People v. Eldridge ( 2023 )

2023 IL App (1st) 220381-UNo. 1-22-0381
Order filed June 2, 2023
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
__________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 18 CR 9701
)
MICHAEL ELDRIDGE, ) Honorable
) Diana L. Kenworthy,
Defendant-Appellant. ) Judge presiding.
JUSTICE NAVARRO delivered the judgment of the court.
Justices Mitchell and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s convictions for aggravated criminal sexual assault and
aggravated kidnaping where his trial counsel did not provide ineffective assistance
and any alleged error in the trial court conducting a preliminary inquiry under
People v. Krankel, 102 Ill. 2d 181 (1984) was harmless.
¶2 Following a jury trial, defendant Michael Eldridge was found guilty of three counts of
aggravated criminal sexual assault and one count of aggravated kidnaping. The trial court
sentenced him to 4 consecutive terms of 7 years’ imprisonment for a total of 28 years’
imprisonment. On appeal, defendant contends that: (1) his trial counsel provided ineffective
assistance where counsel failed to properly impeach the victim and called his mother to testify
despite her testimony being affirmatively damaging; and (2) the trial court failed to hold an
adequate preliminary inquiry under People v. Krankel, 102 Ill. 2d 181 (1984) to examine the basis
of two of his claims of ineffective assistance of counsel. For the reasons that follow, we affirm
defendant’s convictions.
¶3 I. BACKGROUND
¶4 A grand jury indicted defendant with several counts of aggravated criminal sexual assault,
aggravated kidnaping, armed robbery, aggravated vehicular hijacking and vehicular invasion
based on his conduct toward R.B. The State proceeded to trial against defendant on Counts 1, 2, 3
and 22, and nolle-prossed the remaining counts. Counts 1, 2 and 3 alleged that defendant
committed aggravated criminal sexual assault by committing sexual penetration on R.B. through
force or the threat of force, and threatened or endangered her life. Count 22 alleged that defendant
committed aggravated kidnaping by carrying R.B. from one place to another with the intent to
secretly confine her against her will and did so while committing a robbery. In defendant’s answer
to discovery, he asserted that he may raise the defense of consent.
¶5 During pretrial proceedings, an assistant State’s Attorney informed the trial court that trial
counsel had his law license suspended for three months while defendant’s case was ongoing.
According to the court, during an off-the-record discussion, trial counsel acknowledged the
suspension and noted that colleagues of his had made appearances on his behalf during the
suspension. The court further indicated that defendant acknowledged trial counsel had disclosed
the suspension to him. The case ultimately proceeded to a jury trial.
¶6 A. The State’s Case
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¶7 At trial, R.B. was the sole direct witness to defendant’s alleged conduct. The evidence
showed that, in June 2018, R.B. lived in Chicago with her children. In the evening of June 9, 2018,
R.B. parked her vehicle in front of her house with her driver’s side window cracked open. While
parked, she was on the phone with Melron Davis, the father of two of her children, when a male
identified at trial as defendant approached the driver’s side window and pointed a firearm at her
head. Defendant, who R.B. had never met before, told her to give him everything she had. R.B.
responded that she did not have anything, so defendant told her to give him her iPhone, which she
did. R.B. observed defendant terminate her phone call with Davis, who at trial testified that, while
he was talking to R.B., the call ended abruptly. After taking her phone, defendant entered the
vehicle on the passenger’s side and took R.B.’s “Link” card. R.B. also gave defendant $5 and the
pin number to the Link card after defendant asked. Defendant also demanded that R.B. take him
inside her house, but she refused because her children were inside. As a result, defendant told her
to drive into a nearby alley, and she parked behind a vacant house. When there, defendant
instructed R.B. to pull down her pants. R.B. complied, and defendant proceeded to penetrate her
sexually multiple times while threatening to kill her if she did not comply. Once he stopped,
defendant told R.B. to drive him a few blocks away, where he exited her vehicle. Defendant
threatened to kill her and her children if she called the police, and he walked away from her vehicle.
¶8 R.B. immediately drove to a Dollar General store, where she flagged down a woman and
informed the woman what occurred. That woman called the police. Chicago Police Officer
Leshawn Hawkins arrived at the scene, and observed R.B. “crying uncontrollably” and unable to
speak. Eventually, R.B. told Officer Hawkins what occurred, after which an ambulance transported
her to the hospital. At the hospital, R.B. told Chicago Police Detective Partiece Walker what
happened and provided a description of defendant. Detective Walker noticed that R.B. was
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“nervous,” “upset” and “crying.” Davis learned that R.B. was at the hospital and went there, where
he observed that she was “crying” and “traumatized.” Nurse Letitia Hill-Brandon treated R.B. and
initially observed that she “looked like she had been previously crying,” although she was “alert
and oriented.” R.B. told Hill-Brandon what occurred, including that she was sexually assaulted by
defendant, and he threated to kill her and her children if she did not cooperate. Hill-Brandon
performed a sexual assault kit on R.B. and Hill-Brandon noted that R.B. did not have any visible
tearing or other physical injuries to her private parts.
