People v. Sanford

NOTICE
2020 IL App (5th) 160277-U NOTICE
Decision filed 04/21/20. The This order was filed under
text of this decision may be NO. 5-16-0277 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 14-CF-522
)
MELVIN L. SANFORD, ) Honorable
) William G. Schwartz,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE WELCH delivered the judgment of the court.
Justices Cates and Wharton concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction for home invasion with a firearm is affirmed
where the trial court did not err in denying his motion to suppress; where the
defendant is not entitled to have his conviction vacated and his charge
dismissed based on 725 ILCS 5/103-5 (West 2014); where the State proved
the defendant guilty of home invasion with a firearm beyond a reasonable
doubt; and where he was not denied effective assistance of counsel. Pursuant
to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019), we remand this
case to the trial court for the defendant to file a motion regarding clerk-
imposed fines should he choose to do so.
¶2 This is a direct appeal from the circuit court of Jackson County. The defendant,
Melvin L. Sanford, was convicted of home invasion with a firearm. On June 20, 2016, he
was sentenced to an enhanced sentence of 25 years’ imprisonment followed by 3 years of
1
mandatory supervised release (MSR). The defendant raises five points on appeal: (1) that
the trial court erred in denying his motion to suppress, (2) that his conviction should be
vacated and his charge dismissed pursuant to section 103-5 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/103-5 (West 2014)), (3) that the State failed to
prove the charge against him beyond a reasonable doubt, (4) that he was denied effective
assistance of counsel, and (5) that the circuit clerk improperly imposed a number of fines
against him. For the reasons that follow, we affirm the defendant’s conviction but remand
pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17, 2019) to allow the defendant
an opportunity to challenge the clerk-imposed fines.
¶3 I. BACKGROUND
¶4 On December 12, 2014, the defendant was charged by information with one count
of home invasion (720 ILCS 5/19-6(a)(3) (West 2014)). 1 It was alleged that the defendant
along with Terrance A. Vinson, who was the defendant’s brother, and Elijah J. Mosley,
“without authority entered the dwelling place of Larry and BethAnn Clites 2 *** and
remained therein when they had reason to know that one or more persons were present
therein and while armed with a firearm used force or threatened imminent use of force on
persons within the dwelling place.” The information further alleged that the State would
be seeking a mandatory 15-year sentencing enhancement based on the fact that the offense
1
The defendant was also charged and convicted of one count of armed robbery. However, that
conviction was subsequently vacated by the trial court in accordance with the one-act, one-crime doctrine.
Facts relating to the armed robbery charge will only be discussed to the extent necessary to provide relevant
background and address the defendant’s arguments.
2
Because Larry and BethAnn or Beth Clites share a last name, we will refer to them individually
by their first names for ease of reference.
2
was committed while the men were armed with firearms (id. § 19-6(c)). Mosley’s case
was severed before trial; the defendant and Vinson were tried together.
¶5 Each accused was appointed his own attorney, with John McDermott being
appointed to represent the defendant on December 16, 2014. During the December 22,
2014, preliminary hearing, the defendant requested a jury trial, and the case was set for
trial on March 23, 2015. The trial date was subsequently continued and reset for May 18,
2015. On February 2, 2015, McDermott moved to withdraw as the defendant’s counsel
due to a conflict of interest. The trial court granted the motion and appointed Christian
Baril to the defendant’s case. Baril similarly withdrew due to a conflict, and Kelly Zuber
was appointed to represent the defendant. After Zuber also withdrew due to a conflict, the
court appointed a new attorney to the defendant’s case. However, the fourth attorney’s
appointment was vacated, and the court appointed the defendant’s trial counsel, Thomas
Mansfield, on April 7, 2015.
¶6 On May 11, 2015, the defendant filed a motion to suppress evidence recovered from
his vehicle. Due to the filing of the motion to suppress, the May 18 trial date was continued.
¶7 At a pretrial hearing on May 28, 2015, the trial court took up the matter of the
defendant’s motion to suppress. The defense called Officer Timothy Lomax of the
Carbondale Police Department, who was involved in the stop of the defendant’s vehicle in
the early morning hours of December 11, 2014. The video recording from Lomax’s patrol
vehicle depicting the stop and search was played for the court.
¶8 On cross-examination, Lomax testified as to the following. On the night in question,
Lomax learned via dispatch that a home invasion with a firearm had occurred. He then
3
heard Officer Blake Harsy’s radio transmissions that a cell phone stolen during the home
invasion had global positioning system (GPS) tracking. According to the GPS tracking,
the phone was traveling toward the intersection of Country Club Road and Old Route 13.
Lomax drove his patrol vehicle to that location, stationed himself in a parking lot near that
intersection, and observed a “brown ’88 Cadillac” traveling northbound on Country Club
Road approaching Old Route 13. Lomax testified that he did not see any other vehicles
traveling northbound on Country Club Road approaching the intersection at that time.
¶9 After his initial observation of the Cadillac, Lomax received a radio transmission
that the stolen cell phone was heading west on Old Route 13. Simultaneously, he saw the
Cadillac heading in that same direction. Lomax did not see any other vehicles traveling
west on Old Route 13 at that time, so he decided to follow the Cadillac. The next radio
transmission indicated that the stolen phone was heading west on Old Route 13 and passing
Gibbs Lane. At that time, Lomax and the Cadillac were traveling westbound on Old Route
13 and were approximately 500 feet west of Gibbs Lane; they had just passed it. Again,
there were no other vehicles traveling westbound in the area of Gibbs Lane at the time.
Lomax testified that based upon all the communications that he received about the GPS
tracking of the stolen cell phone’s locations, along with his observations of the Cadillac’s
movements, he believed the stolen cell phone was located in that vehicle. For that reason,
he initiated a “felony stop” or “high-risk stop” of the Cadillac, which was determined to be
the defendant’s vehicle.
¶ 10 The defendant and his occupants were ordered out of the vehicle and detained.
Lomax and other officers assisting with the stop then cleared the car, searching for anyone
4
hiding therein. Immediately after the trunk was opened and cleared, one of the officers
stood near the rear passenger side door and shone a flashlight into the car looking for “any
evidence in plain view, the phones, guns, weapons or drugs.” The officers discovered two
cell phones in the map pocket behind the driver’s seat as soon as they looked inside the
vehicle. Nevertheless, they did not immediately enter the car to seize them because
although they “appeared to be” the stolen cell phones, the officers wanted to be sure.
Therefore, the officers obtained a physical description of the stolen phones and the numbers
to which they belonged. Lomax observed that the phones matched the descriptions
provided. Officer Jeff Withrow then dialed each of the victims’ cell phone numbers. After
he dialed one of the numbers, one of the cell phones in the map pocket lit up, and Withrow
reached into the car to check that the phone was showing the number from which he was
calling. At that point, Lomax believed they had found the cell phones stolen from the
Clites’ trailer. The police then searched the rest of the defendant’s vehicle and seized
evidence found therein.
¶ 11 The trial court denied the motion to suppress, finding:
“The argument of the defendant is that there were no exigent circumstances
in this case. I disagree. First of all, we’re holding defendants who are alleged to
have committed a crime. They were investigating that crime at the stop of the
vehicle. The crime had just occurred, and as I’ve just previously stated, there was
a tracking device that happened to be in the vehicle, based upon the stolen phones
that were taken at the scene. It is incumbent both by common sense, rationality, and
by proper police procedure and not unconstitutional to see if those phones and the
tracking that was conducted was in fact coming from that particular vehicle. How
did they do it? They visually observed an item that resembled an item which came
from the crime, namely the cell phone or cell phones.
***
The point is that the police were—I hate to use the term ‘in hot pursuit,’ but
I know that it’s in some procedures, and not in the sense that they watched somebody
5
come out of a bank and they were chasing them, but rather a crime had just occurred
and they had determined that there was a manner of tracking that vehicle. They
used that method of tracking the vehicle to locate the vehicle. They located the
tracking device from observation from outside of the car and then they made sure
that it was the correct tracking device by having those phones called and using the
phone numbers of the owners of the phones, and the phones rang inside of the car.”
¶ 12 On August 24, 2015, the defendant and Vinson’s three-day jury trial commenced.
