People v. Pratt

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Appellate Court Date: 2021.03.22
14:55:39 -05'00'
People v. Pratt, 2020 IL App (1st) 161085Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DEJUAN PRATT, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-16-1085
Filed March 20, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-19727; the
Review Hon. Charles P. Burns, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and S. Emily Hartman, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Whitney Bond, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CONNORS delivered the judgment of the court, with
opinion.
Justice Harris concurred in the judgment and opinion.
Justice Cunningham specially concurred, with opinion.
OPINION
¶1 Following a jury trial, defendant, Dejuan Pratt, was convicted of two counts of first degree
murder, two counts of armed robbery, and one count of aggravated arson. He was sentenced
to natural life in prison for the murders and a consecutive term of 30 years for both armed
robbery and aggravated arson. On appeal, defendant contends that he was denied effective
assistance of counsel when defense counsel did not give a closing argument.
¶2 BACKGROUND
¶3 Defendant was charged with two counts of first degree murder, two counts of armed
robbery, and one count of aggravated arson in relation to the deaths of the two victims:
Chunxiao “Cathy” Lee and Gary Brown.
¶4 During opening statements, defense counsel repeatedly told the jury what they would
“hear” at trial. On one occasion, she stated,
“Each of you said you would not hold it against [defendant] if he chose not to testify.
That is his right. He doesn’t have to. And you cannot hold it against him but you’re
going to hear from him. You’re going to hear what happened to him that day. On
August 28, 2012.”
¶5 At trial, Mary Mellott testified that she was roommates with Lee in college in 2009. Lee
was in her forties at the time and had mentioned an acquaintance named Gary Brown. Lee’s
parents and brother lived in China.
¶6 Carol Szynal testified that she had been married to Brown for 27 years before their marriage
ended in 1999. They shared three children together. Szynal testified that Brown went to Indiana
University and eventually became an assistant state’s attorney in Kankakee County. Brown
later began teaching technology classes at the Howard Area Community Center and was
working in that capacity in August 2012. Szynal testified that Brown lived at the time in an
apartment with two roommates—one of which was an Asian female.
¶7 Jean Saour testified that she lived with Lee and Brown on August 28, 2012. He was not at
the apartment often because of his work schedule. Saour testified that the week before the
murders, on or about August 23, 2012, defendant moved into the apartment. Saour testified
that he came home from work one evening and defendant was in the apartment. He asked
defendant what he was doing there, and defendant responded that he was the new roommate.
¶8 Saour testified that in the early morning hours of August 28, 2012, at approximately 4 a.m.,
he received a phone call from his boss. About 5 to 10 minutes later, defendant knocked on his
door and then opened it and told Saour that he wanted to give Saour a toothbrush. Saour
testified that defendant told him he wanted to give him a toothbrush because defendant dropped
some “poison” in the bathroom. Defendant then left the room. Saour testified that defendant’s
actions were not normal, so he left for work without brushing his teeth, taking a shower, or
going to the bathroom.
¶9 Saour testified that the distance from his bedroom to Brown’s bedroom was just over 35
feet. He did not hear any sounds coming from Brown’s room on the morning in question. The
distance from Brown’s room to the backdoor, through the kitchen, was about four to five feet.
When Saour returned home that evening, he saw an ambulance and fire trucks at the apartment
building. He later learned from a detective what happened.
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¶ 10 Thomas Connelly testified that he had been a lieutenant for the Chicago Fire Department
for 29 years. He testified that at 4 p.m. on August 28, 2012, he responded to a fire at 6438
North Sacramento Avenue in Chicago. Lieutenant Connelly testified that while fighting the
fire, he noticed something on one of the beds and one of his crew members saw “something
on the floor of the same bedroom.” Lieutenant Connelly testified that they discovered two
bodies with multiple stab wounds. They called the police.
¶ 11 Ahmed Jaafar testified that on the date in question, he lived in apartment 2A, the apartment
directly below Brown and Lee’s apartment. At 4 p.m. on August 28, 2012, Jaafar was with his
family when he heard something fall onto the ground. Jaafar testified that he and his family
stayed quiet and then they heard the fire alarm in the hallway. Jaafar looked upstairs and could
see a lot of smoke coming from the apartment above his. Jaafar called 911 before knocking on
his neighbor’s door. The fire department arrived a few minutes later.
