People v. S.A. (In re S.A.)

• Decision Date: 22 January 2018
• Docket Number: NO. 4-17-0625,4-17-0625
• Citation: 2018 IL App (4th) 170625 -U
• Parties: In re S.A., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. S.A., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 170625-U

In re S.A., a Minor(The People of the State of Illinois, Petitioner-Appellee, v. S.A., Respondent-Appellant).

NO. 4-17-0625

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 22, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 17D102

Honorable Brian J. Goldrick, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Presiding Justice Harris and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding (1) respondent did not receive ineffective assistance of counsel and (2) the firearm owner's identification card statute does not violate the proportionate penalties clause of the Illinois Constitution.

¶ 2 In June 2017, the trial court adjudicated respondent, S.A., born in 2000, a delinquent after finding him guilty of the offenses of unlawful possession of a handgun under 18, unlawful possession of a handgun under 21, as a previously adjudicated delinquent, and possession of a firearm without a valid firearm owner's identification (FOID) card. At the August 2017 dispositional hearing, the court sentenced respondent to 24 months' probation.

¶ 3 On appeal, respondent argues (1) he was denied the effective assistance of counsel and (2) the FOID card statute for adjudicated delinquents violates the proportionate penalties clause of the Illinois Constitution. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In May 2017, the State filed a petition for adjudication of wardship alleging, in paragraph 3(A) to (F) respondent was a delinquent minor pursuant to section 5-520 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-520 (West 2016)).¹ The petition alleged respondent committed the offenses of possession of a stolen firearm (paragraph A) (720 ILCS 5/24-3.8(a) (West 2016)); ineligible for a FOID card (paragraph B) (430 ILCS 65/2(a)(1) (West 2016)); reckless discharge of a firearm in the close vicinity of a business (paragraph C) (720 ILCS 5/24-1.5(a) (West 2016)); reckless discharge of a firearm in the close vicinity of numerous residences (paragraph D) (720 ILCS 5/24-1.5(a) (West 2016)); unlawful possession of a handgun, under 18 (paragraph E) (720 ILCS 5/24-3.1(a)(1) (West 2016)); and unlawful possession of a handgun, under 21 as an adjudged delinquent (paragraph F) (720 ILCS 5/24-3.1(a)(2) (West 2016)).

¶ 6 In paragraph A, the State alleged respondent committed the offense of possession of a stolen firearm in that he knowingly possessed a firearm with knowledge that it had been stolen and without being entitled to possess the firearm. In paragraph B, the State alleged respondent violated the Firearm Owners Identification Act (Act) when respondent was in possession of a firearm without having a valid FOID card or was ineligible for a FOID card. The State alleged respondent committed the offense of reckless discharge of a firearm when he, or someone for whose conduct he is legally responsible, endangered the bodily safety of another in that, while acting in a reckless manner, he discharged a firearm in the close vicinity of businesses (paragraph C) and numerous residences (paragraph D). The State also alleged respondent committed the offense of unlawful possession of handgun when he knowingly had in hispossession a handgun: while under the age of 18 (paragraph E) and while under the age of 21 as an adjudged delinquent (paragraph F).

¶ 7 D.K. testified she was 17 years old. On April 7, 2017, she, along with her friend Yetana, picked up her friend Sophia, who asked that D.K. also pick up "Exodus," "Steve," "D-Baby," and N.B. and give them a ride for gas money. D.K. then picked up S.A. and stopped at Pop's Grocery, where Steve exited the vehicle and walked to the Red & Blue Food Mart. Steve returned, and King drove to the nearby MetroPCS parking lot. Five individuals, including "Stevie, S.A., N.B., Exodus and D-Baby," exited the vehicle. D.K. observed Scotty drop a bullet and a gun and N.B. pick them up. Everyone reentered the vehicle, and King drove to the food mart's parking lot. Several individuals exited, leaving D.K., Yetana, D-Baby, Exodus, and Sophia in the vehicle. Steve and S.A. "got in another car," and N.B. walked toward the food mart. D.K. left and dropped off Exodus, D-Baby, and Sophia.

