People v. Ross ( 2023 )

NOTICE 2023 IL App (4th) 200465-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-20-0465 February 24, 2023
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
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. ) Champaign County
CAMERON D. ROSS, ) No. 17CF1747
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court.
Justices Cavanagh and Knecht concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s convictions of and sentence for
aggravated battery with a firearm and unlawful possession of a weapon by a felon,
concluding (1) trial counsel was not ineffective for failing to file a motion to sever
the charges and (2) defendant’s sentence was not excessive.
¶2 In March 2020, a jury convicted defendant, Cameron D. Ross, of Class X felony
aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)) in connection with the
December 11, 2017, shooting of Taveon Davis and Class 2 felony unlawful possession of a
weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2016)) in connection with his possession of
a firearm when he was arrested on December 12, 2017. The trial court sentenced defendant to
consecutive terms of 30 and 14 years of incarceration consecutive to the sentence imposed in
another case. Defendant appeals, arguing his trial counsel rendered ineffective assistance when
he failed to move to sever the aggravated battery with a firearm charge from a charge of
unlawful possession of a weapon by a felon. He also argues his sentence is excessive. We affirm.
¶3 I. BACKGROUND
¶4 In December 2017, the State charged defendant in part with aggravated battery
with a firearm, alleging, on December 11, 2017, defendant knowingly discharged a firearm,
causing bodily injury to Taveon Davis. The State also charged defendant with unlawful
possession of a weapon by a felon, alleging, on December 12, 2017, defendant possessed a
firearm when he was previously convicted of a forcible felony. The State further charged
defendant with armed violence (720 ILCS 5/33A-2(a) (West 2016)), alleging, on December 12,
2017, defendant possessed the firearm at the same time he possessed heroin.
¶5 A. Stipulation and Limitation of References to Previous Felonies
¶6 On September 6, 2018, defendant’s appointed counsel filed a motion in limine
seeking to prohibit the State from introducing evidence of defendant’s previous convictions in
Oklahoma of two counts of attempted robbery with a firearm, assault with a dangerous weapon,
and assault and battery with a dangerous weapon. The State told the trial court it had no
objection to the motion unless defendant opens the door by suggesting he had never been
convicted of anything.
¶7 The same day, the parties filed a stipulation stating, “on December 19th, 2012, the
Defendant was convicted of a forcible felony offense.” The parties agreed defendant was
convicted of the four forcible felonies subject to counsel’s motion in limine, but the jury would
be told only the language of the stipulation and all jury instructions would reference “a forcible
felony” rather than the name of any specific felony.
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¶8 On October 30, 2018, defendant discharged his appointed counsel and hired
private counsel Steven Sarm. Sarm renewed the motions to exclude references to defendant’s
previous convictions and pending charges and entered a new written stipulation with the State
consistent with the September 6, 2018, stipulation.
¶9 B. Jury Trial
¶ 10 On February 26, 2019, the trial court conducted a jury trial. In opening
statements, the State told the jury it would hear a stipulation defendant had previously been
convicted of a forcible felony, and for that reason, he was not allowed to possess a firearm.
¶ 11 Lieutenant Matthew Henson of the Champaign Police Department testified, on
December 12, 2017, he was part of a surveillance detail at an apartment complex to look for
defendant after locating a white Oldsmobile vehicle connected to defendant there. Defendant was
with two other men with the hood up on the Oldsmobile when Henson and other officers
approached him. Officers ordered defendant to the ground. Defendant complied, and Henson
handcuffed him. Henson did not see defendant make any furtive movements and did not see what
the other two men by the car were doing. A search revealed a semiautomatic pistol in
defendant’s front pants pocket. The pistol contained a 17-round capacity magazine with 10
rounds in it. Defendant falsely told Henson his name was “Troy.” During Henson’s testimony,
the trial court told the jury, “The parties stipulate that on December 19, 2012, the defendant was
convicted of a forcible felony offense.”
¶ 12 Detective Matthew Quinley testified he was present with Henson on December
12, 2017. After officers handcuffed defendant, Quinley rolled defendant onto his side and located
a small bag of heroin where defendant’s face had been while lying on the ground and a second
bag of heroin about three inches between defendant’s face and the vehicle. Quinley did not
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converse with the other two men who were present or notice any movements on their part
because he was focused on defendant.
¶ 13 Detective Jeremiah Christian testified he was also present on December 12, 2017.
