                        Docket No. 102225.


                             IN THE
                     SUPREME COURT
                                OF
                THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
        AARON JAMAR HOUSTON, Appellant.

                   Opinion filed April 17, 2008.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.



                             OPINION

    Following a jury trial in the circuit court of Peoria County,
defendant, Aaron Houston, was convicted of armed robbery (720
ILCS 5/18–2(a) (West 2000)). The circuit court sentenced him to 20
years’ imprisonment. A divided appellate court affirmed defendant’s
conviction and sentence (People v. Houston, 363 Ill. App. 3d 567
(2006)), and we granted leave to appeal (210 Ill. 2d R. 315). The case
is now before us a second time following our limited remand in People
v. Houston, 226 Ill. 2d 135 (2007) (Houston I). In that opinion, we
retained jurisdiction and remanded the cause to the circuit court for
reconstruction of the voir dire record. Houston I, 226 Ill. 2d at 154.
                           BACKGROUND
    As noted in our opinion in Houston I, defendant’s conviction arose
from his participation in a robbery at a Peoria pizzeria. At the
beginning of defendant’s trial, defense counsel waived the presence of
the court reporter for voir dire. Before both this court and the
appellate court, defendant argued that this waiver constituted
ineffective assistance by his trial counsel. Having received the
reconstruction of the voir dire record from the circuit court, we
proceed with our review of defendant’s claims regarding the
impropriety of the voir dire and selection of the jury. The facts
relevant to defendant’s voir dire claims and their procedural
background were presented in Houston I, 226 Ill. 2d at 137-40, and
we need not repeat them here. We also consider defendant’s separate
claim concerning trial counsel’s failure to submit a jury instruction.
Additional facts are set forth below as needed.

                             ANALYSIS
                        Voir Dire Proceedings
    In Houston I, this court determined that defense counsel’s waiver
of the court reporter for voir dire constituted deficient performance,
and defendant therefore satisfied the first prong of the test set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984), for reviewing claims of ineffective assistance. Houston
I, 226 Ill. 2d at 148. We now turn to whether the second prong of the
Strickland test has been met.
    This second prong requires a showing that counsel’s deficient
performance resulted in prejudice. 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. Peeples, 205 Ill. 2d 480, 513 (2002). A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Peeples, 205 Ill. 2d at 513. In order to
prevail on a claim of ineffective assistance, a defendant must satisfy
both the performance and the prejudice prongs of Strickland. People
v. Evans, 209 Ill. 2d 194, 220 (2004).
    In the case at bar, defendant’s pro se motion for a new trial
included a complaint about the composition of his jury. In this motion,

                                   -2-
defendant stated that he “felt a predjudice [sic] and discrimanating
[sic] patter[n] going on with the jury,” which he noted consisted of
“eleven white people and one black person.”1 We determined in
Houston I that this complaint amounted to a claim under Batson v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
    In Batson, the Supreme Court held that it was a violation of the
equal protection clause for the prosecution to use a peremptory
challenge to exclude a prospective juror solely on the basis of race.
Under Batson, a three-step process is employed to evaluate claims of
discrimination in jury selection. First, the defendant must establish a
prima facie case of purposeful discrimination by demonstrating that
relevant circumstances give rise to an inference that the prosecutor
exercised peremptory challenges to remove panel members based on
their race. People v. Williams, 173 Ill. 2d 48, 70-71 (1996). Once a
prima facie case has been established, the burden shifts to the State to
articulate a race-neutral reason for excluding each of the
venirepersons in question. Williams, 173 Ill. 2d at 70; People v.
Williams, 209 Ill. 2d 227, 244 (2004). Finally, the trial court considers
those explanations and determines whether the defendant has met his
burden of establishing purposeful discrimination. Williams, 209 Ill. 2d
at 244; Williams, 173 Ill. 2d at 70-71.
    In the case at bar, the circuit court of Peoria County submitted to
this court a reconstruction of the voir dire record consisting of two
items: (1) transcripts of the proceedings that resulted in the creation
of a “Bystander’s Report Re: Voir Dire Reconstruction,” and (2) the
bystander’s report itself, “certified per Supreme Court Rule 323,”
dated November 21, 2007, and signed by counsel for defendant and
the State. This second item, the bystander’s report, includes a
summary of the jury-selection proceedings at defendant’s trial, along
with seven exhibits containing documents that apparently were used
in assembling the report. Exhibit 1 is a list of the names of the 29
members of the jury panel. Exhibits 2 through 5 consist of juror profile


   1
    Defense counsel’s subsequent motion for a new trial also referred to the
composition of the jury. The motion noted, inter alia, that “of the twelve
jurors in this cause, there was only one black.”


