gone home. With the deliberating jury waiting, in the few minutes it took to

assemble counsel and defendant in open court, the court engaged in what research it could in the

time allotted, found no dispositive statements of law, and so informed counsel, only after hearing

what the attorneys’ jointly suggested response would be.

¶ 45 As we noted above, counsel, having not only acquiesced but participated with the

State in jointly deciding how to respond, cannot now claim error. See People v. Schmitt, 131 Ill.

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2d 128, 137, 545 N.E.2d 665, 668 (1989) (“where, as here, a party acquiesces in proceeding in a

given manner, he is not in a position to claim he was prejudiced thereby”). In People v.

Villarreal, 198 Ill. 2d 209, 227, 761 N.E.2d 1175, 1184 (2001), our supreme court noted how

active participation in the direction of the proceedings goes beyond mere waiver, and to allow

counsel to ask the trial court to proceed in a certain manner and then seek to claim error on

review “would offend all notions of fair play.” Equally so, when the defendant invites the error,

the plain-error analysis which may otherwise be available under an ineffective assistance of

counsel claim is also forfeited. See People v. Patrick, 233 Ill. 2d 62, 77, 908 N.E.2d 1, 10 (2009)

(finding plain-error review is forfeited when the defendant invites the error).

¶ 46 It is perhaps instructive, however, to note defendant’s reliance on Grant, 2017 IL

App (1st) 142956. Grant was filed on February 17, 2017. Defendant’s trial was held in

September 2015. Defendant argues since the court’s reasoning in Grant included analysis from

cases which were existent at the time of defendant’s trial, the trial court and his counsel were

wrong for not seeing into the future and realizing eventually there would be a case holding the

term “individual” within the language of section 24-1.5(a) of the Criminal Code would be

defined to exclude the shooter. We expect trial counsel to be effective and the trial court

knowledgeable of the law. In this case, they were. Neither are expected or required to be

clairvoyant.

¶ 47 2. Opening Statements

¶ 48 Defendant argues he was denied effective assistance of counsel because defense

counsel promised evidence in opening statements, which was never admitted. We disagree.

¶ 49 Here, the State informed defense counsel, prior to defendant’s case in chief, it was

going to object to any testimony from defendant regarding his military training with firearms.

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The prosecutor also informed the court if defendant was permitted to testify regarding this

subject over the State’s objection, it intended to recall one of its own witnesses in rebuttal to

testify about his military training and how it differed from defendant’s testimony. Defense

counsel then made the tactical choice to limit his inquiry to defendant’s classification as an

“Expert Marksman” in both pistols and rifles until the State and the court questioned the

relevance of his designation if there was going to be no testimony regarding the training or

experience involved. In order to preclude the State from calling their own rebuttal expert,

counsel then elected to limit the testimony simply to defendant’s rank as a sergeant. This was

clearly a matter of trial strategy because counsel did not want to face the possibility of a rebuttal

witness with military firearms training being called after his client testified. As such, we are

obligated to indulge in the strong presumption counsel’s performance was competent and that the

challenged action was the product of sound trial strategy. People v. Davis, 2014 IL App (4th)

121040, ¶ 19, 22 N.E.3d 1167.

¶ 50 3. Limiting Instruction

¶ 51 Defendant argues counsel was ineffective for failing to request a limiting

instruction on other-crimes evidence. We disagree.

¶ 52 Defense counsel moved in limine to bar the admission of evidence of defendant

resisting arrest in light of that charge being dropped, as it would be improper character evidence.

The trial court denied the motion, stating it could come in for the limited purpose of

consciousness of guilt and/or defendant’s state of mind. However, it was up to defense counsel to

request the limiting instruction, and defense counsel did not, which is the source of this claim.