¶ 12 Abdulatif Isaak testified that he was living in apartment 3W at 6438 North Sacramento
Avenue on the date in question. His apartment was across the hall from apartment 3E, Brown
and Lee’s apartment. Isaak testified that he did not know the names of the occupants of
apartment 3E but recognized their faces. At approximately 8 a.m. on the morning in question,
Isaak went downstairs to his brother-in-law’s first-floor apartment. As Isaak was leaving the
apartment, he saw a black man with dreadlocks tied in the back coming down from the third
floor. The two men said hello to each other as they passed.
¶ 13 Dr. Ponni Arunkumar testified that he was a deputy medical examiner. He testified as an
expert in the field of forensic pathology. Dr. Arunkumar testified that on August 29, 2012, he
performed an autopsy on both Brown and Lee. Dr. Arunkumar testified that there were
approximately “105 stab and incised wounds that were present on [Lee’s] body.” Dr.
Arunkumar testified that there were no traces of carbon dioxide in Lee’s system, indicating
that the fire did not contribute to her death. Dr. Arunkumar testified that Lee died from multiple
stab wounds and incised wounds and that the manner of her death was homicide.
¶ 14 Dr. Arunkumar further testified that Brown suffered 83 stab and incised wounds. There
was no carbon dioxide in Brown’s blood, indicating that the fire did not contribute to his death.
Dr. Arunkumar testified that Brown died from multiple stab and incised wounds and that the
manner of death was homicide.
¶ 15 The parties then stipulated to the following:
“1. On August 28, 2012, [defendant] was residing at 6438 North Sacramento
Avenue, apartment number 3E, Chicago, Illinois.
2. That at approximately 4:14 a.m. on August 28, 2012, [defendant] used his cell
[phone] to call the Chicago Police Department’s emergency call center and reported
that he had been out running and had been attacked by three male offenders, and that
he had been stabbed in the thumb. This call was accurately recorded by the 911 center.
People’s Exhibit No. 70 is an audio disc containing an accurate copy of the 911 call
made by [defendant] on August 28, 2012.
3. That Lincolnwood Fire Department and Police responded to the address of 3420
West Devon Avenue, Lincolnwood, Illinois. The address of 3420 West Devon is about
7/20s of a mile from 6438 North Sacramento Avenue in Chicago. Lincolnwood
paramedics arrived at about 4:23 a.m.
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Paramedic Keith Dawson spoke with [defendant], observed a cut to [defendant’s]
left thumb. Paramedic Dawson asked [defendant] what happened and [defendant]
stated that he had been out for a jog when he was attacked by some people. [Defendant]
told paramedic Dawson that as he was running away from the attackers, he realized he
had been cut.
Paramedic Dawson treated [defendant] for a laceration to [defendant’s] left thumb
and transported him to Saint Francis Hospital.
If called to testify paramedic Dawson would identify [defendant] as the man he
spoke with, treated and transported to Saint Francis Hospital in the early morning hours
of August 28, 2012.”
¶ 16 It was further stipulated that defendant was treated at the hospital by Dr. Boylan and during
that treatment, defendant told Dr. Boylan that he had been out for a run when two assailants
attacked and tried to rob him. Dr. Boylan cleaned the wound and closed the laceration with
seven sutures. Dr. Boylan would identify defendant as the man he spoke with and treated for a
laceration to the thumb during the early morning hours of August 28, 2012.
¶ 17 It was further stipulated that Chicago police officers Carlos Santiago and Frederico Coletta
were dispatched to the hospital on the morning of August 28, 2012, to take a report of
defendant’s incident. Defendant told them that three Hispanic men approached him in an
aggressive manner and one of them stepped in front of him, so he grabbed the offender’s shirt
to use him as a shield from the other two attackers. Defendant told the officers that he was able
to push the offender away and run to 3420 West Devon Avenue, where he met with police and
paramedics. Defendant stated that during the struggle his left thumb was cut. He stated that
while he did not see it, he assumed the offenders had a knife. Defendant could not provide any
further description of the offenders beyond that they were Hispanic. It was also stipulated that
defendant was released from the hospital at 7:18 a.m.
¶ 18 The parties also stipulated that defendant was enrolled at Roosevelt University and opened
a Roosevelt University Mastercard Higher One (Higher One) debit account, with a home
address in Columbus, Ohio.