¶9 The following day, R.B. checked her Link account online and noticed that it had been
recently used at a gas station. She contacted the police, and Detective Walker took her to the gas
station, where they reviewed security footage from the time in which R.B.’s Link card was used.
While watching the video, R.B. recognized defendant and identified him as the individual who
attacked her. According to Detective Walker, upon seeing defendant in the video, R.B. began
“shaking” and “crying.” Detective Walker generated a community alert with a still photograph of
defendant from the video. A few days later, defendant turned himself in to the police. Thereafter,
R.B. went to the police station to view a lineup. According to Detective Walker, when R.B. arrived,
she was normal and relaxed. Chicago Police Detective Marcus Shepard, who had R.B. sign a lineup
advisory form, noticed that she was calm and not crying initially. However, according to Detective
Shepard, once she entered the room to view the lineup, she immediately became “dysfunctional,”
“upset,” and “almost immediately pointed at [defendant] and began to cry.” When she left the
room, Detective Walker observed that R.B. was “highly upset, crying” and “shaking.”
¶ 10 An evidence technician collected DNA evidence from R.B.’s vehicle, including the
steering wheel and seat covers in the front. DNA analysis of the samples, however, showed either
minor contributors that could not be separated or samples not suitable for comparison.
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Additionally, forensic testing did not reveal the presence of semen in the front of R.B.’s vehicle.
At the conclusion of R.B.’s trial testimony, she denied that she ever gave defendant consent to
sexually penetrate her or take her personal items.
¶ 11 B. The Defense’s Case
¶ 12 In the defense’s case, Khaliah Whisenton testified that she and defendant had been dating
on and off since 2017, but were currently together and shared two children. In June 2018, however,
they were not together. They would often fight about each other texting other people, which led to
their “off” periods. At trial, Whisenton denied that she spoke with defendant about her testimony
and denied that he ever told her what to say. Janeice Kimbrough, defendant’s mother, testified that
she lived in Chicago and he lived with her in June 2018. During that month, Kimbrough saw “a
lot of women” in her house with defendant. At trial, trial counsel gave Kimbrough a photograph
of R.B. and asked if she recognized the woman. Kimbrough responded that R.B. “look[ed] kind
of familiar” but added that she did not “really” look at the women defendant brought home.
Kimbrough also testified that she had security cameras outside of her house, including one pointed
at the front door and one pointed at the back door. According to Kimbrough, while she did not see
every woman who came into her house with defendant, she “kn[e]w that there’s someone’s [sic]
there” based on the cameras.
¶ 13 Defendant testified that, in 2017, he met R.B. in their neighborhood. Over the next year,
they met up multiple times at Kimbrough’s house, hung out and had consensual sexual intercourse.
Although defendant acknowledged never having R.B.’s phone number, he explained that he did
not need it because they lived in the same neighborhood and would see each other on the street.
Defendant added that having too many women’s phone numbers could complicate a current
relationship. In the evening of June 9, 2018, defendant had an argument with Nataza, the mother
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of one of his children and whose last name was not stated at trial, so he left Kimbrough’s house
and began sitting outside on the porch when R.B. walked by. After having a brief conversation,
they went into Kimbrough’s house and watched television. Soon thereafter, they began to have
consensual sexual intercourse. Afterward, they had a short conversation about defendant being in
a relationship with another woman, which led to R.B. leaving the house “highly upset.” Later in
the night, a female friend and romantic partner of defendant’s came over, and they drove to a gas
station where she bought some food using a Link card. They returned to Kimbrough’s house
afterward. On June 20, 2018, defendant learned he was wanted for multiple criminal offenses,
which caused him to turn himself in to the police. At trial, defendant agreed telling Kimbrough
that he was anxious about the results of the DNA test in his case. Defendant explained that he was
anxious because he had seen people wrongly convicted of sexual assault, and he was only 18 years
old at the time. Defendant also agreed that there would be video of R.B. coming to and leaving
Kimbrough’s house on the evening of June 9, 2018, as well as other times.
¶ 14 In defendant’s case, the parties stipulated if R.B. were called as a witness, she would testify
that, on June 21, 2018, she gave an electronically recorded interview to Detective Walker and a
Cook County assistant State’s Attorney. During that conversation, R.B. told them that defendant
demanded her iPhone, but she said no. R.B. also would testify that defendant told her to take her
pants off multiple times but she refused, and he told her to unbutton her pants, but she also refused.
¶ 15 C. Verdict and Posttrial
¶ 16 Following closing arguments, the jury found defendant guilty on all four counts.