                                    -3-
questionnaires–with photos–for the 29 panel members.2 Three of these
29 appear to be African-American. Included in exhibit 2 are juror
profile questionnaires for the 12 members of the final jury, which
included one African-American. Also included in exhibit 2 is the
questionnaire for the alternate juror. Exhibit 3 consists of juror profile
questionnaires for the seven venire members who were excused by the
defense, and exhibit 4 includes questionnaires for the six members
excused by the State. Exhibit 5 includes questionnaires for the three
panel members excused by the court. Exhibit 6, which is a jury seating
diagram, lists the names of the panel members who were called for
each seat, including those who were excused and those finally seated.
Exhibit 7 is the court clerk’s thumbnail summary of the trial, a three-
page document that includes, among other items, the names of the
final jurors; the names of the panel members excused by the court, the
State, and the defense; and the names of the witnesses testifying at
trial, along with the dates and times of their testimony.
     Our review of the reconstruction proceedings and the resulting
bystander’s report reveals the following pertinent information. The
reconstruction proceedings were conducted by a judge other than the
judge who presided at defendant’s trial. David Gast, the prosecutor at
defendant’s trial, appeared for the State in the voir dire reconstruction
proceedings. A public defender was appointed to represent defendant,
whose trial counsel had since retired from the practice of law. No
information was available from defendant’s trial counsel.
     According to the bystander’s report, the judge at defendant’s trial
questioned potential jurors in groups of four, and counsel for the State
and the defense asked supplemental questions. “The questions posed
by the Court were standard questions regarding availability, bias,
prejudice, prior service, burden of proof, presumed innocence of the
Defendant, duties as jurors, among other things, as well as any
personal questions gleaned from the Juror Questionna[i]res.” No notes
were taken or memoranda created regarding the supplemental
questioning by the attorneys.



     2
     Attached to each venire member’s juror profile questionnaire is a
photocopy of the venire member’s driver’s license photograph.

                                   -4-
    Attached to the juror profile questionnaires of each of the six
panel members challenged by the State are photocopies of the panel
members’ drivers’ license photographs. Of those six panel members,
one–Tracy Mosley–appears to be African-American, and the
remainder appear to be Caucasian. Gast, the prosecutor at trial,
recalled the particular reasons for four of the challenges. These panel
members “either had a criminal conviction or a close family member
with a criminal conviction.” Included in these four was Mosley, who
checked the blank marked “Yes” on her juror profile questionnaire in
answer to the question of whether she or a family member had ever
been convicted of a criminal offense other than a traffic ticket. Gast
did not recall the reasons for challenging the other two panel
members, each of whom was born in 1928. As noted, neither of them
appears to be African-American.
    Of the three venire members excused by the court, one appears to
be African-American. Gast recalled that this panel member was
excused because his spouse was employed by the county sheriff as a
courthouse security officer.
    The bystander’s report concludes by stating:
             “After investigating all sources for this report, the reasons
        given, if any, for the particular challenges made by the State or
        the Defense, or *** by the Court in removing three potential
        jurors for cause, further information is otherwise unknown and
        cannot be ascertained by any other means.”
    Having reviewed the bystander’s report and the transcripts of the
reconstruction proceedings, we see no clear indication of a prima
facie case of racial discrimination. First, we do not find an
impermissible pattern of strikes against African-Americans or a
disproportionate use of peremptory challenges against African-
American venirepersons. See Williams, 173 Ill. 2d at 71. As
previously noted, the State challenged six venirepersons, only one of
whom appeared to be African-American. The remaining five appeared
to be Caucasian. This does not suggest an impermissible pattern of
strikes against African-Americans, nor does it indicate a
disproportionate use of peremptory challenges against African-
American venirepersons. Second, we find no appreciable disparity
between the level of African-American representation in the venire and
the level of such representation in defendant’s jury. See Williams, 173

