People v. Graham ( 2023 )

2023 IL App (5th) 190219-UNOTICE
NOTICE
Decision filed 06/06/23. The
This order was filed under
text of this decision may be NO. 5-19-0219
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Peti ion for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 17-CF-289
)
RAHSAAN D. GRAHAM JR., ) Honorable
) Ralph R. Bloodworth III,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE McHANEY delivered the judgment of the court.
Presiding Justice Boie and Justice Moore concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in admitting other crimes evidence where
its probative value outweighed its prejudicial effect; no abuse of discretion in
denying defendant’s motion to continue where there was no prejudice to defendant;
evidence supported finding of severe bodily injury; no ineffective assistance found
where defendant did not rebut presumption that defense counsel engaged in trial
strategy.
¶2 The defendant, Rahsaan D. Graham, was charged by information with aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2016)) and unlawful use of weapons by a
felon (id. § 24-1.1(a)). Following a jury trial, the defendant was found guilty and subsequently
sentenced to a term of imprisonment of 13 years with a period of 2 years of mandatory supervised
release for count I, and a term of imprisonment of 5 years for count II, to be served consecutively
to count I, with a period of 1-year mandatory supervised release. Trial counsel for the defendant
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filed a motion for a new trial, which was denied. The defendant obtained new posttrial counsel
who filed an amended motion for a new trial and a motion to reconsider the sentence, both of
which were denied. The defendant appeals from the judgment and sentence imposed. For the
following reasons, we affirm.
¶3 I. Background
¶4 The defendant’s jury trial was scheduled to begin on November 6, 2017. On November 2,
2017, the trial court granted the State’s motion to continue due to late discovery being provided
by the Carbondale Police Department. On March 5, 2018, the State filed a second motion to
continue the jury trial because they were still attempting to locate a witness. That motion was
granted over the defendant’s objection.
¶5 On June 19, 2018, two days before the scheduled jury trial, the State filed a motion in limine
wherein it sought to introduce evidence of other crimes or bad acts committed by the defendant
directed at Victoria Wilson, who was the State’s main witness. In this motion, the State maintained
that the other crimes or bad acts included attempts by the defendant to intimidate and influence
witness Wilson during the weeks leading up to trial on five different occasions, between May 28,
2018, and June 17, 2018. Specifically, the State sought to admit the following testimony from
Wilson: that on May 28, 2018, while the defendant was a passenger in a car that drove by her, she
observed the defendant “clack” two guns together while looking at her through his open car
window; that on the morning of June 16, 2018, the defendant contacted her through a fake
Facebook account offering to pay her $5000 not to testify against him; that on the night of June
16, 2018, she observed on multiple occasions the defendant, a passenger in a car, form a gun with
his hands while driving by in a silver Mustang and looking at her as she stood outside of a bar; and
that on the same night, as she was backing out of her parking spot attempting to leave a bar, the
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defendant fired a weapon in her direction. In its motion, the State asserted that the evidence of
other crimes or bad acts was not being sought to establish the defendant’s propensity to commit
crime but rather to establish a continuing narrative of the offenses charged and the defendant’s
consciousness of guilt. The State further asserted that the probative value of the evidence far
outweighed any prejudice.
¶6 At the pretrial hearing on June 20, 2018, the State acknowledged that the events that formed
the basis of the motion in limine had resulted in another pending case against the defendant and
were “a developing set of circumstances and a developing situation” that occurred just days before
the trial was to start. The State committed to continue to update the defendant if new evidence
were to come to light.
¶7 The defendant objected to the motion in limine, arguing in general that the new evidence
was unfairly prejudicial in relation to any probative value it may have. The defendant specifically
objected to the first allegation in the State’s motion in limine which was based on a threatening
gesture made by the defendant on May 28, 2018, almost a month prior to trial, but which had not
been disclosed to the defendant until one day prior to trial.
¶8 Acknowledging that the circumstances of the other crimes and bad acts evidence was a
developing situation, the trial court granted the State’s motion and allowed the evidence to be
presented at trial over the continuing objection of the defendant. The trial court found that the
danger of unfair prejudice did not outweigh the probative value of the evidence and stated that a
limiting jury instruction would be given as required.
