People v. Bell ( 2021 )

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Appellate Court Date: 2022.06.16
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People v. Bell, 2021 IL App (1st) 190366Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALONZO BELL, Defendant-Appellant.
District & No. First District, Third Division
No. 1-19-0366
Filed March 31, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 15-CR-12809; the
Review Hon. Ursula Walowski, Judge, presiding.
Judgment Affirmed.
Counsel on Richard Dvorak and Loren Jones, of Dvorak Law Offices, LLC, of
Appeal Willowbrook, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Daniel Piwowarczyk, and Megan K. Mulay, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Howse and Justice Ellis concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Alonzo Bell, and codefendant, Deandre Brown, who is not a party to this
appeal, were charged by indictment with two counts of attempted first degree murder and two
counts of aggravated battery with a firearm of the victims, Laquita Weatherspoon and
Leemanuel Burrell. Defendant and codefendant were tried jointly by a jury, who, after hearing
the evidence, returned verdicts of guilty on all counts. Defendant was thereafter sentenced to
26 years’ imprisonment on each of the two attempted first degree murder convictions, which
were to be served consecutively.
¶2 In this direct appeal from that judgment, defendant argues that the trial court abused its
discretion in admitting certain social media evidence at trial, that he was denied his
Constitutional right to the effective assistance of trial counsel, and that his sentence violates
the proportionate penalties clause of the Illinois Constitution.
¶3 At trial, Weatherspoon testified that on December 17, 2014, she was 19 years old and had
plans to go to dinner downtown with her boyfriend, Burrell. Burrell drove a white Mitsubishi,
while Weatherspoon sat in the passenger seat. At approximately 8:30 p.m., while on their way
to dinner, Weatherspoon and Burrell stopped at Burrell’s aunt’s house, which was located at
51st and Ada Streets. Burrell parallel parked, and then began looking for his phone, while
Weatherspoon looked at her phone.
¶4 Weatherspoon then noticed a car driving slowly down Ada Street, stopping near the front
of the Mitsubishi. Weatherspoon also saw a second car pull up behind the first. She heard
Burrell say, “What?” and then saw two men standing next to her window holding guns.
Weatherspoon testified that both men had their right arms extended out from their bodies with
guns in their right hands pointed at Weatherspoon and Burrell. Weatherspoon heard the first
shot, then attempted to crawl for cover into the Mitsubishi’s backseat. Weatherspoon estimated
that she heard approximately 30 gunshots. When the shooting stopped, Weatherspoon looked
up and saw that the gunmen, and both cars, were gone. Weatherspoon looked at Burrell and
saw that he had been shot in the head and arm.
¶5 Although she was not initially aware of her injuries, Weatherspoon was shot twice in her
lower body, suffering injuries where each bullet entered and exited her body. Weatherspoon
was able to exit the vehicle and, at that point, realized that she had been shot. Weatherspoon
obtained aid from a neighbor, Desire Brown, and Brown’s 15-year-old son, N.L. Brown. N.L.
brought Weatherspoon into their home, where they called 911 and comforted her until an
ambulance arrived. Weatherspoon and Burrell were both taken to Stroger hospital.
¶6 Weatherspoon testified that she remained in the hospital for three days, and, after leaving,
she needed two to three months of physical therapy to help her learn how to walk again. When
she returned to work, she had to limit her shifts to eight hours and had to sit down to rest
because she could no longer stand for long periods of time. Weatherspoon also testified that
she suffered “four to five miscarriages ever since [the shooting] happened.”
¶7 Weatherspoon testified that the gunmen were “4 to 5 feet” from her when she observed
them. Weatherspoon further testified that the area of the shooting was illuminated by
streetlights and that both the Mitsubishi and the second car that pulled up behind the first had
their headlights on. The first gunman that she looked at was the one standing closest to her.
She described him as average height, with short hair and a light complexion, and he was
holding a two-toned black and silver handgun with a “long clip.” Weatherspoon identified
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defendant as this gunman in open court. Weatherspoon described the second gunman standing
with defendant as tall, with long dreadlocks and a dark complexion. Weatherspoon identified
codefendant as the second gunman, also in open court.
¶8 Weatherspoon testified that, while she was recovering in the hospital, she began receiving
“get well soon” and “pray[er]” messages on her social media accounts. Weatherspoon then
testified regarding three Twitter posts that she saw and took screenshots of in the days
following the attack and that she later provided to the police to identify her attackers. Those
three posts, and an additional post that was ultimately excluded, were the subject of a pretrial
motion in limine by the State requesting that they be admitted. The four posts included two
tweets comprised of text and emojis; a photograph of defendant, codefendant, and a third
individual, with defendant holding a firearm; and a photograph of defendant individually,
holding two firearms.
¶9 At the pretrial hearing on the State’s motion, the State argued that the posts were relevant
because (1) they allowed Weatherspoon to identify defendant and codefendant as her attackers
and identify the firearm she believed was used in the attack, (2) they “corroborat[ed]”
defendant and codefendant’s “connection to each other,” and (3) they were “circumstantial
evidence of [their] involvement.” The State argued, in sum, that the screenshots were
“extremely probative” and that “any prejudice *** is not substantial enough to outweigh” their
probative value.
¶ 10 The defense objected to the posts’ introduction, arguing that they were more prejudicial
than probative. The defense argued that there was no evidence regarding how the messages
were sent or who sent them and that there was no “nexus to the defendants.” Counsel also
objected, based on the “best evidence rule,” arguing that the defense did not have the
opportunity to verify “anything with that telephone” or the “Twitter accounts.”
¶ 11 The trial court “considered the arguments,” concluding that three of the posts were
admissible because Weatherspoon
“identified the two defendants *** in this case through a photograph that she got
through Twitter and that’s how an identification was made, that is the biggest
connection you could have to these defendants so I would find that it would be relevant
for that reason. And how she got to that picture are those two prior tweets so she could
certainly testify to the foundation and to those.”
¶ 12 The court further reasoned that “any argument regarding who sent the tweets exactly would
go to the weight not the admissibility.” The fourth post—the photograph of defendant holding
two guns—was excluded by the court, which noted that the gun Weatherspoon identified as
being used in the attack was also displayed in the other photograph.
¶ 13 During Weatherspoon’s trial testimony, she stated that, while still in the hospital, she
received a request to follow her on Twitter from an account whose profile picture was a
photograph of codefendant, whom she recognized as the second gunman. Weatherspoon
testified that she clicked on the request and saw a recent tweet from the account that caught
her attention because it referenced her nickname, “Quitta.” The text of the tweet was “#NoNo
yu Wnt RichGang or Quitta me,” followed by several emojis including two thumbs down,
“100,” a painful face, a laughing face, a face with a surgical mask, a person running, and a gun
aimed at that person. Weatherspoon agreed that the message was “not written in your normal
English like you see in a book or magazine” but stated that she understood the message to
mean that the sender was “laughing at the incident” and saying, “You [won’t] catch me how
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we caught her.” Weatherspoon took a screenshot of the tweet and saved it on her personal cell
phone. Weatherspoon identified a physical copy of the screenshot, which was admitted into
evidence and published.
¶ 14 Weatherspoon further testified that while looking at the Twitter account, she noticed a “re-
tweet” of another message originating from a different account. Weatherspoon recognized the
person depicted in the profile picture associated with that account as the first gunman. The text
of the message read, “You ain’t dead yet….. [devil emoji] but you can be boi [100 emoji].”
Weatherspoon took a screenshot of this message as well, which she identified in court as a true
and accurate depiction of the message. Weatherspoon testified that she understood this second
message to mean that the sender “found out that we w[ere]n’t dead,” but “he is still going to
try.”
¶ 15 Weatherspoon testified that she then saw a third tweet, which contained a photograph of
defendant and codefendant standing next to each other, with defendant holding a two-toned
black and silver handgun with an extended clip. Weatherspoon recognized defendant and
codefendant as her two attackers and recognized the gun as the one that was used by defendant
during the shooting. Like with the previous two posts, Weatherspoon took a screenshot and
saved the post to her phone. Weatherspoon identified a physical copy of that screenshot as a
true and accurate depiction of the post she observed.
¶ 16 Upon seeing the Twitter posts, Weatherspoon was “scared” and “felt like [she] was a
target.” She did not immediately inform the police about the posts.