We have previously recited the evidence adduced at trial in an order issued pursuant to
Illinois Supreme Court Rule 23 (eff. Apr. 1, 2018) in Vinson’s appeal. People v. Vinson,
2019 IL App (5th) 160124-U, ¶¶ 7-31. However, because the defendant claims that he was
not proved guilty beyond a reasonable doubt, we will set forth additional evidence, which
we find relevant to the defendant’s involvement in the home invasion.
¶ 13 Detective Aaron Baril testified that he interviewed the defendant, who changed his
story several times. The defendant initially told Baril that he went to pick Vinson up from
their mother’s house but fell asleep while he was waiting, and Mosley got into the backseat
of the vehicle uninvited. The defendant claimed that the men were driving to Murphysboro
when they were stopped by the police. However, the defendant subsequently admitted that
they stopped at their friend Mariah Herron’s house. The defendant insisted that he did not
know that Mosley was going to be there. Nevertheless, he also admitted that once the three
men were together, no one else got in the car, and they were together until they were
stopped by the police. Vinson and the defendant voluntarily consented to a search of their
cell phones.
¶ 14 Detective Brandon Weisenberger also interviewed the defendant, who admitted to
Weisenberger that from the time he picked up Vinson and Mosley until they were stopped,
6
no one was in the car with them, and it was just those three in the vehicle all night. When
Weisenberger asked the defendant how the stolen phones could have been in his car, the
defendant’s explanation was that it was attributed to “[s]ome paranormal activity shit.”
¶ 15 The defendant was also interviewed by Sergeant Anthony Williams. The defendant
initially told Williams that he drove to pick up Vinson at their mother’s house on North
Marion Street in Carbondale, sent Vinson a text saying that he was there, and fell asleep in
the car while waiting for Vinson. The defendant said Vinson got in the car, and he drove
on a direct route to Pleasant Hill Road, where police stopped them. He said they did not
make any stops, and because he was asleep when Vinson got into his car, he did not know
Mosley was in the vehicle until the police stopped them.
¶ 16 The defendant later changed his story, telling Williams that after he picked up
Vinson and Mosley, they drove around the Southern Illinois University campus and near
the trailer parks on South Illinois Avenue before police stopped them. The defendant said
this only after Williams asked if there was a chance that his vehicle would appear on video
surveillance of a store on Route 51 near the Clites’ trailer park. In this and subsequent
versions of his story, the defendant admitted that he knew Mosley was in the vehicle.
¶ 17 After being confronted with new information, the defendant admitted that the men
visited the trailer of a woman named Mariah. From the defendant’s description, Williams
identified the trailer as the one at 76 Gold Drive and the woman as Herron. The defendant
subsequently said that in addition to the route previously mentioned, they stopped at the
Malibu apartment complex, which was near the Clites’ trailer park. The defendant said he
believed this was the home of Mosley or his mother. The defendant also admitted to
7
Williams that from the time he picked up Vinson and Mosley until the time they were
stopped, no one else was in his vehicle.
¶ 18 After the State rested its case, the defense filed a motion for directed verdict, which
was denied. The defendant did not testify or present any evidence in his defense.
¶ 19 After closing arguments, the trial court instructed the jury, inter alia, that: “Neither
opening statements nor closing arguments are evidence”; “Only you are the judges of the
believability of the witnesses and of the weight to be given to the testimony of each of
them”; and “When a witness says that he or she was involved in a commission of a crime
with the defendant, the testimony of that witness is subject to suspicion and should be
considered by you with caution. It should be carefully examined in the light of the other
evidence in the case.” Also included in the jury instructions was Illinois pattern instruction
11.54, which reads as follows:
“To sustain the charge of home invasion, the State must prove the following
propositions:
First Proposition: That the defendant was not a police officer acting in the
line of duty; and
Second Proposition: That the defendant knowingly and without authority
entered the dwelling place of another; and
Third Proposition: That the defendant entered the dwelling place and
remained in the dwelling place until he knew or had reason to know that one or more
persons was present; and
Fourth Proposition: That the defendant, or one for whose conduct he is
legally responsible, was armed with a dangerous weapon; and
Fifth Proposition: That while armed with a dangerous weapon the defendant
threatened the imminent use of force on persons within the dwelling place.
8
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the
defendant guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the
defendant not guilty.” Illinois Pattern Jury Instructions, Criminal, No. 11.54 (4th
ed. 2000).
The jurors were additionally instructed that:
“The State has alleged that the defendants, or one for whose conduct they
were legally responsible, were armed with firearms.
***
To sustain the allegation in connection with the offense of armed robbery and
home invasion, the State must prove the following propositions: That during the
commission of the offense of *** home invasion, the defendants, or one for whose
conduct they were legally responsible, was armed with a firearm.
If you find from your consideration of all the evidence that the above
proposition has been proved beyond a reasonable doubt, then you should sign the
verdict form finding the allegation was proven.”
¶ 20 The jury found the defendant and Vinson guilty of home invasion and further found
that each individual, or one for whose conduct he was legally responsible, was armed with
a firearm during the commission of the charged offense.
¶ 21 On September 14, 2015, the defendant and Vinson filed a joint pro se motion for a
new trial alleging, inter alia, ineffective assistance of counsel. On September 18, 2015,
Mansfield moved to withdraw based on the defendant’s pro se motion. The trial court
allowed Mansfield to withdraw and appointed Jennifer Cavaness to serve as the
defendant’s posttrial counsel on September 22, 2015. On January 4, 2016, Cavaness filed
9
a motion for leave to withdraw as the defendant’s attorney. The court granted the motion
to withdraw and appointed Nick Brown to represent the defendant.
¶ 22 On June 8, 2016, the defendant filed a motion for new trial 3 alleging, in part, trial
counsel’s ineffectiveness in failing to file a motion to suppress based on the police search
of cell phone data on the two stolen cell phones and in failing to object or file a motion
in limine regarding Weisenberger’s historical cell site analysis (HCSA) testimony. The
defendant also alleged that Mosley’s testimony should not have been believed and that the
evidence at trial was not sufficient to support a guilty verdict.
¶ 23 On June 20, 2016, a hearing was held on the matters of posttrial motions and
sentencing. Brown argued that the defendant’s trial counsel was ineffective for not arguing
that officers needed a warrant to inspect digital data on the phones found in the map pocket
of the car and argued that after a phone rang, the police should have gotten a search warrant.
The State responded by noting that the defendant had no standing to contest a search of the
victims’ phones. The trial court denied the motion for new trial and proceeded to
sentencing. The defendant was sentenced to 10 years’ imprisonment as to home invasion
and 15 years’ imprisonment pursuant to the firearm sentencing enhancement, to be
followed by 3 years of MSR. The court subsequently found the defendant was entitled to
588 days of credit for time spent in presentence custody. The court did not address or
impose any fines or fees against the defendant in its oral pronouncement of the sentence or
3
Prior to moving to withdraw as the defendant’s counsel, Mansfield filed a posttrial motion on the
defendant’s behalf. However, Mansfield’s motion was subsequently abandoned after Brown was appointed
and filed his own motion for new trial. The motion for new trial filed by Brown on behalf of the defendant
was the only one argued by the parties and the one ultimately ruled on by the trial court.
10
in the written sentencing order entered on June 21, 2016. Thereafter, the circuit clerk
included several entries in the electronic accounts receivable balance sheet pertaining to
the defendant’s case. The entries indicated that the defendant was obligated to pay
mandatory fines that were not specified in the court’s judgment.
¶ 24 The defendant filed his notice of appeal on June 27, 2016.
¶ 25 II. ANALYSIS
¶ 26 On appeal, the defendant makes five contentions. First, he argues that the trial court
erred in denying his motion to suppress. Second, he asserts that his conviction should be
vacated and the charge against him dismissed pursuant to section 103-5 of the Code (725
ILCS 5/103-5 (West 2014)). Third, he contends that the State failed to prove the charge
against him beyond a reasonable doubt. Fourth, he maintains that he was denied effective
assistance of counsel. Fifth, he argues that the circuit clerk improperly imposed a number
of fines against him.