¶ 19 The parties stipulated that Lee maintained a checking and savings account with Chase
Bank. On August 22, 2012, Lee had a balance of $6.70 in her checking account and $25,113.86
in her savings account. The following records were changed by way of an outside computer on
August 26 and August 27, 2012. At 7:13 p.m., the access password for the accounts was
changed. At 7:30 p.m., the contact information for the accounts changed from
cathylee@yahoo.com to leecathy2012@gmail.com. At 7:25 p.m., the accounts’ overdraft
coverage was changed. At 7:44 p.m., $20,000 was transferred from Lee’s savings account into
her checking account. Between 1:31 a.m. and 1:44 a.m., Lee’s account was accessed from an
outside computer and an order was placed to wire transfer $9800 from Lee’s account to
defendant’s Higher One account.
¶ 20 It was further stipulated that on September 21, 2012, and September 22, 2012, a
representative for Discover was contacted by phone with inquiries concerning the use of Lee’s
Discover credit card. The caller was having difficulty using the card and needed assistance.
People’s Exhibit No. 74, which was published to the jury, contained a thumb drive with the
recordings of the conversations from the calls made to Discover representatives. The calls
made to Discover originated from defendant’s cell phone. Defendant, in a series of five phone
calls, claimed first that he was a friend of Lee’s calling on her behalf because she had trouble
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speaking English, then that he was Lee herself, but had lost his voice, and then again that he
was Lee using a woman’s voice. He called two more times but failed to answer the security
questions correctly.
¶ 21 The parties stipulated that on September 19, 2012, defendant used Lee’s Discover card to
purchase airfare to Las Vegas and a hotel stay at the Venetian in Las Vegas for $1676.97.
Defendant stayed at the hotel from September 20, 2012, to September 23, 2012, returning to
Chicago on September 24, 2012. In addition to these charges, there were other charges to Lee’s
card after her death, including Amazon purchases and cash advances. Lee’s Discover card was
found in defendant’s possession upon his arrest on September 24, 2012.
¶ 22 It was also stipulated that after Lee’s death, two checks were written from her TCF Bank
account made out to defendant. One was for $175, and the other was for $475.
¶ 23 The parties further stipulated that Brown maintained a US Bank checking account with an
associated debit card. After his death, three charges were made to that account, all dated
September 21, 2012, for “in-suite dining” at the Venetian hotel. Brown’s US Bank card was
also found in defendant’s possession upon his arrest.
¶ 24 Detective Russel Egan testified that defendant was arrested on September 24, 2012, upon
his return from Las Vegas. As he was being arrested, defendant dropped a US Bank card
belonging to Brown. Following a search of his person, officers found an additional Discover
credit card belonging to Lee, a mutual fund statement in Lee’s name that totaled $38,413.54,
and an “odometer closing statement” in Lee’s name for her 2003 Acura. The State put into
evidence a letter drafted by defendant requesting the purchase of Lee’s car for $2500, which
was signed and notarized, to be subsequently transferred to defendant.
¶ 25 Detective Egan testified that he searched the new apartment where defendant was staying
and found several documents bearing Lee’s name. It was stipulated that if Sandra Videkic, a
tenant of that apartment, was called to testify, she would state that in August and September
2012, she placed an ad in Craigslist looking for a roommate to share the rent and that in early
September, defendant responded to her ad. Videkic would testify that defendant moved in on
September 10, 2012, and that he took a trip to Las Vegas a couple weeks later. She did not see
him again.
¶ 26 Detective Egan testified that he advised defendant of his Miranda rights (see Miranda v.
Arizona, 384 U.S. 436 (1966)) after defendant’s arrest. Defendant was in the interview room
overnight but was not interviewed. People’s Exhibit No. 114 is the video of the initial interview
detectives conducted with defendant, which was published to the jury. After defendant waived
his rights, he admitted to stealing one of Lee’s credit cards but did not think that was so bad
that it necessitated the police meeting him at the airport to arrest him. Defendant stated that he
had gone to Las Vegas and used Lee’s card there. Defendant stated that Lee had given him a
bag and the card was in there, but he never thought to give it back. Defendant admitted that he
also took Brown’s card when it was in the living room of their apartment. Defendant also stated
that he fixed Lee’s car and that Lee had said if he fixed the car, he could keep it. Defendant
stated that he initially met Lee online through Craigslist and contacted her August 23, 2012.
