People v. Suggs

2022 IL App (2d) 200713
No. 2-20-0713
Opinion filed May 10, 2022
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 20-CF-144
)
JOSHUA C. SUGGS, ) Honorable
) Stephen L. Krentz,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices McLaren and Birkett concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant, Joshua C. Suggs, was found guilty of two counts of

domestic battery (720 ILCS 5/12-3.2(a)(1), (2) (West 2020)). The two counts merged for

sentencing purposes, and defendant was sentenced to two years’ imprisonment. On appeal,

defendant argues that defense counsel was ineffective for two reasons. First, counsel promised

during his opening statement that the jury would hear testimony from police officers that defendant

denied throwing a glass at the victim, but counsel never presented that testimony, thus negatively

impacting defendant’s case by allowing the State in its rebuttal argument to remark on counsel’s

failure. Second, counsel failed to object to the State’s remarks in rebuttal argument that shifted the

burden of proof to defendant, leaving the impression that defendant was responsible for the lack
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of exculpatory evidence. We determine that defense counsel was not ineffective for either reason.

Accordingly, we affirm.

¶2 I. BACKGROUND

¶3 Defendant was indicted on two counts of domestic battery. Count I alleged that defendant

knowingly caused bodily harm to Eric Shaefer, defendant’s stepfather, when defendant “threw a

cup at [Eric], striking him in the right hand, causing bruising and redness.” Count II differed from

count I only in that it alleged that “defendant knowingly made physical contact of an insulting or

provoking nature with Eric” when defendant “threw the cup at Eric.”

¶4 Before defendant’s one-day trial began, the State submitted its witness list, which named

only three potential witnesses: Eric and Kendall County sheriff’s deputies Lee Cooper and Scott

Raughley.

¶5 Before impaneling a jury, the trial court asked whether any venire members knew any of

the three witnesses, all of whom were present. The court also admonished the venire members that

defendant is presumed innocent, that the State bears the burden of proof, and that defendant is not

required to present any evidence on his behalf.

¶6 After the jury was impaneled, the trial court admonished the jury that (1) the burden of

proof remains on the State, (2) defendant does not have to present any evidence, and (3) opening

statements are not evidence but rather predictions about what the evidence will show. The court

also admonished the jury that “[a]ny statement made by an attorney that is not later supported by

the evidence should be disregarded.”

¶7 The parties then proceeded with opening statements. Defense counsel’s theory was that

Eric, wanting defendant out of the house, concocted a story that defendant injured him. Counsel

asked the jury to consider when the photographs of Eric’s injuries were taken and the “possible

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motivations might [Eric] have for making up an incident about [a] stepson who is living at his

house as a matter of getting him out.” Counsel also asked the jury “to take into consideration the

testimony of both the officers, as well as [Eric], and draw your own conclusions as to what you

believed [sic] happened.” Counsel told the jury, “You’ll hear testimony from the officers that when

[defendant] was asked, did you throw a glass at [Eric], no. Repeatedly, no. I didn’t do that.”

¶8 Although the State listed three people on its witness list, only Eric testified. He stated that,

on May 27, 2020, he lived in a house in Oswego with his wife, Kim (defendant’s mother), and

defendant. Defendant was living in the basement and had resided intermittently with Kim and Eric

since he was a child. Defendant’s daughter, who was a toddler, also stayed with the family

frequently. Defendant did not pay any rent.

¶9 Around 6:15 p.m. on May 27, 2020, Eric returned home from work, changed his clothes,

and planned to go outside to relax. While changing his clothes, Eric heard defendant yelling at

Kim. The yelling was coming from the family room. Defendant was demanding to know how Kim

spent all the money that she made. Eric proceeded to the family room. Eric could not go outside

because defendant was blocking the entrance to the kitchen where the back door was located. So,

Eric sat silently on the couch next to the front door.

¶ 10 Kim, wanting to exit the family room and go outside with defendant’s daughter, asked

defendant to let her through. Defendant did not move. Defendant yelled at Kim that she was

encroaching on his personal space and repeatedly asked, “[W]ho does that, who does that, who

comes into my space like this[?]”