¶ 27 A. Motion to Suppress
¶ 28 The first issue raised by the defendant is whether the trial court erred in denying his
motion to suppress. The State initially argues that the defendant has forfeited this argument
on appeal because he did not raise it in a posttrial motion. “Ordinarily, to preserve an issue
for review a party must raise it at trial and in a written posttrial motion.” People v. Almond,
2015 IL 113817, ¶ 54. Although the defendant failed to raise this fourth amendment issue
in his posttrial motion, he raised it prior to trial in a written motion to suppress. At the
suppression hearing, trial counsel argued evidence recovered from the vehicle was the
result of a warrantless search in violation of the defendant’s fourth amendment rights.
11
“[C]onstitutional issues that were previously raised at trial and could be raised later in a
postconviction petition are not subject to forfeiture on direct appeal.” (Emphasis
omitted.) Id. “ ‘[T]he interests in judicial economy favor addressing the issue on direct
appeal rather than requiring defendant to raise it in a separate postconviction
petition.’ ” Id. (quoting People v. Cregan, 2014 IL 113600, ¶ 18). Accordingly, we will
review the merits of the defendant’s claim.
¶ 29 In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-
part standard of review. People v. Pitman, 211 Ill. 2d 502, 512 (2004). We review de novo
the court’s ultimate legal ruling as to whether suppression is warranted. Id. A court’s
findings of fact and credibility determinations are accorded great deference and will be
reversed only if they are against the manifest weight of the evidence. Id. The reason is
because the trial court is in a better position to determine and weigh the credibility of the
witnesses, observe their demeanor, and resolve conflicts in the testimony. Id. A judgment
is against the manifest weight of the evidence where the opposite conclusion is apparent or
when the findings are unreasonable, arbitrary, or not based on evidence. People v. Lopez,
2013 IL App (1st) 111819, ¶ 17.
¶ 30 Both the United States and Illinois Constitutions protect citizens from unreasonable
searches and seizures. U.S. Const., amend. IV.; Ill. Const. 1970, art. I, § 6. Our supreme
court has interpreted the search and seizure clause of the Illinois Constitution in a manner
consistent with the United States Supreme Court’s fourth amendment jurisprudence.
People v. Caballes, 221 Ill. 2d 282, 335 (2006). The primary focus of a fourth amendment
inquiry is the reasonableness of government action. People v. Jones, 215 Ill. 2d 261, 268-
12
69 (2005). We note that in this case the defendant does not contest the constitutionality of
the initial stop of his vehicle. Instead, the defendant argues that the subsequent search of
his vehicle and seizure of evidence discovered therein was unconstitutional.
¶ 31 A warrantless search is per se unreasonable unless one of a number of exceptions
applies. Cregan, 2014 IL 113600, ¶ 25. One such exception is the automobile exception,
which allows for the warrantless search of a vehicle when a law enforcement officer has
probable cause to believe that the vehicle contains evidence of criminal activity that he
could lawfully seize. People v. Hill, 2019 IL App (4th) 180041, ¶ 31; People v. Stroud,
392 Ill. App. 3d 776, 803 (2009). The exception is based upon the reduced expectation of
privacy in a vehicle and the exigency caused by a vehicle’s ready mobility. People v.
Slavin, 2011 IL App (2d) 100764, ¶ 13. Stopping an automobile for a minor traffic
violation does not justify a search of a vehicle under this exception; instead, the officer
must reasonably believe he is confronting a more serious situation. People v. Contreras,
2014 IL App (1st) 131889, ¶ 28. The scope of a warrantless search under the automobile
exception extends to every part of the vehicle and any interior compartment that may
contain the object of the search. Id.; Stroud, 392 Ill. App. 3d at 803.
¶ 32 An officer has probable cause to search a vehicle “where the totality of the facts and
circumstances known to the officer at the time of the search, in light of the officer’s
experience, would cause a reasonably prudent person to believe that a crime occurred and
that evidence of the crime is contained in the automobile.” Stroud, 392 Ill. App. 3d at 803.
Probable cause is a not a technical concept; rather, it is a fluid construct dependent upon
the assessment of probabilities in a particular factual context. Jones, 215 Ill. 2d at 274. In
13
order to determine whether probable cause for a search existed, the reviewing court must
examine the events leading up to the search or seizure from the perspective of an
objectively reasonable law enforcement officer. Id.¶ 33 Although the defendant’s argument on appeal focuses on whether the officers were
constitutionally permitted to search his vehicle under Michigan v. Long, 463 U.S. 1032(1983), we may affirm the trial court on any basis supported by the record. People v.
Dinelli, 217 Ill. 2d 387, 403 (2005). Upon hearing evidence and arguments on the
defendant’s motion to suppress, the court found that the search was proper in that the
officers had information that a crime had just occurred, there was a manner of tracking a
piece of evidence of that crime, and the Cadillac’s occupants were suspected of committing
the crime based on the fact that the officers used the tracking device to locate the vehicle
containing the stolen cell phone. The court’s findings of fact indicate that it agreed with
the State’s argument that the officers did not need a warrant to search the defendant’s
vehicle because they had probable cause to believe that it contained evidence subject to
seizure. This conclusion was not against the manifest weight of the evidence.
¶ 34 The evidence adduced during the suppression hearing revealed that prior to stopping
the defendant’s vehicle, Lomax received information that its occupants were suspected of
being involved in a home invasion with a firearm. In light of such information, Lomax and
the assisting officers conducted a “felony stop” or “high-risk stop” as they reasonably
believed they were confronting a situation more serious than a minor traffic violation.
After hearing Harsy’s communications about the GPS tracking of the stolen cell phone,
and personally following the defendant’s vehicle taking a path consistent with the phone’s
14
movements, Lomax had more than a bare suspicion that the phones were in the vehicle.
Instead, Lomax had probable cause to believe that the vehicle contained items stolen from
the Clites’ trailer that the officers could lawfully seize. See People v. Lee, 2018 IL App
(3d) 160100, ¶ 17 (“[p]robable cause is not a high bar” (internal quotation marks omitted)).
Accordingly, the warrantless search of the vehicle, including its interior compartments, and
the seizure of the incriminating items found therein were proper pursuant to the automobile
exception. See People v. Talach, 114 Ill. App. 3d 813, 819-20 (1983) (similarly finding
officers had probable cause to search a vehicle under the automobile exception, and thus,
probable cause to seize the incriminating items found therein).
¶ 35 Notwithstanding the fact that the officers already had probable cause to search the
defendant’s vehicle and seize evidence found therein, the officers independently confirmed
their reasonable belief that the stolen cell phones were in the vehicle by: (1) obtaining a
physical description of the stolen phones and the numbers to which they belonged,
(2) visually observing that the phones found in plain view in the vehicle matched the
descriptions provided, and (3) calling the numbers belonging to the cell phones stolen from
the victims. After Withrow dialed one of the numbers, one of the phones in the map pocket
lit up, and he reached into the car to check that the phone was showing the number from
which he was calling. Withrow subsequently determined that the second phone showed a
missed call from his phone number. An officer is not required to know that an item is
contraband or evidence of a crime in order to seize it. Jones, 215 Ill. 2d at 277.
Nevertheless, the officers involved in the search of the defendant’s vehicle made certain
15
that the phones they discovered in the map pocket were those stolen from the Clites’ trailer
prior to seizing them as evidence.
¶ 36 In sum, we find that based on the totality of the foregoing facts and circumstances,
and viewed from the standpoint of an objectively reasonable law enforcement officer,
Lomax and the other officers had probable cause to believe that the defendant’s vehicle
contained evidence of criminal activity that they were entitled to seize. Accordingly, no
warrant was necessary to search the vehicle as the search was justified by the automobile
exception. Because the search and seizure did not violate the defendant’s rights under the
fourth amendment, the trial court did not err in denying the defendant’s motion to suppress.
¶ 37 The defendant has also argued on appeal that his posttrial counsel was ineffective
for failing to properly preserve the motion to suppress issue for appeal. However, as we
have found that the trial court properly denied the motion, the defendant cannot show he
was prejudiced by posttrial counsel’s alleged error and his ineffective assistance claim must
fail. See People v. Holmes, 397 Ill. App. 3d 737, 744 (2010) (defense counsel will not be
found ineffective for failing to file a meritless motion).
¶ 38 B. Speedy Trial
¶ 39 The defendant next asserts that his conviction should be vacated and his charge
dismissed pursuant to section 103-5 of the Code (725 ILCS 5/103-5 (West 2014)). Because
he failed to preserve this claim of error in a posttrial motion, it is considered forfeited unless
we deem it to be plain error. See People v. Sebby, 2017 IL 119445, ¶ 48.