Defendant, through trial counsel, filed a motion for new trial. While the motion was pending,
defendant sent the trial court a handwritten letter asserting that trial counsel had been ineffective
for several reasons. At a subsequent court appearance, the court asked defendant what he believed
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his counsel did wrong. After making multiple allegations, including one about his counsel’s law
license being suspended, defendant claimed that counsel failed to visit him in jail despite his
requests and failed to respond to phone communications from him, his girlfriend and Kimbrough,
though defendant did not explain how this affected his case. The court asked counsel about the
allegations, and counsel responded that “[t]here was a problem with communicating over the
phone,” though counsel did not pinpoint why there was a problem. Counsel, however, was adamant
that he met with defendant “[p]robably 20 times,” including 5 times specifically in anticipation of
defendant testifying at trial. Defendant disagreed and asserted that counsel only met with him
twice, including only one time to prepare for trial. Defendant contended that his jail visitor logs
would buttress his claim. The court agreed, and in order to resolve the conflicting assertions about
how frequently counsel visited defendant in jail, it instructed counsel to obtain defendant’s jail
visitor logs. During this appearance, the court found multiple claims of defendant’s meritless or
pertaining to trial strategy.
¶ 17 At the following court appearance, trial counsel indicated that he had not subpoenaed the
visitor logs, but rather called someone at the jail about obtaining the logs and that person had not
responded. The court gave trial counsel additional time to obtain the logs, but noted that it would
draw “a negative inference” if counsel failed to subpoena them. On the date of the next court
appearance, trial counsel filed a motion for leave to withdraw due to “irreconcilable differences.”
Counsel included an affidavit in his motion indicating that, based on his records, he visited
defendant 12 times to discuss “strategy, discovery, and testimony,” the majority of which were in
“the lock up area behind the courtroom.” The court granted counsel’s motion and appointed the
public defender’s office to represent defendant until he decided if he was going to retain new,
private counsel. At the subsequent court appearance, private counsel appeared, resulting in the
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court granting the public defender’s office leave to withdraw. The court provided a summary of
the posttrial proceedings in the case with new counsel present. The court noted that defendant had
made allegations of ineffective assistance of trial counsel and trial counsel had withdrawn from
the case. The court continued the matter to give new counsel time to become acquainted with the
case. During another court appearance, new counsel indicated to the court that she needed
additional time to review the materials and to have a meeting with defendant in order to prepare
an additional motion for new trial.
¶ 18 Defendant, through his new counsel, filed an addendum to his initial motion for new trial
and raised a claim of ineffective assistance of trial counsel due to the suspension of trial counsel’s
law license. During the hearing on the addendum, in which a second private counsel appeared on
defendant’s behalf, the trial court reviewed the proceedings and observed that it previously held a
hearing on defendant’s claims of ineffective assistance of trial counsel. His new counsel informed
the court that defendant had an opportunity to review the addendum and the initial motion for new
trial. The court asked him if the motions “fully encompass[ed] the issues” he “wish[ed] to raise?”
Defendant replied affirmatively. New counsel, though, added that, based on a recent meeting with
defendant, they wanted to raise additional claims related to trial counsel’s decisions to stipulate to
various evidence. The court told counsel to incorporate all posttrial claims into a single motion.
¶ 19 Eventually, defendant, through new counsel, filed a supplemental motion for new trial that
incorporated trial counsel’s initial motion for new trial and raised multiple claims of ineffective
assistance of trial counsel, though none related to trial counsel’s lack of communication and
visitation with defendant. Defendant did claim that counsel was ineffective due to his law license
being suspended and by agreeing to stipulate to various evidence, including to the testimony of
R.B. Following a hearing, the trial court denied defendant’s supplemental motion for new trial.
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The court subsequently sentenced defendant to 4 consecutive terms of 7 years’ imprisonment for
a total of 28 years’ imprisonment. This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 A. Ineffective Assistance of Trial Counsel
¶ 22 Defendant first contends that his trial counsel provided ineffective assistance where
counsel called Kimbrough, his mother, to testify despite her testimony being affirmatively
damaging and counsel failed to properly impeach R.B. with her prior inconsistent statements.
¶ 23 The United States and Illinois Constitutions guarantee a defendant the right to the effective
assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. When evaluating
claims of ineffective assistance of counsel, the defendant must satisfy the two-part test established
in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Gayden, 2020 IL 123505, ¶ 27.
Under the test, the defendant must establish that his counsel’s performance was deficient and the
deficient performance prejudiced him. Strickland, 466 U.S. at 687. More specifically, the
defendant must demonstrate that his counsel’s performance fell below an objective standard of
reasonableness, and there is a reasonable probability that, but for counsel’s unreasonable
performance, the result of the proceeding would have been different. Gayden, 2020 IL 123505, ¶
27. To prevail on a claim of ineffective assistance of counsel, the defendant must prove both prongs
of the Strickland test. Id. We review whether the defendant received ineffective assistance of
counsel de novo. People v. Johnson, 2021 IL 126291, ¶ 52.