¶9 The trial court next addressed the defendant’s motion to continue the jury trial which had
been filed on June 20, 2018. In support of the defendant’s motion, defense counsel asserted that
since the State had filed the motion to admit other crimes and bad acts the previous day, she needed
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additional time to determine if there were witnesses that could possibly discount the evidence that
the State was asking to admit at trial the following day. Defense counsel reasoned that since the
defendant was in custody on a different case, a speedy trial demand had not been filed so there
would be no problem continuing the trial to a later date.
¶ 10 In response, the State acknowledged that most of the defendant’s acts outlined in the
motion in limine had occurred the day before the defendant was due in court for his trial and that
they were “serious in nature.” The State reported that there was an ongoing investigation into the
matter. The State argued that most of the witnesses involved in the most recent events for which
the State was seeking to admit the prior bad acts/crimes were also witnesses in the case that was
set for trial. Although the State acknowledged that the other crimes or bad acts evidence contained
in their motion were still part of an ongoing investigation, it argued that the defendant’s own
actions the day before trial should not cause a delay in the trial. After hearing the arguments, the
trial court stated that it had “considered the situation, the circumstances of everything,” and denied
the defendant’s motion to continue. The jury trial started the following day.
¶ 11 At trial, Tinece Rattler testified that on June 10, 2017, at around 11 a.m. she was with her
brother, Montavious Burton, and her cousin, Victoria Wilson. The three of them drove to a gas
station in Wilson’s car to get some snacks. Wilson was driving, Burton was sitting in the passenger
seat, and Rattler was in the back seat. After arriving at the gas station, Burton saw the defendant,
and they began to argue. Rattler did not know what they argued about. At some point the argument
died down, and Rattler, Burton, and Wilson left the gas station to go back to Rattler’s
grandmother’s house. The defendant left the gas station in a red car at about the same time.
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¶ 12 After leaving the gas station, Rattler noticed that they were being followed by the defendant
and two other individuals, Jody Pullen and “Waco.” Rattler testified that at some point the red car
passed Wilson’s car and pulled into the driveway of a blue house.
¶ 13 As Wilson, Burton, and Rattler were approaching the blue house, there were two other
people outside in back of the house near some trees. The red car’s passenger door was open. Rattler
saw that the defendant was standing in the passenger door of the car, leaning across the hood.
Pullen was getting out of the car on the driver’s side. Rattler heard a horn honk and saw people
shooting. Although she did not know how many people were shooting, Rattler saw the defendant
and Pullen shooting at Wilson’s car.
¶ 14 When the shooting started, Rattler ducked down in the back seat and could no longer see
outside. The first bullet came through the back passenger’s window and glass shattered
everywhere, some of it hitting Rattler on the side of her face. Rattler recalled hearing
approximately eight shots. Wilson drove to the hospital because Burton had been shot. Rattler saw
blood on Burton’s forehead and a hole in his wrist with blood dripping down. Wilson was having
trouble driving the car because the tire was flat. Rattler jumped out of the car after they dropped
Burton off at the emergency room.
¶ 15 Wilson testified on the second day of trial that she had moved to Carbondale to attend
college because she had some family who lived there. On June 10, 2017, at approximately 11 a.m.
Wilson, Burton, and Rattler went to a convenience store. When they arrived, Wilson saw the
defendant enter the store. Wilson later learned that an incident had occurred between Burton and
the defendant the evening before Wilson arrived in Carbondale. Burton and the defendant got into
a verbal altercation at the store.
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¶ 16 After the conversation simmered down, the parties got into their separate cars and “pulled
off and everybody left.” The defendant was in the passenger seat in the car that Pullen was driving.
After leaving the convenience store parking lot, Wilson noticed Pullen’s car very close behind her
car. At some point, Pullen’s car speeded past Wilson’s car and pulled into the driveway of a blue
house. As they were approaching the blue house, Wilson heard the horn from Pullen’s car and saw
some people come out of the house. Wilson testified that she saw the defendant shooting at her
car, but she could not say for sure that Pullen was also shooting at them. After they drove away,
Wilson took Burton to the hospital and called the police. She later identified the defendant as the
shooter from a police photo lineup.