¶ 40 The plain-error doctrine allows a reviewing court to consider an unpreserved error
when a clear or obvious error occurred and the evidence at trial was closely balanced, or
16
the error was so egregious, as to deny a defendant a fair trial. People v. Piatkowski, 225
Ill. 2d 551, 565 (2007). Under either prong of the plain-error analysis, the burden of
persuasion remains with defendant. Id. However, the first step in plain-error review is to
determine whether an error occurred. People v. Johnson, 347 Ill. App. 3d 570, 574 (2004).
¶ 41 Section 103-5(a) of the Code provides: “Every person in custody in this State for an
alleged offense shall be tried by the court having jurisdiction within 120 days from the date
he or she was taken into custody unless delay is occasioned by the defendant.” 725 ILCS
5/103-5(a) (West 2014). The statute enforces the constitutional right to a speedy trial
guaranteed by the United States and Illinois Constitutions. People v. Mosley, 2016 IL App
(5th) 130223, ¶ 9 (citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8).
Despite the defendant’s failure to preserve this issue for appeal, we will review his claim
under the plain-error doctrine because a speedy trial is a substantial fundamental right. Id.
¶ 42 The 120-day speedy-trial period starts automatically when a defendant remains in
custody pending trial. People v. Mayo, 198 Ill. 2d 530, 536 (2002). If a defendant is not
tried within the statutory speedy-trial period, he must be released and the charges
dismissed. 725 ILCS 5/103-5(d) (West 2014). Under the statute, a delay is any action by
the parties or the trial court that moves the trial date outside of the speedy-trial term. People
v. Cordell, 223 Ill. 2d 380, 390 (2006).
¶ 43 In order to prevent the speedy-trial clock from tolling, a defendant must object to
any attempt to place the trial date outside the 120-day period. Id. “Delay shall be
considered to be agreed to by the defendant unless he or she objects to the delay by making
a written demand for trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a)
17
(West 2014). The statute “places the onus on a defendant to take affirmative action when
he becomes aware that his trial is being delayed.” Cordell, 223 Ill. 2d at 391. Although
there are no “magic words” that constitute a sufficient demand for trial, some affirmative
statement requesting a speedy trial is required. Id. In addition, a defendant is bound by his
attorney’s actions unless he clearly and convincingly attempts to assert his right to
discharge his attorney and proceed to trial immediately. Mayo, 198 Ill. 2d at 537.
¶ 44 The dispositive issue is whether the trial court erred in attributing a delay to the
defendant. Although it is the State’s duty to ensure that a defendant is tried within the
statutory period (id. at 536), defendant bears the burden of affirmatively establishing a
violation of his speedy trial rights (People v. Kliner, 185 Ill. 2d 81, 114 (1998)). The court’s
decision to attribute a delay to defendant is entitled to substantial deference and will not be
overturned on appeal absent an abuse of discretion. Mayo, 198 Ill. 2d at 535. An abuse of
discretion occurs when the court’s ruling is unreasonable, arbitrary, or fanciful, or when no
reasonable person would take such a view. People v. Rivera, 2013 IL 112467, ¶ 37.
¶ 45 The following facts are relevant to our discussion. On March 11, 2015, the
defendant’s attorney, Baril, filed a motion to withdraw and a motion to continue. Prior to
the March 17, 2015, pretrial hearing, codefendants Mosley and Vinson filed motions to
continue the case. At the pretrial hearing, the defendant was present but Baril was not.
The trial court said it was granting Baril’s motion to withdraw and appointing Zuber to
represent the defendant. The court granted Mosley’s and Vinson’s motions to continue
and stated that it would set a new trial date. The delay was attributed to the defendant,
Mosley, and Vinson. The defendant did not object to any of the court’s orders. On March
18
25, 2015, the court entered a written order, which, inter alia, granted Vinson’s and
Mosley’s motions to continue, attributed the delay to all three defendants, and set the matter
for trial on May 18, 2015. 4 No written objection to the March 25 order was filed by the
defendant or his counsel.
¶ 46 Zuber filed a motion to withdraw on March 30, 2015. On April 2, 2015, the trial
court received a pro se letter from the defendant complaining about Zuber and requesting
a new attorney. The court granted Zuber leave to withdraw and appointed a new attorney
to represent the defendant. However, the fourth attorney’s appointment was subsequently
vacated, and the court appointed Mansfield on April 7, 2015.
¶ 47 During the case management conference on April 13, 2015, the defendant and
Mansfield were both present, and Mansfield stated that he believed he would be ready for
trial as scheduled. On May 8, 2015, the defendant filed a motion to formally object to the
March 17, 2015, continuance being attributed to him. The motion stated, inter alia, that
the defendant asked Zuber to object to the March 17 delay and to demand speedy trial, but
Zuber refused to do so; that Mansfield was appointed to represent the defendant on April
7, 2015; and that notice of the May 18 trial date was sent to Mansfield two days before the
April 13 pretrial hearing. The defendant also filed a motion to dismiss the charges against
him based on an alleged violation of his statutory speedy trial rights (725 ILCS 5/103-5(a)
4
The parties agree that the defendant’s speedy-trial term expired on April 13, 2015. Thus, the
March 25, 2015, order set the defendant’s case for trial outside of the 120 days.
19
(West 2014)). On May 11, 2015, the defendant filed a motion to suppress. Due to the
filing of the motion to suppress, the May 18 trial date was continued. 5
¶ 48 At the May 28, 2015, hearing on the defendant’s motions, the trial court asked
Mansfield to argue the motion objecting to the March 17, 2015, delay being attributed to
the defendant. Mansfield responded that the motion was drafted by the defendant, that he
filed it at the defendant’s request, and that the defendant wished to address the court on the
matter. The court refused to allow the defendant to argue the motion because he was
represented by counsel. Mansfield then argued his motion to dismiss on speedy trial
grounds, asserting that the defendant had not caused any delay and the speedy-trial term
had expired. The State responded in part that the defendant did not object to the May trial
setting until after the speedy-trial term had run. The court denied both of the defendant’s
speedy trial motions.
¶ 49 Thus, the record reveals that the defendant’s trial was delayed for purposes of our
analysis when the trial court granted Vinson’s and Mosley’s motions to continue the March
23 trial date; attributed the delay to the defendant, Vinson, and Mosley; and set the matter
for trial on May 18, 2015. See Cordell, 223 Ill. 2d at 390 (any action by the parties or the
5
Delays caused by the defendant’s filing of motions, and the time naturally associated with their
processing, is chargeable to the defendant for speedy trial purposes. People v. Myers, 352 Ill. App. 3d 684,
688 (2004).
20
court that sets trial outside the 120-day limit qualifies as a “delay” pursuant to the statute). 6
Accordingly, the defendant was obligated to promptly object to the foregoing or be deemed
to have acquiesced in the delay being attributed to him. See id. at 391.
¶ 50 The defendant, however, failed to object or demand a speedy trial until May 8, 2015,
i.e., over one month after the relevant orders were entered and after the speedy-trial term
had expired. The record reveals that the defendant stood silent during the March 17 pretrial
hearing when the trial court orally granted Vinson’s and Mosley’s motions to continue the
March 23 trial date. He did not object or in any way question the court’s decision to
attribute the delay to himself and his codefendants. Further, the defendant failed to file a
written objection, either pro se or through his attorney, to the March 25 order granting the
continuance, attributing delay to the defendants, or setting the matter for trial on May 18,
2015. The motion to formally object, signed by the defendant, indicates that he knew of
the speedy trial issue while Zuber was representing him in March. The defendant has
asserted, after the fact, that he wanted Zuber to object to the delay being attributed to the
defendant and demand a speedy trial but Zuber refused. However, the defendant failed to
object to such actions in his April 2, 2015, letter to the trial court complaining about Zuber.