¶ 24 1. Testimony of Kimbrough
¶ 25 Defendant first argues that trial counsel performed deficiently by calling Kimbrough, his
mother, to testify because her testimony affirmatively damaged the defense. Defendant highlights
that, when discussing Kimbrough’s forthcoming testimony with the trial court, trial counsel
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indicated that she would be able to identify R.B. as someone she had seen in her house. However,
during Kimbrough’s testimony, when asked by trial counsel if she recognized a photograph of
R.B., Kimbrough testified that she “look[ed] kind of familiar.” Additionally, defendant highlights
that trial counsel elicited testimony from Kimbrough that her house had security cameras, which
recorded people coming and going. Defendant notes that this testimony was used by the State
while cross-examining him, where he agreed that the footage from those security cameras would
have shown R.B. coming and going from the house on June 9, 2018, as well as the previous
instances of them meeting. Defendant points out that, despite his testimony, trial counsel failed to
produce any videos of R.B. coming and going from the house.
¶ 26 Under the deficiency prong of Strickland, the “defendant must show that his counsel’s
performance was so inadequate that counsel was not functioning as the counsel guaranteed by the
sixth amendment.” (Internal quotation marks omitted.) People v. Dupree, 2018 IL 122307, ¶ 44.
A defendant is not guaranteed perfect counsel, but rather only competent counsel. People v. Easley,
192 Ill. 2d 307, 344 (2000). As a result, mistakes in judgment or trial strategy do not mean counsel
performed deficiently. People v. Palmer, 162 Ill. 2d 465, 476 (1994). The decisions about what
witnesses to call and what evidence to present are matters of trial strategy. People v. Munson, 206
Ill. 2d 104, 139 (2002). When reviewing counsel’s actions, we must review his “performance from
his perspective at the time, rather than through the lens of hindsight.” People v. Perry, 224 Ill. 2d
312, 344 (2007). And thus, the defendant “must overcome the strong presumption that any
challenged action or inaction may have been the product of sound trial strategy,” which “is a high
bar to clear since matters of trial strategy are generally immune from claims of ineffective
assistance of counsel.” Dupree, 2018 IL 122307, ¶ 44.
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¶ 27 Trial counsel’s decision to call Kimbrough as a witness did not demonstrate deficient
representation because her testimony did not affirmatively damage the defense. Rather, her
testimony supported the defense that defendant was a womanizer, had consensual sex with R.B.
and she falsely accused him of sexual assault because he was in a relationship with another woman.
As defendant highlights, based on proceedings outside the presence of the jury, trial counsel
informed the trial court that Kimbrough would positively identify R.B. as a woman she had seen
in her house before. However, during a sidebar while Kimbrough was testifying, counsel indicated
he was actually unsure if Kimbrough would be able to identify R.B. Ultimately, during
Kimbrough’s testimony, counsel gave her a photograph of R.B. and asked her if she recognized
the woman in the photograph. Kimbrough responded that R.B. “look[ed] kind of familiar” but
added that she did not “really” look at the women defendant brought home. Better practice would
have been to know definitely whether Kimbrough could have identified R.B. But Kimbrough still
ended up answering that R.B. looked familiar, which helped the defense by providing an inference
that she recognized R.B. because R.B. had been in his Kimbrough’s house previously. Thus,
Kimbrough’s testimony about R.B. still advanced the defense and buttressed defendant’s claim
that he and R.B. engaged in consensual sex. Indeed, had counsel known that Kimbrough would
only testify that R.B. looked familiar, it would have been reasonable to present that testimony
given the nature of the defense. While counsel should have known definitely if Kimbrough could
identify R.B. before asking her the question at trial, counsel performed reasonably given that
Kimbrough’s testimony was still helpful to the defense. See People v. Fuller, 205 Ill. 2d 308, 331
(2002) (asserting that, because “[a] defendant is entitled to reasonable, not perfect, representation”
from counsel, “mistakes in strategy or in judgment do not, of themselves, render the representation
incompetent”).
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¶ 28 Concerning trial counsel’s elicitation from Kimbrough that she had security cameras
outside her house pointed at the front and back doors, this evidence also did not affirmatively
damage the defense. While counsel did not provide any video evidence of R.B coming and going
from the house of defendant’s mother, this lack of evidence was offset by the fact that the security
cameras helped explain why Kimbrough had seen “a lot of women” at her house with defendant,
buttressing the defense’s claim that defendant was a womanizer, had consensual sex with R.B. and
she falsely accused him of sexual assault because he was in a relationship with another woman.