Defendant stated that a couple days later, he was out running between 5:30 a.m. and 6 a.m.
when three Hispanic men tried to surround him. Defendant stated that he called 911 after
getting hurt and was transported to the hospital where he received stitches.
¶ 27 Defendant stated that after he was released from the hospital, he went back to the
apartment. Later that day, he hung out with a friend and returned late at night. Defendant stated
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that, the next day, he and Lee played tennis and that defendant told her he was going to move
out. He stated that upon moving out, Lee gave him some of his money back. He then went to
stay at a friend’s house.
¶ 28 Defendant denied knowledge of the fire in the apartment. Detectives told defendant that
Lee had died, and defendant stated, “So now I’m running around using—well, I used two dead
people’s credit cards.”
¶ 29 Detectives told defendant that they knew he had called 911 at 4:10 a.m. on August 28,
2012, and that the fire was later that evening. When confronted with why he was running at 4
a.m., defendant stated, “It’s not looking good for me at all.”
¶ 30 Defendant further stated that he had not been in Lee’s Acura since the day he fixed it. When
asked about her bank statements in his bag, defendant stated that it was “just mail” and he had
taken it from the mailbox because Lee did not check it often. Detectives noted that the “mail”
was from 2011 and that it was still in his bag. Defendant stated, “I mean, nothing looks good
for me right now, right?”
¶ 31 After a break, defendant changed his story. He told detectives that another man was
involved and that he forced defendant to sit and watch. Defendant stated that he got home late
from the beach, and someone knocked on the backdoor. He let that person in sometime after
midnight. The man asked defendant whether Lee or Brown was home and stated that they were
expecting him. Defendant stated that the man went into Brown’s room and asked him where
the key was and Brown said he did not know. The man told Brown to stop lying. Defendant
stated that the man reached behind his back and pulled out a very big knife and told Brown not
to lie to him. Defendant stated that Brown had a safe and whatever was in there, the man
wanted.
¶ 32 Defendant stated that the man put a knife in Brown’s face and told him not to lie. The man
stabbed Brown “a few times.” While swinging the knife, the man contacted defendant’s thumb.
Defendant stated that as Lee walked past the door, the man pulled her into the room. Defendant
thought Lee knew the man through Brown. The man asked Lee for the key. Defendant stated
that he retrieved the key from Lee’s room and returned to Brown’s room. The key opened the
safe and the man shuffled through it but did not find what he was looking for. The man then
started stabbing Brown and Lee. Defendant stated that he then ran out the backdoor and down
the steps. He admitted that he called the police and told them he had been attacked on a run,
but it was only because he wanted help to reach him quickly.
¶ 33 Defendant stated that he did not tell the police about the intruder. After he got back from
the hospital, the apartment was “just tore out.” The bodies were in Brown’s room, and he saw
them covered up. Defendant stated that he grabbed his stuff and left, which is how he ended
up with the Acura. He stated that he took the cards and bank statements before the murders.
He stated that he put his clothes in a garbage can in an alley.
¶ 34 The parties stipulated that if Elaine Harrison were called to testify, she would state that she
moved into apartment 3 at 6150 North Hoyne Avenue and, while doing some cleaning on
December 21, 2012, she found a box on a shelf in the closet of one of the bedrooms containing
a birth certificate belonging to defendant, a TCF Bank personal check drawing from Lee’s
account on August 29, 2012, made payable to defendant, a TCF Bank personal check drawn
on Lee’s account made payable to defendant on September 1, 2012, and an attorney badge
bearing Brown’s name on it. The box and its contents were turned over to the Chicago police.
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¶ 35 Detective Joseph Marszalec testified that he was assigned to investigate the murders and
that on September 25, 2012, he met with defendant and conducted a videotaped interview. The
video was published to the jury.
¶ 36 The following exchange then took place between the trial court and defendant:
“THE COURT: [Defendant], I need to ask you a few questions. *** first off, we’re
in what we call the defense case in chief, which means that there could be witnesses
called during your part of the trial. Your attorneys, now they make the decision whether
or not to call witnesses. But did you talk to [defense counsel] about whether or not you
wish to have any witnesses called?
[DEFENDANT]: Yes, sir.
THE COURT: And do you agree with their decision not to call any witnesses?
[DEFENDANT]: Yes.