6
Although the defendant also argues that delays caused by the fact that he had four attorneys
withdraw from his case due to conflicts of interest should be charged to the State and counted in his speedy-
trial term, he has failed to establish that these periods actually constituted “delays” for purposes of the
statute in that they did not set the trial outside of the 120-day limit. See Cordell, 223 Ill. 2d at 390. While
it is true Baril had also filed motions to withdraw and to continue prior to the March 17 hearing, there is no
indication that the trial court actually ruled on them. When there are two reasons for a delay, the fact that
one rendered the delay attributable to the defendant will be sufficient to toll the statutory term. See Myers,
352 Ill. App. 3d at 688.
21
See People v. Lilly, 2016 IL App (3d) 140286, ¶ 27 (where a defendant fails to promptly
repudiate his attorney’s actions, he effectively ratifies them).
¶ 51 Moreover, the motion signed by the defendant indicates that he and Mansfield
learned of the speedy trial issue prior to the April 13, 2015, pretrial hearing but failed to
orally object to the trial date being outside of the 120-day term. Instead, Mansfield
affirmatively stated that he was ready to proceed to trial as scheduled on May 18. Again,
the defendant was bound by Mansfield’s actions because he failed to promptly repudiate
them. See Mayo, 198 Ill. 2d at 537; Lilly, 2016 IL App (3d) 140286, ¶ 27.
¶ 52 We find the defendant in this case did exactly what the supreme court warned
against in Cordell. The defendant stood silent while the trial court granted his codefendants
continuances, set the matter for trial outside of the 120-day term, and attributed the delay
to him and his codefendants. At the next court appearance where he was present with
counsel, his counsel acquiesced in the matter being set for trial on May 18, outside the
speedy-trial term. The defendant’s efforts to have his charges dismissed after the speedy-
trial term expired is the type of offensive use of the speedy-trial statute that is not permitted.
¶ 53 To find in the defendant’s favor on his claim would allow a defendant to sit idly by,
wait until the speedy-trial term has expired, and then protest that his right to a speedy trial
had been violated. If a defendant is considered to have agreed to a delay, unless he objects
to it by making a demand for trial, it is also reasonable to require a defendant to timely
object when the trial court charges a period of time against him. A contrary ruling would
also contravene the Cordell court’s admonition that the speedy-trial statute should not be
used “to open a new procedural loophole which defense counsel could unconscionably use
22
to obstruct the ends of justice.” (Internal quotation marks omitted.) Cordell, 223 Ill. 2d at
390. Stated differently, under the factual scenario present here, the defendant was not using
section 103-5(a) “as a shield” to preserve his right to a speedy trial but rather “as a sword
after the fact” to seek dismissal of the charges against him on speedy trial grounds after he
tacitly agreed that the time period in dispute was attributable to him.
¶ 54 Based on the foregoing, we find that the defendant has failed to carry his burden of
proving that the trial court abused its discretion in attributing the March 17 delay to him.
Because no violation of his statutory speedy trial rights occurred, the defendant is not
entitled to have his conviction vacated and his charge dismissed.
¶ 55 The defendant has also argued on appeal that his trial counsel was ineffective for
failing to argue his motion to formally object to the March 17 delay being attributed to him,
and that his posttrial counsel was ineffective for failing to raise the issue in a posttrial
motion. The defendant alleges that he was prejudiced by trial counsel’s failure because it
led the court to attribute the delays caused by the fact that he had four attorneys withdraw
from his case to him. However, as we have previously found, the defendant has failed to
establish that these periods actually constituted “delays” for purposes of the statute in that
they did not set trial outside of the 120-day limit. See Cordell, 223 Ill. 2d at 390; see also
Myers, 352 Ill. App. 3d at 688 (when there are two reasons for a delay, the fact that one
rendered the delay attributable to the defendant will be sufficient to toll the statutory term).
Thus, the defendant’s motion was without merit, and trial counsel will not be found
ineffective for failing to pursue it. See Holmes, 397 Ill. App. 3d at 744 (defense counsel
will not be found ineffective for failing to pursue a meritless motion). Similarly, as there
23
was no error, posttrial counsel cannot be found ineffective for failing to raise the issue in a
posttrial motion.
¶ 56 C. Beyond a Reasonable Doubt
¶ 57 If the State fails to prove a defendant guilty beyond a reasonable doubt, the
conviction must be overturned. People v. Collins, 106 Ill. 2d 237, 261 (1985). On review,
a jury’s finding of fact will not be disturbed on appeal if, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found defendant
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
reviewing court will not reweigh the evidence or make any credibility determinations
regarding witnesses. People v. Thomas, 178 Ill. 2d 215, 232 (1997).
¶ 58 Here, the defendant argues that the State failed to prove him guilty of armed robbery
and home invasion beyond a reasonable doubt. At the outset, however, we must clarify
that although the defendant has challenged the evidence to support both of his convictions
on appeal, only his conviction for home invasion with a firearm stands at this point. As
previously stated, the defendant’s armed robbery conviction was vacated by the trial court
in accordance with the one-act, one-crime doctrine. Therefore, we need not determine
whether the State proved him guilty of armed robbery beyond a reasonable doubt.
¶ 59 The home invasion statute provides, in pertinent part, that a person, who is not a
police officer acting in the line of duty, commits home invasion when, without authority,
he knowingly enters the dwelling place of another when he knows or has reason to know
that one or more persons is present and, while armed with a firearm, uses force or threatens
the imminent use of force upon any person within the dwelling, regardless of whether an
24
injury occurs. 720 ILCS 5/19-6(a)(3) (West 2014). Under the statute, “a defendant enters
the dwelling place of another ‘without authority’ when *** the occupant has not granted
consent to enter.” People v. Witherspoon, 2019 IL 123092, ¶ 25. The defendant does not
specifically challenge the evidence supporting any of the elements of home invasion with
a firearm. Instead, he argues that the evidence was insufficient to support his conviction
because it consisted mostly of his codefendant Mosley’s testimony. The defendant
maintains that Mosley was the only witness who identified him as one of the intruders, and
that Mosley testified pursuant to a favorable plea agreement with the State. The defendant
suggests that, based on Mosley’s testimony being “largely uncorroborated,” and
contradictory to the victims’ testimony, his testimony could not be trusted.
¶ 60 An accomplice’s testimony “has inherent weaknesses as the testimony of a
confessed criminal [is] fraught with dangers of motives such as malice toward the accused,
fear, threats, and promises or hopes of leniency or benefits from the prosecution.” People
v. McLaurin, 184 Ill. 2d 58, 79 (1998). “Because accomplice testimony is attended with
serious infirmities, it should be accepted only with utmost caution and suspicion and have
the absolute conviction of its truth.” Id. Such testimony “must be cautiously scrutinized
on appeal.” People v. Holmes, 141 Ill. 2d 204, 242 (1990). This is not to say, however,
that the State’s burden of proof is higher when it relies on accomplice testimony. Rather,
“while subject to careful scrutiny, the testimony of an accomplice, whether it is
corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces
the jury of the defendant’s guilt beyond a reasonable doubt.” McLaurin, 184 Ill. 2d at 79.
A reviewing court will not overturn a conviction merely because defendant claims that a
25
witness’s testimony was not credible. People v. Carrilalez, 2012 IL App (1st) 102687,
¶ 32. “[W]hether accomplice testimony *** is a satisfactory basis for conviction goes to
the weight of the evidence and is, therefore, in the province of the jury.” People v. Wilson,
66 Ill. 2d 346, 349 (1977).
¶ 61 Viewing the evidence in the light most favorable to the prosecution, we find that the
State proved the defendant guilty of home invasion with a firearm beyond a reasonable
doubt. The jury heard Mosley’s testimony that he, the defendant, and Vinson committed
the home invasion. Mosley testified that the defendant and Vinson picked Mosley up from
his mother’s house, which was near the Clites’ trailer, around 11 p.m. on December 10,
2014. Mosley said no one else got into the defendant’s vehicle from the time the brothers
picked him up until they were stopped by police a few hours later. Mosley claimed that
Vinson developed the idea to rob Larry for “weed” while they were smoking in the
defendant’s car. Mosley wore a red shirt to cover his face, black jogging pants, and a black
and gray hooded sweatshirt. The other men wore black hooded sweatshirts, hats, masks,
and gloves.