When officers approached the car, Christian saw defendant and the two other men, who Christian
identified at trial as Preston Winfrey and James Wood, looking over the engine area of the
vehicle. When ordered to the ground, Winfrey and Wood “had a very shocked reaction,” stepped
back from the vehicle, and immediately complied. Christian described Winfrey and Wood as
“very upset.” They told Christian defendant approached them at an auto parts store to solicit their
help in installing an alternator on the vehicle. The officers did not find weapons or drugs on
either man. Wood had an open bottle of alcohol that Christian discarded into a dumpster.
¶ 14 Detective Corey Phenicie testified, on December 12, 2017, he was with the
surveillance team looking for a white Oldsmobile and a black and gray Dodge pickup truck.
When the officers were at the apartment complex, Phenicie saw both vehicles there, with the
truck approximately 70 yards away from the Oldsmobile. Phenicie stated when the officers
ordered the men to the ground, he saw defendant “backpedaling” between two vehicles and
reaching for his waistband area. He did not see Winfrey or Wood make any furtive movements
or reach into any pockets. Phenicie did not have his body camera on at the time. Phenicie found a
9-millimeter cartridge case in the bed of the truck.
¶ 15 Tashanee Turner testified she was married to Taveon Davis. About three weeks
before Davis was shot, Turner met defendant at her grandmother’s house. At that time, defendant
was dating Turner’s sister, Desiree Jones. Turner testified, on that day, defendant arrived in a
white vehicle and asked Davis “why were me and my husband were fighting.” She said
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defendant “was trying to fight [Davis]” on the porch. Turner defended Davis by spraying
defendant with mace. The incident ended when defendant left with Jones.
¶ 16 On December 11, 2017, Turner and Davis went to a gas station to buy a bottle of
Prairie Farms grape juice and granola bars. According to Turner, as they were walking across the
street after making the purchases, they saw defendant driving a black truck out of an apartment
complex. Turner and Davis walked through a strip mall to avoid the truck, but it followed them.
Turner testified she and Davis “were having words with [defendant] to see—why did he just
follow us through the parking lot.” Turner said she threw the grape juice bottle at the truck, and
defendant, while seated in the driver’s seat, leaned over two people in the passenger’s seat and
shot Davis through the passenger window. Turner testified the front of the truck was facing a
light. She was about five feet away and could see defendant’s face and his hand on the gun. She
also agreed she could “tell definitely it was [defendant] shooting.” Turner and Davis ran to the
gas station and asked a clerk to call the police. Another clerk tended to Davis’s gunshot wound.
After about five minutes, the police arrived, and Turner testified she told them defendant shot
Davis. Davis was taken to the hospital, where he had surgery. At the hospital, Turner met with
detective David Griffet and identified defendant as the shooter in a photograph. At trial, Turner
identified a photograph of the truck defendant was driving.
¶ 17 On cross-examination, Turner stated she told officers a person who looked very
similar to Sean Williams, who was “light-skinned” with a beard, was one of the passengers in the
truck. She denied telling Griffet there was only one other person in the truck. Turner said she did
not recall what defendant was wearing. When asked if she told officers she thought the shooter
might be her sister’s boyfriend, Turner stated she never said that and said, “I knew definitely.
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That’s what I told them at the gas station, in the car, at the hospital.” She said the shooting
happened near the sidewalk, with two cars in front of the truck.
¶ 18 Video of Turner’s statements to made to Officer Tyler Darling, while he
transported Turner to the hospital, include clips of her telling Darling she thought the shooter
was her sister’s boyfriend. She mentioned two shots and said the shooting happened in the
parking lot next to the gas station. She said the truck was black or dark in color, but she really
was not sure because it happened so fast. When asked if it was the same truck her sister’s
boyfriend got in, she replied, “That’s what I said, he drives that truck.” However, later at the
hospital, she told Griffet she had not seen defendant in a truck before. She also told Griffet
defendant “has not one reason to shoot my husband,” and agreed it was just “happenstance” the
way she and Davis crossed paths with defendant.