                                   -5-
Ill. 2d at 71. Here it is undisputed that there was one African-
American juror. In a jury of 12 persons, where 1 is African-American,
the level of African-American representation is 8.3%. According to
the bystander’s report, the venire as a whole consisted of 29 persons.
Of those 29 persons, 3 appear to be African-American. The
representation of African-Americans in the venire was thus 10.3%.
While the level of representation of African-Americans in the venire
was slightly higher than in the jury, the difference between the two is
just 2%, which is negligible. The level of African-American
representation in the jury was essentially the same as the level in the
venire.
     It is true that defendant and Mosley were both African-American,
and the shooting victim in the robbery was Caucasian. See Williams,
173 Ill. 2d at 71. However, when compared with the totality of
relevant facts (see People v. Rivera, 221 Ill. 2d 481, 500 (2006)), this
does not give rise to an inference of discriminatory purpose.
     We conclude that, even if a court reporter had recorded the voir
dire proceedings, defendant would not have been able to establish a
prima facie case of purposeful discrimination. Moreover, even if a
prima facie case had been established, it appears that the State could
have articulated a race-neutral reason for excusing Mosley: either she
or a close relative had been convicted of a criminal offense. It follows
that, under these circumstances, the prejudice prong of the Strickland
test has not been met. It cannot be said that, but for defense counsel’s
waiver of the court reporter for voir dire, there is a reasonable
probability that the result of the proceeding would have been different.
See Peeples, 205 Ill. 2d at 513. We reject defendant’s claim that his
counsel’s waiver of the court reporter for voir dire constituted
ineffective assistance.
     Defendant’s second claim regarding the impropriety of the voir
dire proceeding is that he was deprived of due process when the trial
court allowed jury selection to proceed with no court reporter present.
This argument arises from essentially the same basis as defendant’s
claim of ineffective assistance regarding jury selection: counsel’s
affirmative waiver of defendant’s right to the presence of a court




                                  -6-
reporter during voir dire.3 In each instance, defendant’s claim is that,
because of the lack of a voir dire record, he was prejudiced in that he
was unable to establish that his jury was improperly seated in violation
of Batson. As a result of our remand in Houston I, we were supplied
with a reconstructed voir dire record, which enabled us to review
defendant’s claims regarding improper jury selection. Having reviewed
these claims under the rubric of ineffective assistance of counsel, and
having determined–under Strickland–that defendant suffered no
prejudice, we are satisfied that there was no due process violation. We
reject defendant’s claim that the trial court, in allowing voir dire to
proceed without a court reporter present, deprived him of due
process.

                   Jury Instruction on Identification
     Defendant next argues that his trial counsel was ineffective for
failing to submit a jury instruction on identification. According to
defendant, “identification of the robber was the primary issue in this
case,” and defense counsel therefore was ineffective for failing to
tender Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed.
2000) (hereinafter IPI Criminal 4th), which deals with the
circumstances of identification. 4 The State counters that there was no


       3
      As this court has stated, waiver arises from an affirmative act, is
consensual, and consists of an intentional relinquishment of a known right.
Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). This accurately describes
counsel’s conduct in the case at bar, where he affirmatively agreed that the
presence of a court reporter for voir dire was unnecessary. Waiver in this
sense is different from forfeiture, which is simply the failure to make the
timely assertion of the right. People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005).
   4
       IPI Criminal 4th No. 3.15 provided:
               “When you weigh the identification testimony of a witness, you
            should consider all the facts and circumstances in evidence,
            including, but not limited to, the following:
               [1] The opportunity the witness had to view the offender at the
            time of the offense.
                                       [or]
               [2] The witness’s degree of attention at the time of the offense.

                                       -7-
issue of eyewitness identification at trial, and counsel therefore was
not ineffective for failing to tender a jury instruction on identification.
     Defendant’s claim of ineffective assistance of counsel is reviewed
under the two-prong test set forth in Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under this test,
a defendant must show that (1) his counsel’s performance was
deficient in that it fell below an objective standard of reasonableness
and (2) counsel’s deficient performance prejudiced the defense in that,
absent counsel’s deficient performance, there is a reasonable
probability that the result of the proceeding would have been different.
People v. Evans, 209 Ill. 2d 194, 219-20 (2004). In order to prevail
on a claim of ineffective assistance, a defendant must satisfy both the
performance and prejudice prongs of Strickland. Evans, 209 Ill. 2d at
220.
     In reviewing defendant’s claim that his counsel was ineffective for
failure to tender a jury instruction, we first recount the pertinent
evidence presented at trial. The charge against defendant arose from
a robbery at a Peoria pizzeria in July 2002. The State’s first witness
was Wesley Fleming, the acting manager of the pizza restaurant where
the robbery occurred. Fleming testified that on July 11, 2002, at about
1 a.m., he was in the process of closing for the day when two men
approached him. Fleming did not hear or see the men enter the
restaurant. As they approached, Fleming noticed that they were
wearing dark, baggy clothing and some sort of cloth obscuring their
faces, like a mask. Because of the masks, Fleming could not see the
men’s faces, but he did note that they were of different heights.
     The shorter of the two men pointed a handgun at Fleming and
demanded that he open the safe. Fleming told the man that the safe


                                    [or]
            [3] The witness’s earlier description of the offender.
                                    [or]
            [4] The level of certainty shown by the witness when
         confronting the defendant.
                                    [or]
            [5] The length of time between the offense and the identification
         confrontation.”