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¶ 11 At that point, Eric stood up from the couch and moved toward the front door. This placed

Eric approximately eight feet from defendant and Kim. Defendant had a heavy glass in his hand. 1

Defendant threw the glass at Eric as hard as he could. The glass hit Eric’s right hand, bounced off

his chest, and fell on the carpeted floor.

¶ 12 Eric testified that the glass broke his finger and caused “a lot of pain.” After defendant

threw the glass, Eric saw defendant clench his fist and move forward as if to hit Eric. Eric ran out

the front door and called 911. Four or five minutes later, Kendall County sheriff’s deputies

arrived. 2 While Eric remained outside, the deputies entered the home and arrested defendant. As

he spoke to the deputies, Eric’s fingers were in extreme pain because of the glass that struck them.

Eric did not realize at the time that one of his fingers was broken. Although Eric told the police

about his fingers hurting, he said nothing about chest pain. Eric also declined medical treatment

and did not seek any medical attention that day.

¶ 13 The next day, May 28, 2020, Detective Kasey Stoch interviewed Eric and took photographs

of Eric’s hands. The photographs, which were admitted into evidence, show the tops of Eric’s

hands. Eric’s right pinky and ring fingers appear slightly bruised and swollen. Eric said nothing to

Stoch that day about chest pain.

¶ 14 After talking with Stoch, Eric went to the doctor to have his finger X-rayed. The doctor put

defendant’s fingers in a temporary splint, or soft cast, with ACE bandages. Eric said nothing to the

doctor about chest pain.

1
In photographs admitted at trial, the glass appears to be a tumbler-like glass.
2
The evidence does not indicate how many officers arrived or whether Cooper and

Raughley were among them.

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¶ 15 The next day, May 29, 2020, Eric noticed some chest pain. Eric looked in the mirror and

saw bruising to his left pectoral area. Eric told Stoch about the bruising. Eric took photographs,

which were admitted at trial and show a quarter-sized bruise on Eric’s left chest area.

¶ 16 Eric also testified that defendant had previously acted aggressively toward him. Eight

months before the charged incident, Eric moved defendant’s car without his permission so that he

could take the garbage cans to the curb. Although Eric moved defendant’s car back, defendant was

angry that his car was moved without his permission. Defendant yelled at Eric, came at him, lifted

him off the ground, and threw him down. Eric never notified the police about the incident or sought

medical treatment.

¶ 17 Eric admitted that, when the incident occurred, he was tired of defendant living with him

and Kim. Defendant did not appreciate either Eric or Kim, but Eric was more tired of defendant

not appreciating Kim. Eric stated that he “made a point to notify the police *** that [defendant]

also didn’t pay rent.” Although Eric did not give any examples, he stated that there had been “a lot

going on,” that “[i]t wasn’t just, it wasn’t just that day,” and that “[t]here was a ton that led up to

this.” Since defendant threw the glass, Eric wanted defendant to stay away from the house because

defendant created a volatile environment. Eric testified that he does not feel safe around defendant

because defendant is violent.

¶ 18 Following Eric’s testimony, the State rested, and defense counsel moved for a directed

verdict. Counsel noted, among other things, that the State introduced no medical evidence to

support Eric’s testimony that defendant broke his finger when he threw the glass. Counsel asserted

that, although the elements of the charge did not require such evidence, it would have corroborated

Eric’s claim of injury. Counsel also asserted that the wrapping of Eric’s fingers in ACE bandages

was not sufficient evidence that his fingers were hurt. The trial court denied the motion.

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¶ 19 After the court accepted defendant’s waiver of his right to testify, defense counsel asked

the trial court “for five minutes *** to speak with [defendant] outside the presence of the

courtroom, as far as calling any additional witnesses or not. I don’t necessarily intend so, but if I

can just speak with him briefly.” After talking with defendant, defense counsel rested without

presenting any evidence.

¶ 20 Before closing arguments began, the trial court admonished the jury that (1) an attorney’s

statements are not evidence, (2) the jury should disregard any attorney’s statements that are not

supported by the evidence or reasonable inferences therefrom, and (3) each juror should rely on

his or her own recollection of the evidence.

