                                         2016 IL App (1st) 133389


                                                                                        FIFTH DIVISION
                                                                                            May 27, 2016

                                               No. 1-13-3389

      ______________________________________________________________________________

                                          IN THE
                              APPELLATE COURT OF ILLINOIS
                                 FIRST JUDICIAL DISTRICT
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                     )     Circuit Court of
                       Plaintiff-Appellee,           )     Cook County.
                                                     )
     v.                                              )     No. 97 CR 1833
                                                     )
     GIOVANNI SPILLER,                               )     Honorable
                                                     )     James Michael Obbish,
                       Defendant-Appellant.          )     Judge Presiding.
     ______________________________________________________________________________

            JUSTICE BURKE delivered the judgment of the court, with opinion.
            Justices Gordon and Lampkin concurred in the judgment and opinion.


                                                 OPINION


¶1          The undisputed evidence in this case showed that on November 29, 1996, defendant,

     Giovanni Spiller, shot and killed Roberto Castillo on West Montrose Avenue, in Chicago,

     Illinois. Immediately after the shooting, defendant fled the jurisdiction for several weeks. Prior to

     turning himself in to the police, defendant consulted with a criminal defense attorney, who gave

     defendant his opinion that defendant had a winning case. The state charged defendant by

     indictment with two counts of first degree murder. Defendant posted bond ($200,000), with a
     1-13-3389


     condition of 24-hour electronic monitoring/home confinement. He cut off the monitoring

     bracelet and again fled the jurisdiction. He was captured in California 15 years later on March

     13, 2012. Following a bench trial, Judge James Obbish found defendant guilty of first degree

     murder and sentenced him to 35 years in the Illinois Department of Corrections (IDOC).

¶2          Defendant alleges on appeal that the State failed to disprove his affirmative defense that

     he acted in self-defense and that he received ineffective assistance of counsel because his

     attorney did not assert to the judge that he was guilty of the lesser mitigated offense of second

     degree murder. For the following reasons, the trial court’s judgment and sentence are affirmed.

¶3                                             I. BACKGROUND

¶4          On November 29, 1996, an eyewitness to the shooting, Leona Minassian, was sitting in

     her parked vehicle outside her family’s pool hall, Marie’s Golden Cue, on West Montrose

     Avenue, in Chicago, Illinois. The victim, Roberto Castillo, knocked on her car and waved to her

     on his way into the pool hall. She knew the victim as a regular customer at the pool hall. The

     pool hall had plate glass windows across the front, which allowed a view from the front of the

     hall, all the way to the back. After he went inside, the victim spoke to the man working at the

     counter and some of his friends. Less than a minute later, the victim ran out of the pool hall, with

     defendant chasing him. Minassian knew defendant since she was a child. Like the victim, he was

     also a regular patron at the pool hall.

¶5          As the victim ran toward her, she heard two gunshots and “it looked like [the victim]

     would have tripped, but as he fell, [the victim] turned around and ended up like facing the

     windows.” Defendant then fired an additional three shots, one shot for each step he took in the

     direction of the victim. Minassian testified at trial that the shooting occurred directly in front of

     her parked car, where she was sitting. She estimated that the length of the car hood was the


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     distance between her and the victim, about 4½ feet, when he was shot. She observed that

     defendant used a chrome .45-caliber gun, during the shooting. She was sure of the caliber of the

     gun because she had just completed a ballistics class. Minassian did not observe any weapons in

     the victim’s hands either before he went into the pool hall or after he came out. Minassian called

     the police and an ambulance as defendant drove away in a dark green SUV. She provided the

     operator with the license plate number of defendant’s vehicle. A few weeks later, Minassian

     identified defendant in a police lineup.

¶6          Attorney Robert Christie testified that he was playing pool at Marie’s Golden Cue at the

     time of the shooting. Shortly after 6 p.m. he heard a gunshot. He looked out the window and

     observed a man leaning forward with something shiny in his hand, with his arm out at a

     45-degree angle pointed towards the ground. Christie then heard three more gunshots in

     succession. Christie believed that the shiny object in the man’s hand was a gun. Every time he

     observed the man’s hand jerk, he heard a simultaneous shot. He observed the shooter turn around

     and run eastward.