Given the consent defense and because the decision on what witnesses to present is a matter of
trial strategy generally immune from ineffective assistance of counsel claims (see Dupree, 2018
IL 122307, ¶ 44; Munson, 206 Ill. 2d at 139), trial counsel’s decision to present Kimbrough as a
witness was not unreasonable.
¶ 29 Nevertheless, defendant likens trial counsel’s decision to call Kimbrough as a witness to
the decisions of trial counsels in People v. Baines, 399 Ill. App. 3d 881 (2010), People v. Bailey,
374 Ill. App. 3d 608 (2007), People v. Moore, 356 Ill. App. 3d 117 (2005) and People v. Valentine,
299 Ill. App. 3d 1 (1998), in which this court found ineffective assistance of trial counsels. In
Baines, 399 Ill. App. 3d at 888-99, trial counsel committed several egregious errors in rendering
ineffective assistance, including repeatedly asking questions of the defendant that helped the
State’s case, being mistaken about the circumstances of the victim’s identification, failing to ask
obvious follow-up questions and demonstrating a lack of understanding of the basic facts of the
case. In Bailey, 374 Ill. App. 3d at 614-15, where the defendant had been charged with possession
of a controlled substance with intent to deliver and the State did not present evidence of “the factors
usually associated with an intent to deliver, i.e., the amount of the drugs, paraphernalia, or
packaging,” trial counsel elicited key evidence on cross-examination of a police officer that the
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State did not elicit on direct examination, which linked the defendant to a man on the corner of a
street yelling “ ‘rocks’ ” at passing cars.
¶ 30 In Moore, 356 Ill. App. 3d at 119, 123, where the defendant had been charged with
burglary, the State presented no evidence about the recovery of the camera bag the defendant
allegedly stole from a vehicle. However, on cross-examination of two of the State’s witnesses, trial
counsel elicited inadmissible hearsay from them that two people near the scene of the alleged
crime, who did not testify at trial, told them they saw the defendant drop the camera bag during a
struggle and someone associated with the defendant took the bag. Id. at 123. “Without that
explanation for the missing camera bag, the facts supported the argument that [the State’s
witnesses], who identified [the] defendant as having burglarized [a vehicle], were mistaken
because [the] defendant was neither in possession of the camera bag when he was arrested, nor
was the camera bag found anywhere in the area.” Id. Lastly, in Valentine, 299 Ill. App. 3d at 2-3,
where the defendant had been charged with aggravated battery and unlawful restraint but argued
at trial he was defending himself, trial counsel’s line of questioning of the defendant gave the jury
the impression that he was a nonviolent person. Due to this misleading insinuation and under the
doctrine of completeness, the trial court allowed the State to impeach the defendant with evidence
that he had been arrested for battery multiple times. Id. at 3.
¶ 31 In the instant case, in contrast with Baines, Bailey, Moore and Valentine, trial counsel’s
actions in presenting Kimbrough did not affirmatively damage the defense. Rather, as discussed,
her testimony supported the defense that defendant was a womanizer, had consensual sex with
R.B. and she falsely accused him of sexual assault because he was in a relationship with another
woman. Thus, Baines, Bailey, Moore and Valentine are inapposite. Because trial counsel’s
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decision to call Kimbrough as a witness was not objectively unreasonable, counsel did not provide
ineffective assistance of counsel for that decision. See Gayden, 2020 IL 123505, ¶ 27.
¶ 32 2. Impeachment of R.B.
¶ 33 Defendant next argues that trial counsel performed deficiently during counsel’s attempt to
impeach R.B. First, defendant posits that counsel failed to confront R.B. with her prior inconsistent
statements during cross-examination. Second, defendant asserts that counsel demonstrated his lack
of knowledge of impeachment when attempting to use the electronically recorded interview of
R.B. And third, defendant claims that counsel diminished the effect of R.B.’s impeachment by
entering the impeaching evidence through a stipulation rather than live testimony.
¶ 34 Although defendant disputes the aptness of trial counsel’s actions regarding the
impeachment of R.B., there is no dispute that the impeachment concerned minor inconsistencies
between what she testified to at trial and what she told Detective Walker and an assistant State’s
Attorney during the electronically recorded interview. At trial, R.B. testified that defendant told
her to give him everything, and she responded that she did not have anything. R.B. further testified
that defendant told her to give him her iPhone, which she did. However, during her electronically
recorded interview, as stipulated at trial, R.B. stated that defendant told her to give him her iPhone
and she said no. Additionally, at trial, R.B. testified that, after parking in the alley, defendant told
her to pull her pants down, and she complied. However, during her electronically recorded
interview, as stipulated at trial, R.B. stated that defendant told her to take her pants off multiple
times but she refused, and he told her to unbutton her pants, but she also refused.
