People v. Bradford ( 2019 )

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Appellate Court Date: 2019.04.16
12:33:37 -05'00'
People v. Bradford, 2019 IL App (4th) 170148
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AHQUAVIOUS BRADFORD, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-17-0148
Filed February 1, 2019
Modified upon
denial of rehearing February 22, 2019
Decision Under Appeal from the Circuit Court of Macon County, No. 16-CF-730; the
Review Hon. Robert C. Bollinger, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Eric E. Castañeda, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
Robinson, and Thomas R. Dodegge, 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 Knecht and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 In June 2016, the State charged defendant, Ahquavious Bradford, with two counts of
aggravated discharge of a firearm. The State dismissed one of the counts, and in November
2016, the trial court conducted a jury trial. The jury found defendant guilty on a single count of
aggravated discharge of a firearm, and the court sentenced him to 12 years of imprisonment
with 2 years of mandatory supervised release.
¶2 On appeal, defendant argues he was denied effective assistance of counsel because trial
counsel failed to object to the conclusions of the State’s firearm identification expert, which
were unsupported by a proper foundation. We affirm.
¶3 I. BACKGROUND
¶4 In June 2016, Jasmine Adams’s brother posted a picture on Facebook and asked if anyone
could identify the person. Adams testified she recognized the man in the picture as defendant
because they went to school together, and she had texted back and forth with him a “couple of
times.” Later that June day, she called defendant to let him know her brother was looking for
him. Once Adams identified defendant as the man in the picture, she and her brother, along
with some other people, drove around looking for defendant. Adams and her brother spotted
defendant and pulled over. As they were getting out of the car and telling defendant to come to
their car to talk, defendant said, “What’s up? What’s up, bro?” and then moved behind a tree
and started shooting at them, firing five to seven shots. During the shooting, Iisha Dean, a
resident of the community where the shooting occurred, was sitting in her car talking to some
of her neighbors when she heard four or five gunshots and saw someone pointing a gun at a
truck. Adams and her group drove off.
¶5 After the shooting, police officers stopped the car containing Adams, her brother, and other
family members and friends. Upon stopping the car, officers found evidence of what appeared
to be bullet holes on the driver’s side and three bullets from inside the vehicle. They also found
a gun under the passenger’s seat, drugs, and a weight scale. The officers inquired into the
shooting, and Adams said defendant shot at them. Police officers executed a search of the
residence in which defendant was staying at the time. The officers found defendant hiding in
the attic, lying facedown in the insulation. A handgun was found in the bedroom, the closet to
which contained access to the attic. The handgun was located in the drawer of a dresser located
in the same bedroom, within three to four steps from the entryway to the attic.
¶6 As a result of the stop, Adams was charged with aggravated unlawful use of a weapon,
which was ultimately dismissed by the State in return for her testimony in this case. In
addition, the State agreed to obtain an order quashing an outstanding warrant she had in an
unrelated misdemeanor case.
¶7 Defendant was charged with two counts of aggravated discharge of a firearm (720 ILCS
5/24-1.2(a)(2) (West 2014)), one of which was dismissed by the State. The remaining count
alleged defendant knowingly discharged a firearm in the direction of a vehicle, which he
reasonably should have known to be occupied by a person. In November 2016, the case
proceeded to a jury trial.
¶8 Carolyn Kersting, a 30-year veteran with the Illinois State Police, worked as a forensic
scientist specializing in firearms identification since 2001. She was called to testify about the
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forensic examination of the firearm taken from defendant’s residence, along with her
examination of both test-fired bullets and those retrieved from Adams’s vehicle by the police.
She was tendered as an expert in firearms identification, and defendant’s counsel neither
questioned her thereon nor objected to her being so qualified. Kersting testified about the
examination process in general and then explained what she did in this case, discussing both
general class characteristics such as rifling and caliber and individual characteristics peculiar
to a particular firearm “through the manufacturing process or through rust, corrosion, [or] use
and abuse damage.” She explained the use of a comparison microscope when analyzing bullets
to look for individual characteristics in order to determine whether a particular bullet was fired
from a particular firearm.
“We use a comparison microscope for making decisions on fired evidence and test
shots. And that is two microscopes combined together by an optical bridge, that means
we can look at two items at the same time and take a hairline and move them back and
forth, and at this point we’re looking at those individual characteristics to see if the
pattern reproduces.”
¶9 Kersting explained how she first fired test shots in order to examine them microscopically,
looking for particular patterns reproduced from test to test. She then compared those to the
bullets in evidence, looking for similar patterns. While it is not always possible to make a
positive identification, Kersting was able to in this case based on the aforementioned method.
As a result, it was her professional opinion that the fired bullets submitted as evidence were
fired by the firearm seized from defendant’s residence. On cross-examination, counsel
requested more detail as to how she was able to form her conclusion. She explained:
“When we make a finding, we are using the individual characteristics that are
transferred to the cartridge case or the bullets in the form of the firing process. So in
bullets, the individual characteristics within the bore are transferred to the bullet
through the firing process. So these individual characteristics or complex microscope
patterns will be similar from bullet to bullet fired within that firearm. When I fired the
test shots, I put the test shots on the microscope to see if there were reproducing
patterns, and then aligned those—those markings with different ink. And then I put my
test—correction—I put the evidence bullet up on the scope in comparison to the test
and I was able to find that the patterns reproduced from test to the fired evidence.”