¶ 19 Davis testified about the altercation a few weeks before the shooting and verified
Turner sprayed mace on defendant. On the night of the shooting, Davis saw defendant in the
truck and told Turner he felt something was not right and suggested they turn around. Defendant
followed them, and Davis asked him “[w]hy you steady pulling up on us” and said “[y]ou F—ing
her little sister.” Davis said defendant was “smirking at me the whole time, just smirking—like
just smirking at me, woo, woo, woo.” Davis saw Turner doing something with her juice bottle
and told her not to throw it but she did anyway. Davis testified he was able to see the gun in
defendant’s hand when defendant shot him through the passenger window. He remembered
seeing two or three other people in the truck. When asked if the police showed him a photo
lineup at the hospital, Davis initially stated he did not remember, but then when shown the lineup
documents, said he remembered being shown a lineup. He did not remember if he identified
anyone, stating he was weak and fell asleep at the hospital and “woke up with tubes in me.”
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¶ 20 On cross-examination, Davis testified he did not remember telling police after the
shooting he did not know who shot him. He remembered Turner told him she had already
identified defendant as the person who shot him. When pressed further about his lack of
memory, Davis stated, “I told you, sir. I ain’t trying to be rude or nothing, but all my life I’ve
been dodging bullets, so that was big in my life, so I really don’t remember when that happened,
you know. I had to get my lung cut.” When asked if that meant he did not know who shot him,
Davis said, “No, that’s not what I’m saying. I know who shot me. I’m just saying I don’t
remember what I told him yesterday. That’s like I don’t remember, you know, two years ago
what I told my parent or my sibling.” The following colloquy then occurred:
“Q. Okay. In all of your interviews with police prior to the photo lineup,
do you recall telling the police that you didn’t know who shot you?
A. I don’t understand what you’re trying to ask me.
Q. Sir, at the hospital, Detective Griffet was asking you questions about
this incident?
A. Right.
Q. And a specific question he asked you is do you know who shot you?
And did you tell him, ‘I do not know who shot me’?
A. I don’t think so. I think I told him I did. I think I verified what my wife
told him.
Q. So is it your testimony here, Mr. Davis, that you told Detective Griffet
that you did know who shot you?
A. I did. I told him that—I told him that—he said is this correct, what your
wife said when I eventually woke up and I was eating some soup. I think I was
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eating some chicken soup. I let them know, I said yes, that is correct. And I asked
my wife afterwards did I do the right thing or not? She said he shot me for no
reason. I did.
Q. So you have no independent recollection of what happened, you’re
relying on your wife’s statements; is that correct?
A. No. I have recollection on what happened. I just don’t know whether
the word came from me first or her first, because I was ill after—it’s like if
something happened to you, you know. Whether the word going to come from
you first or the person that love you first, whether you verify it or not, that’s what
happened.”
The further additional colloquy occurred:
“Q. So your testimony today, Mr. Davis, is that when questioned by
officers at [the gas station], you told them you knew who shot you?
A. Bro, I seen him shoot me, bro, on the holy Bible. I’m ready to get up,
bro. I seen the man shoot me, bro. Come on, bro. Why is you doing this to me?
Come on now. Really I shouldn’t even be sitting here.
Q. How many people were in the truck, Mr. Davis?
A. Three people. It was about three heads in there. But if a jeeper creeper
shoot you, bro, ain’t you going to remember what the jeeper creeper looks like,
bro? Ain’t you, bro?
THE COURT: All right, sir. Mr. Davis, wait until he asks you a question.
Q. Mr. Davis, I’m—you were questioned—strike that.
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Are you basing your testimony today, Mr. Davis, on what your wife told
you?
A. No. I’m basing my testimony today that all men need to stand up like
me, and it ain’t all about snitching, straight up. Sometimes you got to do what you
got to do to be there for your family. No way. The police would be looking for me
right now or I—if I don’t show up, I’ll get a warrant or something for something
that I was never in the wrong about. We had an altercation. That should have been
that. Nobody should have got shot, none of that, so understand that.
Q. Just so I’m clear, [Mr. Davis]—this is last question I’m going to ask
you—when asked if you knew who shot you, you told Detective Griffet you did
not know who shot you, correct?
A. I don’t even recall that, honestly.”
¶ 21 Doctor Richard Barnard Berlin Jr. testified he treated Davis at the hospital. Berlin
stated Davis had a gunshot wound “through his back.” Kathryn Doolin, a forensic scientist
testified the cartridge case found in the truck matched the firearm found on defendant. Anne
Hendren, a clerk at the gas station, testified Turner specifically told the police defendant shot
Davis. Champaign police officer Johnathan Broadnax testified he responded to the call from the
gas station, and Turner said defendant shot Davis. Another officer, Brian Ahsell, identified a
photo of a Prairie Farms grape juice bottle taken a few feet away from a street curb.