¶7          Chicago police investigator Gurtowski recovered three .45-caliber fired cartridge cases:

     from the sidewalk, one on top of the curb, and one from the street, near the curb. Medical

     personnel at Illinois Masonic Hospital gave Chicago police officer 1 Valenzano one fired bullet

     that was recovered from the victim’s body.

¶8          It was stipulated by the parties that Deputy Cook County Medical Examiner Dr. Larry

     Sims would testify that he conducted an autopsy on the victim on November 30, 1996. The

     stipulated testimony was as follows: the victim suffered from five gunshot wounds: (1) a

     through-and-through gunshot wound which entered the right lower back and exited the left lower


            1
                The Chicago police witnesses’ first names are unknown.

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       back; (2) a gunshot wound to the left posterolateral thigh that partially exited at the top of the

       victim’s left buttocks; (3) a gunshot wound of entrance to the victim’s left lower chest; (4) a

       through-and-through gunshot wound which entered the victim’s left upper abdomen and exited

       through the right lower back; and (5) a graze wound to the victim’s left inner forearm. One bullet

       was recovered from the partial exit wound located at the top of the victim’s left buttocks and

       another bullet associated with the wound to the victim’s left lower chest was recovered in the

       right flank. All tests for ethanol, opiates and cocaine were negative. The coroner listed the cause

       of death as multiple gunshot wounds and the manner of death as a homicide.

¶9            Firearms identification expert John Sanchez examined the two fired bullets recovered

       during the autopsy and at the hospital, as well as the fired cartridge cases recovered from the

       scene of the shooting. The parties stipulated that Sanchez would testify that the three recovered

       bullets, as well as the three fired cartridge cases, were .45-caliber and all three of the cartridge

       cases were fired from the same gun.

¶ 10          Defendant testified that the victim had previously physically harmed him and had

       previously threatened him. He never called the police after these incidents. On the day of the

       shooting, the victim entered the pool hall and called defendant a slang Filipino word which

       meant “you are stupid.” Defendant tried to avoid the victim and only left the pool hall when he

       believed that the victim had left the area. When defendant exited the pool hall, he observed the

       victim step out of a doorway further down the street. The victim struggled to remove a gun from

       his waistband. As he was struggling with the gun, the victim told defendant that he was going to

       kill him. Defendant reached for his gun and shot the victim numerous times.




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¶ 11           Defendant claimed that after the victim fell to the ground, the victim’s friend, Boxer,2

       picked up something and left. Defendant did not know what Boxer picked up. No weapon of any

       kind was recovered from the victim’s person or from the surrounding area. Defendant ran to his

       SUV and drove off. He dismantled the gun he had used to shoot the victim and threw it away.

       Defendant admitted that he bought a .45-caliber gun in the street three or four years prior to this

       incident. He carried this gun for protection while in the bookmaking business, but he never had a

       license for it.

¶ 12           After defendant consulted with a criminal defense attorney, he turned himself in to the

       police several weeks after the shooting. Defendant was placed on electronic home monitoring,

       but he cut off his electronic monitoring bracelet and fled the jurisdiction. Defendant testified that

       he did this because he believed people were after him and might kill him.

¶ 13           The defense expert, Dr. Nancy Jones, a forensic pathologist, testified that the victim had

       to be “in at least separate positions” at the time the five gunshot wounds were inflicted because

       the wounds were located in three distinctly separate areas of the body. The victim sustained two

       gunshot wounds in the front of his body, consistent with the victim being in a vertical position or

       slightly leaning forward. Jones testified that the wounds were not consistent with the victim

       being shot while lying on the ground while the shooter stood over him. She stated that the

       gunshot wound to the back of his left thigh could only have occurred if the victim’s back was to

       the weapon as it was being fired.

¶ 14           The trial court found defendant guilty of first degree murder and specifically found that

       the State proved beyond a reasonable doubt that defendant was not acting in self-defense when




               2
                   Full name unknown.

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       he shot the unarmed victim after chasing him from the pool hall. The trial court sentenced

       defendant to 35 years in the IDOC. This appeal followed.

¶ 15                                            II. ANALYSIS

¶ 16               A. EVIDENCE SUFFICIENTLY PROVED DEFENDANT GUILTY OF
                   FIRST DEGREE MURDER BEYOND A REASONABLE DOUBT
                   AND SUFFICIENTLY DISPROVED HIS AFFIRMATIVE DEFENSE
                   OF SELF-DEFENSE

¶ 17          Defendant admits to repeatedly shooting the victim. The issue raised by the defendant is

       whether the State disproved whether he, reasonably or unreasonably, acted in self-defense.