¶ 21 In his closing argument, defense counsel reminded the jury that the State bore the burden

of proving defendant’s guilt beyond a reasonable doubt. Counsel then asserted that the jury “heard

from literally one person saying, yeah, this happened.” Counsel reviewed what Eric said about

defendant and Kim’s argument, noting that the jury “didn’t hear from [Kim].” Counsel then

addressed Eric’s alleged injuries, asking the jury, “Did you see any medical records for [the

injuries]? Hear from any doctors about that?” Although counsel told the jury that the State need

not prove that defendant broke Eric’s finger, counsel propounded, “[W]ouldn’t it corroborate the

fact that it actually happened? Wouldn’t the testimony of [Kim], who is in the room, corroborate

her husband’s story about this actually happening? Did you get any of that? No.” When discussing

whether there was evidence that the bruise on Eric’s chest existed before the incident, counsel

reiterated that the jury “just heard from [Eric], the only one saying, yeah, this happened.” Counsel

then asserted:

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“Did you hear about any police officers talking about what [defendant] was like

when they arrived? No. Once again, did you hear from [Kim]? No. Did you hear from a

doctor about a broken finger? Did you see any medical records? No.

And the State wants to contend that this is proof beyond a reasonable doubt. Ladies

and Gentlemen, it’s not. One person saying, yeah, it happened ***. ***

[Defendant] is not required to prove to you anything. The State has certainly not

met their [sic] burden and not presented the additional corroborating evidence that would

convince you.

Simply put, this is not enough. [Eric] saying, yeah, he did it. That is not enough.”

¶ 22 In rebuttal, the State first commented on the promise defense counsel made in his opening

statement. It asserted:

“Remember opening statements? You will hear evidence the defendant said, no, I

didn’t do that. Remember that? I’m trying to remember which part of [Eric’s] testimony

supports what counsel said the evidence was going to show.

Did anyone hear that, at any time during the course of this trial? The defendant said,

I didn’t do it? You want to talk about what you didn’t hear, that’s a great example.”

The State continued by observing that defense counsel stressed numerous times that the jury heard

from only one person, Eric. The State noted that defense counsel “[m]ade it a point to talk about

how you didn’t hear from [Kim], the blood relative of [defendant].” After commenting on

defendant’s rights—including the presumption of innocence and the right to make the State prove

his guilt beyond a reasonable doubt—the State addressed defendant’s subpoena power. The State

stressed that defendant had “[t]he power to make [Kim] come in here if she doesn’t want to, to tell

you what happened.” The State continued, “Who do you think the blood relative of [defendant] is

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going to help? The [State] or [defendant], if she were here to testify?” The State then addressed

the fact that only Eric testified and there was no corroborating evidence. The State asserted that

“[t]here’s no law that says you need more than one witness” and “[t]here is no law that says, we

need to corroborate what [Eric] told you during the course of this trial.” The State then commented

on the lack of medical evidence:

“Again, the defense has absolutely no burden of proof, none at all, but they have a

right to present it if they want to. No burden. And I want to make that clear. But how easy

would it be to get someone from [the hospital] to say, we never saw [Eric] here. I don’t

know what you’re talking about.”

The State then addressed defense counsel’s assertion that the jury did not hear from any police

officers:

“Counsel asks rhetorically, we didn’t hear from any police officers to talk about

how [defendant] was after the incident, when police are there. Why? What are they going

to tell you that’s going to shed any light on what happened in that room? The crime [sic]

has already been committed.”

The State never commented about the police indicating whether defendant committed the crimes.

Also, defense counsel did not object to anything the State said in rebuttal.

¶ 23 After the jury found defendant guilty of both counts of domestic battery, defendant filed a

motion for a new trial. In that motion, defendant did not challenge the State’s rebuttal argument or

counsel’s effectiveness. Defendant moved the court to reconsider the sentence, the court denied

the motion, and this timely appeal followed.