¶ 22 The State called Turner’s grandmother, Gwenda Harris, as a witness, who stated
she could not remember a conversation with a police officer about the night of the altercation on
her front porch. However, investigator David Monahan, testified he spoke with Harris and
recorded the conversation with his body camera. That video showed Harris told Monahan about
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the altercation, including details about how Turner sprayed defendant with mace and that
defendant said “I’m gonna kill that motherf***”.
¶ 23 Griffet testified he spoke with Davis shortly after he arrived at the hospital. He
said he asked Davis if he knew who shot him, and Davis said “he didn’t know his name,” but
“he would be able to identify him by photo if shown a photograph of him.” The conversation
was recorded on Griffet’s body camera and played for the jury. That video shows Griffet asking
defendant if he knew who shot him. Defendant answered “no,” and stated “but I swear to God
on the Holy Bible I got shot for no reason.” Defendant stated the shooter had a black Dodge
truck with tinted windows. He said there were “four dudes.” After viewing the video, Griffet
agreed at no point in that video did Davis ever indicate he could pick out the shooter.
¶ 24 Griffet testified Turner told him she was “95 percent sure” one of the other men in
the truck was Sean Williams. However, Griffet discovered Williams had been posting live videos
to Facebook from a city in Missouri at the time of the shooting. In reference to the video of the
hospital interview, defense counsel also asked Griffet if Turner could come up with a reason why
defendant would want to shoot Davis. Griffet replied, “Not during that interview, no.” However,
he stated the information about the previous altercation on Harris’s porch was conveyed during
the totality of the interview. Video of the full interview is not in the record.
¶ 25 Griffet testified he arranged for another officer, Detective Robert DeLong, to
show a photo lineup to Davis. DeLong was not informed who the suspect was. When Davis was
awake and available, DeLong showed Davis the lineup, and Davis identified defendant as the
shooter.
¶ 26 The defense called Darling who responded to the call to the gas station. He
testified Turner gave him the names of two suspects, defendant and Sean Williams. He stated at
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first Turner seemed like “she wasn’t terribly sure” defendant was the shooter, “but as she—as we
got into the conversation more, she seemed sure of herself in my opinion.” He admitted Turner
stated at one point the shooter looked like defendant, but she was not sure it was defendant.
Turner also did not recall the make and model of the pickup truck. On cross-examination the
State asked, “Isn’t it true that during the course of conversation with her, she vividly described
the driver as [defendant] and gave a physical description of him?” Darling answered “[y]es.”
However, on redirect examination, Darling agreed Turner was describing what defendant would
look like based on the altercation from three weeks earlier.
¶ 27 During closing arguments, the State mentioned the stipulation defendant was
previously convicted of a forcible felony. Sarm did not dispute defendant’s guilt of possession of
a weapon by a felon. Instead, Sarm stated, “I am not going to sit here and look you in the
collective eyes and suggest that [defendant] was not in possession of a weapon. I’m not going to
suggest that. I think the evidence is pretty clear that [defendant] was in possession of a handgun.”
Sarm then argued the State failed to prove defendant guilty of armed violence because it failed to
prove defendant possessed the heroin. Regarding the aggravated battery charge, defense counsel
argued Turner and Davis were not credible witnesses and pointed out multiple inconsistencies in
their testimony. Sarm asked the jury to find defendant not guilty of armed violence and
aggravated battery with a firearm. The jury found defendant guilty of unlawful possession of a
weapon by a felon and aggravated battery with a firearm but acquitted him of armed violence.
¶ 28 C. Sentencing
¶ 29 At the April 11, 2019, sentencing hearing, Detective Jody Cherry testified about
his investigation of a shooting on December 8, 2017, in which the victim, Antonio Brown,
identified defendant as the shooter. Cherry personally performed the investigation and interviews
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in the case and also reviewed the reports of other officers and was familiar with the physical and
scientific evidence. Cherry testified a witness saw Brown’s car stop in the roadway in front of a
dark pickup truck. She then saw the passenger of the pickup truck digging around inside of the
truck and she heard gunshots. She could not see the driver. She ducked down and, by the time
she looked back up, both vehicles were fleeing. The investigation later revealed defendant was
one of the occupants of the truck. Six 9-millimeter cartridge cases were found at the scene that
matched the gun recovered from defendant’s pocket on December 12, 2017.