THE COURT: Now, [defendant], you have a right to testify in this matter and that
right is yours and yours alone. Your attorneys can suggest to you or tell you whether
they think it’s preferable or advantageous for you to testify or not, but they cannot make
that decision for you. Do you understand that?
[DEFENDANT]: Yes, sir.
THE COURT: By resting now, do you understand you *** will not be testifying in
this matter?
[DEFENDANT]: Yes.
THE COURT: Do you desire to testify?
[DEFENDANT]: No.
THE COURT: And you have made that decision after talking with your attorneys
in this matter?
[DEFENDANT]: Yes.”
¶ 37 The State made a closing argument and defense counsel did not. The trial court asked
defense counsel, “did you tell your client you were going to do that?” Defense counsel
answered that she did. The trial court asked defendant, “Did [defense counsel] talk to you about
that?” Defendant answered, “Yes.” The trial court noted that the decision was defense
counsel’s choice, and defendant responded, “Yeah.” The trial court then asked if defendant
was surprised by her decision, and defendant answered, “No.” The trial court then asked
defendant if he agreed with defense counsel’s decision, and he responded, “Yeah.”
¶ 38 The jury found defendant guilty of the first degree murders of Lee and Brown, armed
robbery, and aggravated arson. Defendant filed two motions for a new trial, neither of which
alleged that it was error for defense counsel to waive closing argument. After hearing
arguments, the trial court denied the motions for a new trial, stating that it believed “the jury’s
verdict was consistent with [its] application of the law to the extreme amount of evidence that
was introduced both directly inculpating the defendant and also with regard to the statement as
introduced and the defendant’s testimony himself in this matter.”
¶ 39 At sentencing, the trial court heard arguments in mitigation and in aggravation. It then
stated that defendant:
“brought this despair to everyone in this courtroom. There’s no doubt in my mind. How
an individual can travel from one state to another within one month, be the only person
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that walks out of an apartment alive leaving two individuals bloodied and dead while
going out and subsequently manipulating finances, chilling in Las Vegas while the
investigation is continuing is totally beyond me. It stretches my faith in humanity and
frankly it repulses everyone who is law abiding.
The coldness of these murders, the barrenness of consciousness is something that
is un—un-perceivable frankly. I mean, consciousness is like a desert wind where it just
blows and there’s nothing to it. The crime itself, a person committing that crime would
have to have blood that was chilled at the coldest amount of temperature one could
imagine.”
¶ 40 The trial court sentenced defendant to natural life in prison without the possibility of parole.
Defendant now appeals.
¶ 41 ANALYSIS
¶ 42 On appeal, defendant contends that he received ineffective assistance of counsel when
defense counsel failed to give a closing argument. Defendant contends that defense counsel’s
failure to give a closing argument was especially unreasonable because defense counsel had
promised in her opening statement that defendant would testify. Defendant’s argument is that
defense counsel should have used closing argument to explain why defendant did not testify
and that defense counsel’s failure to give a closing argument therefore constituted ineffective
assistance of counsel. The State maintains that defense counsel’s choice to waive closing
argument constituted trial strategy.
¶ 43 “To establish ineffective assistance of counsel, a defendant must show both that counsel’s
performance was deficient and that prejudice resulted from that deficiency.” People v. Bailey,
232 Ill. 2d 285, 289 (2009) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “An
attorney’s performance must be evaluated from counsel’s perspective at the time the contested
action was taken and will be considered constitutionally deficient only if it is objectively
unreasonable under prevailing professional norms.” Id. In order to establish the deficient-
performance prong of Strickland, a defendant must show that his counsel’s performance was
so inadequate “that counsel was not functioning as the ‘counsel’ guaranteed by the sixth
amendment.” People v. Evans, 186 Ill. 2d 83, 93 (1999). The defendant must overcome the
strong presumption that the challenged action or inaction may have been the product of sound
trial strategy. Id. Matters of trial strategy are generally immune from claims of ineffective
assistance of counsel. People v. West, 187 Ill. 2d 418, 432 (1999).
¶ 44 The defendant must also show that he was prejudiced by counsel’s deficient performance,
which means that there must be a reasonable probability that, but for defense counsel’s
deficient performance, the result of the proceeding would have been different. People v.
Brown, 2015 IL App (1st) 122940, ¶ 47. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” (Internal quotation marks omitted.) Id. ¶ 77. Failure
to establish either prong precludes a finding of ineffective assistance of counsel. People v.