                                    -8-
was time-locked. The man then ordered Fleming to open the cash
register, but Fleming explained that the computer which controlled the
register was already shut down. The man responded, “Don’t fuck with
me, don’t fuck with me,” and he shot Fleming in the leg. Fleming took
out his wallet and offered it to the men, who took it and left.
     Fleming testified that employees sometimes propped open the rear
door of the restaurant if they had to go outside for a short time, but
it was normally closed and locked. The door could be opened from the
outside by entering a combination on a keypad. Fleming stated that he
believed the door was closed before the robbery, but he could not be
certain. He said it looked closed, but he had not specifically checked
it before the robbery.
     During the time that the robbery was taking place, the taller of the
two men was standing watch over another employee, a driver, who
was also in the restaurant. The employee, Andrew Albee,
corroborated Fleming’s account of the incident. Albee testified
additionally that he was in the back of the restaurant washing dishes
when he heard the rear door open and turned to see the two men
enter. The shorter of the two men had a gun and told Albee to lie
down near the cash register. Albee testified that the taller man was
about 6 feet in height,5 and the shorter man was 5 feet 8 or 5 feet 9
inches. Albee added that the rear door of the restaurant was closed
and locked before the men entered. According to Albee, if the door
had been open, he would have noticed. Albee testified further that
after the men left the restaurant, he found a broomstick under the rear
door, propping it open.
     Peoria police officer Terry Esser testified that he was patrolling
the area near the pizza restaurant at about 1 a.m. on July 11, 2002.
When he looked toward the restaurant, he saw two African-American
males running from the rear of the establishment. Esser drove over to
investigate and saw the men attempting to enter a black two-door car
that had pulled up near them. At the same time, two persons who
were in the car got out, and all four individuals fled the area on foot.
The black vehicle began rolling with no one inside, so Esser left his


   5
    The presentence investigation report lists defendant as 6 feet 1 inch in
height.

                                    -9-
squad car and entered the vehicle to stop it. Esser then returned to his
squad car and drove after the four fleeing individuals. After a few
blocks, he parked his squad car and continued the pursuit on foot,
toward a wooded area. Esser eventually concentrated on just one
man. According to Esser, the man was wearing dark pants and a
yellow or orange shirt.
    Esser lost sight of the man, but at about that time other officers
arrived, including a canine unit. As Esser and the other officers
searched the area, they found a black wig lying along a roadside. Esser
searched further and found an African-American man lying on the
ground just inside the wooded area. The man fled, and Esser pursued
him on foot. During the chase, Esser and other officers crossed over
a fence and briefly lost sight of the suspect. He was later found lying
on the ground, and was taken into custody. According to Esser, the
man was wearing dark pants and a white T-shirt.
    Esser identified defendant in court as the man he had chased and
arrested. On cross-examination, Esser acknowledged that he lost sight
of the man on two occasions during the chase.
    Peoria police officer Mike Patterson testified that, after being
called to the scene of the robbery, he initially canvassed the area for
suspects. Patterson then towed the car which Esser had seen, a black
1985 Chevrolet Monte Carlo. According to Patterson, the vehicle was
registered to Erin Bush, whose address was the same as defendant’s.
Patterson spoke to Erin Bush, who told him that defendant was her
son.
    Detective Michael Mushinsky testified that he and Detective Fred
Ball interviewed defendant at the Peoria police station at 8 p.m. on
July 11, 2002. Defendant told the detectives that he and his brother,
Tobias, and a third person had gone to the pizza restaurant, and
defendant and Tobias entered through the rear door. Defendant stated
that he was an employee of the restaurant and had gone there for
leftover pizza. Defendant told the detectives that after he and Tobias
entered the restaurant, Tobias pulled out a pistol and demanded
money from the manager. According to defendant, he had seen Tobias
get the gun earlier that day, but did not realize he had brought it with
him to the restaurant. Defendant stated further that Tobias pointed the
gun at the restaurant manager and demanded that he open the safe.
The gun went off, and defendant and his brother took the manager’s