¶ 10 Defendant’s counsel asked about the similarity of impressions made by the same machine
of a particular manufacturer, and Kersting noted “a lot of studies on this,” which found the tool
used to bore the barrels changes slightly with each use, thereby imparting “a different set of
individual characteristics of patterns.” Although she could not recall the authors of studies by
name or their dates of publication, she said she read them herself, that they could be found in
the literature, and she was aware they have existed “over the time of firearm identification” and
have been “reverified” as true. Defendant presented no evidence. The jury convicted defendant
of aggravated discharge of a firearm, and the trial court sentenced him to 12 years’
imprisonment in the Illinois Department of Corrections followed by 2 years of mandatory
supervised release.
¶ 11 This appeal followed.
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¶ 12 II. ANALYSIS
¶ 13 Defendant argues his trial counsel provided ineffective assistance of counsel by failing to
object to the State’s firearm identification expert giving her opinion without properly laying
the foundation. We disagree.
¶ 14 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, 694). “ ‘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)). “It is axiomatic that
a defense counsel will not be deemed ineffective for failing to make a futile objection.” People
v. Holmes, 397 Ill. App. 3d 737, 745, 922 N.E.2d 1179, 1187 (2010).
¶ 15 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.
¶ 16 Defendant contends it was error for his counsel not to object to what he characterizes as an
“unreliable firearm expert’s testimony” due to what defendant claims was an inadequate
foundation for her testimony. In support of his “first prong” argument, defendant relies on
People v. Safford, 392 Ill. App. 3d 212, 910 N.E.2d 143 (2009). In Safford, 392 Ill. App. 3d at
227, the court found there was no proper foundation for the testimony of the State’s expert in
latent fingerprint identification where the expert did not provide a sufficiently detailed reason
for his opinion. As was noted by the State, “Safford has been heavily criticized, and
characterized as an ‘outlier.’ ” People v. Robinson, 2018 IL App (1st) 153319, ¶ 19, 105
N.E.3d 957 (citing People v. Negron, 2012 IL App (1st) 101194, ¶ 41, 984 N.E.2d 491, People
v. Wilson, 2017 IL App (1st) 143183, ¶¶ 41-42, 86 N.E.3d 1231, and People v. Simmons, 2016
IL App (1st) 131300, ¶¶ 120-28, 66 N.E.3d 360). The Robinson court went on to note it was
unable to find any published case that followed Safford’s reasoning. Robinson, 2018 IL App
(1st) 153319, ¶ 19. Under Illinois Rule of Evidence 705 (eff. Jan. 1, 2011), an expert “may
testify in terms of opinion or inference and give reasons therefor without first testifying to the
underlying facts or data, unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.” Under Rule 705, the
burden is on the defense “ ‘during cross-examination to elicit the facts underlying the expert
opinion.’ ” Negron, 2012 IL App (1st) 101194, ¶ 42 (quoting Wilson v. Clark, 84 Ill. 2d 186,
194, 417 N.E.2d 1322, 1327 (1981)). The court in Simmons continued the criticism of Safford,
noting the majority’s holding ran counter to Rule 705 and a number of Illinois Supreme Court
cases concluding that the basis of an expert’s opinion is a matter for cross-examination since it
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goes to the weight to be given the expert’s testimony and not its admissibility. Simmons, 2016
IL App (1st) 131300, ¶ 121 (“ ‘[T]he basis for a witness’ opinion generally does not affect his
standing as an expert; such matters go only to the weight of the evidence ***.’ ” (quoting
Snelson v. Kamm, 204 Ill. 2d 1, 26, 787 N.E.2d 796, 810 (2003))).
¶ 17 Here, Kersting testified to her methodology, procedure, and the purpose of her examination
of test-fired slugs and the bullets submitted by the police, all of which were admitted into
evidence. She explained what she was looking for and how she went about testing it. She then
opined that based upon her examination of the two samples of fired bullets, the submitted slugs
were fired from the same gun. Defendant’s counsel immediately asked for more detail on
cross-examination and was provided it. Thus, there was a sufficient foundation, which
precluded defendant’s counsel from objecting, and therefore, there was no deficient
performance.
¶ 18 Defendant also fails to satisfy the second “prejudice” prong. Despite defendant’s claim, the
expert’s opinion was neither the only nor the most damaging evidence against him. At trial, the
State presented evidence of the police officers’ execution of a search on the residence, in which
defendant was staying at the time, a short time after the shooting, where they found him hiding
in the attic, facedown in the insulation with the gun only a few steps from the attic door.
Although Adams was impeached by her deal with the State, her testimony was inevitably given
more weight once the officers discovered defendant and the gun. That, coupled with the
evidence of flight, as well as the testimony of Dean, who saw someone shooting at a vehicle
with people inside, does not lead us to believe there was a reasonable probability the jury
would have found defendant not guilty even without the ballistics evidence. Therefore, even if
defense counsel objected and had Kersting’s testimony omitted, there is no reasonable
probability the outcome would have changed. Since there was no proper basis upon which to
exclude the expert testimony, defendant’s ineffective assistance of counsel claim fails under
both prongs of Strickland.
¶ 19 III. CONCLUSION
¶ 20 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS
5/4-2002(a) (West 2016).
¶ 21 Affirmed.
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