Henderson, 2013 IL 114040, ¶ 11.
¶ 45 We begin our analysis by highlighting that, “[u]nder many circumstances, the waiver of
closing argument is a matter of trial strategy.” People v. Wilson, 392 Ill. App. 3d 189, 198
(2009) (citing People v. Conley, 118 Ill. App. 3d 122, 127 (1983)); see also People v.
Shoemaker, 358 Ill. App. 3d 257, 260-62 (2005); People v. Carter, 132 Ill. App. 3d 523, 530
(1985). In fact, “waiving argument may have the advantage of preventing an impassioned
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rebuttal argument by the prosecutor.” Shoemaker, 358 Ill. App. 3d at 260-61 (citing Bell v.
Cone, 535 U.S. 685, 701-02 (2002)); see also Conley, 118 Ill. App. 3d at 128 (defense counsel
waived closing argument in order to preclude the State from offering any rebuttal; court found
decision was a question of trial tactics).
¶ 46 We find Carter to be instructive. In that case, the defendant was convicted by a jury of
rape, deviate sexual assault, and two counts of armed robbery. Carter, 132 Ill. App. 3d at 526.
The opinion contains a short discussion on whether counsel was ineffective for waiving closing
argument, stating:
“In the case at bar, it is clear the decision by counsel to waive closing argument was
a decision of trial tactics. Through that device, the prosecution was denied the
opportunity for any rebuttal, which may have proved more damaging than any defense.
Furthermore, our perusal of the entire record indicates that defendant was not only
afforded adequate representation, he was afforded excellent representation. Defense
counsel conducted effective cross-examination in an attempt to shake the identification
testimony of the victims. Defense counsel also presented important motions and argued
them passionately. We find no conceivable error here.” Id. at 530.
¶ 47 As in Carter, we find that defense counsel’s decision to waive closing argument was a
decision of trial tactics that denied the prosecution an opportunity for a damaging rebuttal. Our
review of the entire record in this case reveals that defendant was afforded excellent
representation. Defense counsel conducted effective cross-examination and provided
meaningful adversarial testing of the State’s case.
¶ 48 Defendant nevertheless maintains, relying on Wilson, that the failure to give a closing
argument amounted to ineffective assistance of counsel. Wilson’s underpinnings are suspect.
In Wilson, the court stated that the defendant’s conviction came down to whether the jury
believed the identification testimony of the State’s witness, and counsel gave up his best
opportunity to challenge that evidence by waiving closing argument. Wilson, 392 Ill. App. 3d
at 201. The Wilson court cited People v. McCarter, 385 Ill. App. 3d 919, 935 (2008), to support
the following proposition: “It would be a rare case in which choosing not to make a closing
argument in a jury trial would be sound trial strategy.” Wilson, 392 Ill. App. 3d at 200.
However, McCarter held that the admission of impermissible opinion testimony was not
susceptible to any strategic justification and therefore fulfilled the first prong of the Strickland
test. McCarter, 385 Ill. App. 3d at 935. It did not discuss closing arguments or whether waiver
of closing argument was trial strategy. While the Wilson court further stated that there was a
“lack of Illinois case law on this issue” (Wilson, 392 Ill. App. 3d at 199), there existed at the
time an Illinois case directly on point—Carter. Instead, Wilson looked to a Pennsylvania case,
Commonwealth v. Sparks, 539 A.2d 887 (Pa. Super. Ct. 1988), to aid its analysis. However,
“where there is Illinois law on point, we need not, and should not, look to cases from other
jurisdictions.” People v. Rodriguez, 2019 IL App (1st) 151938-B, ¶ 28; see also People v.
Qurash, 2017 IL App (1st) 143412, ¶ 34. Accordingly, we find the analysis in Wilson, which
relies heavily on a case outside of Illinois, to be unpersuasive.
¶ 49 Even if we were to find Wilson to be persuasive, it is distinguishable from the case at bar.
In Wilson, the defendant was convicted by a jury of first degree murder and aggravated battery
with a firearm. The primary issue at trial was the identity of the men who shot the victims.
Wilson, 392 Ill. App. 3d at 192-97. One witness who identified the defendant as a shooter had,
in prior testimony and interviews, identified only two other men or had said only that he saw
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three men with guns. Id. at 193. Another witness testified that he did not see the defendant in
the building of the shooting but did see him afterwards. Id. at 193-94. Other witnesses cast
doubt on whether the defendant was one of the shooters or was carrying a gun. Id. at 194-95.