¶ 17 Chicago Police Detective Terry Teahan testified that at approximately 10:45 p.m. on
December 17, 2014, he and his partner, Detective Behrend, were assigned to respond to a
shooting on the 5100 block of South Ada Street. They arrived at the scene shortly thereafter,
where they spoke with responding officers, walked the scene with Evidence Technician
Blaczerak, and canvassed the area for witnesses. Detective Teahan observed numerous shell
casings, fired bullets, metal fragments from fired bullets, and a vehicle with blood stains and
broken glass. The crime scene was photographed, and 28 fired cartridge casings were
recovered.
¶ 18 Approximately 20 to 30 minutes after arriving on the scene, Detective Teahan spoke with
N.L., who was 15 years old at the time, and his mother in their home on Ada. Detective Teahan
learned from N.L. that N.L. had heard several gunshots coming from the street and
immediately looked out the front room window. N.L. told Detective Teahan that he saw two
male subjects shooting handguns. N.L. described one gunman as black, male, and 19-to-21
years of age, with a faded hairstyle and wearing a gray hooded sweatshirt with black pants.
The other shooter was black, 19 to 20 years of age, with a dreadlock hairstyle, and wearing a
black jacket with blue jeans.
¶ 19 After the shooting, N.L. saw the first shooter enter a gray car that was parked in the middle
of the street. The second offender entered a black SUV that was parked in front of the gray car,
and both vehicles then fled northbound from the scene. N.L. did not tell Detective Teahan that
he had been smoking marijuana, and it did not appear to Detective Teahan that N.L. was “under
the influence of anything.”
¶ 20 On the evening of December 29, 2014, 12 days after the shooting, Weatherspoon went to
the Area Central 6 police station and provided detectives with the four Twitter posts. Detective
Teahan asked her to email the screenshots to his department email. He then printed them out
and inventoried them as evidence. Detective Teahan testified that, once he had obtained the
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screenshots in paper form, he did not take possession of Weatherspoon’s phone because the
phone itself did not have further evidentiary value.
¶ 21 A few hours after providing the police with the screenshots, Weatherspoon viewed two
separate lineups. Weatherspoon identified codefendant in one lineup, and defendant in the
other, as the shooters she observed on December 17, 2014.
¶ 22 Detective Teahan testified that he also placed a phone call to Burrell requesting that he
come to view the lineups. Burrell, however, was uncooperative and refused to assist in the
investigation.
¶ 23 The police then spoke to N.L. and his mother. N.L. agreed to view the two lineups, and
both he and his mother signed a lineup advisory form. N.L. viewed the lineups, and his mother
was not present in the room at that time. N.L. identified defendant as one of the people he saw
outside the victims’ vehicle, who fled from the scene of the shooting by getting into a waiting
car. N.L. was not able to make an identification when he viewed the lineup containing
codefendant. Detective Teahan further testified that N.L.’s mother was not asked to view the
lineups because she had not been a witness to the shooting.
¶ 24 At approximately 12:46 a.m. on December 30, 2014, N.L. provided a written statement to
an assistant state’s attorney (ASA). N.L. signed each page of the statement and initialed
corrections. Attached to the statement were two photographs—one of N.L., taken as he was
signing the statement, and the other of defendant, who N.L. confirmed was the person he saw
on the night of the shooting.
¶ 25 At the time of trial, N.L. was 17 years old and was in the custody of the Illinois Youth
Department of Corrections. N.L. had two juvenile adjudications, for residential burglary and
aggravated unlawful use of a weapon. At trial, N.L. generally claimed to not remember
“anything strange happen[ing]” on the night of the shooting because he had been “smokin’ ”
that night. N.L. denied seeing the shooters, helping the female victim, or speaking to detectives
on the night of the shooting. N.L. admitted that he was home that night but claimed that it was
his mother who saw the shooters, who helped the female victim, and who was questioned by
detectives after the shooting. N.L. also claimed that it was his mother, not N.L., who had given
the handwritten statement at the police station in the presence of an ASA. N.L. admitted that
he signed each page of the written statement but explained that he only did so because his
mother “told the police officers [he] said the same thing she did, so they just made [him] sign
off on it.”
¶ 26 N.L.’s written statement was admitted as substantive evidence and published to the jury.
In that statement, N.L. said that “on December 17, 2014, at approximately 8:50 p.m., he was
at home when he heard approximately 20 to 30 gunshots outside his home.” Upon hearing the
gunshots, N.L. “immediately” ran to the front window facing Ada Street. He saw two vehicles
stopped in the middle of the street directly in front of his home—a black Tahoe SUV and a
silver four-door car behind the SUV. N.L. saw two black men standing outside by these
vehicles. N.L. saw both men tucking objects into their pockets, but he could not see what these
objects were. N.L. stated that the streetlights were on, and “he was clearly able to see both
males.” N.L. identified defendant as one of the men in a lineup and described the other as a
“dark skinned male with dreads.” N.L. saw defendant get into the silver four-door car and saw
the man with dreadlocks get into the black SUV, before both vehicles drove off. N.L. also saw
a white car parked on Ada Street with a man and woman inside. The windows of the white car
were broken, and the woman “was saying that she had been shot.” N.L. called the police and
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helped the female, “who appeared to have been shot in the lower body.” The male victim was
bleeding from his head and arm. N.L. further stated that he was giving his statement freely and
voluntarily and that he was not under the influence of drugs or alcohol.
¶ 27 On the second day of testimony, the State informed the court that it had learned that the
defense intended to elicit testimony from one of the State’s witnesses—Officer Patrick
Fahey—concerning the recovery of a handgun during the arrest of defendant and codefendant.
Outside the presence of the jury, the State made a motion in limine to bar this testimony as
irrelevant. The State explained the evidence at issue:
“To put it in a little bit of context, there’s going to be testimony from the Arresting
Officer today, of the two Defendants, that happened 11 days after the incident here that
we’re on Trial for.
What happens in that case is, they see a vehicle with a bumper dragging on the
bottom of a car. They attempt to do a traffic stop. The car flees. Then the two
Defendants flee from inside the car and are placed into custody.
In the area of where the Defendants flee, in an alley, there is a gun found. Now,
there will be no testimony from any Officers that they saw that gun in the hands of
either of these Defendants.
The reason why that’s important is, what happened three minutes before that traffic
stop, is a murder, a currently CI [(Continuing Investigation)] murder, in which these
Defendants were initially placed under arrest, and released without charging for the
time being.
Now, the facts of that murder, as they may become relevant to this Motion, are that
there’s a vehicle parked on the other side of the park, from where our shooting takes
place.
There’s a vehicle parked on the other side of that park. Two vehicles pulled up, and
two people began shooting, and people are killed at that vehicle, and those two vehicles
then [flee]. One of those vehicles is a silver sedan.
That happens just before the Defendants *** are seen in this car that’s in that area,
and the traffic stop is effected.
Now, in regards to the evidence of that, I tender the scene supps to Counsel; and
they already knew about this case, anyway. There was no identifications made of these
two Defendants. There was GSR found in the car that they were in.
Now, the State didn’t seek to introduce all this stuff, because there was no ID of
these Defendants. They weren’t charged; and the case was a CI; and the fact that no
one saw them holding that gun, there was not enough of a nexus, the State believed, to
tie these Defendants to the gun.
And when the gun was sent out for ballistics testing, that gun matched shell casings
from the scene of the murder, but not shell casings to the scene of our crime here.
So, to put that all in context, the State *** wasn’t seeking to introduce that gun,
because there wasn’t a nexus to the Defendants, and because it wasn’t relevant to the
shell casings at the scene; and we were not going to introduce that evidence.”
¶ 28 In response, the defense explained to the trial court that it was seeking admission of the
evidence because the recovered handgun was relevant to their defense of misidentification.
The recovered firearm was black and silver, like the gun described by Weatherspoon and
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depicted in the Twitter posts, but it had been “ballistically proved not to be *** the attempt
murder weapon.” The trial court ruled that, “if your clients agree that you want that in, that
they get pulled over, they run, they get arrested, and Officers find a gun, and you want to make
a point that that gun wasn’t used in this shooting, I would allow that.” The trial court added,
“But I wouldn’t allow [the prosecution] to bring in anything about the other shooting or the—
you know, the other murder.” The trial court then addressed defendant and codefendant:
“THE COURT: Okay. Mr. Brown and Mr. Bell, you heard what Mr. Baliunas was
arguing here, correct?
CODEFENDANT: Yes.