¶ 24 II. ANALYSIS

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¶ 25 At issue in this appeal is whether defense counsel was ineffective. Although ineffective-

assistance claims are generally subject to a bifurcated standard of review (People v. Davis, 353 Ill.

App. 3d 790, 794 (2004)), our review here is de novo because defendant did not raise counsel’s

ineffectiveness below and, thus, the trial court made no findings of fact to which we must defer

(People v. Lofton, 2015 IL App (2d) 130135, ¶ 24).

¶ 26 A criminal defendant’s right to the effective assistance of defense counsel is guaranteed by

both the United States Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill.

Const. 1970, art. I, § 8). People v. Briones, 352 Ill. App. 3d 913, 917 (2004). If a defendant believes

that that right has been violated, he may challenge defense counsel’s effectiveness by proving that

(1) counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced the

defendant. Id. “To establish deficiency, the defendant must overcome the strong presumption that

counsel’s challenged action or inaction was the product of sound trial strategy.” Id. That is, the

defendant must show that his counsel made errors so serious that the defendant was denied his

constitutional right to counsel. Id. “To show prejudice, the defendant must establish a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. A reasonable probability is one that is sufficient to undermine confidence in

the case’s outcome. Id. “Failure to establish either prong is fatal to the claim” that counsel was

ineffective. People v. Pineda, 373 Ill. App. 3d 113, 117 (2007).

¶ 27 That said, a defendant has the right to competent, not perfect, representation. Briones, 352

Ill. App. 3d at 917. “Only the most egregious of tactical or strategic blunders may provide a basis

for a violation of a defendant’s right to the effective assistance of counsel [citation], such as when

[defense] counsel’s chosen strategy was so unsound that counsel completely failed to conduct any

meaningful adversarial testing [citation].” Id. at 918.

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¶ 28 Defendant argues that defense counsel was ineffective in two respects. First, counsel

promised during opening statement that the jury would hear testimony from police officers that

defendant denied throwing a glass at Eric, but counsel never presented that testimony, thus

negatively impacting defendant’s case by allowing the State to comment in rebuttal on counsel’s

failure. Second, counsel failed to object to the State’s remarks in rebuttal argument that shifted the

burden of proof to defendant, leaving the impression that defendant was responsible for the lack

of exculpatory evidence. We address each argument in turn.

¶ 29 A. Opening Statement Promise

¶ 30 First, we consider whether defense counsel was ineffective for promising during opening

statement that the jury would hear testimony from police officers that defendant denied throwing

a glass at Eric. Generally, defense counsel’s failure to present promised testimony to the jury is

“highly suspect.” People v. Gunn, 2020 IL App (4th) 170653, ¶ 37. This is so because, once

defense counsel makes that promise, the jury expects to hear that testimony, and if that testimony

is not presented, the jury may very well infer not only that defense counsel is incredible but also

that the promised testimony would have damaged the defendant’s case. Id. However, courts have

recognized that defense counsel’s failure to present promised testimony can be excused when the

failure results from unforeseen events (Briones, 352 Ill. App. 3d at 918) or where a change in the

defense results from a plausible strategic decision (People v. Bryant, 391 Ill. App. 3d 228, 239

(2009)).

¶ 31 Here, the record suggests that defense counsel’s failure to present testimony from the

officers that defendant denied throwing a glass at Eric resulted from unforeseen events that caused

defense counsel to strategically change tactics. Right before the trial began, the State submitted its

witness list as required by Illinois Supreme Court Rule 412(a)(i) (eff. Mar. 1, 2001). On that list

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were two deputies from the Kendall County Sheriff’s Office. Defense counsel evidently believed

that these deputies were the officers who responded to the scene; counsel would have learned this

from incident reports produced in discovery. The record shows that the deputies were in court

when the jury was impaneled. Later, in opening statement, counsel told the jury that they would

“hear testimony from the officers” that defendant denied throwing a glass at Eric. Nothing in the

record suggests that the deputies were not also in court during opening statements; in fact, their

presence would not be surprising given that the trial was scheduled for only one day. Given that

the deputies were on the State’s witness list and presumably were in court when defense counsel

gave his opening statement, it was reasonable for defense counsel to expect the State to present

the deputies’ testimony. Counsel could not have foreseen that the State would not call the deputies

and thus give counsel the chance to cross-examine them and elicit testimony that defendant denied

throwing a glass at Eric.