¶ 35 These minor inconsistencies are collateral and understandable given the traumatic
experience R.B. endured. See People v. Brooks, 187 Ill. 2d 91, 133 (1999) (observing that minor
variations in witness testimony can be expected when the testimony relates to “traumatic
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circumstances”). None of the inconsistencies concern material aspects of the case, and they do not
detract from the reasonableness of R.B.’s story as a whole. See People v. Garcia, 2012 IL App
(1st) 103590, ¶ 84 (observing that minor inconsistencies in a victim’s testimony that do not detract
from the victim’s overall story do not materially impugn the victim’s credibility). This is especially
true where, as in this case, there is corroborating evidence that defendant sexually assaulted and
kidnaped R.B., such as her immediate reporting of the attack to a witness, police and medical
professionals, and her emotional distress when recounting the attack. See In re C.K.M., 135 Ill.
App. 3d 145, 150 (1985) (corroboration of sexual assault included the victim’s “emotional distress
evidenced by her crying”); People v. Bivens, 101 Ill. App. 3d 8, 11 (1981) (asserting that
inconsistencies in a sexual assault victim’s testimony were minor in light of her “immediate report
of the rape to [a] bus driver and police”). Thus, assuming arguendo that trial counsel had been
deficient for failing to properly impeach R.B. with her prior inconsistent statements, a reasonable
probability does not exist that defendant would have been found not guilty given the impeachment
evidence concerned only minor inconsistencies and did not detract from the reasonableness of
R.B.’s story as a whole. See Gayden, 2020 IL 123505, ¶ 27.
¶ 36 Nonetheless, defendant relies on multiple cases—People v. Williams, 329 Ill. App. 3d 846(2002), People v. Mejia, 247 Ill. App. 3d 55 (1993), People v. Skinner, 220 Ill. App. 3d 479 (1991)
and People v. Garza, 180 Ill. App. 3d 263 (1989)—to argue that his trial counsel was ineffective
for failing to properly impeach R.B. In Williams, 329 Ill. App. 3d at 854-57 and Garza, 180 Ill.
App. 3d at 267-70, this court found the evidence in both cases extremely close such that the errors
by trial counsel in cross-examining witnesses and stipulating to evidence, among others, made the
proceedings against the defendant unreliable. In Mejia, 247 Ill. App. 3d at 55-58, the defendant
had been charged with reckless homicide for allegedly killing two occupants of the vehicle he was
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driving that had crashed. During trial, trial counsel stipulated to the testimony of two police major
accident specialists and another officer who spoke to the officers who had been following the
vehicle before it crashed, which casted doubt about the defendant being the driver of the vehicle
and in fact, placed him in the backseat of the vehicle at the time of the crash. Id. at 60-61. This
court found the stipulated evidence “to be completely impeaching, or so much so that there is a
reasonable probability that a different verdict may have been rendered.” Id. at 66. Unlike in
Williams, Garza and Mejia, the alleged error by trial counsel in this case related to impeaching
R.B. based on minor inconsistencies in her testimony, which did not detract from the
reasonableness of her story as a whole, and thus, did not prejudice defendant.
¶ 37 Lastly, in Skinner, 220 Ill. App. 3d at 483-87, trial counsel committed multiple errors that
cumulatively resulted in prejudice to the defendant. In the instant case, in contrast to Skinner,
because trial counsel did not act deficiently in calling Kimbrough as a witness, there is no potential
cumulative effect issue. As such, defendant’s reliance on Williams, Mejia, Skinner and Garza is
unpersuasive. Because defendant was not prejudiced by trial counsel’s allegedly deficient
performance in impeaching R.B., counsel did not provide ineffective assistance based on the
impeachment of her. See Gayden, 2020 IL 123505, ¶ 27.
¶ 38 Defendant further argues in the alternative that posttrial counsel was ineffective for failing
to include claims about trial counsel’s ineffectiveness for improperly impeaching R.B. and calling
Kimbrough as a witness in his supplemental motion for new trial. However, where we have found
that trial counsel was not deficient for calling Kimbrough as a witness and there was no prejudice
for counsel’s alleged errors related to the impeachment of R.B., posttrial counsel cannot be deemed
ineffective for failing to include those claims in defendant’s supplemental motion for new trial, as
raising them would have been futile. See People v. Boston, 2018 IL App (1st) 140369, ¶ 144.
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¶ 39 B. Krankel
¶ 40 Defendant next contends that the trial court erred by failing to hold an adequate preliminary
inquiry under Krankel, 102 Ill. 2d 181, to examine the basis of his claims that trial counsel provided
ineffective assistance by only visiting him in jail twice and communicating with him poorly.
¶ 41 In Krankel and its progeny, our supreme court provided a framework for addressing pro se
posttrial claims of ineffective assistance of counsel. People v. Roddis, 2020 IL 124352, ¶ 34. After
a defendant raises such claims, the trial court does not automatically appoint the defendant new
counsel. Id. ¶ 35. Instead, the court must initially examine the factual basis underlying the claims.