DEFENDANT: Yes.
THE COURT: All right. You agree with that strategy, that that’s what you want to
do?
CODEFENDANT: Yeah.
DEFENDANT: Yeah.
THE COURT: Okay. Very Good.”
¶ 29 Thereafter, Chicago Police Officer Patrick Fahey testified that, on December 28, 2014, he
was working with two other officers. They all were all in plain clothes, with ballistics vests
and Chicago Police patches. At approximately 3:45 p.m., the officers were on patrol in an
unmarked squad car in the area of 57th and Sangamon Streets—a little over a mile from the
area of the shooting at 51st and Ada Streets—when they observed a gray four-door Chrysler
200 sedan with its rear bumper dragging on the road. The officers attempted to conduct a traffic
stop by activating their vehicle’s lights and sirens, but the gray car sped up and attempted to
drive away. The officers pursued for approximately one to two minutes, until the gray car
stopped at 5740 South Peoria and four occupants fled from the car on foot. Officer Fahey
identified defendant as the subject who fled from the driver’s seat of the vehicle and
codefendant as the subject who fled from the rear passenger seat.
¶ 30 Officer Fahey and his partners gave chase on foot. They lost sight of the subjects when
they entered a gangway, but less than a minute later, assisting units apprehended two of the
subjects—defendant and codefendant. Officer Fahey and the other officers searched the area
and located a two-toned black and silver Smith & Wesson .40-caliber handgun in a nearby
alley.
¶ 31 Forensic Scientist Brian Parr testified as an expert in firearms and toolmark identification.
Parr was employed by the Illinois State Police, Joliet Forensic Science Laboratory. Parr
testified that he received the 28 fired cartridge casings recovered from the scene of the shooting
and opined that two weapons were used during the shooting. Parr determined that 15 of the
fired cartridge casings were “Fiocchi 40 *** Smith & Wesson caliber” and were all fired from
a single firearm; the remaining 13 fired cartridge casings were “Federal .9 millimeter Luger”
and were all fired from a second firearm.
¶ 32 Parr also testified that he received and examined the handgun that was recovered at the
time of defendant’s arrest. Parr determined that the handgun had not discharged any of the
recovered cartridge casings.
¶ 33 The State rested, and both defendant and codefendant chose not to testify or present
evidence. The trial court questioned defendant and codefendant separately about their
decisions not to testify. Defendant and codefendant both affirmed their decisions, with
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defendant specifically indicating that he had discussed whether to testify with his attorney, that
he understood that the decision was his and his alone, and that he affirmatively “d[id]n’t want
to testify.”
¶ 34 After deliberations, the jury returned verdicts of guilty on all counts, convicting both
defendant and codefendant of two counts of attempted first degree murder and two counts of
aggravated battery with a firearm, additionally finding that they had both personally discharged
firearms in the course of the attempted first degree murder offenses.
¶ 35 Defendant retained new counsel to present a motion for a new trial, in which he alleged
that the trial court erred in admitting the Twitter posts and that trial counsel provided
ineffective assistance. Defendant’s claims of ineffective assistance included, among other
things, challenges to trial counsel’s (1) failure to move for a mistrial after codefendant’s
counsel commented during his opening statement that both defendant and codefendant would
not testify; (2) failure to impeach Weatherspoon with prior statements and prove up the
impeachment by calling witnesses to testify to those statements; (3) failure to object to
Weatherspoon’s testimony that she suffered miscarriages after the shooting; and (4) failure to
object to the admission of the three Twitter screenshots. Defendant also challenged counsel’s
decision to present evidence regarding the gun found during defendant’s arrest. Codefendant
also hired a new attorney, who likewise moved for a new trial and raised claims of ineffective
assistance of trial counsel.
¶ 36 The trial court held a joint hearing on the motions, at which defendant’s trial counsel—
Thomas Leinenweber—and codefendant’s trial counsel—Algis Baliunas—testified.
¶ 37 Leinenweber testified that he and Baliunas worked collectively to prepare a joint defense.
Leinenweber testified that defendant knew that he and Baliunas were working together and
that defendant and codefendant’s defenses were “intertwined.” Leinenweber further stated that
part of the defense strategy prior to trial was that defendant did not intend to testify. Defendant
never indicated to Leinenweber that he did not want him to discuss that strategy with
codefendant’s counsel.
¶ 38 Regarding not filing a motion for severance, Leinenweber testified that he did not believe
there was a legal basis to sever because neither defendant nor codefendant had made statements
to the police. Additionally, Leinenweber believed that it was in defendant’s best interests to
have the trials together because “two minds were better than one in the case.”
¶ 39 On cross-examination, defense counsel questioned Leinenweber about his failure to seek
severance based on the Twitter post allegedly made by codefendant. Leinenweber testified that
he did not believe the Twitter post was an “admission” by codefendant because, per the trial
court’s ruling, it was admitted to explain how Weatherspoon made her identifications, not as
“admissions of something that happened.”
¶ 40 As for Baliunas’s opening statement, forecasting for the jury that defendant and
codefendant would not testify, Leinenweber testified that it was accurate that defendant was
not planning to testify. When asked whether codefendant’s counsel’s statement “restricted
[Leinenweber’s] ability to defend the case in any way,” Leinenweber answered, “Absolutely
not.” Leinenweber explained that defendant had the right to change his mind about testifying
at any time and that the “strategy could always be changed depending on the circumstances.”
Leinenweber further testified that he continued to discuss with defendant whether he wanted
to testify and confirmed defendant’s decision prior to the defense’s opportunity to call
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witnesses. At that time, defendant told Leinenweber that he did not want to testify and did not
indicate that his decision was based on Baliunas’s opening statement.
¶ 41 When questioned about defendant’s allegations about Leinenweber’s failure to impeach
Weatherspoon or call potential impeachment witnesses, Leinenweber testified that he did not
want to “offend[ ] the jury” by “beat[ing] her up” to show that she had “somehow said
something slightly different.” Leinenweber explained that his strategy was to show that she
had “made a mistake” and was “mistaken in her quick view of” defendant. Leinenweber
believed that he “got that point across in terms of how quickly this happened, how scared she
was, what the lighting situation was, et cetera.” Overall, Leinenweber believed he “got what
[he] wanted from Ms. Weatherspoon and [he] still th[ought] that was the best cross-
examination.”
¶ 42 Regarding Weatherspoon’s testimony that she had suffered multiple miscarriages,
Leinenweber reiterated that Weatherspoon was a sympathetic witness and that his argument to
the jury was that she was a victim of a “terrible thing, *** it just wasn’t [defendant] [who] did
it.” Based on that strategy, there was “no reason to question her honesty” about the effects of
the shooting, “other than to enflame the jury” against his client and distract the jury from the
defense’s misidentification argument.
¶ 43 With regard to the decision to introduce evidence of the gun recovered at the time of
defendant’s arrest, Leinenweber testified that the evidence supported the defense of
misidentification because the two-toned black and silver gun was similar to the gun that
defendant was holding in the Twitter photo but did not match the cartridge casings at the scene
of the offense. Additionally, once it was determined that the Twitter photos were “coming in,”
Leinenweber concluded that introducing the evidence outweighed potential prejudice, because
“it was not going to be a surprise to the jury that [defendant and codefendant] handled guns
previously.” Leinenweber further stated that the evidence provided an alternative “explanation
for [the] gun he’s showing in the picture.” Leinenweber testified that he discussed the strategy
with defendant before the trial and defendant never indicated that he disagreed. Leinenweber
told defendant that it was “almost like ju-jitsu,” a way to “use something that appears to be
something bad for us and turn it into something good.”
¶ 44 Baliunas, codefendant’s trial counsel, testified, confirming that, prior to trial, he and
Leinenweber jointly discussed trial strategy for both defendant and codefendant. Baliunas
explained that the defense strategy was to hold the State to its burden of proof and that calling
impeachment witnesses to present “mediocre impeachment” evidence would have undermined
the strategy. Regarding the admission of the gun evidence, Baliunas believed the evidence
“would be interesting for the jury to consider” and “was something in [the defense’s] favor and
at that point of the trial [Baliunas] felt that we needed that. We needed something.”
¶ 45 After hearing arguments, the trial court denied defendant and codefendant’s motions for a
new trial. The court noted that this case “was an identification case. That was [the defense’s]
whole theory.” The court agreed that “maybe there w[ere] certain things that were not done
properly as far as proving up impeachment,” but that nothing rose to the level of ineffective
assistance. The court further commented that the impeachment “should have been better,” but
“impeachment is not properly done by many attorneys,” even by those “who’ve practiced for
20 years.”