¶ 62 According to Mosley, the three men entered the Clites’ trailer through an open door,
with Vinson entering first. 7 Vinson had a gun, grabbed Beth by her neck, choked her son,
and pointed the gun at Beth and her son. When Larry recognized Mosley’s voice, Vinson
kicked Larry in the face. The men ran from the trailer, got into the defendant’s vehicle,
7
Beth testified that neither she nor anyone else gave the men permission to enter her home. Thus,
the evidence established that the men entered the Clites’ trailer “without authority.” See Witherspoon, 2019
IL 123092, ¶ 25; 720 ILCS 5/19-6(a)(3) (West 2014).
26
and drove back to Herron’s residence. They stayed there until Vinson turned on a scanner
and heard police talking about the crime. They then left the trailer in the defendant’s
vehicle with the defendant driving, Vinson in the front passenger seat, and Mosley in the
backseat. Shortly thereafter, the police activated their lights to stop the vehicle.
¶ 63 Mosley’s testimony was corroborated in the following respects. Several officers
who interviewed the defendant testified that he changed his story several times during the
course of their respective interviews. See People v. Trajano, 2018 IL App (2d) 160322,
¶ 28 (finding a rational jury could have found defendant’s changing story to be evidence
of consciousness of guilty, which supported a finding that she was proved guilty beyond a
reasonable doubt). Nevertheless, the defendant eventually admitted that on the night of the
home invasion, he, Mosley, and Vinson drove around the trailer parks on South Illinois
Avenue and that they stopped at the Malibu apartment complex, which was near the Clites’
trailer park. Further, the defendant admitted that from when he picked up Vinson and
Mosley, until they were stopped by police, the three men were together, no one else was in
the car with them, and it was just those three in the vehicle all night. After the defendant
and Vinson voluntarily consented to a search of their cell phones, Detective Weisenberger
determined, based on their text messages, that they met up around 11:50 p.m. on December
10, 2014, or about one hour before the Clites’ 9-1-1 call. 8
8
Although the defendant challenges a portion of Weisenberger’s testimony as insufficient to
support the defendant’s conviction, that testimony related to the HCSA providing locations of Vinson’s cell
phone after the home invasion took place. However, the defendant does not object to Weisenberger’s
testimony that based on his review of Vinson’s and the defendant’s text messages, the men met up around
11:50 p.m. on December 10, 2014. Moreover, we find that there was sufficient evidence to support the
defendant’s conviction without the HCSA evidence, and thus, we need not discuss the defendant’s argument
relating to that evidence any further.
27
¶ 64 Additionally, Mosley’s testimony was corroborated in part by the victims’
testimony, the physical evidence recovered from his vehicle, and the victims’ identification
of that evidence. The victims testified that three or four masked intruders entered the
Clites’ trailer without permission at approximately 12:30 a.m. on December 11, 2014.
There was a man wearing a red cloth around his face and a black hooded sweatshirt. The
men demanded marijuana, grabbed Beth by her neck, and threatened Beth and her son with
a gun. The victims testified that the intruders took marijuana, Beth’s and the Clites’ friend
Francine Simpson’s cell phones, and a pack of Newport cigarettes. After Larry recognized
the voice of one of the men, they grabbed him and punched him in the face. Beth testified
that the man who grabbed her was holding a gun but was not the man wearing red over his
face.
¶ 65 Also, as we thoroughly discussed above, Beth’s cell phone was tracked via GPS
after it was stolen during the home invasion. The GPS tracking led to police officers
eventually stopping the defendant’s vehicle, and the stolen phones were found therein.
When Weisenberger asked the defendant how the stolen phones got in his car, the
defendant’s explanation was that it was attributed to “[s]ome paranormal activity shit.” See
People v. Nyberg, 275 Ill. App. 3d 570, 579 (1995) (when a defendant attempts to explain
the facts surrounding a crime, he is obligated to tell a reasonable version of events or be
judged by his story’s inconsistencies and improbabilities). The officers also recovered a
red shirt with the sleeves tied together in a knot, a plastic bag of marijuana, a pack of
cigarettes, a gray long-sleeved shirt, and a black hooded sweatshirt from the defendant’s
vehicle. Larry identified the bag of marijuana and pack of cigarettes as similar to those
28
stolen from him. Further, Beth testified that the black hooded sweatshirt looked like one
worn by one of the intruders and that the red shirt looked similar to the red cloth she saw
covering the face of another one of the intruders.
¶ 66 In support of his argument, the defendant cites to People v. Wilson, but that case is
readily distinguishable because there was no corroboration of the accomplice’s
identification testimony. 66 Ill. 2d at 350. In Wilson, defendant was on trial for armed
robbery. Id. at 348. The accomplice, who testified against defendant in exchange for
immunity in the case, stated that he initiated the plan to rob the victim. Id. According to
the accomplice, defendant went to the victim’s apartment, robbed her, and then ran to the
accomplice’s car where it was parked a distance away. Id. The victim testified that when
she responded to a knock at her door, she saw a man with a jacket pulled up to just below
eye level; he threatened her with a gun, took her purse, and ran. Id. When the victim was
shown a lineup that included defendant and the accomplice, she identified neither, and in
fact identified a third man. Id. She also failed to identify defendant at trial. Id. The
supreme court, noting that the accomplice’s identification testimony was uncorroborated,
held that the State failed to prove defendant guilty beyond a reasonable doubt. Id. at 350.
¶ 67 In Wilson, there was corroboration of the accomplice’s testimony that a crime
occurred, but no corroboration that defendant committed it. Id. Here, by contrast, the
evidence presented as to the defendant’s whereabouts before and after the home invasion,
the victims’ testimony that there were three intruders, and the physical evidence found in
the defendant’s vehicle sufficiently corroborated Mosley’s testimony that the defendant
was one of the intruders. In sum, while Mosley’s testimony had deficiencies, the jury was
29
in a superior position to judge his demeanor, weigh his credibility, and resolve any conflicts
in his testimony. See Collins, 106 Ill. 2d at 261-62; see also Wilson, 66 Ill. 2d at 349. We
decline to disturb the jury’s assessment of his credibility, particularly given that several
aspects of his testimony were corroborated by the other evidence presented at trial. In light
of the foregoing, we find that the State proved beyond a reasonable doubt that the defendant
was one of the intruders who committed the home invasion at the Clites’ trailer.
¶ 68 D. Ineffective Assistance of Counsel
¶ 69 The defendant further maintains that he was denied effective assistance of counsel.
The defendant asserts that trial counsel was ineffective in failing to: (1) object to a portion
of Detective Weisenberger’s testimony, (2) review discovery material prior to trial,
(3) object to a portion of the State’s examination of Mosley and to the State’s references to
Mosley’s credibility during its closing argument, and (4) object to a jury instruction. The
defendant alleges that he was prejudiced by his trial counsel’s individual errors and that
the cumulative effect of the errors denied him a fair trial. Additionally, the defendant
contends his posttrial counsel was ineffective for failing to raise the issue of trial counsel’s
ineffectiveness in a posttrial motion.
¶ 70 Our review of ineffective assistance of counsel claims is guided by the standards set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our supreme
court in People v. Albanese, 104 Ill. 2d 504, 526 (1984). To succeed on a claim of
ineffective assistance of counsel under the Strickland standard, one must show both that
(1) counsel’s representation fell below an objective standard of reasonableness (deficient
performance prong) and (2) a reasonable probability exists that, but for the error, the result
30
would have been different (prejudice prong). People v. Manning, 241 Ill. 2d 319, 326-27
(2011). A defendant must satisfy both prongs of the Strickland test to succeed on a claim
of ineffective assistance of counsel. People v. Evans, 209 Ill. 2d 194, 220 (2004). Thus,
defendant’s failure to establish either deficient performance or prejudice will be fatal to the
claim. People v. Richardson, 189 Ill. 2d 401, 411 (2000).
¶ 71 To establish deficiency under the first prong of the Strickland test, “defendant must
overcome the strong presumption that the challenged action or inaction might have been
the product of sound trial strategy.” People v. Evans, 186 Ill. 2d 83, 93 (1999). The
reviewing court must evaluate counsel’s performance from her perspective at the time
rather than “through the lens of hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007).
An evaluation of counsel’s actions cannot extend into matters involving the exercise of
judgment, strategy, or trial tactics. People v. Penrod, 316 Ill. App. 3d 713, 722 (2000).
“Reviewing courts should hesitate to second-guess counsel’s strategic decisions, even
where those decisions seem questionable.” Manning, 241 Ill. 2d at 335.