¶ 17 On cross-examination, when asked how she knew the defendant, Wilson testified that she
knew him from “around town.” Wilson testified that after she left the convenience store, the red
car in which the defendant was a passenger passed her car and pulled into the driveway of the blue
house. She testified that after she heard the shot, she heard the glass from the back window shatter
and turned around to check on her cousin as she was speeding away.
¶ 18 Prior to Wilson’s testimony of the other bad acts evidence that occurred in May and June
2018, the trial court gave the Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.14 modified
instruction to the jury over the continuing objection of defense counsel. The trial court informed
the jury that it was up to them to determine whether the defendant was involved in the offenses
testified to by Wilson, and if so, what weight to give to the evidence on the issues of identification,
intent, motive, consciousness of guilt, and continuing narrative of events.
¶ 19 Wilson testified that at approximately 3:30 p.m. on May 28, 2018, she was at her cousin’s
house when she saw the defendant’s car approach. The defendant was a passenger in his car with
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two other people when he proceeded to “clack” two guns together as they drove by Wilson with
his window down. Wilson took the defendant’s actions as a threat and made a report to the police.
¶ 20 On June 16, 2018, at approximately 9:53 a.m., Wilson was contacted through Facebook
Messenger from a new account by a person named “Sarah McIntosh.” The message read, “Want
to make 5K? Stay put is all you have to do.” Wilson did not recognize this person’s name, and
when she searched for “Sarah McIntosh” online, she could not find anything about her. Wilson
believed it was the defendant who had sent her the message. When Wilson asked “Sarah McIntosh”
what was meant by the statement, the response read, “The situation you know about on the east
side. I need you to not know about it no more. It’s 5K for you to forget and take vacation until
July.” On cross-examination, Wilson conceded that she did not know but rather suspected that it
was the defendant who was sending her the messages.
¶ 21 On the evening of June 16, 2018, Wilson went to a local bar with her cousin and her aunt.
While standing in a crowd outside of the bar, she noticed the defendant in the passenger seat of a
silver Mustang as it was driving by. The silver Mustang drove past Wilson multiple times. At one
point the silver Mustang stopped in front of the crowd where Wilson was standing. Wilson
testified, “When I noticed that [the defendant] seen me in the crowd, I backed up, you know, out
of his vision. And he proceeded to ride past me again. So I know he still seen me out there.” Wilson
saw the defendant make the form of a gun with his hands “countless times” while he was looking
at her, and she took the defendant’s actions as a threat.
¶ 22 Wilson, her cousin, and her aunt left the bar early in her aunt’s car after seeing the
defendant. Wilson decided to drive past the bar one more time when she saw the defendant and his
friends standing in the middle of the alley. As she was driving past them, the defendant’s friend
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Jermaine flashed Wilson his gun and she felt threatened. The silver Mustang the defendant had
been in earlier was backed into a parking spot in the Amtrak parking lot.
¶ 23 As Wilson was attempting to leave, she heard shots being fired. Wilson testified that she
had no doubt in her mind that the defendant was the one shooting. She stated that she had a clear
view of him and that the defendant was shooting towards her car. After pulling out of the Amtrak
parking lot, Wilson saw the silver Mustang pulling up on the right side of her car. She saw the
defendant, Nardo, and possibly Jermaine in the car. Wilson heard gunshots start again and started
driving fast. As she was fleeing, she was involved in a traffic accident as she ran through a red
light and was struck by another vehicle. Wilson saw the silver Mustang turn right at the
intersection. Wilson was interviewed by the police about the events that occurred that night at the
bar.
¶ 24 Officer Timothy Lomax testified at trial that on June 10, 2017, at approximately 11 to 11:15
a.m., several officers were dispatched to the house where shots had been fired into a vehicle.