¶ 30 The owner of the pickup truck, Sarah Wilson, stated she loaned the truck to
defendant on the night of the shooting and had loaned it to him on other occasions. Wilson’s
daughter, Kailey, had been dating defendant at the time and told the police defendant had gotten
a gun about three weeks before the shootings. After the shooting of Brown, defendant told
Kailey the truck was “too hot” to drive for a while. Brown’s story of the events to the police
were “initially vague.” However, he described the truck in detail. After the shooting of Davis,
Cherry showed Brown a photo of the truck, and Brown identified it. He then gave a more
detailed statement and ultimately identified a photo of defendant as the shooter. DNA evidence
recovered from the truck included defendant as a “contributor.” Defendant did not object to
Cherry’s testimony or the admission of related exhibits.
¶ 31 The defense presented character-letters in mitigation from defendant’s father and
the mother of his newborn child. Defendant gave a statement in allocution and admitted “as a
convicted felon,” possessing a weapon “wasn’t anything I was supposed to do,” but said he
thought “protection *** was needed.” He stated he was a good father and asked for forgiveness.
However, he did not specifically take responsibility for any crime other than unlawful possession
of a weapon by a felon. In a letter to the court, defendant denied committing the other crimes.
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¶ 32 The presentence investigation report (PSI) showed defendant’s criminal history in
Oklahoma and showed he was adjudicated delinquent in Oklahoma when he was a juvenile for
attempted robbery. In Illinois, he was convicted of mob action in the case involving the shooting
of Brown. It also showed he had a history of employment in 2017.
¶ 33 The trial court stated it considered the PSI, the letters submitted by defendant, and
defendant’s comments. The court found no statutory factors in mitigation applied. The court
found defendant’s age of 27, his “marginal employment,” early childhood foster care, and that he
had “gotten his GED” as non-statutory factors in mitigation. The court found defendant’s
criminal history and the need for deterrence as statutory factors in aggravation. The court noted
the seriousness of the crime and the evidence that, three days earlier, defendant shot Brown. The
court stated, “Mr. Ross is a dangerous individual. Why he shoots people for whatever slight he
perceives is incredibly troubling.” The court then stated, “I believe not only is the maximum
sentence appropriate for aggravated battery with a firearm, but the Court has to make a
determination as to how to fashion the unlawful possession of weapon by a felon sentence.”
Regarding that sentence, the court stated,
“This defendant shot two people in the course of three days, went on the
run with a gun, and God only knows who else he was going to shoot. There didn’t
appear to be anything that was going to deter him from opening fire on anybody
else who crossed his path who he had a beef with.”
Based on those findings, the court sentenced defendant to the maximum penalty of 30 years’
incarceration for aggravated battery with a firearm to be served consecutive to 14 years for
unlawful possession of a weapon by a felon and consecutive to the sentence imposed in the case
involving Brown’s shooting.
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¶ 34 D. Posttrial Motions
¶ 35 Sarm did not file a motion for a new trial or to reconsider sentence. Instead, he
filed a motion to withdraw as counsel, stating defendant had fired him and asked him to
withdraw. On April 22, 2019, defendant filed a pro se motion, alleging ineffective assistance of
trial counsel based in part on Sarm’s failure to file a motion to sever the aggravated battery
charge from the other charges. The court appointed new counsel, who filed a motion for a new
trial based on ineffective assistance. New counsel also filed a motion to reconsider sentence,
arguing the sentence was excessive and the court placed too much weight on Cherry’s testimony.
Counsel did not make any hearsay arguments.
¶ 36 At the hearing on the motions, defendant testified he wanted Sarm to attempt to
sever the charges and discussed the matter with him, but it was never done. Sarm testified about
strategic decisions made at trial regarding his decision not to call alibi witnesses or challenge
various items of evidence. Sarm expressed frustration with defendant because Sarm negotiated a
plea agreement, but defendant would not accept it based on an unreasonable belief Turner and
Davis would not appear at trial. Regarding allegations concerning a motion to sever, the
following colloquy occurred:
“Q. Did you discuss with [defendant] the possibility of filing a motion to
sever charges?
A. I can’t independently recall ever having that discussion, nor [defendant]
asking me to do that. However[,] given my experience, in my opinion that would
have been a futile motion.”
On cross-examination, the following colloquy occurred:
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“Q. In this case immediately prior to proceeding to trial you secured with
the State a stipulation regarding [defendant’s] prior criminal conviction that was
the forcible felony that was an element of one of the charges, correct?