The decision to not request a limiting instruction may have been trial strategy in order to avoid

drawing undue attention to the other-crimes evidence. See People v. Johnson, 368 Ill. App. 3d

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1146, 1161, 859 N.E.2d 290, 304 (2006) (finding the decision to not request a limiting

instruction for other-crimes evidence may have been trial strategy to not draw attention to the

evidence). This is even more likely in light of the fact there was some difference in the testimony

of Deputy Simmons and that of defendant with regard to his actions once defendant was

handcuffed. Defendant, however, gave a justification which explained, to some degree, his

behavior in a light somewhat different from actually resisting the officer, and perhaps

defendant’s counsel did not wish to highlight the testimony any more by pursuing the limiting

instruction he was offered. As such, defendant cannot show deficient performance in the tactical

decision to decline a limiting instruction on such a peripheral matter.

¶ 53 4. Closing Arguments

¶ 54 Defendant argues he was denied effective assistance of counsel because defense

counsel did not object to the prosecutor stating in closing arguments, “[t]he evidence shows that

he was not firing [the gun] into the ground. If he was firing it into the ground, the muzzle blast

would be a lot shorter, lower than where the doorbell was, a lot lower.” We disagree.

¶ 55 “The prosecution is afforded wide latitude in making closing arguments so long as

the comments made are based on the evidence or reasonable inferences drawn therefrom.”

People v. Gonzalez, 388 Ill. App. 3d 566, 587, 900 N.E.2d 1165, 1183 (2008).

¶ 56 Here, the prosecutor’s statements were drawn from reasonable inferences based

on the testimony of the neighbors when compared to that of defendant. Defendant contended he

moved down the steps of the front porch and shot from ground level, extending the gun in front

of him about “mid-thigh,” and firing into a patch of cleared ground just off the sidewalk. Karr

said he saw the muzzle flashes coming straight out from the doorframe, at a level just slightly

lower than the doorbell light. Additionally, the jury was instructed both opening statements and

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closing arguments were not evidence and told to disregard any statement or argument made by

counsel that did not comport with their recollection of the evidence.

¶ 57 5. Jury Instruction on Transcripts

¶ 58 Defendant argues trial counsel rendered ineffective assistance by not objecting to

the trial court’s instruction regarding how long it would take for the clerk to transcribe her notes

and whether the jury still wanted the transcript after being so informed. We disagree.

¶ 59 Trial counsel not only failed to object to the court’s instruction but contributed to

it, and his contribution was accepted by the court and helped shape the actual instruction given.

Since the jury was requesting testimony from his own expert and had already been deliberating

into their second day, this could easily have been a matter of trial strategy as well. Counsel

undoubtedly thought there was testimony beneficial to his client, which would have been

highlighted by a transcript. However, had the transcript been provided, the jury would have been

reminded, in addition to those things defendant might consider beneficial to his defense, that the

expert also said he would never allow someone who smelled of alcohol to be handling firearms

in one of his classes and that he would not recommend firing a firearm in a residential area.

Regardless, there is no way to determine from this record what detrimental impact the instruction

had on defendant’s case. The jury obviously concluded at some point the testimony was not

necessary to their deliberations. Counsel’s strategy in suggesting a response does not have to

necessarily be effective in obtaining a particular result, but counsel must merely provide

competent representation. See Stewart, 104 Ill. 2d at 491-92 (1984) (“Effective assistance of

counsel refers to competent, not perfect representation.”).

¶ 60 There is nothing in this record from which a reviewing court could conclude the

outcome of this case would have been any different had an objection been made to the State’s

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argument. This was clearly a matter of credibility, and the triers of fact are allowed substantial

deference on review. See People v. Rendak, 2011 IL App (1st) 082093, ¶ 30, 957 N.E.2d 543

(“[I]t is the trier of fact’s duty to resolve questions involving the weight of the evidence or the

credibility of witnesses. The degree of this deference is substantial ***.”).

¶ 61 III. CONCLUSION

¶ 62 For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal. See 55 ILCS 5/4-2002(a) (West 2016).

¶ 63 Affirmed.

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