¶ 18          In a challenge to the sufficiency of the evidence supporting a conviction, we view the

       evidence in the light most favorable to the prosecution to determine whether a rational trier of

       fact could have found that the essential elements of the offense were proven beyond a reasonable

       doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). A criminal conviction will not be set aside

       unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the

       defendant’s guilt. Id. at 225. “[T]he State carries the burden of proving beyond a reasonable

       doubt each element of an offense.” People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009)

       (citing Jackson v. Virginia, 443 U.S. 307, 315-16 (1979)).

¶ 19          Initially, we answer the question of whether the State sufficiently proved the charge of

       first degree murder. To prevail on a charge of first degree murder, the State must prove beyond a

       reasonable doubt: (1) that defendant performed the acts which caused the death of the victim;

       and (2) that when defendant did so, he intended to kill or do great bodily harm to the victim or he

       knew that his acts would cause death to the victim. See 720 ILCS 5/9-1(a)(1), (a)(2) (West

       2004); Illinois Pattern Jury Instructions, Criminal, Nos. 7.01, 7.02 (4th ed. 2000).




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¶ 20          In the present case, two eyewitnesses testified that defendant shot the unarmed victim

       repeatedly. Minassian testified that she knew both defendant and the victim. She was less than

       4½ feet away when defendant chased the victim out of the pool hall, and repeatedly shot the

       victim as the victim attempted to run away. He continued firing at the victim even after he fell to

       the ground. Christie viewed the same events from inside the pool hall. He testified that he heard

       several gunshots and observed a man’s arm pointed toward the ground at a 45-degree angle

       holding something shiny in his hand, which he believed was a gun. He observed the man’s arm

       jerk several times. At the same time as he viewed the arm motions, he heard gunshots. The

       testimony of the coroner and the firearms expert corroborated the eyewitness testimony. The

       coroner recovered two bullets from the victim’s body, one from the right flank and one from the

       rear buttocks area. In addition to those gunshot wounds, there were two through-and-through

       wounds and one bullet recovered by Illinois Masonic Hospital personnel. Three spent cartridges

       were recovered from the scene.

¶ 21          Clearly, there was a sufficient basis to find defendant guilty of murder. However, when a

       murder defendant asserts self-defense, “the State must prove more than the three elements of first

       degree murder. The State must also prove that the murder was not carried out in self-defense, and

       that the defendant’s use of force was not legally justified.” (Emphasis in original.) People v.

       Jeffries, 164 Ill. 2d 104, 127 (1995). Section 7-1 of the Criminal Code of 1961 provides in

       relevant part:

                   “A person is justified in the use of force against another when and to the

                   extent that he reasonably believes that such conduct is necessary to defend

                   himself or another against such other’s imminent use of unlawful force.

                   However, he is justified in the use of force which is intended or likely to cause


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                   death or great bodily harm only if he reasonably believes that such force is

                   necessary to prevent imminent death or great bodily harm to himself or

                   another, or the commission of a forcible felony.” 720 ILCS 5/7-1 (West

                   1996).

¶ 22          Defendant asserts that the State failed to disprove his affirmative defense of self-defense.

       “Once an affirmative defense is raised, the State has the burden of proving the defendant guilty

       beyond a reasonable doubt as to that issue together with all the other elements of the offense.”

       Jeffries, 164 Ill. 2d at 127. In order to raise the defense of self-defense, the defendant must

       establish some evidence of each of the following elements:

                   “(1) force is threatened against a person; (2) the person threatened is not the

                   aggressor; (3) the danger of harm was imminent; (4) the threatened force was

                   unlawful; (5) he actually and subjectively believed a danger existed which

                   required the use of the force applied; and (6) his beliefs were objectively

                   reasonable.” Id. at 127-28 (citing People v. Anderson, 234 Ill. App. 3d 899,

                   906 (1992)).

       See also People v. Willis, 217 Ill. App. 3d 909, 917 (1991).

¶ 23          Defendant argues that Minassian’s testimony was so filled with inconsistencies that it

       should have been disregarded. If her testimony is disregarded, then defendant contends that the

       State failed to disprove that defendant acted in self-defense. We find this argument unpersuasive.