                                 -10-
wallet and ran out through the rear door. When they reached the
parking lot, they “jumped into the car,” but when they saw the police
pulling up, “they all jumped out of the car and ran their separate
ways.” Defendant said they did not know the area well, so he and the
others simply “took off running.” Defendant added that he was
wearing fake hair, which he removed at one point while running
through “some woods.” Mushinsky testified that he and Ball “asked
him why he was wearing a fake hairpiece and had on a mask if he was
just going in there to get some leftover pizza.” Defendant answered,
“I don’t know.”
    Defendant testified in his own behalf. He stated that he was 18
years old and was an employee of the pizza restaurant where the
robbery took place. According to defendant, he went to the pizza
restaurant at noon or 1 p.m. on July 10, 2002, to get his paycheck,
and then returned home. He drove to the restaurant and back in his
own car, a white Chrysler Fifth Avenue. That evening, defendant was
drinking “heavily” and smoking marijuana with his cousin and some
other individuals. At some point in the evening–defendant did not
recall the exact time–he left in his car and drove to see a female friend
at her grandmother’s house, which was in the area of the pizza
restaurant. On the way there–sometime between midnight and 3
a.m.–defendant was driving in the area of the pizza restaurant when
he saw a police car “creeping out” on him. Defendant stated that he
was “nervous” about being stopped by the police because he had been
drinking heavily, he had “two bags of marijuana in [his] pocket,” and
he had no insurance. In order to avoid being pulled over, defendant
pulled ahead of the police car, drove a little farther, parked his car,
and got out. When he looked back, he saw the police car approaching,
and he started to run. The officer got out of his car and began chasing
defendant, who ran until the officer told him to stop and get down on
the ground. At that point, a canine unit was approaching. Defendant
testified that he was afraid the dog was going to attack him, so he got
up and started running again, toward a wooded area. He said he
discarded the marijuana in the woods. A short time later, defendant
was stopped in the woods by police with guns drawn. The police took
him back to a squad car and brought him to the police station.
    Defendant testified that he did not go to the pizza restaurant that
night. He also denied that the restaurant gave away leftover pizza.

                                  -11-
According to defendant, the restaurant threw it away because it was
cold.
     On cross-examination, defendant was unable to explain how his
mother’s car happened to be near the pizza restaurant at the time of
the robbery. Defendant also denied making any statement to police
about the robbery. According to defendant, he made “no statements
concerning *** a robbery.”
     As is shown by the evidence presented at trial, there was no
identification of defendant as one of the men who committed the
robbery. The two restaurant employees who witnessed the robbery
both testified that they could not identify their assailants because the
robbers wore masks. Police officer Terry Esser identified defendant as
having been near the scene of the crime. Esser testified that, following
a chase, defendant was taken into custody in a nearby wooded area.
Esser did not identify defendant as one of the robbers.
     Indeed, in closing argument, defense counsel argued repeatedly
that there was no identification of defendant. Counsel stated: “There
was a tall guy, a short guy, nobody was able to identify anybody in
there. There was not one iota of evidence that said they were able to
identify [defendant] in that place.” Shortly thereafter, counsel stated:
“There was no identification by anyone in this court during this trial
that identified or pointed out and said this was he.” Counsel added:
“It’s a grave responsibility that you’re going to take into that jury
room, ladies and gentlemen, without a positive identification or even
a half-way identification, really no identification at all of anyone here.”
In rebuttal argument, the State agreed: “We don’t live in a perfect
world and this is not a perfect case. There is no I.D. I’m not going to
tell you there is. I didn’t hear any evidence of an I.D., because there
was no I.D.”
     Identification was not the main issue in this case, notwithstanding
defendant’s arguments to the contrary before this court and the
appellate court. Rather, the State’s case against defendant was based
on his statement to police and on other, corroborating evidence, which
we have detailed above. In his statement to police, for example,
defendant admitted being present at the restaurant during the robbery,
but attempted to mitigate blame by asserting that he went to the
restaurant to get leftover pizza. However, when asked by police why
he was wearing a wig and a mask to get leftover pizza, defendant

                                   -12-
answered, “I don’t know.” The jury also heard testimony that the
black car seen by Officer Terry Esser near the restaurant the night of
the robbery was registered to defendant’s mother. In his testimony at
trial, defendant denied going to the pizza restaurant the night of the
robbery. On cross-examination, however, he was unable to explain
how his mother’s car happened to be near the restaurant at the time
of the robbery.
     In sum, the main issue for the jury was not eyewitness
identification, but rather which of the various versions of events
presented at trial should be believed. We conclude that, in these
circumstances, there is no reasonable probability that defendant would
have been acquitted if IPI Criminal 4th No. 3.15 had been tendered
and given. Defendant has failed to show that he was prejudiced by
defense counsel’s failure to tender this jury instruction on
identification. We therefore reject defendant’s claim that his counsel
was ineffective for failure to submit this instruction. See Peeples, 205
Ill. 2d at 513-14; Evans, 209 Ill. 2d at 219-20.

                         CONCLUSION
   For the reasons set forth above, we affirm the judgment of the
appellate court.

                                                             Affirmed.




                                 -13-