A. Yes.
Q. And is it correct that at trial all we did was mention the existence of the
forcible felony pursuant to the stipulation, and basically nothing more was said
about it?
A. That’s correct. As a matter of fact, I was provided a stipulation, and I—
I also believe that as a motion in limine I included that as well.
Q. So do you think you did everything you could to appropriately limit
any discussion of his prior record as far as what the jury was actually able to hear
at trial?
A. Yes.
Q. Regarding [defendant’s] complaint regarding a putative motion to sever
charges, would it be fair to say that there was a lot of factual relevancy in between
the shooting that occurred on December 11th, 2017, and the circumstances of the
defendant’s arrest on [December] 12th of 2017?
A. Yes.
Q. That included some forensic evidence linkages, correct?
A. Yes.
Q. That forensic evidence included but was not limited to the matching of
[cartridge cases] from the shooting scene to the gun that was found on
[defendant’s] person, correct?
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A. Correct.
Q. Those same [cartridge cases] matched to another [cartridge case] that
was found in the bed of a pick-up truck discovered near where [defendant] was
arrested on December 12th, correct?
A. Correct.
Q. And is it also correct that the black pick-up truck that was found near
where he was arrested with that [cartridge case] in the pick-up was also positively
identified by both the victim and the victim’s wife as the car [defendant] was in at
the time of the shooting?
A. It was correctly identified, and that truck was very unique. The paint
was—was coming off, and it was faded in different areas. It was a very unique
truck.
Q. And therefore with those considerations—not necessarily exclusively
those, but did you think that a motion to sever charges would be granted if you
filed it?
A. No.”
Although Sarm testified about cartridge cases found at the “shooting scene,” the record does not
reflect that cartridge cases were found at the scene of Davis’s shooting. Instead, cartridge cases
were found at the scene of Brown’s shooting. Sarm stated he did not object to Cherry’s
testimony at sentencing because such an objection would have been overruled.
¶ 37 The trial court denied the motions, finding Sarm did not provide ineffective
assistance and, in any event, defendant would not have been prejudiced because the evidence
against him was overwhelming. The court stated the sentence was appropriate because defendant
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was dangerous, and the sentence was necessary to keep him out of society and to protect other
individuals.
¶ 38 This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 A. Ineffective Assistance of Counsel
¶ 41 On appeal, defendant first argues ineffective assistance of trial counsel because
Sarm did not move to sever the unlawful possession of a weapon by a felon charge from the
aggravated battery with a firearm charge. He argues trying the charges together allowed the jury
to improperly hear evidence of his propensity for violent crime as it related to the aggravated
battery with a firearm charge and counsel, by conceding the unlawful possession of a weapon by
a felon charge, had no reasonable strategy in allowing the charges to be tried together. The State
contends the issue was one of reasonable trial strategy and, even if error, it did not prejudice
defendant where the evidence of his guilt was overwhelming.
¶ 42 To prevail on a claim of ineffective assistance of counsel, a defendant must prove
(1) his lawyer’s representation fell below an objective standard of reasonableness and (2) there is
a reasonable probability that, but for the defense lawyer’s errors, the outcome of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). “[N]either
mistakes in strategy nor the fact that another attorney with the benefit of hindsight would have
handled the case differently indicates the trial lawyer was incompetent.” People v. Vera, 277 Ill.
App. 3d 130, 138, 660 N.E.2d 9, 16 (1995). When assessing the deficient-performance prong, “a
court must indulge a strong presumption that the challenged action, or inaction, was the result of
sound trial strategy.” People v. Poole, 2012 IL App (4th) 101017, ¶ 10, 972 N.E.2d 340.
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¶ 43 To satisfy the prejudice prong, the defendant must prove a reasonable probability
exists that, but for counsel’s unprofessional errors, the proceedings’ result would have been
different. People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163-64 (1999). “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” People v.
House, 141 Ill. 2d 323, 388, 566 N.E.2d 259, 288 (1990) (quoting Strickland, 466 U.S. at 694).
The Strickland Court noted, when a case is more easily decided on the ground of lack of
sufficient prejudice rather than concluding counsel’s representation was constitutionally
deficient, the court should do so. Strickland, 466 U.S. at 697. See also People v. Torres, 228 Ill.