¶ 46 The court specifically noted that the defense’s strategy “was sound, was reasonable.” The
defense attorneys “were focused, there was a theory, they went through on their theory, ***
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they were passionate, and *** when you look at the evidence, it was the right theory. It’s an
identification case.” Regarding the gun evidence, the court found that the defense “had a reason
for” bringing that evidence in, and “it wasn’t an unreasonable theory.” The court also pointed
out that it had questioned defendant and codefendant, and they both explicitly agreed with the
strategy.
¶ 47 Finally, as to the evidence of the Twitter posts, the court stated:
“I allowed the tweets because *** that’s how Miss Weatherspoon got to her
identification. I find that extremely relevant for a victim to testify when she makes an
identification before a lineup, that that’s clear to the jurors how that lineup, not only
how that lineup identification was made, but how this identification was made that led
to these defendants. And I find that the jury—and the defense argued it as well, had to
have a clear picture how she identified, she got this tweet, what it said, not for the truth
of what was being asserted, not that the defendant did it, but what it said and why it led
her to look at pictures and then she identified them. *** I find it completely relevant
and appropriate for the jury to know exactly how this woman who is a single witness
got to identifying the defendants. *** [I]t goes to her identification of defendant which
was a central issue in this case.”
¶ 48 At the subsequent sentencing hearing, the court noted that the relevant sentencing range
for each of the two attempted murder convictions was 6 to 30 years and that each conviction
required a 20-year enhancement based on the jury’s finding that each defendant had personally
discharged a firearm. The parties discussed that consecutive sentencing was triggered if the
court made a finding of “severe bodily injury.” The State argued that Weatherspoon’s multiple
gunshot wounds satisfied the requirement, while the defense asked the court to not make that
finding because there “was no medical testimony” or “particular description of the wounds.”
¶ 49 In aggravation, the State pointed out that defendant was on probation at the time of this
offense, and went through defendant’s criminal history, which included a juvenile adjudication
for delivery of a controlled substance and an adult narcotics case that was reduced for
defendant to receive probation. In mitigation, the defense pointed to six letters that were
submitted on defendant’s behalf, showing that he had “a strong family” and that he could “be
rehabilitated” and “turn himself around.” The defense also emphasized that defendant had been
20 years old at the time of the crime and argued that even the mandatory minimum of 52 years,
served at 85%, would “more or less” constitute a de facto life sentence. The defense asked the
court to find that the minimum sentence was unconstitutional based on defendant’s “youthful
age.” Defendant chose not to speak in allocution.
¶ 50 The court sentenced defendant to the mandatory minimum of 26 years in the Illinois
Department of Corrections (6 years for the Class X conviction plus 20 years for personally
discharging a firearm) on both counts of attempted first degree murder and found severe bodily
injury to Weatherspoon, triggering mandatory consecutive sentencing, for a total of 52 years’
imprisonment. The court acknowledged that the minimum was a “severe sentence” but
expressed its belief that the sentence was not “unconstitutional.”
¶ 51 Defendant filed a timely notice of appeal from that judgment and raises three general issues
in this appeal—that the court erred in admitting the Twitter posts, that his trial counsel provided
ineffective assistance, and that his 52-year sentence violated the proportionate penalty clause
of the Illinois Constitution. We will address each of defendant’s issues in turn.
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¶ 52 We first consider defendant’s challenge to the admission of the three Twitter posts.
Defendant contends that the court abused its discretion in admitting the posts, contending they
“lacked foundation and w[ere] unduly prejudicial.”
¶ 53 “The admission of evidence is within the sound discretion of a trial court, and a reviewing
court will not reverse the trial court absent a showing of an abuse of that discretion.” People v.
Becker, 239 Ill. 2d 215, 234 (2010). The threshold for finding an abuse of discretion is high. A
trial court will not be found to have abused its discretion with respect to an evidentiary ruling
unless it can be said that no reasonable person would take the view adopted by the court. In re
Leona W., 228 Ill. 2d 439, 460 (2008).
¶ 54 “In general, the consequential steps of an investigation are relevant to explaining the State’s
case to a jury.” People v. Thompson, 2014 IL App (5th) 120079, ¶ 46 (citing People v. Johnson,
116 Ill. 2d 13, 24 (1987)). “In particular, the State must be allowed to explain why a previously
unidentified defendant became a suspect.” Id. “Silence as to this point would leave open the
question of why, of all the people in the world, the police arrested defendant.” Id. “This would
invite speculation and baseless innuendo that the investigation lacked rigor.” Id.¶ 55 As explained above, the record shows that shortly after the shooting, while Weatherspoon
was still in the hospital, she received a request to follow her on Twitter from a previously
unknown account. Weatherspoon observed four specific posts, of which she took screen
shots—two posts comprised of text and emojis and two posts containing photographs.
Weatherspoon recognized defendant and codefendant in the photographs as her shooters and
also recognized the gun held by defendant in one of the photographs as “the gun that [she] was
shot with.”
¶ 56 In a pretrial motion in limine, the State argued that it should be allowed to introduce all
four Twitter posts into evidence because of their relevance to Weatherspoon’s identifications,
as “corroboration of these two defendants’ connection to each other,” and as “circumstantial
evidence of their involvement.” The defense pointed out that the State had not indicated that it
would call “anyone from *** Twitter” to connect the posts to defendant or codefendant, and
because there was no “nexus to” defendant or codefendant, “the prejudicial effect to the
defendants greatly outweighs any probative value.”
¶ 57 In this case, the trial court repeatedly stated that it was admitting the three Twitter posts
because they were relevant to Weatherspoon’s identification of defendant and codefendant.
The trial court agreed with the State that the post with the photograph was relevant and
admissible because Weatherspoon “identified the two defendants *** through [that]
photograph.” The court also admitted the two posts containing text and emojis because those
posts explained the circumstances of “how she got to that picture.” The court, however, barred
the screenshot of the fourth Twitter post, containing the photograph of defendant holding two
guns because the gun Weatherspoon identified was also contained in the other photograph.
¶ 58 Later, at the hearing on defendant’s motion for a new trial, the court further clarified that
its decision was to admit the Twitter posts on the issue of identification, but it was “not
allowing the State to go anywhere further *** as to who wrote them, how it was written or any
of that.” Defense counsel also testified to his understanding that the court admitted the
screenshots to explain how Weatherspoon made her identifications and not as “admissions of
something that happened.”
¶ 59 Defendant insists that the trial court’s ruling was an abuse of discretion because the
screenshots lacked proper “foundation” to establish the “identity of th[e] account.”
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Defendant’s argument ignores that the screenshots were admitted into evidence, not for the
truth of defendant and codefendant’s ownership of the accounts or their authorship of the posts
in question, but to show the circumstances of Weatherspoon’s identifications of them as the
shooters. For this purpose, her testimony that she took the screenshots at the relevant time and
that they fairly and accurately depicted the Twitter posts that she observed was sufficient
foundation for their admission. As the trial court stated,
“I find that the foundation was laid by Miss Weatherspoon for these tweets. They were
admitted because she’s the one that took screen shots of them. She’s the one that—it
wasn’t the [S]tate or the detective pulling up something on a tweet and then going to
her. It was [Weatherspoon] getting this evidence. She’s the one that said, yes, this is
what I did. And I found that that was appropriate, proper foundation. And that’s why I
let it in, because it goes to her identification of the defendants which was a central issue
in this case.”
¶ 60 We also note that Weatherspoon acknowledged during her testimony that she had “no idea
who sent those tweets” and “no independent knowledge of whose accounts they were” or “who
the phone numbers were registered to.” The defense was also able to use the evidence of the
Twitter posts to argue that Weatherspoon’s identifications were suspect because the Twitter
posts caused her to create “a memory in her mind,” arguing that she recognized defendant and
codefendant from the Twitter posts and not the actual shooting.
¶ 61 In this case, where the weight and believability of Weatherspoon’s identifications was the
central issue at trial, we find no abuse of discretion in the trial court’s admission of the three
Twitter posts for the purpose of explaining the circumstances of Weatherspoon’s
identifications.
¶ 62 We now turn to defendant’s claims of ineffective assistance. Pursuant to Strickland v.