Officer Lomax observed broken glass and possibly bullet fragments in the roadway, approximately
35 to 40 yards west of the driveway. Officer Lomax described the driveway as not very deep and
approximately two car lengths wide. He located five .40-caliber and one 9-millimeter shell casings
in the gravel driveway. Officer Lomax testified that police also searched the entire roadway and
intersection for evidence.
¶ 25 When Officer Lomax later examined Wilson’s vehicle at the police department, he
observed bullet strikes on the rear passenger’s side, along the rear tire well, and the trunk as well
as a bullet strike along the pillar between the front and back seat. The officer noted that the rear
passenger’s side window had been broken out. He also observed a bullet strike on the front of the
vehicle.
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¶ 26 At the request of defense counsel, the trial court read the limiting instruction to the jury
prior to Officer Zach Whitecotton’s testimony regarding the prior bad acts or other crimes
evidence. Officer Whitecotton testified that on Sunday, June 17, 2018, he was on duty, monitoring
the crowds behind the bars after closing. At approximately 2:17 a.m., Officer Whitecotton was
responding to reports of an altercation in the area when he heard four gunshots coming from the
area of the Amtrak station. When the officer responded to that area, he saw a large group of people
scattering, and he tried to ascertain where the gunshots were coming from. The officer determined
that the gunshots seemed to be coming from the area where a silver Mustang was backed into a
parking stall at the Amtrak station. As the officers enclosed the area, Officer Whitecotton observed
a male who was running display a handgun and fire two rounds directly to the east, which was the
area where the silver Mustang was backed in. As the officer was taking the shooter into custody,
he observed the silver Mustang leave the parking area very quickly and proceed north toward the
Amtrak lot. The officer was unable to identify the individuals in the Mustang. As the silver
Mustang exited the parking lot, the officer heard a second gunshot coming from the direction the
Mustang had traveled.
¶ 27 At trial the defendant testified that when they left the convenience store, a silver car
followed them to the house. The silver car pulled up by the curve. There were two or three other
people outside in the yard when he pulled up. When they pulled into the driveway, someone was
coming out of the house. By the time the defendant got out of Pullen’s car, he heard a shot go off
and he ducked. After he heard a couple more shots go off, they got back into Pullen’s car and left.
The defendant denied creating the Facebook profile for Sarah McIntosh and denied offering
Wilson money not to testify. At the close of the evidence, the jury returned guilty verdicts on both
charges.
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¶ 28 Following his conviction, the defendant obtained new posttrial counsel who filed an
amended motion for a new trial and for judgment of acquittal notwithstanding the verdict along
with a motion to reconsider the sentence. At the hearing, the defendant argued that consecutive
sentences were improper because the State failed to prove that Burton suffered severe bodily injury
where the only evidence produced was two photographs of Burton’s injuries and testimony from
Wilson and Rattler. In support of his argument, the defendant noted that neither Burton nor any
medical provider testified, so there was no evidence of the extent, nature, or effect of the injuries
to support a finding of severe bodily injury. Additionally, the defendant contended that although
Burton’s sister gave a brief description of his injuries in her testimony, she did not provide
sufficient detail other than to state that the injuries were not present before “the incident” and that
she observed blood dripping.
¶ 29 The State countered that mandatory consecutive sentences should be imposed pursuant to
section 5-8-4(d)(1) of the Unified Code of Corrections (730 ILCS 5/5-8-4(d)(1) (West 2016)),
because the defendant committed “severe bodily harm” against Burton as seen in the two
photographs, People’s Exhibits 30 and 31. Although Burton did not testify, Exhibit 30 showed
blood dripping from Burton’s forehead, while Exhibit 31 showed a bloody hole in his wrist.
¶ 30 After hearing arguments, the trial court found that consecutive sentences were mandatory
pursuant to the statute. The trial court based its findings on the fact that Burton was transported
directly to the hospital for treatment following the shooting and on the photographic evidence of
Burton’s wounds as seen in People’s Exhibits 30 and 31. In pronouncing sentence, the trial court
stated that it found “great bodily harm” had been caused to Burton. The State asked the trial court
if “severe bodily harm” was being found rather than “great bodily harm.” The trial court responded
that he “may have misspoke[n] and used the incorrect language” and then clarified that “it was
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sufficient to trigger mandatory consecutive sentencing in this situation.” The defendant’s motion
to reconsider the sentence was denied. The defendant filed a timely notice of appeal.
