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                              Appellate Court                            Date: 2016.10.11
                                                                         09:48:09 -05'00'




                  People v. Garman, 2016 IL App (3d) 150406



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOHN D. GARMAN, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0406



Filed             August 16, 2016



Decision Under    Appeal from the Circuit Court of Peoria County, No. 10-CF-704; the
Review            Hon. David A. Brown, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier and Bryon Kohut, both of State Appellate
Appeal            Defender’s Office, of Ottawa, for appellant.

                  Jerry Brady, State’s Attorney, of Peoria (Mark A. Austill, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE HOLDRIDGE delivered the judgment of the court, with
                  opinion.
                  Justices Carter and Schmidt concurred in the judgment and opinion.
                                               OPINION

¶1         The defendant, John D. Garman, was convicted of residential burglary. He now appeals,
       arguing his counsel provided ineffective assistance in failing to object to testimony identifying
       the stolen property. The defendant believes the testimony is inadmissible because police
       unlawfully returned the property to the victims.

¶2                                                FACTS
¶3         The State charged the defendant with residential burglary (720 ILCS 5/19-3(a) (West
       2010)). The following evidence was adduced at the jury trial.
¶4         The victims, Kevin Dixson and Demeca Jackson, lived at 1112 South Matthew in Peoria.
       Dixson owned a PlayStation 2 (PS2) gaming system and a number of PS2 games. Dixson also
       owned a PlayStation 3 (PS3) gaming system he recently purchased. Prior to April 4, 2010, the
       items were in the basement.
¶5         In the afternoon of April 4, 2010, Dixson and Jackson left their home to visit family. When
       the two returned, they discovered the Plexiglas covering the back door had been pushed in and
       the wood frame splintered. The PS3, PS2, and the games were missing. Dixson called the
       police.
¶6         Detective Elizabeth Blair investigated the burglary. After the burglary, Blair obtained a
       search warrant for the defendant’s residence. The defendant lived across the street from
       Dixson and Jackson. Blair searched the defendant’s bedroom and recovered a duffel bag
       containing a PS3 and about 30 games. Blair did not recover a PS2 from the defendant.
¶7         Dixson came to the police station after the police searched the defendant’s home. Dixson
       provided Blair with a receipt corresponding to the PS3 purchase. The receipt included the PS3
       serial number. Dixson also identified the stolen games by title. The police returned a PS3 and
       several games to Dixson. Blair did not photograph the evidence.
¶8         Dixson testified that the serial number of the PS3 he received from the police matched the
       serial number from the receipt. Dixson also identified the games he received from Blair as the
       same items stolen from his home. Jackson testified similarly to Dixson. According to
       Jackson, the PS3 and games she and Dixson received from Blair were the same as those stolen
       from their home.
¶9         Like Dixson, Blair testified that the serial number provided to her by Dixson matched the
       serial number of the PS3 Blair recovered from the defendant’s bedroom. According to Blair,
       the items she returned to Dixson were the same items recovered from the defendant’s bedroom.
¶ 10       The defendant did not present any evidence on his behalf. The jury found the defendant
       guilty, and the trial court sentenced him to 8½ years’ imprisonment.

¶ 11                                           ANALYSIS
¶ 12      Initially, the State concedes Blair failed to comply with the procedure set forth in section
       115-9(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-9(b) (West
       2010)) by returning the stolen property to the victims (Dixson and Jackson) without first
       photographing the evidence.



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¶ 13       Relying on the above error, the defendant claims that his counsel provided ineffective
       assistance in failing to move to bar Blair and the victims’ testimony identifying the stolen
       property. To succeed on a claim of ineffective assistance of counsel, a defendant must show
       that (1) counsel’s performance was objectively unreasonable and (2) the defendant suffered
       prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where a claim of
       ineffective assistance can be disposed of because the defendant suffered no prejudice, we need
       not determine whether counsel’s performance was deficient. See People v. Griffin, 178 Ill. 2d
       65, 74 (1997).
¶ 14       Turning to the prejudice prong of the Strickland standard, the defendant argues the trial
       court would have barred Blair and the victims’ identification testimony because the police
       failed to comply with section 115-9(b) of the Code. “[I]n order to establish prejudice under
       Strickland, the defendant must demonstrate that the unargued suppression motion is
       meritorious, and that a reasonable probability exists that the trial outcome would have been
       different had the evidence been suppressed.” People v. Henderson, 2013 IL 114040, ¶ 15. In
       the present context, to show prejudice the defendant must demonstrate that trial counsel’s
       motion to bar Blair and the victims’ identification testimony would have been granted and the
       outcome of the trial would have been different had the evidence been barred.
¶ 15       To determine whether the motion to bar would have been granted, we must consider
       whether section 115-9 provides a basis to bar evidence at trial. See 725 ILCS 5/115-9 (West
       2010). We first observe that section 115-9 of the Code governs the admissibility of
       photographic evidence (not witness testimony). In particular, section 115-9(a) provides:
               “(a) In a prosecution for theft, retail theft, deceptive practice, robbery, armed robbery,
               burglary or residential burglary, the court shall receive as competent evidence, a
               photograph of property over which the accused is alleged to have exerted unauthorized
               control or to have otherwise obtained unlawfully, if the photograph:
                       (1) will serve the purpose of demonstrating the nature of the property; and
                       (2) is otherwise admissible into evidence under all other rules of law governing
                   the admissibility of photographs into evidence. The fact that it is impractical to
                   introduce into evidence the actual property for any reason, including its size,
                   weight, or unavailability, need not be established for the court to find a photograph
                   of that property to be competent evidence. If a photograph is found to be competent
                   evidence under this subsection, it is admissible into evidence in place of the
                   property and to the same extent as the property itself.” (Emphasis added.) 725 ILCS
                   5/115-9(a)(1), (2) (West 2010).
¶ 16       Notably, the statute says nothing of the admission of witness testimony identifying stolen
       property. Rather, the statutory language is clear that section 115-9 is limited to the admission
       of photographic evidence in place of physical evidence. When interpreting a statute, courts
       should not ignore the statute’s plain meaning. People v. Perry, 224 Ill. 2d 312, 323-24 (2007).
       In applying this principal, we hold that section 115-9 does not apply to the admissibility of
       Blair and the victims’ testimony. Accordingly, we find that the defendant cannot establish
       prejudice under Strickland because a motion to bar the evidence based on a section 115-9(b)
       violation would not have been granted.
¶ 17       In reaching this conclusion, we reject the defendant’s citation to People v. Mikolajewski,
       272 Ill. App. 3d 311 (1995). In Mikolajewski, the defendant stole merchandise from a retail
       store. Id. Police recovered and photographed the merchandise. Id. at 313. The retailer later

                                                   -3-
       asked the police to return the merchandise. The police called the State’s Attorney’s office and
       asked for permission to return the property. The assistant State’s Attorney gave approval over
       the phone and did not prepare a written request to return the merchandise.
¶ 18       Over the defendant’s objection, the photographs were introduced into evidence at trial.
       Id. at 314. On appeal, the defendant argued the photographs were inadmissible because the
       State failed to comply with the requirement of section 115-9(b) that the State’s Attorney make
       a written request to the police for the return of the property. Id. at 315. The Mikolajewski court
       agreed and held the photographic evidence was inadmissible. Id. at 315-16.
¶ 19       Mikolajewski did not involve the admissibility of identification testimony. By contrast, the
       present case involved only identification testimony and not photographs. We find
       Mikolajewski distinguishable on this basis.

¶ 20                                       CONCLUSION
¶ 21      The judgment of the circuit court of Peoria County is affirmed.

¶ 22      Affirmed.




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