Washington, 466 U.S. 668, 687 (1984), a defendant presenting a claim of ineffective assistance
of counsel must allege facts sufficient to prove both (1) that counsel’s performance fell below
an objective standard of reasonableness and (2) that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. See
People v. Colon, 225 Ill. 2d 125, 135 (2007). Because both prongs of the Strickland analysis
must be proven, if an ineffective-assistance claim fails under either prong, we need not
determine whether the claim also fails under the other. See People v. Graham, 206 Ill. 2d 465,
476 (2003).
¶ 63 The court gives a great amount of deference to counsel’s judgment and indulges a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. “A defendant is entitled to competent, not perfect,
representation, and mistakes in trial strategy or judgment will not, of themselves, render the
representation ineffective.” People v. Tucker, 2017 IL App (5th) 130576, ¶ 26. “The only
exception to this rule is when counsel’s chosen trial strategy is so unsound that ‘counsel
entirely fails to conduct any meaningful adversarial testing.’ ” People v. West, 187 Ill. 2d 418,
432-33 (1999) (quoting People v. Guest, 166 Ill. 2d 381, 394 (1995)). “A reviewing court
evaluates the reasonableness of counsel’s conduct from his [or her] perspective in light of the
totality of the circumstances in the case.” Tucker, 2017 IL App (5th) 130576, ¶ 54. Where, as
here, the court reaches a determination on the merits of a defendant’s ineffective assistance of
counsel claim, we will reverse that determination only if it was manifestly erroneous. People
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v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. “ ‘Manifest error’ is error that is clearly plain,
evident, and indisputable.” Id.¶ 64 In arguing that his trial counsel provided ineffective assistance, defendant challenges
several specific instances of counsel’s alleged failures. We first consider defendant’s claim
that counsel’s failure to seek a severance of his trial from that of codefendant amounted to
ineffective assistance.
¶ 65 A defense decision not to seek a severance is generally considered trial strategy. Id. ¶ 24.
Moreover, it is well established that “defendants jointly indicted are to be jointly tried unless
fairness to one of the defendants requires a separate trial to avoid prejudice.” People v. Gabriel,
398 Ill. App. 3d 332, 346 (2010).
¶ 66 “A defendant moving for severance must state how he would be prejudiced by a joint trial.”
People v. McCann, 348 Ill. App. 3d 328, 335 (2004). Our supreme court has recognized that
at least two types of prejudice can be readily identified. People v. Lee, 87 Ill. 2d 182, 187
(1981). First, a defendant may be denied his constitutional right of confrontation if, in a joint
trial, the State introduces the admission of a codefendant which implicates the defendant.
People v. Bean, 109 Ill. 2d 80, 93 (1985); Lee, 87 Ill. 2d at 187. The second is when the
codefendants’ defenses are so antagonistic to each other that one of the codefendants cannot
receive a fair trial jointly with the others. People v. Daugherty, 102 Ill. 2d 533, 542 (1984).
¶ 67 Here, defendant makes no claim that his defense was in any way antagonistic to that of
codefendant, and a review of the record would dispel any such notion. Both defendant and
codefendant put forth the theories that Weatherspoon misidentified them and that the State did
not prove their guilt beyond a reasonable doubt. In fact, counsel explicitly stated that he and
counsel for defendant worked together and that their defenses were “intertwined.”
¶ 68 Defendant instead alleges that the failure to seek a severance resulted in “the admission
into evidence of statements allegedly made by codefendant on Twitter being used against
defendant in the joint trial,” relying on Bruton v. United States, 391 U.S. 123 (1968). In Bruton,
a codefendant orally confessed that he and Bruton committed the offense of armed postal
robbery. At their joint trial, the codefendant’s confession was introduced into evidence. The
trial court instructed the jury that the confession, which implicated Bruton in the crime, could
only be considered as evidence against the codefendant and not Bruton. On appeal, the United
States Supreme Court held that “because of the substantial risk that the jury, despite
instructions to the contrary, looked to the incriminating extrajudicial statements in determining
[Bruton’s] guilt, admission of [the codefendant’s] confession in this joint trial violated
[Bruton’s] right of cross-examination secured by the Confrontation Clause of the Sixth
Amendment.” Id. at 126.
¶ 69 As we explained above, the Twitter posts in this case were admitted, not as statements
made by defendant or codefendant, but for their relevance to Weatherspoon’s identifications
of them. Accordingly, the Twitter posts cannot be reasonably construed as “admission[s] of
*** codefendant which implicate the defendant.” Moreover, given the purpose for which the
Twitter posts were admitted, the posts would have been equally admissible in a separate trial
of defendant to explain how Weatherspoon identified him. We also note that trial counsel
testified at the motion for a new trial regarding his belief that a joint trial was in defendant’s
best interests where counsel for both defendant and codefendant were able to work
collaboratively.
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¶ 70 Because defendant would not have been entitled to severance and because the record
reveals a strategic reason why a joint trial was in defendant’s best interests, defendant cannot
show that trial counsel was deficient in failing to file a motion to sever his trial from that of
codefendant. People v. Bock, 242 Ill. App. 3d 1056, 1080 (1993) (“[A]n attorney’s failure to
pursue a motion to sever cannot amount to ineffective assistance where, even if presented, the
motion would have been unsuccessful.”).
¶ 71 Defendant next contends that counsel provided ineffective assistance by failing to “object
and request a mistrial” after codefendant’s counsel “promised in his opening statement that the
Defendant would not testify, and that ‘the defense’ would not call any witnesses.” This claim
is based on codefendant’s counsel’s opening statement, which reads, in relevant part:
“[Defendant and codefendant] were pointed at by the prosecutors, ‘These are the
guys that did it.’ Well, our defense is they are not the guys that did this horrible crime.
The issue here is identification of the offenders. That’s the only issue that you will
have to deliberate on in this trial. ***
They have to prove these two defendants were the people that did that. Our defense
is they are not the people that committed this horrendous act. Period. And *** you have
also been instructed that these two young men are innocent until proven guilty. So
anything that was said to you by the prosecution has to be proved and it can only be
proved, only, from that witness stand—what you hear, see, and observe—from people
that tell you what they know and what happened. That’s it. Period. ***
Now, we indicated that the defendants may not testify, and you were instructed by
the court and you all agreed that you would not hold it against [codefendant] and
[defendant] if they fail to testify in this case. You promised, you made a solemn promise
and an oath that you would do that. I’ll tell you right now, they’re not testifying. They
don’t have to testify. Okay? So let’s get that out of the way.
The next thing: evidence. It is presented from that witness stand. Now how can it
be presented? In different ways. Number one, we will not call—the defense—one
witness. Zero. Period. None. Where will our evidence come from? Our evidence will
also come from the witness stand in this case. *** [W]e will bring out facts on cross-
examination that are favorable to our clients and negate any idea of guilt that these are
the two individuals that perpetrated the serious, nefarious act. Somebody else out there
did it, and that is our defense.
And I think when you hear the paucity of the State’s case, *** the [witnesses’]
ability to see and observe, *** at the end we will be asking for *** a not guilty verdict
in this case. Thank you very much.”
¶ 72 Defendant takes issue, in particular, with codefendant’s counsel’s statements: “I’ll tell you
right now, they’re not testifying,” and, “we will not call—the defense—one witness. Zero.
Period. None.” Defendant argues that such statements were “promise[s]” to the jury, that were
“premature” and “highly improper” because codefendant’s counsel was “essentially making
the decision [regarding whether] to testify for a defendant and doing so before any evidence
has been presented” and because calling witnesses may become necessary based on the
evidence presented. Defendant contends that, although it was not his own counsel who made
the remarks, his counsel “should have immediately objected to these remarks and moved for a
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mistrial.” Defendant further asserts that the comments reveal trial counsel’s unauthorized
disclosure of “privileged information.”
¶ 73 Decisions regarding “what to object to and when to object” are matters of trial strategy and
thus are entitled to great deference. People v. Pecoraro, 175 Ill. 2d 294, 327 (1997); Graham,
206 Ill. 2d at 478-79. “[S]ince an attorney’s performance is ineffective only if it falls below an
objective standard of reasonableness [citation], counsel cannot be deficient if he fails to object
to remarks which are not improper.” People v. Johnson, 218 Ill. 2d 125, 139 (2005) (citing
People v. Evans, 209 Ill. 2d 194, 220 (2004)).