¶ 31 II. Analysis
¶ 32 A. Other Crimes Evidence
¶ 33 The defendant’s first claim of error is that the trial court abused its discretion and denied
him a fair trial when it granted the State’s motion in limine to admit other crimes or bad acts where
the probative value of the evidence was outweighed the prejudicial effect. The defendant also
contends that the State failed to sustain its burden to adequately associate the defendant with the
other bad acts or crimes alleged in the motion in limine where the only evidence was the unreliable
witness testimony from Victoria Wilson.
¶ 34 “The term ‘other-crimes evidence’ encompasses misconduct or criminal acts that occurred
either before or after the allegedly criminal conduct for which the defendant is standing trial.”
People v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005). A trial court’s ruling on the admissibility of
other crimes evidence is reviewed for an abuse of discretion. People v. Wilson, 214 Ill. 2d 127,
136 (2005). The decision on whether to admit or exclude evidence must be made by the trial court
responsible for evaluating the probative value of the evidence on a case-by-case basis, and a
reviewing court may not substitute its judgment for that of the trial court on matters within the trial
court’s discretion. People v. Illgen, 145 Ill. 2d 353, 370-71 (1991).
¶ 35 Generally, evidence of other crimes is not admissible to prove a defendant’s propensity to
commit a crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Lindgren, 79 Ill. 2d 129, 137
(1980). Other crimes evidence is admissible if it is relevant to show intent, knowledge, identity,
motive, absence of mistake, or modus operandi; or “if relevant to establish any material question
other than the propensity to commit a crime.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v.
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Thingvold, 145 Ill. 2d 441, 452 (1991). However, even where evidence of other crimes is
admissible for a permissible purpose, the evidence should be excluded “where the probative value
of that evidence is substantially outweighed by the prejudicial effect on defendant’s right to a fair
trial.” People v. Robinson, 167 Ill. 2d 53, 62-63 (1995).
¶ 36 Here, the other crimes evidence was testimony from Wilson that on five different occasions
prior to trial, the defendant attempted to bribe and intimidate her into not testifying against him.
The defendant’s argument on appeal is not that the other crimes evidence was not probative, but
rather that its probative value was outweighed by its prejudicial effect. We disagree. While
Wilson’s testimony was prejudicial, the probative value outweighed its prejudicial effect and,
therefore, was admissible to prove the defendant’s consciousness of guilt as to the earlier shooting
incident for which he was being tried. Evidence of an attempt to bribe a witness allows an inference
of guilty knowledge. People v. Perry, 21 Ill. App. 3d 18, 23 (1974). “Any attempted intimidation
of a witness in a criminal case is properly attributable to a consciousness of guilt and is thus
relevant.” People v. Jones, 82 Ill. App. 3d 386, 393 (1980).
¶ 37 The defendant next maintains that the State did not sustain its burden to adequately
associate the defendant with the other bad acts or crimes alleged in the motion in limine where the
only evidence was “unreliable witness testimony” from Victoria Wilson. “[B]efore introducing
evidence of other crimes, the State must meet the threshold requirement of showing that a crime
took place and the defendant either committed it or participated in its commission.” People v.
Barnes, 2013 IL App (1st) 112873, ¶ 50. While it is not necessary to prove beyond a reasonable
doubt that the defendant committed or participated in the crime, there must be more than a mere
suspicion regarding the defendant’s involvement. Id.12
¶ 38 Here, the jury heard testimony from Wilson that she knew the defendant from “around
town” and identified him from a police photo lineup. Additionally, she testified regarding the
defendant’s actions in the weeks leading up to the trial, which testimony was offered as support
for other crimes evidence. The jury also heard the defendant deny offering Wilson money not to
testify. “The jury, as the triers of fact, have the responsibility to determine which of the conflicting
testimony of the witnesses is to be believed.” People v. Oestringer, 24 Ill. App. 3d 185, 187 (1974).