¶ 72 To establish prejudice, “defendant must show that counsel’s deficient performance
rendered the result of the trial unreliable or the proceeding fundamentally unfair.”
Richardson, 189 Ill. 2d at 411. If defendant’s claim can be disposed of on the basis that he
suffered no prejudice, then a court should not decide whether counsel’s performance was
deficient. People v. Villanueva, 382 Ill. App. 3d 301, 308 (2008).
¶ 73 The defendant initially claims trial counsel was ineffective for failing to object to
Weisenberger’s testimony, based on Vinson’s cell phone records, as to the approximate
locations of Vinson’s phone on the night of the home invasion, both before and after the
31
Clites’ 9-1-1 call. The defendant contends that this testimony was inadmissible hearsay
and that it lacked foundation. We disagree. Assuming arguendo that counsel’s
performance was deficient, we agree with the State that the defendant was not prejudiced
as a result of the alleged error. The record reveals that Vinson’s movements, as testified
to by Weisenberger, were corroborated through other evidence, and as such, there was
sufficient evidence to support the conviction, even without Weisenberger’s testimony.
First, Mosley’s testimony specifically placed the defendant in the Clites’ trailer in the
Cedar Lane Mobile Home Park during the home invasion. Mosley’s testimony was
consistent with the victims’ testimony on this point, as they testified that they saw three or
four masked men during the home invasion. Second, Mosley testified that he met up with
the defendant and Vinson around 11 p.m. on December 10, 2014, that the three men
returned to Herron’s trailer on Gold Drive immediately after the home invasion, and that
no one else got into the vehicle from the time the brothers picked Mosley up until the time
they were stopped by the police a few hours later. Additionally, the testimony of the
officers who interviewed the defendant revealed that the defendant admitted he was with
Vinson and Mosley in his vehicle on the night of the home invasion, that the three men
went to Herron’s trailer on Gold Drive, and that no one else had been in the defendant’s
vehicle from the time the three men met up earlier that night until the time they were
stopped by the police.
¶ 74 Moreover, several officers testified as to their personal observations and tracking of
the defendant’s vehicle from the time it left Gold Drive until it was stopped. When Officer
Harsy radioed the location of Beth’s stolen phone as 76 Gold Drive, Sergeant Jarin
32
Dunnigan drove to that address and personally observed the defendant’s vehicle coming
from the direction of that location and traveling westbound on Pleasant Hill Road.
Dunnigan and Officer Lomax both testified as to their personal observations that the
defendant’s vehicle took a path of travel that was consistent with the movements of Beth’s
stolen phone per Harsy’s radio transmissions. The foregoing reveals that Weisenberger’s
testimony was cumulative of, and corroborated by, other properly admitted testimony
identifying the defendant and his part in the home invasion. The defendant cannot
demonstrate prejudice when other independent evidence sufficiently supported the jury’s
verdict.
¶ 75 In support of his claim, the defendant relies on People v. Ramos, 2018 IL App (1st)
151888. In that case, the First District determined that a detective’s testimony about
defendant’s HCSA was inadmissible hearsay, and because the error in admitting the
hearsay testimony was not harmless, reversed and remanded the matter for a new trial. Id.
¶¶ 18-25. We find Ramos distinguishable, however, for two important reasons.
Importantly, the Ramos court was not reviewing a claim of ineffective assistance of counsel
under Strickland, and thus, the standard of prejudice was different than the standard
applicable in this case. Compare Ramos, 2018 IL App (1st) 151888, ¶¶ 24-25 (applying a
harmless error standard), with Richardson, 189 Ill. 2d at 411 (explaining that Strickland
prejudice is more than an “outcome-determinative” test). Additionally, central to the
Ramos court’s decision was the fact that there was no other evidence putting defendant
inside the vehicle that followed the victim. 2018 IL App (1st) 151888, ¶ 25. As such, the
hearsay testimony prejudiced defendant because it allowed the jury to make an “inferential
33
leap” in order to conclude that defendant was at the crime scene. Id. In contrast, no
inferential leap was required in the present case because Mosley’s testimony explicitly
placed the defendant at the crime scene.
¶ 76 Based on the foregoing analysis, we find there is no reasonable probability that a
different result would have occurred without the admission of Weisenberger’s testimony
as to the approximate locations of Vinson’s phone on the night of the home invasion. As
the defendant has failed to prove he was prejudiced as a result of such alleged errors, his
claims of ineffective assistance of counsel must fail.
¶ 77 The defendant additionally contends that trial counsel was ineffective for failing to
review the discovery material about Vinson’s cell phone records prior to trial. The
defendant alleges that he was prejudiced by counsel’s failure to review such records
because counsel failed to cross-examine Weisenberger about time discrepancies between
the records and his testimony. Having just found that Weisenberger’s testimony relating
to Vinson’s cell phone records was cumulative of other properly admitted evidence, the
defendant cannot establish that he was prejudiced by trial counsel’s alleged failure to
review the cell phone records and cross-examine Weisenberger or by posttrial counsel’s
failure to raise the issue in a posttrial motion. As the defendant has failed to prove he was
prejudiced as a result of the alleged error, his claims of ineffective assistance of counsel
must fail.
¶ 78 The defendant next claims trial counsel was ineffective for failing to object to a
portion of the State’s examination of Mosley and to subsequent references to his credibility
during the State’s closing argument. We disagree. The State is prohibited from vouching
34
for a witness’s credibility. People v. Garcia, 231 Ill. App. 3d 460, 473 (1992). However,
it is not improper for the State to elicit testimony that a witness has entered into a plea
agreement which requires him or her to provide truthful testimony, so long as the State
does not suggest that it possesses information about the witness’s veracity that the jury
does not have. See id. As pronounced by the Second District:
“A prosecutor who causes the promise of a witness to provide truthful testimony
pursuant to a plea agreement to be revealed has only revealed that the witness agreed
to tell the truth; the prosecutor has not expressed a personal opinion as to whether
the witness has actually complied with the agreement by telling the truth. Therefore,
we conclude that bringing forth such an agreement does not constitute improper
vouching for the credibility of the witness.” Id.¶ 79 Here, the defendant complains of the following portion of the State’s direct
examination of Mosley, which directly followed Mosley’s testimony detailing the terms of
his plea agreement with the State:
“Q. Now, are you also aware that as part of this agreement, there is one
person, one person, alone, who makes the determination as to whether you’re being
truthful?
A. Yes.
Q. And who is that person?
A. You.
Q. Me; right?
A. Yes.
Q. And so you know, do you not, that if you don’t tell the truth, or I believe
you’re not telling the truth, you do not get the benefit of this deal?
A. Yes.”
Our review of the record leads us to conclude that the foregoing did not constitute improper
vouching for Mosley or a “usurpation of the jury’s role in determining Mosley’s
credibility.” Instead, the State merely elicited testimony that under the plea agreement,
Mosley agreed to tell the truth during his testimony and that the State would determine
35
whether Mosley fulfilled that obligation. Because the State’s questions were not improper,
an objection to them would have been meritless, and we will not find trial counsel
ineffective for failing to assert it. See People v. Bradford, 2019 IL App (4th) 170148, ¶ 14
(defense counsel will not be found ineffective for failing to assert a meritless objection).
¶ 80 As to closing argument, the State is generally allowed to comment on a witness’s
credibility so long as the remarks are based on the evidence presented or reasonable
inferences therefrom. People v. Pope, 284 Ill. App. 3d 695, 706 (1996). The State is also
entitled to assume the truth of its evidence against a defendant. People v. Rivera, 262 Ill.