¶ 74 We find no deficient performance in counsel’s failure to object and move for a mistrial
based on codefendant’s counsel’s comments. At the hearing on defendant’s motion for a new
trial, defendant’s counsel confirmed that, at the time codefendant’s counsel made the
statement, defendant did not intend to testify. In those circumstances, it was reasonable to
forecast for the jury the defense strategy and remind them of both the State’s burden to prove
his guilt and the defense’s concomitant right to not present any evidence, thereby ensuring that
the jury did not place any improper expectations on the defense. This strategy was consistent
with the defense theory of misidentification and the strategy of holding the prosecution to its
burden.
¶ 75 We also reject defendant’s argument that by “promising” that the defense would not present
evidence, counsel allowed a “straitjacket” to be put on his ability to represent defendant, lest
the jury be “put off by *** the defense not liv[ing] up to its promises.” As counsel testified,
the statement did not interfere with defendant’s ability to exercise his right to testify, nor did
it “restrict[ ]” counsel’s ability to defend the case in any way. Trial counsel’s testimony, as
well as the record of the court’s colloquy with defendant at the time he waived his right to
testify, established that defendant knew that the decision to testify was defendant’s and
defendant’s alone and that he affirmatively chose to waive that right because he “d[id]n’t want
to testify.” Moreover, had defendant ultimately changed his mind and decided to testify, or had
the defense ultimately decided to present evidence, then the defense would have exceeded the
jury’s expectations by presenting more than had been promised.
¶ 76 We also reject defendant’s claim that codefendant’s counsel’s statements indicate that his
counsel made an unauthorized disclosure of privileged information, specifically, defendant’s
decision regarding whether to testify. Counsel for defendant stated that he and codefendant’s
counsel worked collectively to prepare a joint defense and that defendant was aware that the
attorneys were working together to present an “intertwined” defense. Leinenweber also
testified that, prior to trial, defendant did not intend to testify and defendant never told counsel
that he wanted that information kept secret from codefendant’s counsel.
¶ 77 Having found no deficient performance, we need not reach defendant’s arguments that he
need not prove prejudice because counsel’s failure constituted “a complete abandonment of
his role as counsel” or, alternatively, that he was prejudiced by counsel’s failure to object and
move for a mistrial. Graham, 206 Ill. 2d at 476.
¶ 78 Defendant next claims that he “was denied his right to the effective assistance of counsel
because his trial attorney failed to impeach [Weatherspoon] and *** prove up impeachment.”
¶ 79 “Generally, the decision of whether or not to cross-examine or impeach a witness is a
matter of trial strategy, which cannot support a claim of ineffective assistance of counsel.”
People v. Franklin, 167 Ill. 2d 1, 22 (1995); Tolefree, 2011 IL App (1st) 100689, ¶ 34. “The
manner in which to cross-examine a particular witness involves the exercise of professional
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judgment which is entitled to substantial deference from a reviewing court.” Pecoraro, 175 Ill.
2d at 326-27. Defendant can only prevail on an ineffectiveness claim by showing that counsel’s
approach was objectively unreasonable. Id. at 327.
¶ 80 Defendant specifically points to Weatherspoon’s statements to ambulance personnel on the
night of the shooting, as well as interviews with responding officers and detectives at the
hospital, to claim that her “account of the events was riddled with inconsistencies.”
Specifically, defendant contends that Weatherspoon told ambulance personnel that the
shooters were 20 feet away, while at trial she testified that they were 4 or 5 feet away.
Defendant further contends that in statements made to responding officers and to detectives at
the hospital, Weatherspoon did not describe the shooters or describe them as specifically as
she did at trial. Additionally, defendant states that in two of her three prior statements,
Weatherspoon did not mention a second vehicle. Defendant contends that counsel should have
impeached Weatherspoon with the prior statements, proving them up if necessary, and that
doing so “would have devastated her testimony.”
¶ 81 A review of the record shows that trial counsel effectively handled Weatherspoon’s cross-
examination, eliciting various admissions from Weatherspoon that were intended to call into
question the reliability of her identifications. Specifically, counsel elicited that it was a “fairly
dark” night, that she was looking at her phone, that the shooting started “immediately,” that
she was scared, and that it was a “very chaotic and frightening event” that happened
“instantaneous[ly].” Counsel also got Weatherspoon to admit that she initially said that she did
not know how many shots were fired. Finally, counsel showed Weatherspoon a photo of the
scene showing a street light and elicited testimony that that the street light would have been
shining at the shooters’ backs at the time of the shooting.
¶ 82 When specifically questioned about not pursuing or proving up certain points of
impeachment, trial counsel explained his belief that “beating up” Weatherspoon on cross-
examination would have hurt his client’s case. He explained that any benefit from calling
paramedics or responding officers to testify that she had “said something slightly different”
would have been outweighed by those witnesses reminding the jury of the condition she was
in and the injuries she had at the time the statements were made. In sum, counsel stated that he
“got what [he] wanted from Ms. Weatherspoon and [he] still th[ought] that was the best cross-
examination.”
¶ 83 In these circumstances, we cannot say that counsel’s approach was objectively
unreasonable. See People v. Holman, 132 Ill. 2d 128, 163 (1989) (where proposed cross-
examination concerned a “minor incident” in the case, “[e]xtensive cross-examination
concerning, or objections to, the testimony could have called undue attention to the incident”
and could also have turned the jury’s sympathy against defendant if it appeared that counsel
was picking on [the victim], a woman who had been shot, and whose son had been killed, by
defendant”).
¶ 84 Defendant, however, essentially argues that counsel’s alleged “fail[ure] to properly follow
the rules of evidence in proving up impeachment,” was per se unreasonable, specifically
focusing on the trial court’s statement that counsel’s impeachment “should have been better.”
Defendant contends that the court improperly excused counsel’s clear deficiencies by
commenting that “impeachment is not properly done by many attorneys.”
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¶ 85 We initially note that the court’s comments on this point were in response to defense
counsel’s arguments that any “26-year-old third chair state’s attorney, or *** 26-year-old
second chair public defender” should know “correct trial practice.”
¶ 86 Nonetheless, we reiterate that defendant is entitled to competent, but not perfect,
representation. Tucker, 2017 IL App (5th) 130576, ¶ 26. Even if we could conclude that
counsel made errors in his cross-examination of Weatherspoon, “ ‘[m]istakes in trial strategy
or tactics or in judgment do not of themselves render the representation incompetent.’ ”
(Internal quotation marks omitted.) West, 187 Ill. 2d at 432 (quoting People v. Hillenbrand,
121 Ill. 2d 537, 548 (1988)). While, in hindsight, defendant may contend that certain questions
should have been asked or other tactics employed, we cannot say that counsel failed to conduct
any meaningful adversarial testing sufficient to rise to the level of ineffective assistance of
counsel.
¶ 87 Moreover, even if we were to find deficient performance based on counsel’s choice to not
impeach Weatherspoon regarding her prior descriptions, or lack thereof, of the shooters,
defendant suffered no prejudice from that choice. The record shows that during codefendant
counsel’s cross-examination of Weatherspoon, he elicited testimony that during her initial
interview, she “gave basically no description or no detailed description of the two people who
shot [her],” other than that one of the suspects had dark skin. Accordingly, much of the
testimony that defendant claims his counsel should have elicited, actually came into evidence
and was before the jury.
¶ 88 Next, defendant asserts that his counsel was ineffective for failing to object to
Weatherspoon’s testimony “that she had suffered four or five miscarriages as a result of the
shooting.” This testimony was elicited after Weatherspoon was asked if she had “any other
long lasting effects” from the shooting, and she responded, “I had four to five miscarriages
ever since that happened.” The answer was never elaborated upon or discussed during the rest
of the trial.
¶ 89 Trial counsel’s decision not to object to this testimony was reasonable in light of the
defense theory. As stated above, the defense’s strategy was not to deny the facts of the shooting
or Weatherspoon’s injuries. Instead, the defense acknowledged that “a terrible thing happened”
to Weatherspoon, but argued that “it just wasn’t [defendant] [who] did it.” As counsel testified,
“there was no reason to question [Weatherspoon’s] honesty” about the effects of the shooting,
“other than to enflame the jury” against defendant and distract the jury from the defense’s
misidentification argument. In denying defendant’s motion for a new trial, the court found that
there were “reasons why [the defense] didn’t focus on that” and that counsel’s failure to object
to Weatherspoon’s testimony on this point did not amount to ineffective assistance. We find
no manifest error in the circuit court’s findings.