¶ 32 We stress that, contrary to defendant’s intimation in his reply brief, the State’s failure to

call the deputies did not place any burden on counsel to call them simply so that counsel could

keep his promise. Indeed, although nothing prevents defense counsel from calling officers listed

on the State’s witness list (see People v. DeLeon, 40 Ill. App. 3d 308, 312 (1976)), a defendant

generally is prohibited from calling a witness to testify about the defendant’s own self-serving

hearsay statements (see People v. Harman, 125 Ill. App. 3d 338, 341 (1984)). Defendant’s denial

to the deputies that he threw a glass at Eric would certainly be a self-serving statement, as the glass

was what Eric claimed caused his injuries. Because the State did not call the deputies, defendant

could not elicit from them that defendant denied harming Eric. Even assuming defense counsel

could have called the deputies—an assumption we do not make—it certainly is not difficult to see

why counsel changed his strategy and chose not to call the deputies when the State chose not to

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call them. One reason is that the deputies arrested defendant for domestic battery. Because there

was no physical evidence directly implicating defendant as the perpetrator, the probable cause the

deputies possessed to arrest defendant most certainly arose after they spoke to Eric, defendant, and

presumably Kim. See People v. Butler, 2021 IL App (1st) 171400, ¶ 41 (the police must have

probable cause to make an arrest). Calling the deputies solely to testify that defendant denied

harming Eric would have gained defendant little yet cost him a great deal, as it would have opened

the door for the State to cross-examine the deputies about what they learned at the scene that caused

them to arrest defendant for domestic battery. 3

¶ 33 Moreover, we stress that the trial court admonished the jury—with some admonishments

repeated—that opening statements (1) are not evidence, (2) consist merely of what the attorneys

anticipate the evidence will show, and (3) must be disregarded to the extent that the evidence does

not support them. While such admonishments are not necessarily curative, they are at least a factor

to consider in deciding whether the defendant was prejudiced when promised evidence was not

presented. See Gunn, 2020 IL App (4th) 170653, ¶ 37.

¶ 34 Based on the foregoing, we hold that defendant’s performance was not deficient and that,

even if it were, defendant was not prejudiced given the trial court’s admonishments and Eric’s

3
As an aside, we observe that, before the defense rested, counsel talked with defendant

about calling defense witnesses. After the conversation, counsel reported to the court that the

defense was resting. Defendant himself said nothing to the trial court about calling the deputies or

other witnesses. We construe that silence against defendant. See People v. Harris, 389 Ill. App.

3d 107, 133 (2009) (“[I]t is the defendant’s burden to overcome the presumption that a decision to

not call a witness is within the realm of trial strategy.”).

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testimony, which was sufficient to establish defendant’s guilt. See People v. Vassar, 62 Ill. App.

3d 523, 526 (1978) (“[T]he testimony of one credible witness is sufficient for the trier of fact to

conclude that defendant had been proved guilty beyond a reasonable doubt.”).

¶ 35 Relying on People v. Lewis, 240 Ill. App. 3d 463 (1992), defendant argues that defense

counsel’s broken promise constituted deficient performance, especially because defense counsel

offered no strategic reason for failing to call the officers. We disagree. In Lewis, the defendant was

convicted of two counts of murder. Id. at 464. The evidence at the jury trial revealed that the

defendant and a codefendant were responsible for the murders. Id. at 466-67. Defense counsel’s

theory in opening statement was that the defendant was not liable for either murder, because (1) the

defendant stabbed one of the victims, but the codefendant delivered the fatal stab wound, and

(2) the defendant was not involved in the other killing. Id. at 467-68. Counsel asserted that the

defendant’s pretrial statement, made in police custody, supported the defense theory. Id. at 467.