¶ 39 Moreover, the jury was instructed by the trial court that it was up to them to determine
whether the defendant was involved in the acts testified to by Wilson, and if so, what weight to
give to the evidence on the issues of identification, intent, motive, consciousness of guilt, and
continuing narrative of events. “When the trial court admits other-crimes evidence for a non-
propensity purpose, it should instruct the jury to consider the evidence only for that purpose.”
(Emphasis in original.) People v. Potts, 2021 IL App (1st) 161219, ¶ 175. The appropriate limiting
instruction, which was given by the trial court at the end of the trial, is set forth in Illinois Pattern
Jury Instructions, Criminal, No. 3.14. Id. ¶¶ 175-76. The limiting instruction given by the trial
court substantially reduced the prejudicial impact, if any, which may have resulted by virtue of the
admittance of such evidence. “A jury is presumed to follow a trial court’s jury instructions.” People
v. Tapley, 2020 IL App (2d) 190137, ¶ 81. Accordingly, we find that the trial court did not abuse
its discretion in allowing the other crimes evidence to be admitted.
¶ 40 B. Motion to Continue
¶ 41 The defendant next argues that the trial court abused its discretion when it denied the
defendant’s motion to continue the jury trial after granting the State’s motion in limine, which
prevented him sufficient time to investigate and respond to the alleged other crimes evidence.
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¶ 42 There is no absolute right to a continuance. People v. Davenport, 133 Ill. App. 3d 553, 556
(1985). “[T]he granting or denial of a continuance is a matter resting in the sound discretion of the
trial court, and a reviewing court will not interfere with that decision unless there has been a clear
abuse of that discretion.” People v. Chapman, 194 Ill. 2d 186, 241 (2000). “A conviction will not
be reversed by a reviewing court because of the denial of a continuance, unless the denial resulted
in prejudice to the defendant.” People v. Johnson, 220 Ill. App. 3d 550, 559 (1991). The burden to
establish prejudice is on the defendant. Id.¶ 43 In support of his argument on appeal, the defendant relies on People v. Walker, 232 Ill. 2d
113 (2009). In Walker, defense counsel, admitting she was unprepared to try the defendant’s
double-murder case because she had inadvertently miscalendared the defendant’s trial date,
requested a continuance to allow her time to prepare for trial. Id. at 126. In response to her request
for a continuance, the trial court, without further discussion, ruled: “ ‘[T]his has been set. I am
sorry. We will pass this case for trial [today].’ ” Id. at 126-27. When defense counsel once again
stated that she was not ready for trial, the trial court informed her that it was “ ‘irrelevant’ ” and
allowed no further explanation. Id. at 127. The trial court later remarked to defense counsel that
her request for a continuance was “ ‘a dirty shame’ ” and suggested that it was merely a delay
tactic. Id. at 128. On appeal, the Walker court delineated factors that a trial court may consider in
determining whether to grant a motion to continue filed by a defendant in a criminal case, and then
held that the trial court had abused its discretion in denying the defendant’s motion to continue the
trial where the record was “devoid of evidence showing that the circuit court considered any of the
relevant factors in denying the continuance.” Id. at 126.
¶ 44 Contrary to the defendant’s argument, there is no mandate that a trial court must consider
the factors listed in Walker in determining whether to grant or deny a motion to continue. Indeed,
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there is no mechanical test to determine the point at which the denial of a defendant’s motion to
continue in the interest of advancing the judicial proceedings violates the defendant’s substantive
right to properly defend himself. People v. Lott, 66 Ill. 2d 290, 297 (1977). “The circumstances of
each case must be weighed, particularly the reasons presented to the trial judge at the time the
request is denied.” Id.¶ 45 Here, there is nothing in the record to suggest that defense counsel was not prepared for
trial. Rather, the defendant requested additional time to investigate and respond to the allegations
in the State’s motion in limine. We cannot say under these circumstances that the trial court abused
its discretion in denying the defendant’s motion to continue the jury trial. Trial courts are cautioned
not to allow the admittance of other crimes evidence to lead to a mini-trial on the collateral offense.