¶ 90 Defendant next claims that his trial counsel was ineffective for failing to object when
Weatherspoon testified concerning her understanding of the meaning of the Twitter posts
depicted in the screenshots. Defendant argues that Weatherspoon should not have been
permitted to testify regarding the meaning of the Twitter posts because she did not testify to
any “specialized knowledge” allowing her to understand and interpret their meaning.
¶ 91 However, as described above, the posts were admitted to explain the circumstances of
Weatherspoon’s identifications, which include the effects that those posts had on
Weatherspoon. Specifically, Weatherspoon testified that upon seeing the posts, she was
“scared” and “felt like [she] was a target.” As a result, she did not immediately alert the police
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about what she had found, but she took screenshots of the posts, which she saved on her phone.
Twelve days after the shooting, after defendant and codefendant were arrested, Weatherspoon
provided detectives with the screenshots and identified defendant and codefendant as the
shooters in separate physical lineups.
¶ 92 Given the purpose for which the posts were admitted and the relevance of Weatherspoon’s
understanding of the posts, we find no ineffective assistance in counsel’s failure to object to
Weatherspoon’s interpretation of the Twitter posts, where such an objection would have been
meritless. People v. Edwards, 195 Ill. 2d 142, 165 (2001) (“Counsel cannot be considered
ineffective for failing to make or pursue what would have been a meritless objection.”); People
v. Mister, 2016 IL App (4th) 130180-B, ¶ 95 (defense counsel is not required to make futile
objections to provide effective assistance).
¶ 93 Defendant further claims ineffective assistance of counsel based on trial counsel’s
“fail[ure] to object to improper comments made by the prosecutor during closing argument.”
¶ 94 A prosecutor has wide latitude in making a closing argument and is permitted to comment
on the evidence and any fair, reasonable inferences it yields. People v. Nicholas, 218 Ill. 2d
104, 121 (2005). A closing argument must be viewed in its entirety, and the challenged remarks
must be viewed in their context. People v. Blue, 189 Ill. 2d 99, 128 (2000). Statements will not
be held improper if they were provoked or invited by defense counsel’s argument. People v.
Kirchner, 194 Ill. 2d 502, 553 (2000).
¶ 95 Defendant’s first challenge is to certain comments regarding N.L. Looking at those
comments in their context, the prosecutor stated, in relevant part:
“You also heard from [N.L.] He was very uncomfortable on that witness stand. He
didn’t want to be here at all. He didn’t want to be sitting in a room with these two guys.
He didn’t want to be telling you about anything that he saw that night.
And when it comes down to sitting on that witness stand, and facing people who
have done something wrong, he doesn’t have the courage for that.”
¶ 96 In codefendant’s counsel’s closing argument, counsel argued that Weatherspoon’s
identifications were “uncorroborated,” commenting, “I won’t even address [N.L.] *** You
saw him. You think he’s afraid? No.”
¶ 97 Then, during rebuttal, the prosecutor stated, “The fact that he got up here and didn’t want
to do that in open court, we’re not saying it’s because, oh, he’s a little scared kid. He’s
obviously, not. It’s because that’s a violation. You don’t come into court and make
identifications.” It is this comment by the prosecutor that defendant contends was improper
and should have been objected to by his counsel. Specifically, defendant argues that N.L.
“never testified or [alluded] to any fear of receiving such a violation. Instead, this was
an argument that was made without evidentiary support in the record and was highly
inflammatory and prejudicial since it gave the jury a reason to completely disregard his
trial testimony, yet defense counsel made no objection.”
¶ 98 The prosecutor’s comment above was clearly provoked or invited by defense counsel’s
argument that N.L. was not “afraid.” That argument caused the prosecutor to clarify that the
State was not claiming that N.L. was “a little scared kid,” but rather that N.L.’s trial testimony
changed from the account provided by his statement because, “You don’t come into court and
make identifications.” The prosecutor’s comments were a reasonable inference supported by
the evidence regarding N.L.’s written statement and the circumstances surrounding that
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statement, when compared to his subsequent trial testimony and recantation after multiple
delinquency adjudications and while in the custody of the Illinois Youth Department of
Corrections. Accordingly, counsel was not ineffective for failing to object to the prosecutor’s
comment, where the statement was not improper and an objection would have been meritless.
Edwards, 195 Ill. 2d at 165; Mister, 2016 IL App (4th) 130180-B, ¶ 95.
¶ 99 Moreover, even if we could find any error in the prosecutor’s comment, such error would
have been cured by the trial court’s subsequent instruction to the jury that “closing arguments
are not evidence” and that the jury must decide the facts “only from the evidence in this case.”
See People v. Desantiago, 365 Ill. App. 3d 855, 866 (2006).
¶ 100 Defendant also challenges his counsel’s failure to object to the following statement during
the prosecutor’s closing argument:
“When [Weatherspoon] and [Burrell] were in that car, being shot by these Defendants,
they were alone. As the bullets tore through them, and then as [Weatherspoon] the
following day, starts getting these messages, threatening her from these Defendants she
was alone. But here, today, in this courtroom, [Weatherspoon] is no longer alone. She
has the evidence. She has the law, and most importantly, she has you.”
¶ 101 Defendant contends that the above comments were an improper “attempt by the prosecutor
to align Weatherspoon and the State with the jurors, and appeal to jurors’ sympathies, rather
than the facts and evidence.”
¶ 102 Although closing arguments are improper if they serve no purpose other than to inflame
the jury (Blue, 189 Ill. 2d at 128), a prosecutor may “comment unfavorably on the evil effects
of the crime and urge the jury to administer the law without fear, when such argument is based
upon competent and pertinent evidence” (Nicholas, 218 Ill. 2d at 121-22 (holding that the
prosecutor’s comments characterizing the defendant’s actions as “pure evil” in order to preface
his argument that the facts proved the defendant guilty “constituted a permissible comment
upon the evidence”)). “[L]imited prosecutorial exhortations are proper where it is made clear
to the jury that its ability to effect general and specific deterrence is dependent solely upon its
careful consideration of the specific facts and issues before it.” (Emphases omitted.) People v.
Johnson, 208 Ill. 2d 53, 79 (2003). A prosecutor may not, however, “blur[ ] that distinction by
an extended and general denunciation of society’s ills and, in effect, challenge[ ] the jury to
‘send a message’ by its verdict.” Id. In doing so, a prosecutor “does more than urge ‘the fearless
administration of justice,’ he interjects matters that have no real bearing upon the case at hand,
and he seeks to incite the jury to act out of undifferentiated passion and outrage, rather than
reason and deliberation.” Id.¶ 103 Here, we find the prosecutor’s statement to be a proper comment “urg[ing] the jury to
administer the law without fear *** based upon competent and pertinent evidence.” Nicholas,
218 Ill. 2d at 121-22. We do not find that the comments served no purpose other than to inflame
the jury (Blue, 189 Ill. 2d at 128), nor do we find that they are “an extended and general
denunciation of society’s ills and, in effect, challeng[ing] the jury to ‘send a message’ by its
verdict.” Johnson, 208 Ill. 2d at 79.
¶ 104 Nonetheless, even if we were to find the prosecutor’s comments improper, isolated
references to the need to send a message or do something about the problem of crime do not
ordinarily require reversal. It is only when such themes are argued pervasively that they
become prejudicial enough to warrant reversal. See id. Given the isolated nature of the
prosecutor’s comments, in the context of the closing arguments as a whole, we find no
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reasonable probability that the outcome of the proceeding would have been different had
defense counsel objected to the prosecutor’s improper comments during closing arguments.
¶ 105 Defendant also argues that he “was denied his right to the effective assistance of counsel”
by counsel’s choice to introduce evidence of the gun found at the time of defendant’s arrest.
Defendant contends that by doing so, counsel “affirmatively presented harmful and damaging
other-crimes evidence, *** [which] allowed the prosecution to paint *** [d]efendant as a
generally violent person, who was familiar with firearms.”
¶ 106 As described above, at the time of defendant’s arrest, police recovered a two-tone black
and silver handgun that was consistent with Weatherspoon’s description of the gun used by
defendant in the shooting. That gun was forensically compared to the cartridge casings
recovered from the scene of the shooting, and it was determined that it was not one of the guns
used in that offense. At trial, Weatherspoon identified the gun being held by defendant in a
photograph as the same gun defendant had used on the night of the shooting. The defense,
however, attempted to undermine Weatherspoon’s testimony by showing that the gun
recovered at the time of defendant’s arrest, which was also a two-tone black and silver handgun
like the one that he held in the Twitter photograph, was not used in the offense.