The State never offered defendant’s pretrial statement into evidence, and when the defense counsel

attempted to introduce the statement, the trial court ruled that the statement was inadmissible. Id.

at 468. Defense counsel again referred to the defendant’s pretrial statement in closing argument.

Id. The State objected, and the trial court sustained the objection. Id.

¶ 36 On appeal, the defendant argued that defense counsel was ineffective for “basing his

defense on [hearsay] evidence which [counsel] could not and did not produce to the jury.” Id. at

467. The appellate court agreed that this constituted ineffective assistance. Id. at 468. In doing so,

the court observed that (1) “[i]t is well settled that a defendant’s post-arrest, custodial statement

offered in his own favor is not admissible and is subject to objection on hearsay grounds” and

(2) “the promise to produce such significant exonerating evidence and the failure to fulfill such

promise is highly prejudicial.” Id.

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¶ 37 Here, unlike in Lewis, the State, not defendant, would have sought to present testimony

from the deputies, who were listed on the State’s witness list. Although, like in Lewis, defendant’s

theory here was that he did not commit the crime, defendant’s theory was based not on his

statement to the deputies but on (1) weaknesses in the State’s proof of Eric’s injury and

(2) evidence of Eric’s motive to expel defendant from the house. Defendant’s denials to the police

were, at most, consistent with the defense theory; thus, the promised evidence here was not the

basis for the defense theory, unlike in Lewis.

¶ 38 Additionally, although, like in Lewis, defendant’s statement to the police that he did not

throw a glass at Eric was hearsay, nothing suggests that the statement would be inadmissible on

cross-examination of the officers. If the State had called the deputies to testify to their interaction

with defendant at the scene, defense counsel would have been allowed under the completeness

doctrine to ask the deputies about the denials defendant made when they questioned him, as doing

so would have prevented the jury from being misled into thinking that defendant said nothing when

the deputies confronted him. See People v. Weaver, 92 Ill. 2d 545, 556-57 (1982) (after a neighbor

testified that the defendant knocked on her door in a panic and stated that there was a fire and that

two men were in her house with guns, the defendant—who was charged with murdering her

husband—should have been allowed to elicit testimony on cross-examination of her neighbor that

she told her neighbor that the two men killed her husband). Thus, counsel had reason to believe

that the State would call the deputies and that he could elicit their testimony that defendant denied

throwing a glass at Eric.

¶ 39 B. No Objection to Statements Made in Rebuttal

¶ 40 Next, we consider whether defense counsel was ineffective for failing to object during the

State’s rebuttal argument that the State shifted the burden of proof to defendant. Generally, the

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decision whether to object to statements made in closing argument is a matter of trial strategy and

does not establish ineffective assistance. People v. Beard, 356 Ill. App. 3d 236, 244 (2005).

Nonetheless, because a defendant “ ‘is under no obligation to produce any evidence, *** the [State]

cannot attempt to shift the burden of proof to the defense’ ” by arguing that the defendant failed to

present evidence. People v. Curry, 2013 IL App (4th) 120724, ¶ 80 (quoting People v. Beasley,

384 Ill. App. 3d 1039, 1047-48 (2008)). Indeed, “it is reversible error for the [State] to attempt to

shift the burden of proof to the defense.” People v. Leger, 149 Ill. 2d 355, 399 (1992).

¶ 41 However, the State’s comment on a defendant’s failure to produce evidence does not

always constitute burden shifting. People v. Jackson, 399 Ill. App. 3d 314, 319 (2010). Rather,

where the defendant attacks in closing the State’s failure to produce evidence to which the

defendant had equal access, the State may respond by commenting on the defendant’s own failure

to produce that same evidence. Id. There is no reversible error when the statements the State made

in rebuttal were invited by statements the defendant made in his closing argument. People v.

Nieves, 193 Ill. 2d 513, 533-34 (2000).

¶ 42 Defendant argues that the State improperly shifted the burden of proof in two ways. First,

the State suggested that defendant would have called Kim (his mother and an eyewitness to the

incident) if defendant truly did not throw a glass at Eric. Second, the State noted that defendant

did not produce evidence rebutting Eric’s claim that he sought medical treatment for his injuries.