People v. Nunley, 271 Ill. App. 3d 427, 432 (1995) (courts should carefully limit details to what is
necessary to illuminate issue for which other crime was introduced).
¶ 46 Moreover, Wilson was the only witness to provide other crimes evidence in the form of
her testimony. 1 Defense counsel had the opportunity to cross-examine Wilson and, in fact, was
successful in getting Wilson to concede that, contrary to her trial testimony, she did not actually
know whether it was the defendant who was sending her messages over social media. Additionally,
the defendant rebutted Wilson’s testimony regarding at least some portions of the other crimes
evidence. We find that the defendant has failed to establish prejudice that resulted due to the trial
court’s denial of his motion to continue.
1
Although Officer Whitecotton testified regarding a separate shooting that occurred on Sunday,
June 17, 2018, at no time did he provide evidence of other crimes committed by the defendant.
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¶ 47 C. Consecutive Sentences
¶ 48 Next, the defendant argues that consecutive sentences were improperly imposed as the
evidence did not support a finding of severe bodily injury. The defendant further argues that the
trial court confused “great bodily injury” with “severe bodily injury” and failed to make a specific
finding of severe bodily injury. We disagree.
¶ 49 Where a defendant has been convicted of a Class X felony and has been found to have
inflicted “severe bodily injury” during the commission of that felony, consecutive sentencing is
mandated. 730 ILCS 5/5-8-4(d)(1) (West 2016). The determination by a trial court that a particular
injury is “severe” for purposes of consecutive sentencing is a question of fact and may be reversed
only if it is against the manifest weight of the evidence. People v. Deleon, 227 Ill. 2d 322, 332
(2008). Under the manifest weight standard, deference is given to the trial court as the finder of
fact because the trial court is in the best position to observe the conduct and demeanor of the parties
and witnesses. Id. “A reviewing court will not substitute its judgment for that of the trial court
regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to
be drawn.” Id. “A finding is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the
evidence presented.” Id.¶ 50 The defendant correctly notes that not all gunshot wounds rise to the level of severe bodily
injury: a “nick or cut” on the arm, caused by a gunshot, which required no medical attention
(People v. Durham, 312 Ill. App. 3d 413 (2000)); a “grazed” right cheek, caused by a gunshot,
which did not require medical treatment beyond the application of a Band-Aid (People v. Jones,
323 Ill. App. 3d 451 (2001)); a fractured big toe, caused by a gunshot, when the victim was released
after 2½ hours of treatment (People v. Murray, 312 Ill. App. 3d 685 (2000)).
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¶ 51 Here, there is sufficient evidence in the record to support the trial court’s finding of “severe
bodily injury.” Photographic evidence graphically displayed a bullet hole in the victim’s wrist
which was obviously more “serious” than a nick, cut, graze to the skin, or a broken toe. With
respect to People’s Exhibits 30 and 31, a picture is truly worth a thousand words. Although the
defendant contends there was no testimony or medical records regarding the victim’s wounds and
subsequent treatment, he fails to cite any authority to support the proposition that such evidence is
required before the trial court can make a finding of “severe bodily injury.” Based upon the totality
of the record, we cannot say that an opposite conclusion was clearly evident or that the trial court’s
finding was unreasonable, arbitrary, or not based on the evidence presented.
¶ 52 Additionally, the defendant argues that the consecutive sentences were also improper
because the trial court confused “great bodily harm” with “severe bodily injury.” The defendant
correctly notes that the trial court must make a specific finding of severe bodily injury to support
a consecutive sentence. Here, the trial court acknowledged that it initially misspoke when it stated
that “great bodily harm” had been found. The trial court then clarified that the harm found was
“sufficient to trigger mandatory consecutive sentencing in this situation.” Accordingly, we find
that the trial court did, in fact, make a specific finding of severe bodily injury.
¶ 53 D. Ineffective Assistance of Counsel
¶ 54 Finally, the defendant argues that he was denied effective assistance of counsel when
counsel failed to call Montavious Burton as a witness and failed to impeach the testimony of
witness Victoria Wilson.