¶ 107 Importantly, defendant explicitly consented to this strategy. When the defense requested
that such evidence be introduced, the trial court addressed defendant and codefendant, who
both confirmed that they “agree[d] with that strategy” and it was “what [they] want[ed] to do.”
Having given his express consent to the now complained-of strategy, defendant cannot now
claim that the strategy amounted to ineffective assistance. “Where a defendant knowingly and
intelligently consents to defense counsel’s strategy, he normally cannot claim ineffective
assistance of counsel for the actions of defense counsel in furtherance of that strategy.” People
v. Anderson, 272 Ill. App. 3d 566, 571 (1995) (citing People v. Fair, 159 Ill. 2d 51 (1994));
see also People v. Page, 155 Ill. 2d 232, 260-63 (1993).
¶ 108 Seeking to avoid that conclusion, defendant now argues that he should not be deemed to
have given his consent because “it was not an informed [decision]” on his part, and it was
“based on a misapprehension of the facts.” Defendant further contends that he “was not notified
of this ill-informed decision until the day of the trial, only spoke about the topic for a few
minutes with his attorney and he was apprehensive to question the professional judgment of
his attorney.” In support of the above claims, defendant cites only to his own affidavit attached
to his motion for a new trial. That affidavit, however, is not consistent with his current
characterization. Regarding the gun found at defendant’s arrest, that affidavit states, in total,
“At some point during the trial, [the trial] Court asked me whether I agreed with my
attorney regarding the defense strategy about bringing up the incident when I was
arrested with my co-defendant. *** I deferred to my attorney’s decision on this matter,
and this was never thoroughly discussed at the time I made this statement.”
¶ 109 Furthermore, defendant’s vague protestations are contradicted by counsel’s testimony, in
which he stated that he did discuss the strategy with defendant prior to the trial, and defendant
agreed. The trial court was in the best position to evaluate defendant’s claims and the
circumstances of defendant’s consent; it concluded that defendant knowingly and intelligently
consented to the defense strategy. The court specifically found that defendant was “paying
attention” and he “agreed because [the defense] attorneys had a reason for doing it.” We find
no manifest error in the court’s findings. See Fair, 159 Ill. 2d at 79 (“We will not disturb the
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trial judge’s ruling that defendant knowingly and intelligently consented to defense counsel’s
strategy in the case.”).
¶ 110 Consent aside, defendant’s claim of ineffective assistance also fails because trial counsel’s
strategy was reasonable and did not prejudice defendant. “[T]he choice of defense theory is
ordinarily a matter of trial strategy, and counsel has the ultimate authority to decide this trial
strategy. [Citation.] This court will generally not review a claim of ineffectiveness of counsel
based on inadequate trial strategy.” People v. Guest, 166 Ill. 2d 381, 394 (1995). An exception
is “where counsel entirely fails to conduct any meaningful adversarial testing.” The fact that
another attorney might have pursued a different strategy or that the strategy chosen by counsel
ultimately proved unsuccessful, does not demonstrate incompetence or suggest ineffective
representation. People v. Fuller, 205 Ill. 2d 308, 331 (2002).
¶ 111 In the circumstances of this case, trial counsel’s decision to introduce this evidence
furthered a reasonable theory of misidentification. By introducing evidence of the recovered
gun, which had been forensically proven not to have been used in the shooting, counsel
attempted to discredit Weatherspoon’s identification of the gun in the Twitter photograph that
she testified was used in the shooting, thereby also calling into question her identification of
defendant.
¶ 112 We also note that counsel testified that the decision to admit evidence of the gun found
during defendant’s arrest was made only after the court had already decided to admit the
Twitter photo showing defendant holding a gun. As counsel explained in his testimony, any
prejudice to defendant from the admission of the recovered firearm was lessened because
defendant’s familiarity with firearms was already suggested by the Twitter photograph and it
“was not going to be a surprise to the jury” that defendant had handled a gun before.
¶ 113 Moreover, in admitting evidence of the gun, the court specified that defendant could enter
the evidence in furtherance of his intended strategy; however, the court would not allow the
State to enter any evidence regarding the double homicide that the gun was connected to, which
also limited any prejudice to defendant from the gun’s admission.
¶ 114 Finally, defendant claims that his trial counsel’s errors cumulatively deprived him of a fair
trial. However, we have already found that none of the circuit court’s findings with regard to
trial counsel’s representation are manifestly erroneous. Where, as here, the alleged errors do
not amount to reversible error on any individual issues, there is no cumulative error. People v.
Howell, 358 Ill. App. 3d 512, 526 (2005).
¶ 115 Defendant’s final challenge is to his sentence, arguing that it violates the proportionate
penalties clause of the Illinois Constitution. The proportionate penalties clause of the Illinois
Constitution provides that “[a]ll penalties shall be determined both according to the seriousness
of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const.
1970, art. I, § 11.
“While courts of review are generally reluctant to override the judgment of the General
Assembly with respect to criminal penalties [citation], it is also true that when defining
crimes and their penalties, the legislature must consider the constitutional goals of
restoring an offender to useful citizenship and of providing a penalty according to the
seriousness of the offense [citation].” (Internal quotation marks omitted.) People v.
Miller, 202 Ill. 2d 328, 338 (2002).
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“We have recognized three different forms of proportionality review. A statute may
be deemed unconstitutionally disproportionate if (1) the punishment for the offense is
cruel, degrading, or so wholly disproportionate to the offense as to shock the moral
sense of the community; (2) similar offenses are compared and the conduct that creates
a less serious threat to the public health and safety is punished more harshly; or
(3) identical offenses are given different sentences.” Id.¶ 116 Initially, we note that defendant’s argument on this point is approximately one page long
and that he does not argue under any particular theory of proportionality review. Defendant
cites People v. Buffer, 2019 IL 122327, which held that a sentence over 40 years imposed on
a juvenile offender constitutes a de facto life sentence. Buffer, however, does not apply to
defendant, who was 20 years old—not a juvenile—at the time of the offense. In anticipation
of that conclusion, defendant relies on People v. House, 2019 IL App (1st) 110580-B, to
contend that “at least one appellate court case in Illinois has applied the proportionate penalties
clause to youthful offenders over the age of 18.”
¶ 117 Defendant’s vague challenge to his sentence, without identifying any particular theory for
concluding that his sentence is unconstitutionally disproportionate, is not sufficient to allow
for appellate review. See Ill. S. Ct. R. 341 (eff. May 25, 2018); People v. O’Dette, 2017 IL
App (2d) 150884, ¶ 51 (“arguments not raised or not sufficiently developed are forfeited”).
¶ 118 Defendant also did not specifically raise this issue in the trial court, making only a cursory
argument that the court should find the minimum sentence unconstitutional based on
defendant’s “youthful age.” Defendant did not present any evidence regarding the evolving
science on juvenile maturity and brain development applied to him, and the trial court did not
conduct an evidentiary hearing or make any findings of fact on defendant’s specific
circumstances. In these circumstances, the record is also not sufficiently developed to allow
for appellate review. See People v. Harris, 2018 IL 121932, ¶¶ 41-46 (finding defendant’s as-
applied challenge was “premature” because “a reviewing court is not capable of making an as-
applied finding of unconstitutionality in the ‘factual vacuum’ created by the absence of an
evidentiary hearing and findings of fact by the trial court”).
¶ 119 Apparently recognizing the insufficiency of the record, defendant alternatively asks in his
reply brief that this court “remand this issue to the trial court for an evidentiary hearing to
determine whether the science on juvenile maturity and brain development applied to the
Defendant.” Defendant acknowledges that the issue can be brought in a postconviction petition
but claims that it would be “far more efficient for all parties involved to address this issue by
conducting an evidentiary hearing on remand.” We decline defendant’s request. See id. ¶ 48
(declining the defendant’s request for remand to the trial court for an evidentiary hearing on
his proportionate penalties claim, finding that defendant’s claim that his was more
appropriately raised in another proceeding, such as a postconviction petition).
¶ 120 For the foregoing reasons, we affirm the decision of the circuit court of Cook County.
¶ 121 Affirmed.
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