Defendant argues that counsel’s failure to object to these comments constituted ineffective

assistance. We disagree.

¶ 43 The State’s comments in rebuttal concerning defendant’s failure to produce evidence were

invited by defense counsel’s comments in closing argument. More specifically, we conclude that

the State’s comments were a proper response to counsel’s statement that the State failed to call

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Kim or produce medical evidence to corroborate Eric’s testimony. Thus, since there was no basis

for counsel to object to the State’s comments, counsel’s failure to object was not deficient

performance. See People v. Rogers, 2021 IL 126163, ¶ 32 (“Counsel cannot be considered

ineffective for failing to make or pursue what would have been a meritless motion or objection.”).

Moreover, to the extent that the State’s comments were improper, there was no prejudice to

defendant given (1) the parties’ comments, and the trial court’s admonishments and instructions,

that the State bore the burden of proof and (2) the trial evidence, which was sufficient to convict

defendant.

¶ 44 Instructive on our position is People v. Kliner, 185 Ill. 2d 81 (1998). There, although the

State in rebuttal noted that it had the burden of proving defendant’s guilt beyond a reasonable

doubt, it commented that the defendant had the power to subpoena witnesses or documents and

that the defendant would have utilized this power to support his innocence if such evidence were

available. Id. at 152-53. After closing arguments, the trial court instructed the jury that the State

bore the burden of proving defendant’s guilt beyond a reasonable doubt and that the defendant was

not required to prove his innocence. Id. at 153. Our supreme court determined that, in the context

of proceedings, the State’s comments were not improper “because they were based on reasonable

inferences drawn from the evidence or invited by the closing arguments [sic] of defense counsel.”

Id.

¶ 45 Similarly, the State’s comments here were not improper in context. Like in Kliner, the

State’s comments about defendant’s ability to exercise his subpoena power and present any

evidence establishing his innocence were invited by defense counsel’s closing argument. Id.

Further, as in Kliner, the State reminded the jury that the State had the burden of proving

defendant’s guilt beyond a reasonable doubt and that the defendant had no burden (here defense

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counsel, too, gave the same reminder). Id. at 152; see also People v. Vinson, 61 Ill. App. 3d 684,

689 (1978) (remarks the State made in closing, which may have tended to shift the burden of proof

in the minds of the jurors, did not require reversal of the defendant’s conviction, because the State’s

“remarks were offset by the prosecutor himself when he stated several times in closing argument

that the State carried the burden to prove the defendant guilty beyond a reasonable doubt”). Finally,

like in Kliner, the trial court here admonished and instructed the jury about the State’s burden of

proof to make it clear that the State could not shift the burden of proof to the defendant. Kliner,

185 Ill. 2d at 153; see also People v. Bell, 113 Ill. App. 3d 588, 601 (1983) (the State’s comment

tending to lessen the importance of its burden of proof was not reversible error, “because the jury

was properly instructed on the [State’s] burden of proof, and the [State’s] comment did not negate

these instructions or shift the burden of proof to the defendant[ ]”).

¶ 46 Accordingly, we determine that defense counsel’s failure to object to the State’s comments

about defendant’s ability to present exculpatory evidence was not ineffective assistance. Not only

was counsel’s performance not deficient, but there was no prejudice to defendant given (1) the

parties’ comments and the trial court’s instructions clarifying where the burden of proof lay

(Kliner, 185 Ill. 2d at 152-53) and (2) the evidence at trial, which, though consisting only of Eric’s

testimony, was sufficient to establish defendant’s guilt beyond a reasonable doubt (Vassar, 62 Ill.

App. 3d at 526).

¶ 47 III. CONCLUSION

¶ 48 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.

¶ 49 Affirmed.

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No. 2-20-0713

Cite as: People v. Suggs, 2022 IL App (2d) 200713

Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 20-CF-144;
the Hon. Stephen L. Krentz, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Zachary Wallace, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:

Attorneys Eric C. Weis, State’s Attorney, of Yorkville (Patrick Delfino,
for Edward R. Psenicka, and John G. Barrett, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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