2d 382, 395, 888 N.E.2d 91, 100 (2008) (stating if a defendant fails to prove deficient
performance, the trial court need not consider the prejudice prong, and vice versa). While
allowing a jury to hear evidence a defendant was previously convicted of a felony carries the risk
of significant prejudice, when the evidence of defendant’s guilt is not closely balanced and
instead is overwhelming, the prejudice-prong of the Strickland test is not satisfied. See People v.
Wiley, 2022 IL App (4th) 210283, ¶¶ 42-44.
¶ 44 Here, we need not, and do not, determine whether Sarm’s performance was
deficient when he conceded the unlawful possession of a firearm charge (a not unreasonable trial
strategy under the circumstances) but did not move to sever it from the other charges, because
we determine defendant did not show prejudice. The evidence against defendant was
overwhelming. The initial altercation between defendant and Davis provided motive for the
shooting. Indeed, Harris told an officer defendant, after the altercation, said “I’m gonna kill that
motherf***.” Both victims identified defendant as the shooter. Turner specifically stated she saw
defendant in the truck, had “words” with him, and saw him lean over the passengers in the truck
and shoot Davis. Turner was only about five feet away, near a light, and could see defendant’s
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face and his hand on the gun. She told officers both at the gas station and on the way to hospital
that she thought defendant was the shooter. She also identified defendant from a photograph and
identified the truck. Davis also identified defendant as the shooter. While the defense elicited
some inconsistencies in his testimony and suggested he was basing his identification on Turner’s
memory, he emphatically stated he saw defendant shoot him. The cartridge case found in the
back of the truck the next day was connected to the gun recovered from defendant, providing a
physical link between the gun and the truck used in the shooting. Further the gun was missing
rounds, indicating it had previously been fired.
¶ 45 Defendant points to various weaknesses or inconsistencies in the evidence to
argue the evidence of his guilt was not overwhelming. We are aware of the alleged imperfections
in the State’s case defendant has identified. However, we disagree with defendant’s conclusion
these imperfections prevent a finding the evidence of his guilt was overwhelming. Evidence may
be deemed overwhelming even in the absence of physical evidence or a confession or where a
defendant questions the credibility of witnesses. See People v. Weston, 2011 IL App (1st)
092432, ¶¶ 38, 42, 956 N.E.2d 498; see also People v. Bost, 80 Ill. App. 3d 933, 944, 400 N.E.2d
734, 743 (1980) (stating evidence was overwhelming despite some conflicting testimony). When
viewed as whole, the evidence here was overwhelming despite its imperfections. As a result,
defendant’s argument fails. Accordingly, defendant has failed to show his trial counsel’s
assistance was ineffective.
¶ 46 B. Defendant’s Sentence
¶ 47 Defendant next contends his sentence was excessive. He argues the trial court
gave Detective Cherry’s testimony too much weight because of double hearsay and a lack of
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corroboration about the shooting of Brown on December 8, 2017. He also argues his sentence
was excessive based on the circumstances of the offenses.
¶ 48 “[A] sentence within statutory limits will not be deemed excessive unless it is
greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the
nature of the offense.” (Internal quotation marks omitted.) People v. Little, 2011 IL App (4th)
090787, ¶ 22, 957 N.E.2d 102. The trial court has discretion when sentencing, and we will not
reverse the court’s decision absent an abuse of that discretion. People v. Snyder, 2011 IL 111382,
¶ 36, 959 N.E.2d 656.
¶ 49 In determining what sentence to impose, the trial court may consider (1) the
defendant’s history, character, and rehabilitative potential; (2) the seriousness of the offense;
(3) the need to protect society; and (4) the need for punishment and deterrence. People v. Klein,
2022 IL App (4th) 200599, ¶ 34. The seriousness of the offense is the most important sentencing
factor, and the trial court need not give greater weight to rehabilitation or mitigating factors than
to the severity of the offense. People v. Aquisto, 2022 IL App (4th) 200081, ¶ 112.
¶ 50 “The trial court is not required to expressly indicate its consideration of all
mitigating factors and what weight each factor should be assigned.” People v. Kyse, 220 Ill. App.
3d 971, 975, 581 N.E.2d 285, 288 (1991). Instead, it is presumed a trial court considered all
relevant mitigating and aggravating factors in fashioning a sentence, and that presumption will
not be overcome absent explicit evidence from the record the trial court failed to consider
mitigating factors. People v. Flores, 404 Ill. App. 3d 155, 158, 935 N.E.2d 1151, 1155 (2010).