¶ 24          The trial court correctly found that Minassian’s account of the shooting was, in almost all

       respects, consistent and credible. The points, which defendant asserts render Minassian’s entire

       account unreliable, are minor and do not call into question her ability to recall the events as they

       occurred over 15 years prior. Defendant points to Minassian’s testimony that the victim


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       exchanged pleasantries with her before entering the pool hall as opposed to an officer’s account

       that she stated that they did not have a conversation, but this discrepancy is minor.

¶ 25          Likewise, defendant points out that Minassian previously stated that the victim never

       entered the pool hall, but, rather, that he turned and started running with defendant in pursuit. At

       trial, she testified that the victim entered the pool hall and spoke to people inside before running

       out. Defendant also testified that the victim actually came into the pool hall, rather than just came

       to the front door. Neither of these differences would cause a reasonable person to disregard her

       entire testimony. The applicable standard of review fully recognizes that it is the trier of fact’s

       responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

       reasonable inferences from basic facts to ultimate facts. People v. Jackson, 232 Ill. 2d 246, 281

       (2009). The trial court found both of these inconsistencies minor, and we will not disturb that

       determination. Id.

¶ 26          The only evidence presented which supported defendant’s self-defense claim was

       defendant’s own testimony. Defendant claimed that the victim threatened him two months prior

       to the shooting. Defendant testified that the victim demanded that defendant give the victim a

       “cut of the profits” from defendant’s illegal bookmaking business. Defendant refused and the

       victim told him that if he did not give him the money, the victim would kill defendant. The

       victim then punched defendant in the eye and kicked him repeatedly, which required defendant

       to seek medical attention at a hospital. According to defendant, on the night of the shooting, the

       victim came into the pool hall and started calling defendant “names.” The victim then stared at

       defendant for three to five minutes before the victim left the pool hall. As defendant left the pool

       hall, the defendant claimed that the victim called to him. As defendant turned, he observed the




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       victim reaching for a gun in his waistband, but he was unable to pull the gun out. Defendant

       drew his own gun and fired four times.

¶ 27          Defendant’s version was completely contradicted by Minassian’s testimony, which the

       trial court found credible. She never observed the victim with a gun. As the trial court found, if

       the victim had a gun, he would not have been running away. Defendant maintained that he

       observed the victim pulling out a gun, but the victim did not already have a gun in his hand.

       Additionally, Minassian corroborated the type of gun defendant possessed and used to shoot the

       victim, i.e., a .45-caliber. The trial court also found defendant’s claim that the victim’s friend,

       Boxer, reached down and picked up a gun left by the victim unbelievable, considering that

       defendant was standing near the victim’s body, having just shot the victim five times. The trial

       judge did not find defendant’s testimony credible that he acted in self-defense. Neither do we. As

       our courts have previously held, “ ‘[w]hether a killing is justified under the law of self-defense is

       a question of fact [citations], and the fact finder is not required to accept as true the defendant’s

       evidence in support of that defense [citations]. Instead, the trier of fact is obliged to consider the

       probability or improbability of the evidence, the circumstances surrounding the event, and all of

       the witnesses’ testimony.’ [Citations.]” People v. Garcia, 407 Ill. App. 3d 195, 203-04 (2011)

       (quoting People v. Huddleston, 243 Ill. App. 3d 1012, 1018-19 (1993)).

¶ 28          This court, as the reviewing court, will not retry a defendant. We determine whether the

       evidence was sufficient to find defendant guilty of first degree murder beyond a reasonable

       doubt. People v. Austin M., 2012 IL 111194, ¶ 107. Determinations of witness credibility, the

       weight to be given testimony, and the reasonable inferences to be drawn from the evidence are

       the responsibilities of the trier of fact, not the reviewing court. People v. Jimerson, 127 Ill. 2d 12,

       43 (1989). After considering all of the evidence presented at defendant’s trial and viewing that


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       evidence in the light most favorable to the State, we find that the evidence was sufficient to

       prove beyond a reasonable doubt that defendant was guilty of the first degree murder of Ricardo

       Castillo. Jackson, 232 Ill. 2d at 280.

¶ 29           We now turn to the issue of whether the trial court should have found defendant guilty of

       second degree murder instead of first degree murder.