There was also no physical evidence tying the defendant to the crimes. In light of these facts,
the court held that defense counsel’s failure to present any closing argument amounted to
ineffective assistance. This court stated that counsel had forgone an “opportunity *** to
impress upon the jury the inconsistencies in the State’s witnesses’ identification testimony as
well as the lack of *** physical evidence connecting the defendant to the offenses in this case.”
Id. at 200.
¶ 50 Here, there were no significant inconsistencies in the State’s case, and the jury’s decision
did not come down to whether the jury believed different aspects of confusing or inconsistent
evidence. Moreover, a conversation took place between the trial court and defendant in which
the trial court asked whether defendant was surprised by defense counsel’s decision to waive
closing argument and whether he agreed with her decision. Defendant stated that he was not
surprised and that he agreed to the waiver.
¶ 51 Defendant also contends that the waiver of closing argument amounted to deficient
performance by defense counsel because defense counsel had promised in opening statements
that the jury would “hear” from defendant at trial, but defendant did not testify. Defendant
contends that closing argument was the only opportunity for defense counsel to explain why
defendant did not testify. We disagree. First, we think it is entirely plausible that when defense
counsel stated that the jury would “hear” from defendant, she was referring to five hours of
interviews with defendant, conducted by police officers, which were played in open court for
the jury. The jury heard, through those interviews, defendant’s account of what happened in
the days leading up the murders, the morning of the murders, and the days after the murders.
Secondly, even if defense counsel had intended for defendant to testify, it is entirely plausible
that “valid reasons existed for trial counsel’s strategic decision to alter the defense theory as
the trial proceeded.” People v. Schlager, 247 Ill. App. 3d 921, 933 (1993). Defendant also
made it clear during trial that he was aware of his right to testify and had chosen not to. After
the State rested, the trial court informed defendant that the right to testify was his alone and
not a decision his attorney could make for him. Defendant indicated he understood, and then
the trial court asked, “Do you desire to testify?” Defendant responded, “No.” Accordingly, we
find that defense counsel’s choice not to give closing argument was one of trial strategy.
¶ 52 Finally, even if we were to find that defense counsel’s waiver of closing arguments,
coupled with her alleged promise to the jury that it would hear from defendant, amounted to
deficient performance, defendant has not proven the second prong of the Strickland test—that
had defense counsel given a closing argument, the outcome of the trial would have been
different. The evidence in this case was overwhelming. Defendant answered a Craigslist ad
posted by the victims and then moved into their apartment a mere five days before their
murders. The day before the murders, Lee’s password and e-mail address linked to her Chase
account were changed. The overdraft protection was also changed on her account, and $20,000
was transferred from her savings account into her checking account. A few hours later, a wire
transfer order of $9800 was placed from Lee’s bank account to defendant’s bank account. The
morning of their murders, defendant entered Saour’s bedroom and stated that he had spilled
poison in the bathroom. Saour left because he was afraid. Defendant then placed a call to police
at about 4:15 a.m., claiming to be out running when he was attacked by three Hispanic men,
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one of whom attacked him with a knife. He went to the hospital and received stitches for the
knife wound to his thumb. It was later discovered that the victims had been stabbed to death
that morning, receiving over 180 stab wounds.
¶ 53 The fire department responded to the apartment at approximately 4 p.m. on the day of the
murders.
¶ 54 Defendant then proceeded to drive Lee’s car, cash checks from her account, and use her
credit card to purchase airfare and a hotel room in Las Vegas. Defendant made several charges
to Lee’s and Brown’s credit cards while in Las Vegas. Defendant placed several calls to
Discover asking for assistance in using Lee’s credit card and claimed his name was “Cathy
Lee.” Defendant then stated Lee had trouble speaking English, so he was calling for her. The
agent then offered to get an interpreter, to which defendant said he would call back. When he
called back, he used a different voice. After wrongly answering security questions, the agent
told him she could not help defendant. Defendant attempted three more calls, which were all
unsuccessful.
¶ 55 Upon his arrest when he landed in Chicago, Lee’s Discover card and Brown’s bank card
were both found in defendant’s possession. He had Lee’s mutual fund statement in his
possession. He also had an odometer reading from Lee’s car and a signed and notarized letter
requesting purchase of Lee’s car by defendant. A search of defendant’s new apartment yielded
several documents bearing Lee’s name, checks from Lee’s account made payable to defendant
after her death, and Brown’s attorney badge.