App. 3d 16, 27 (1994). However, a prosecutor is not allowed to personally vouch for or
express his personal opinion as to the credibility of a witness (Pope, 284 Ill. App. 3d at
707), or to put the integrity of the state’s attorney’s office behind a witness’s testimony
(Rivera, 262 Ill. App. 3d at 27). A prosecutor violates this rule if he explicitly states that
he is asserting his personal views as to a witness’s credibility. Pope, 284 Ill. App. 3d at
707. On the other hand, a prosecutor does not improperly assert his personal views about
a witness’s credibility if the jury must infer that the prosecutor is doing so based on his
comments. Id.¶ 81 In this case, the defendant complains of the following remarks made during the
State’s closing argument. The State argued, “And the one thing and the very first thing I
want you to remember is that Elijah Mosley admitted and acknowledged his role in this
and that, if nothing else, is worthy of belief.” The State continued, arguing that there were
“points upon which Elijah Mosley’s statement can not [sic], in any way, be doubted
because they have been corroborated by the statements of these two individuals or the
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cellphone records from these two individuals’ cellphones.” The State told the jury, “[W]e
know from the Verizon tracking of Mr. Vinson’s cellphone in that car that Mr. Vinson’s
cellphone, from the time right before the robbery, until the time it was found at Gold Drive,
was in the vicinity of Cedar Lane Mobile Home Park and South Illinois Avenue just like
Elijah Mosley said.” We find these statements fell within the bounds of permissible
comments directed at Mosley’s credibility and the evidence in the case. Unlike the cases
relied on by the defendant, People v. Roach, 213 Ill. App. 3d 119, 123-24 (1991), and
People v. Valdery, 65 Ill. App. 3d 375, 378 (1978), the State in this case did not explicitly
announce that it was asserting its personal views as to Mosley’s credibility, and thus, its
argument was not improper. Because an objection to the State’s closing argument would
have been meritless, trial counsel will not be found ineffective for failing to assert it. See
Bradford, 2019 IL App (4th) 170148, ¶ 14. Similarly, as there was no error, posttrial
counsel cannot be found ineffective for failing to raise the issue in a posttrial motion.
¶ 82 The defendant also maintains that trial counsel was ineffective for failing to object
to the jury instructions as to the charged offenses. Specifically, the defendant argues that
he was charged with armed robbery and home invasion with a firearm, but the jury was
instructed that it should find the defendant guilty if it found that he was armed with a
dangerous weapon. As we have previously stated, the defendant’s conviction for armed
robbery was vacated by the trial court, and thus, we need not discuss whether trial counsel
was ineffective for failing to object to the armed robbery instruction.
¶ 83 With respect to the home invasion instruction, we find that, even assuming that
counsel’s failure to object to the jury instruction was unreasonable, the defendant was not
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prejudiced by this error. To establish prejudice, the defendant must show that counsel’s
deficient performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. Richardson, 189 Ill. 2d at 411. Although the instruction defining
the offense of home invasion given to the jury discussed being armed with a dangerous
weapon, the jury was subsequently instructed to determine whether the defendant, or
someone for whose conduct he was legally responsible, committed the offense while armed
with a firearm. A reviewing court is required to assess whether the jury instructions,
considered as a whole, fairly describe the law applicable to the case. People v. Mister,
2016 IL App (4th) 130180-B, ¶ 83. Considering the entire set of instructions given to the
jury in this case, we find that the jury was fully and fairly apprised of the fact that it was
required to determine whether the defendant was armed with a firearm during the
commission of the home invasion. Moreover, there was sufficient evidence to support the
jury’s finding, as Beth testified that all three of the intruders were armed with firearms.
See People v. Clark, 2015 IL App (3d) 140036, ¶ 20 (a witness’s unequivocal testimony
that defendant had a gun is sufficient circumstantial evidence to prove that he was armed
with a firearm). Based on the foregoing analysis, we find there is no reasonable probability
that a different result would have occurred had trial counsel objected to the home invasion
instruction. Similarly, there is no reasonable probability that a different result would have
occurred had posttrial counsel raised the issue in a posttrial motion. As the defendant has
failed to prove he was prejudiced as a result of the alleged error, his claim of ineffective
assistance of counsel must fail.
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¶ 84 Finally, the defendant argues that, even if none of defense counsels’ errors justify
reversal of his conviction and a new trial, the cumulative effect of such errors does.
According to the preceding analysis, we have found that trial counsel was not ineffective
in declining to argue the defendant’s speedy trial motion and in failing to object to the
State’s examination of Mosley and to subsequent references to his credibility during
closing arguments. As there were no errors with respect to those issues, we will not find
posttrial counsel ineffective for declining to raise them in a posttrial motion. We further
found that even if we were to assume that trial counsel or posttrial counsel erred with
respect to Weisenberger’s testimony, the discovery materials, or the jury instructions, the
defendant has failed to show he was prejudiced as a result. In light of our conclusions, the
defendant was not prejudiced by any cumulative effect of such alleged errors, and his
argument must fail. See Garcia, 231 Ill. App. 3d at 478 (similarly finding).
¶ 85 E. Clerk-Imposed Fines
¶ 86 Lastly, the defendant argues that the circuit clerk improperly imposed a number of
fines against him. He is correct in asserting that this was erroneous, since only a judge can
impose fines. See People v. Smith, 2014 IL App (4th) 121118, ¶ 18. In response, the State
argues that we lack jurisdiction over this issue and that we should remand pursuant to
Illinois Supreme Court Rule 472 (eff. May 1, 2019). The defendant has accepted the State’s
position and agrees that the matter should be remanded so that he may raise this issue
before the trial court.
¶ 87 During the pendency of this appeal, the Illinois Supreme Court issued its opinion
in People v. Vara, 2018 IL 121823, holding that on review of a judgment of a criminal
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conviction, the reviewing court did not have jurisdiction to review a circuit clerk’s
assessment of improper fines. In Vara, defendant was convicted of child pornography, and
the circuit clerk indicated in its “electronic accounts receivable record” that defendant was
obligated to pay certain fines that were not specified in the trial court’s judgment. Id. ¶ 1.
As in this case, in Vara, on direct appeal from his conviction and sentence, defendant
“challenged the data entries recorded by the circuit clerk that purported to assess additional
fines not imposed by the circuit court.” Id. The appellate court vacated the
fines. Id. However, the supreme court held that the appellate court lacked jurisdiction to
review the fines and fees assessed by the circuit clerk. Id. ¶ 23.
¶ 88 The Illinois Supreme Court held that the circuit clerk’s “payment status information
sheet” was a clerical document created outside the record of the trial court proceedings and
was not part of the common law record or report of proceedings of defendant’s criminal
prosecution. Id. ¶ 22. Further, although the clerk was obligated to record the ruling of the
court and had no authority to levy fines against defendant that were not issued by the court’s
judgment, the clerk improperly doing so was in the nature of a clerical function that was
not part of the court’s judgment. Id. ¶ 23. The supreme court concluded that “the improper
recording of a fine is not subject to direct review by the appellate court.” Id.
¶ 89 Following its decision in Vara, the supreme court enacted Illinois Supreme Court
Rule 472 (eff. May 17, 2019), which provides in part:
“(a) In criminal cases, the circuit court retains jurisdiction to correct the
following sentencing errors at any time following judgment and after notice to the
parties, including during the pendency of an appeal, on the court’s own motion, or
on motion of any party:
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(1) Errors in the imposition or calculation of fines, fees,
assessments, or costs;
(2) Errors in the application of per diem credit against fines;
(3) Errors in the calculation of presentence custody credit; and
(4) Clerical errors in the written sentencing order or other part
of the record resulting in a discrepancy between the record and the
actual judgment of the court.
***
(e) In all criminal cases pending on appeal as of March 1, 2019, *** in which
a party has attempted to raise sentencing errors covered by this rule for the first time
on appeal, the reviewing court shall remand to the circuit court to allow the party to
file a motion pursuant to this rule.” Id.
¶ 90 Here, the defendant’s direct appeal from his criminal conviction was pending before
this court as of March 1, 2019. The defendant has raised the issue of clerk-imposed fines
for the first time on appeal. Accordingly, we do not have jurisdiction in this appeal to
review the circuit clerk’s clerical data entries with respect to the assessment of fines and
fees. See Vara, 2018 IL 121823, ¶¶ 22-23; Ill. S. Ct. R. 472(a), (e) (eff. May 17, 2019).
Therefore, we must remand the matter to the trial court so that the defendant may file a
motion pursuant to Rule 472.
¶ 91 III. CONCLUSION
¶ 92 For the foregoing reasons, we affirm the defendant’s conviction for home invasion
with a firearm. However, pursuant to Illinois Supreme Court Rule 472(e) (eff. May 17,
2019), we remand this case to the trial court so the defendant can file a motion regarding
clerk-imposed fines.
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¶ 93 Affirmed and remanded.
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