We may not substitute our judgment for that of the trial court merely because we might have
weighed a factor differently. Klein, 2022 IL App (4th) 200599, ¶ 37.
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¶ 51 “ ‘[H]earsay testimony is not per se inadmissible at a sentencing hearing as
unreliable or as denying a defendant’s right to confront accusers.’ ” People v. Cunningham, 2018
IL App (4th) 150395, ¶ 31, 115 N.E.3d 423 (quoting People v. Foster, 119 Ill. 2d 69, 98, 518
N.E.2d 82, 94 (1987)). “An objection to such evidence goes to the weight of the evidence and
not its admissibility.” Cunningham, 2018 IL App (4th) 150395, ¶ 31. “Generally, double hearsay
is admissible if “ ‘at least some parts of the double hearsay have been corroborated by other
evidence.’ ” Cunningham, 2018 IL App (4th) 150395, ¶ 31 (quoting Foster, 119 Ill. 2d at 98).
“Further, uncorroborated hearsay ‘is not inherently unreliable,’ particularly when the information
was compiled during the course of an official investigation and where the evidence was never
directly challenged.” Cunningham, 2018 IL App (4th) 150395, ¶ 31 (quoting Foster, 119 Ill. 2d
at 98).
¶ 52 Here, the trial court sentenced defendant to the maximum penalty of 30 years’
incarceration for aggravated battery with a firearm consecutive to 14 years for unlawful
possession of a weapon by a felon. Aggravated battery with a firearm is a Class X felony. 720
ILCS 5/12-3.05(e)(1), (h) (West 2016). For that offense, defendant faced a sentencing range of
not less than 6 years and not more than 30 years of incarceration. 730 ILCS 5/5-4.5-25(a) (West
2016). Defendant was also convicted of Class 2 felony unlawful possession of a weapon,
punishable by not less than 3 years and not more than 14 years of incarceration. 720 ILCS
5/24-1.1(e) (West 2016).
¶ 53 Defendant concedes Cherry’s testimony was admissible. He argues, however, the
trial court abused its discretion by affording too much weight to the testimony because of
uncorroborated double hearsay. We disagree.
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¶ 54 We first note, although Cherry’s testimony contained double hearsay, Cherry
personally conducted the investigation and witness interviews connected to Brown’s shooting,
and the testimony was further corroborated by physical evidence. Two separate individuals
witnessed portions of the shooting and identified the truck. The owner of the truck then
corroborated defendant had access to it at the time of the shooting and that defendant was in
possession of a firearm. The victim also identified defendant as the shooter. Exhibits showing
defendant was a contributor to DNA found on evidence recovered from the truck corroborated
the testimony, and cartridge cases found at the scene matched the firearm found in defendant’s
waistband on December 12, 2017. Based on the number of shots fired and number of rounds left
in the firearm, the cartridge case located in the truck bed likely came from the December 8
shooting.
¶ 55 Defendant further contends the reliability of Cherry’s testimony was minimal.
However, we have no reason to doubt Cherry’s reliability given the corroborating evidence
presented. As such, the trial court was free to consider the testimony when determining
defendant’s sentence. Nor will we reweigh the value of the evidence, which, as we note below,
was not the only evidence the court considered when imposing the maximum sentence.
Accordingly, the court did not abuse its discretion in considering Cherry’s testimony or in the
weight it gave his testimony in setting defendant’s sentence.
¶ 56 Defendant also argues his sentence was disproportionate to the nature and
circumstances of the offenses. However, the trial court stated it considered the nature and
circumstances of the offenses and particularly noted the seriousness of defendant’s conduct.
Specifically, the court found defendant was a “dangerous individual,” who “shoots people for
whatever slight he perceives,” which the count found “incredibly troubling.” The court further
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considered the presentence report, letters submitted on behalf of and by defendant, the comments
of counsel and defendant, and evidence presented in aggravation and mitigation. Defense counsel
made similar arguments at the hearing on the motion to reconsider sentence. In denying the
motion, the court again stated defendant was dangerous and stated the sentence was imposed to
protect other individuals.
¶ 57 Based on the foregoing considerations, the trial court’s imposition of the
maximum term for each sentence was not an abuse of its discretion.
¶ 58 III. CONCLUSION
¶ 59 Trial counsel was not ineffective for failing to file a motion to sever the charges,
and defendant’s sentence was not excessive. Accordingly, for the reasons stated, we affirm
defendant’s convictions and sentence.
¶ 60 Affirmed.
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