Id. In this initial inquiry, “some interchange between the trial court and trial counsel regarding the
facts and circumstances surrounding the allegedly ineffective representation is permissible and
usually necessary in assessing what further action, if any, is warranted on a defendant’s claim.”
People v. Moore, 207 Ill. 2d 68, 78 (2003). The court may also discuss the allegations with the
defendant, and it may base its assessment of the claims using its knowledge of trial counsel’s
performance. People v. Jolly, 2014 IL 117142, ¶ 30. “This procedure serves the narrow purpose
of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s
pro se posttrial ineffective assistance claims [citation] and is intended to promote consideration of
pro se ineffective assistance claims in the trial court and to limit issues on appeal.” (Internal
quotation marks omitted.) People v. Jackson, 2020 IL 124112, ¶ 95.
¶ 42 If the trial court concludes that the defendant’s claims lack merit—either factually or
legally—or relate only to issues of trial strategy, then it does not need to appoint new counsel and
can deny the pro se claims. Roddis, 2020 IL 124352, ¶¶ 35, 50, 61. But if the allegations
demonstrate potential neglect by trial counsel, the court should appoint the defendant new counsel
(id. ¶ 35), who then can represent the defendant at a hearing on his pro se claims of ineffective
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assistance of trial counsel. Jackson, 2020 IL 124112, ¶ 97. “The appointed counsel can
independently evaluate the pro se claim[s] and avoid the conflict of interest that defendant’s trial
counsel would experience in trying to justify his or her actions contrary to the defendant’s
position.” Id. New counsel has an obligation to present the claims that have merit to the trial court.
People v. Downs, 2017 IL App (2d) 121156-C, ¶ 49. Whether the trial court properly conducted a
preliminary inquiry under Krankel is a question of law, which we review de novo. Jackson, 2020
IL 124112, ¶ 98.
¶ 43 After defendant sent his pro se letter to the trial court raising claims of ineffective
assistance of trial counsel, the trial court conducted a preliminary inquiry into these claims, where
defendant raised additional claims that counsel only visited him twice in jail and generally
communicated with him poorly via the phone. The court asked counsel about the claims, and he
responded that he visited with defendant approximately 20 times, including five times specifically
in anticipation of defendant testifying at trial. Defendant maintained that the assertion was not true.
Counsel also acknowledged an issue regarding phone communication, though could not pinpoint
why there was a problem.
¶ 44 By asking trial counsel to respond to defendant’s claims and following-up with further
questions about the claims as well as allowing defendant to offer additional commentary on the
issues, the court conducted a substantial examination into the underlying factual nature of the
claims. “The purpose of the preliminary inquiry is to ascertain the underlying factual basis for the
ineffective assistance claim and to afford a defendant an opportunity to explain and support his
claim.” People v. Ayres, 2017 IL 120071, ¶ 24. In fact, to fully explore defendant’s visitation claim,
the court ordered trial counsel to subpoena jail visitation records. We acknowledge that the court
never ultimately rejected this claim or the phone communication claim as meritless. But when trial
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counsel withdrew and defendant retained new private counsel, new counsel filed the addendum to
defendant’s motion for new trial, which included a claim of ineffective assistance of trial counsel.
After filing the addendum, new counsel informed the court that defendant had an opportunity to
review the document and his initial motion for new trial. The court asked defendant whether those
motions “fully encompass[ed] the issues” he “wish[ed] to raise,” and defendant responded
affirmatively. Perhaps, based on defendant’s response, the court believed that he had abandoned
his pending pro se visitation and communication claims of ineffective assistance of counsel, and
thus, obviating the need to explicitly reject them. However, even if the court’s failure to explicitly
reject these claims as meritless was an error, that error was cured by defendant’s retention of new
counsel under the specific circumstances of this case.
¶ 45 During new counsel’s first court appearance, the trial court provided a summary of the
posttrial proceedings in the case and noted that defendant had made allegations of ineffective
assistance of trial counsel. While new counsel was in the process of becoming familiar with the
case, she requested a continuance for additional time to review the materials in the case and to
have a meeting with defendant in preparation for a motion for new trial. Counsel ultimately
presented a supplemental motion for new trial on defendant’s behalf that included multiple claims
of ineffective assistance of trial counsel, meaning new counsel reviewed trial counsel’s actions.