¶ 55 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. Veach, 2017 IL 120649,
¶ 29. To prevail on a claim of ineffective assistance of counsel, “a defendant must show that
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counsel’s performance was (1) deficient and (2) prejudicial.” People v. Westfall, 2018 IL App (4th)
150997, ¶ 61. “Failure to satisfy either prong negates a claim of ineffective assistance of counsel.”
People v. Hibbler, 2019 IL App (4th) 160897, ¶ 88. “[T]o establish deficient performance, the
defendant must overcome the strong presumption that the challenged action or inaction may have
been the product of sound trial strategy.” (Internal quotation marks omitted.) People v. Manning,
241 Ill. 2d 319, 327 (2011). “Generally, the decision whether or not to cross-examine or impeach
a witness is a matter of trial strategy which will not support a claim of ineffective assistance of
counsel.” People v. Pecoraro, 175 Ill. 2d 294, 326 (1997). “Defendant can only prevail on an
ineffectiveness claim by showing that counsel’s approach to cross-examination was objectively
unreasonable.” Id. at 327. “[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 (1995).
¶ 56 With respect to the defendant’s claim that trial counsel was ineffective for failure to call
Montavious Burton as a witness, the defendant failed to develop an argument on this point and has
therefore forfeited this argument under Illinois Supreme Court Rule 341(h)(7), (i) (eff. Nov. 1,
2017) (“Points not argued are forfeited ***.”).
¶ 57 The defendant’s next assertion of ineffectiveness is that trial counsel did not impeach the
testimony of Wilson either with her alleged inconsistent statements made to an investigating
officer, or by use of surveillance video from a neighboring business that would have shown the
defendant’s vehicle leaving the convenience store parking lot first, contrary to Wilson’s testimony
of being chased from the parking lot. The defendant submits that had trial counsel used the
surveillance video to show that Wilson’s testimony was not credible, there is a reasonable
probability that the outcome may have been different. The defendant reasons that the guilty verdict
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hinged on the testimony and credibility of Wilson and, therefore, trial counsel’s failure to introduce
the surveillance video severely prejudiced him.
¶ 58 Regarding Wilson’s alleged inconsistent statements, the defendant points out that in her
interview with the police on June 18, 2018, she reported that she, her aunt, and her cousin were
sitting in back of a big group when she saw the car in which the defendant was a passenger drive
by. Wilson stated that when the car drove past, she saw the defendant, but he did not see her at
first. Wilson told the police that at some point the defendant saw her in the crowd that evening. At
trial, Wilson testified that she saw the defendant in the passenger seat of the silver Mustang as it
drove past her multiple times that night and that when she noticed the defendant look at her in the
crowd, she backed up out of his vision. We do not find these statements to be inconsistent.
¶ 59 Assuming, arguendo, that there were minor discrepancies in Wilson’s testimony regarding
the exact moment that the defendant saw her outside of the bar on the night in question, it is not
unreasonable to find that trial counsel, in the exercise of her professional judgment, concluded that
whatever benefit might have been derived from impeaching Wilson’s testimony on this issue
would not be worth the inherent harm caused by allowing the jury to hear Wilson once again
describe the defendant’s threatening behavior that night. To the extent that inconsistent testimony
existed, we find no ineffective assistance of counsel where the defendant failed to rebut the
presumption that trial counsel engaged in trial strategy.
¶ 60 Regarding trial counsel’s failure to use the surveillance video to show the jury which
vehicle left the convenience store parking lot first, there could be no impeachment where Wilson
never testified at trial as to which car left first. Rather, her trial testimony was that the parties
“pulled off” in separate cars, and at some point after leaving the convenience store, she noticed
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Pullen’s car behind her. Accordingly, we cannot find that trial counsel’s failure to cross-examine
Wilson on this issue was objectively unreasonable.
¶ 61 III. Conclusion
¶ 62 For the reasons set forth above, we affirm the trial court’s judgment and the imposition of
consecutive sentences.
¶ 63 Affirmed.
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