                   “If the State negates any one of the self-defense elements, the defendant’s

                   claim of self-defense must fail. The trier of fact must then find the defendant

                   guilty of either first or second degree murder. Therefore, the defendant’s

                   unreasonable belief is not necessarily an element the State must disprove in

                   defeating a claim of self-defense. Rather, it is only one of the six enumerated

                   factors which the State may choose to attack to rebut a claim of self-defense.

                   Indeed, the State could also defeat a self-defense claim by proving the absence

                   of any threat of force against the defendant, that the defendant was the

                   aggressor, the absence of a danger of imminent harm, or a lack of unlawful

                   force.” (Emphases in original.) Jeffries, 164 Ill. 2d at 128.

¶ 30           As set forth in Jeffries, 164 Ill. 2d at 128, “[w]here evidence of both first and second

       degree murder is presented and the defendant advances a claim of self-defense, the statute

       expressly states that the State bears the burden of proving beyond a reasonable doubt not only the

       elements of first degree murder, but also that the defendant was not justified in using the force

       that he used.” (Emphasis in original.) If a defendant is convicted of second degree murder, it

       indicates that the trier of fact has essentially concluded that:

                   “the evidence that the defendant has offered was not sufficient to support his

                   claim of self-defense. The defendant, however, has proven by a


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                   preponderance of the evidence the existence of a mitigating factor sufficient to

                   reduce the offense of murder to second degree murder. The defendant is not

                   compelled to show that he had an unreasonable belief in the necessity for the

                   use of force to obtain a second degree murder conviction. Rather, after the

                   defendant has presented the best evidence for his defense, the trier of fact has

                   concluded that the evidence only supports a finding of second degree murder

                   and not absolute justification for the defendant’s actions.” Id. at 129.

¶ 31           In the present case, the trial court found that there was no belief, reasonable or

       unreasonable, that defendant was acting in self-defense. There was no credible evidence that

       defendant was threatened by the victim or that the victim had a weapon. The evidence

       established that defendant chased the victim, shot him as he attempted to run away, and

       continued to shoot him after he fell to the ground.

¶ 32           Here, taking the evidence in the light most favorable to the State as we must, we conclude

       that a reasonable finder of fact would find defendant guilty of first degree murder. In sum, this

       case presented a credibility contest between defendant and Minassian, Christie, the coroner and

       the firearms examiner. We do not find the court’s weighing of credibility to be so unreasonable,

       improbable, or unsatisfactory that a reasonable doubt of defendant’s guilt remains. Collins, 214

       Ill. 2d at 217.

¶ 33                     B. TRIAL COUNSEL WAS NOT INEFFECTIVE FOR EMPLOYING
                         TRIAL STRATEGY

¶ 34           Defendant contends that his counsel was ineffective for arguing to the trial judge in the

       bench trial “there is no compromise. There is no second degree in this case.” Defendant contends

       that this defense was based on a misapprehension of the law.



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¶ 35          Defendant correctly states that second degree murder is properly characterized as a lesser

       mitigated offense rather than a lesser-included offense of first degree murder. Jeffries, 164 Ill. 2d

       at 122. The trial court may also convict a defendant of second degree murder sua sponte. People

       v. Rogers, 286 Ill. App. 3d 825, 829-30 (1997) (upholding the trial court’s sua sponte finding

       that the defendant was guilty of the uncharged lesser mitigated offense of second degree murder

       even though the defendant, at trial, denied any involvement in the shooting). Here, defendant

       waived his right to a jury. In a bench trial, the judge determines from the evidence whether the

       defendant is guilty of murder or of some lesser-included offense. People v. Turner, 337 Ill. App.

       3d 80, 90 (2003).

¶ 36          To establish a claim of ineffective assistance of counsel, a defendant must satisfy the

       familiar Strickland test. See Strickland v. Washington, 466 U.S. 668 (1984). The test is

       composed of two prongs: deficiency and prejudice. Id. at 687; People v. Brisbon, 164 Ill. 2d 236,

       245-46 (1995). First, the defendant must prove that counsel made errors so serious, and that

       counsel’s performance was so deficient, that counsel was not functioning as the “counsel”

       guaranteed by the sixth amendment. A court measures counsel’s performance by an objective

       standard of competence under prevailing professional norms. To establish deficiency, the

       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); People

       v. Hampton, 149 Ill. 2d 71, 108-09 (1992).