And defendant ultimately received the best-case scenario following the preliminary inquiry under
Krankel, which was new counsel to independently investigate his pro se claims and determine if
any of them had merit and warranted further presentation to the court. See Moore, 207 Ill. 2d at
78. The fact that new counsel did not include defendant’s pro se claims related to the
communication and visitation issues are an indication the claims were meritless. See Downs, 2017
IL App (2d) 121156-C, ¶ 49 (post-Krankel counsel has an obligation to present to the trial court
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any pro se claims that have merit). For instance, new counsel could have determined that, based
on trial counsel’s affidavit filed in conjunction with his motion for leave to withdraw where he
averred to visiting defendant 12 times, it would have been futile to raise such a claim, especially
where defendant never presented any argument about how additional communication would have
led to the jury finding him not guilty. See People v. Valladares, 2013 IL App (1st) 112010, ¶ 64
(where the record showed communication between the defendant and his trial counsel, and the
defendant did “not explain[] how additional pretrial communication with [trial counsel] would
have altered the outcome of his case,” the defendant did not receive ineffective assistance of
counsel); People v. Johnson, 372 Ill. App. 3d 772, 777 (2007) (rejecting a defendant’s claim of
ineffective assistance of counsel for “his trial attorney allegedly never visit[ing] him in jail to
discuss and prepare his case” where the defendant did not “allege[] that his attorney never
discussed his case with him and did not demonstrate how personal visits at the jail would have
been outcome determinative”). It is telling that, on appeal, defendant has not raised any contention
that trial counsel was ineffective for failing to communicate with him or visit him in jail more than
twice, or that posttrial counsel was ineffective for failing to pursue those claims of ineffective
assistance of trial counsel in the supplemental motion for new trial.
¶ 46 Buttressing this notion, as discussed, defendant indicated to the trial court that he had an
opportunity to review new counsel’s addendum to his motion for new trial and further that the
addendum and initial motion fully encompassed the issues that he wished to raise after trial.
Although new counsel filed a supplemental motion for new trial on defendant’s behalf, which
added additional claims of ineffective assistance of trial counsel, the record demonstrates that
defendant effectively abandoned the communication and visitation claims of ineffective assistance
of trial counsel. Consequently, given the circumstances of new counsel’s representation of
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defendant and his own actions, any error by the trial court with respect to the preliminary Krankel
inquiry was harmless. See People v. Palomera, 2022 IL App (2d) 200631, ¶¶ 63-64 (finding the
trial court’s failure to conduct a proper preliminary Krankel inquiry was harmless error).
¶ 47 This case is unlike the situation that occurred in People v. Roberson, 2021 IL App (3d)
190212, ¶ 20, which defendant relies upon, where the withdrawal of the defendant’s trial counsel
and subsequent appointment of new counsel did not moot the defendant’s Krankel claim of error.
There, the defendant raised several pro se posttrial claims of ineffective assistance of trial counsel.
Id. ¶¶ 5, 9. Thereafter, trial counsel withdrew, and the trial court appointed defendant new counsel,
who merely filed a motion to reconsider the defendant’s sentence. Id. ¶¶ 10-11. During posttrial
proceedings, the court never examined the factual basis underlying any of the defendant’s pro se
claims. Id. ¶¶ 5-11. On appeal, the defendant claimed that the court failed to conduct a preliminary
Krankel inquiry. Id. ¶ 13. We agreed because the court never asked the defendant or trial counsel
any questions about his specific claims of ineffective assistance of trial counsel. Id. ¶¶ 18-19.
¶ 48 The State, however, argued that trial counsel’s withdrawal and the subsequent appointment
of new counsel mooted the defendant’s Krankel claim of error. Id. ¶ 20. We rejected this argument
observing that the purpose of the appointment of new counsel following a preliminary Krankel
inquiry was “specifically to investigate and pursue defendant’s claims of ineffectiveness, as
original counsel would have a clear conflict of interest in doing so.” Id. We added that “the purpose
of the Krankel procedure is not to provide a defendant with effective counsel going forward but to
ensure that he received effective assistance previously.” Id. This court noted that the defendant’s
new counsel was not appointed to investigate his pro se claims of ineffective assistance of trial
counsel either implicitly or explicitly, and “[n]ew counsel plainly did not pursue any
ineffectiveness claims in his motion to reconsider sentence, the only motion he filed while
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representing [the] defendant.” Id. ¶ 21. “As the appointment of new counsel did not result in any
further litigation of defendant’s ineffectiveness claims, it cannot be said that that appointment
satisfied the requirements of Krankel and its progeny.” Id.¶ 49 In the instant case, unlike in Roberson, the trial court conducted a significant factual inquiry
into defendant’s communication and visitation claims, and new counsel was aware defendant had
alleged claims of ineffective assistance of trial counsel. What’s more, new counsel held a meeting
with defendant to discuss posttrial matters, and new counsel filed a supplemental motion for new
trial raising claims of ineffective assistance of counsel. Moreover, defendant effectively abandoned
the communication and visitation claims by telling the court that new counsel’s addendum to his
initial motion for new trial contained all the issues he wished to raise posttrial. Therefore, the
circumstances here and the actions of new counsel differ vastly from what occurred in Roberson.
¶ 50 III. CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 52 Affirmed.
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