¶ 8 On cross-examination, D.K. testified she did not give a statement to officers on April 7, 2017. Instead, she gave a statement to an officer when she was pulled over on April 26, 2017. D.K. stated she received a warning, which she agreed gave her a break because she faced thousands of dollars in fees for not having a valid license or insurance. D.K. later met with Detective Dick in Peoria, and the interview was audio-recorded.

¶ 9 On re-cross-examination, defense counsel moved to admit, as substantive evidence and for impeachment purposes, recordings involving D.K., including a recording made at the traffic stop and her interview with Detective Dick, based on inconsistencies in her testimony. The State objected, arguing D.K. indicated she did not recall certain things and had not testified inconsistently. The trial court found the statements were not inconsistent and did not admit them as substantive evidence.

¶ 10 Following the June 2017 bench trial, the trial court found respondent guilty on paragraphs B, E, and F and adjudicated him a delinquent minor. In August 2017, the court determined paragraphs E and F merged into paragraph B and sentenced respondent to 24 months' probation. This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 A. Ineffective Assistance of Counsel

¶ 13 Respondent argues he was denied effective assistance of counsel due to his attorney failing to present prior statements of witness D.K. as impeachment or substantive evidence. We disagree.

¶ 14 A defendant's claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish deficient performance, the defendant must show his attorney's performance fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808 N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). "Effective assistance of counsel refers to competent, not perfect representation." People v. Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)).

¶ 15 To establish the second prong of Strickland, "[a] defendant establishes prejudice by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different." People v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). A "reasonable probability" has been defined as a probability whichwould be sufficient to undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4. "A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness." People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

¶ 16 "Generally, the decision of whether or not to cross-examine or impeach a witness is a matter of trial strategy, which cannot support a claim of ineffective assistance of counsel." People v. Franklin, 167 Ill. 2d 1, 22, 656 N.E.2d 750, 759 (1995).

"The manner in which to cross-examine a particular witness involves the exercise of professional judgment which is entitled to substantial deference from a reviewing court. Defendant can only prevail on an ineffectiveness claim by showing that counsel's approach to cross-examination was objectively unreasonable. Similarly, *** trial strategy ordinarily encompasses decisions such as what matters to object to and when to object." People v. Pecoraro, 175 Ill. 2d 294, 326-27, 677 N.E.2d 875, 891 (1997).

¶ 17 In the case before this court, D.K was the State's primary witness and the only witness who connected respondent to the gun. At trial, defense counsel sought to introduce D.K's previous interviews with Officer Jared Johnson and Detective Matthew Dick, both for classic impeachment and as substantive evidence pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2016)). Arguing for their admission, defense counsel said:

"I think on cross-examination I asked her about the inconsistencies she's made between the statements when I asked her: [']Did yourecall making those statements to detectives and leaving out various bits of information[?'] so she has been presented with that information here in court under cross-examination.

As to impeach the witness, to perfect the impeachment, the [c]ourt there has the recordings of the interviews that she made."

¶ 18 While ordinarily defense counsel's intentions may not be clear on direct appeal, here counsel not only made his argument to the trial court but also requested to make an offer of proof when the court denied admission of the taped statements. Although it may now be argued trial counsel did not artfully craft his impeachment questions, each of the areas he sought to introduce, which would have otherwise been admissible, were asked of D.K. on either direct or cross-examination.

¶ 19 Respondent complains defense counsel failed to properly lay the foundation for the use of prior inconsistent statements by D.K which made several areas of impeachment impossible. The statements in question to police by D.K. were about (1) the names of the people in her vehicle on the date in question; (2) misidentification of respondent as "Steve"; (3) whether she observed anyone drop a gun while standing outside her car; (4...