People v. Peel

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Appellate Court Date: 2018.12.31
12:25:14 -06'00'

People v. Peel, 2018 IL App (4th) 160100

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ROBERT PEEL, Defendant-Appellant.

District & No. Fourth District
Docket No. 4-16-0100

Filed August 20, 2018

Decision Under Appeal from the Circuit Court of McLean County, No. 14-CF-225; the
Review Hon. Scott D. Drazewski, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Editha Rosario-Moore, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and Linda S. McClain, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.

Panel 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 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.

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 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 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.” 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.

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¶ 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. 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 jury instructions in this matter. Please review those instructions in

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 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).
“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

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 night. Defendant said he was test-firing the 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] 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 standing closer than the 138 feet measured by

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 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)).
¶ 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

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 answer or giving a 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 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

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 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 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 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 that 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

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 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, 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. 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

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 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 that 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. 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 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.

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¶ 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 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
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 ***.”).

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¶ 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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