¶ 37          Second, the defendant must establish prejudice. The defendant must prove that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

       would have been different. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. The prejudice prong of Strickland entails more than an “outcome-


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       determinative” test. The defendant must show that counsel’s deficient performance rendered the

       result of the proceeding unreliable or fundamentally unfair. Evans, 186 Ill. 2d at 93; People v.

       Mahaffey, 165 Ill. 2d 445, 458 (1995). A defendant must satisfy both prongs of the Strickland

       test. Therefore, “failure to establish either proposition will be fatal to the claim.” People v.

       Sanchez, 169 Ill. 2d 472, 487 (1996); accord People v. Guest, 166 Ill. 2d 381, 390 (1995).

¶ 38          Defendant cannot prevail under the first prong. Counsel’s decision to pursue the all or

       nothing defense of self-defense is a valid trial strategy. Although defendant contends that the

       case of People v. Walton, 378 Ill. App. 3d 580 (2007), was “poorly reasoned” and factually

       distinguishable, Walton directly addresses and controls the outcome of defendant’s argument.

       The defendant in Walton argued that a criminal defendant in a bench trial for murder had the

       exclusive right to determine whether to pursue the lesser offense of second degree murder and

       that a trial court must inquire whether defendant agrees with his counsel’s “all-or-nothing”

       defense. Id. at 587-88. The court found that the defendant’s argument overlooked

                   “an important distinction between jury trials and bench trials as well as the

                   rationale for the aforementioned rule. In a jury trial, unless a lesser-included-

                   offense instruction is tendered, the jury does not have the option to convict the

                   defendant of an uncharged lesser-included offense; rather, the jury will be

                   forced to decide either to convict or acquit him. This avoids the possibility of

                   a compromise verdict where the ‘jury may be induced to find defendant guilty

                   of the lesser offense rather than to continue the debate as to his innocence.’

                   People v. Benford, 349 Ill. App. 3d 721, 728 (2004). In contrast, a judge

                   presiding over a bench trial may convict a criminal defendant of an uncharged

                   lesser-included offense sua sponte.” Walton, 378 Ill. App. 3d at 588.


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¶ 39          The Walton court held that the defendant’s counsel did not “usurp” the defendant’s

       fundamental rights or render ineffective assistance and the trial court did not violate due process

       in failing to inquire into counsel’s trial strategy. Id. Instead, the court held that the defendant’s

       argument essentially challenged counsel’s trial strategy, which is “ ‘virtually unchallengeable’

       and will generally not support an ineffective assistance of counsel claim.” Id. at 589 (citing

       People v. Palmer, 162 Ill. 2d 465, 476 (1994)). “Counsel’s decision to advance an ‘all-or-nothing

       defense’ has been recognized as a valid trial strategy [citations] and is generally not unreasonable

       unless that strategy is based upon counsel’s misapprehension of the law.” Id. The court found

       that defense counsel “adopted a valid trial strategy when he argued that defendant was acting in

       self-defense. The mere fact that this strategy proved unsuccessful does not mean counsel

       performed unreasonably and rendered ineffective assistance.” Id.

¶ 40          Based on Walton, we similarly conclude in this case that counsel did not render

       ineffective assistance in making the strategic choice to pursue an “all-or-nothing” defense. The

       record does not support defendant’s contention that counsel misapprehended the law. Rather,

       counsel’s statements (“there is no compromise. There is no second degree in this case.”) indicate

       that he considered, but rejected, such a dual strategy. Moreover, counsel cannot be found

       ineffective for failing to request that the trial court consider second degree murder, as the trial

       court was empowered to consider this lesser offense regardless of counsel’s arguments.

¶ 41          Further, we also conclude that defendant suffered no prejudice. It is clear from the record

       that the trial court did, in fact, consider and reject any contention that defendant had a reasonable

       or unreasonable belief in self-defense. There is no reasonable probability that, had counsel

       argued in favor of a second degree murder conviction, the trial result would have differed.




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       Accordingly, because counsel did not act unreasonably and defendant suffered no prejudice, his

       ineffective assistance of counsel claim has no merit.

¶ 42                                         III. CONCLUSION

¶ 43           We affirm the circuit court in finding defendant guilty of murder and the sentence of 35

       years in the Illinois Department of Corrections.

¶ 44          Affirmed.




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