¶ 56 After defendant’s arrest, defendant first claimed he had stolen Lee’s and Brown’s credit
cards but did not know they had been murdered. He said he had been out running on the
morning of the incident between 5:30 a.m. and 6 a.m. when he was attacked by three assailants.
When confronted with his 911 call that was made at 4:10 a.m., defendant stated that it was not
looking good for him. He also claimed that he played tennis with Lee a day after she died and
that two days after her murder, she gave defendant some rent money back. After several hours
of interviews, defendant then changed his story and claimed that on the morning of the incident,
a man had entered the apartment and stabbed the victims in front of defendant. Defendant
claimed he escaped and called 911 but made up the story of the three assailants instead of
telling the truth.
¶ 57 The circumstantial evidence in this case is overwhelming. We cannot say that had defense
counsel given a closing argument, the outcome of this case would have been different. Thus,
because defendant cannot meet the second prong of the Strickland test, his claim for ineffective
assistance of counsel must fail.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 60 Affirmed.
¶ 61 JUSTICE CUNNINGHAM, specially concurring:
¶ 62 I agree with the conclusion reached by the majority, specifically, that the circumstantial
evidence in this case was overwhelming. Therefore, we cannot say that the failure to give a
closing argument was the reason for the defendant’s conviction. However, I write separately,
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and briefly, to express my strong disapproval and disbelief regarding the defense attorney’s
purported trial strategy that resulted in her decision to forego a closing argument entirely. In
my view, there are very few cases in which failing to give a summation is advantageous to a
defendant. This case is not among that rare few. So, the failure to give a closing argument in
this case, under these facts, does not pass the smell test. It is not hyperbole to say that to all
appearances, defendant’s counsel figuratively threw in the towel. Thus, counsel’s assertions
on appeal regarding the alleged strategic advantage of that decision is, in my view, contrived
after the fact in an attempt to explain the inexplicable.
¶ 63 As noted, there was a mountain of circumstantial evidence in this case. Given the bountiful
amount of evidence and the defense theory of the case—specifically, that someone other than
the defendant committed the murders—a closing argument under these facts became even
more important, not less. Further, the defense attorney promised the jury that it would hear
from the defendant. That promise was not kept, and defendant’s attorney claimed that the
decision to forgo defendant’s testimony was also strategic. While that decision may truly have
been strategic and understandable, when that broken promise is coupled with the failure to
deliver a single word in a closing statement, it could be construed as telegraphing to the jury
that even the defendant’s own attorney thought he was guilty. The decision to have so
unexpectedly and inexplicably declined to give a closing argument, likely gave rise to negative
speculation by the jury. It could not have been lost on them that the State used its closing
argument to tie together the many pieces of circumstantial evidence that it argued pointed to
the defendant’s guilt. By refusing to say a single word in opposition to that lengthy and strong
argument by the State, defense counsel’s action suggested that there was nothing to say in
opposition. The logical inference that the jury could then draw is that defense counsel agreed
with the State. Against the backdrop of this record, defense counsel’s “trial strategy” assertions
after the fact make little sense, do not ring true, and did not serve the defendant’s interest.
¶ 64 In fact, there were many areas in which defense counsel could have pointed out the
weaknesses or discrepancies in the State’s evidence. She could and should also have
highlighted those facts that supported the defense theory of the case. Instead, what she did was
tantamount to figuratively throwing up her hands in acquiescence to the State’s evidence. This
is hardly the action of an attorney who is vigorously defending her client.
¶ 65 The defendant was entitled to a defense that was free from the appearance that his own
lawyer thought more of the State’s evidence than of his innocence. So, while the judgment
reached by my colleagues is not the factor with which I take issue, I find it imperative to
condemn defense counsel’s conduct in the strongest terms under the facts of this case. Every
defendant is entitled to a vigorous defense that is not tainted by the appearance of irregularity
that occurred in this case. See People v. Leeper, 317 Ill. App. 3d 475, 481 (2000) (while a
defendant is not entitled to perfect representation, competent representation is required).
¶ 66 So, while defense counsel’s conduct did not ultimately change the outcome of the case, it
is important to make clear that such conduct cannot be condoned.
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