                                       2020 IL 124538



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS




                                    (Docket No. 124538)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                           LESLIE MOORE, Appellant.


                              Opinion filed January 24, 2020.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Burke and Justices Thomas, Garman, Karmeier, Theis, and
     Neville concurred in the judgment and opinion.



                                         OPINION

¶1       Defendant, Leslie Moore, appeals his conviction in Will County for unlawful
     possession of a weapon by a felon. 720 ILCS 5/24-1.1(a) (West 2012). The issue
     before this court is whether defense counsel was ineffective for failing to stipulate
     to defendant’s felon status, thereby allowing the jury to consider highly prejudicial
     evidence that defendant’s prior conviction was for murder. If so, we must consider
     whether there is a reasonable probability that the result of defendant’s trial would
     have been different. The appellate court affirmed defendant’s conviction in an
     unpublished decision. 2018 IL App (3d) 150736-U. We granted defendant’s
     petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2018). We now reverse
     and remand for further proceedings.


¶2                                     BACKGROUND

¶3       In May 2013, defendant was charged with unlawful possession of a weapon by
     a felon (720 ILCS 5/24-1.1(a) (West 2012)), stemming from a traffic stop in Joliet.
     His prior felony was a 1990 murder conviction. He completed his prison sentence
     for murder in 1998.

¶4       Before jury selection, the trial court asked the prosecutor whether defendant’s
     prior conviction for murder was “part of the proof beyond a reasonable doubt or a
     sentencing issue.” The prosecutor replied, “It’s part of proof beyond a reasonable
     doubt.” The following discussion then occurred:

            “THE COURT: I am going to advise the jury of the nature of the conviction
        or just the defendant is convicted?

            [ASSISTANT STATE’S ATTORNEY] HARVEY: I believe the nature of
        the conviction is what’s told to the jury.

            THE COURT: Mr. Ooink [(Defense counsel)], you agree with that?

            [DEFENSE COUNSEL] OOINK: Yes.

            THE COURT: That’s my understanding of the law just so the record is
        clear.”

¶5      During defendant’s jury trial, the trial court informed the prospective jurors:

        “[T]he indictment in the case reads as follows: It’s alleged on May 16, 2013,
        that [defendant] committed the offense of unlawful use of a weapon by a felon
        and that he, being a person who had been previously convicted of a felony, and
        that was a murder, he knowingly possessed on or about his person or on his land




                                              -2-
          or his own abode or fixed place of business possessed a cobra .38 caliber
          handgun.”

¶6         The arresting officer, Will County Sheriff’s Deputy Thomas Hannon, testified
       that on May 16, 2013, he was on patrol and parked his marked squad car on East
       Zarley Boulevard in Joliet. Deputy Hannon observed a car approach the intersection
       at Chicago Street and Zarley Boulevard. Although the driver activated his turn
       signal when he reached the stop sign, he did not do so within 100 feet of turning as
       required by law. As Deputy Hannon started to follow the car for this traffic
       infraction, he noticed that the driver was driving 60 miles per hour in a 40-mile-
       per-hour zone.

¶7         Deputy Hannon activated his lights and conducted a traffic stop on the car,
       driven by defendant. Deputy Hannon said that, when he pulled up behind the car,
       he saw defendant “dip” his right hand or shoulder toward the center console. When
       Deputy Hannon approached the car, defendant raised his hands in the air.
       According to Deputy Hannon, defendant appeared nervous, his hands were
       shaking, and he was sweating.

¶8         Deputy Hannon testified that he advised defendant of his traffic infractions and
       told him to put his hands down and “relax.” He asked defendant for his driver’s
       license and proof of insurance. Deputy Hannon then returned to his squad car and
       verified that defendant’s license was valid and the car was registered to him.

¶9         When Deputy Hannon returned to defendant’s car, he observed that defendant’s
       hands were still shaking, he was sweating, and he was still acting nervous. Deputy
       Hannon asked defendant why he was so nervous but could not recall how defendant
       responded. Deputy Hannon then ordered defendant out of the car and directed him
       to stand behind it and in front of the squad car. Deputy Hannon again asked why
       defendant was so nervous and why he raised his hands when Deputy Hannon first
       made contact with him. According to Deputy Hannon, defendant said he had a
       loaded firearm in the car’s front center console. For safety reasons, Deputy Hannon
       handcuffed defendant and called for backup.

¶ 10       Deputy Hannon testified that Deputy Michael Ambrosini arrived a few minutes
       later. Deputy Hannon searched defendant’s car, opened the front center console,
       and found a silver, loaded .38-caliber Cobra firearm. A criminal background check




                                              -3-
       showed that defendant had a prior felony conviction. Deputy Hannon arrested
       defendant for unlawful possession of a weapon by a felon. Deputy Hannon did not
       request the gun be tested for fingerprints because defendant told him the gun was
       in the car.

¶ 11       Deputy Hannon identified “State Exhibit 1” as a video recording of the traffic
       stop. Deputy Hannon’s car was equipped with video equipment, but the exterior
       audio component was not functioning. The video was played for the jury. Contrary
       to Deputy Hannon’s testimony, the video showed Deputy Ambrosini retrieved the
       gun from the car, not Deputy Hannon. Deputy Hannon explained that he initially
       found the gun but asked Deputy Ambrosini to retrieve the gun because he did not
       know how to unload it.

¶ 12       On cross-examination, Deputy Hannon admitted that the video did not show
       defendant dipping his right shoulder down during the traffic stop. Deputy Hannon
       stated that defendant’s movement was not accurately portrayed due to the video’s
       poor quality. Also, on cross-examination, Deputy Hannon indicated that he had
       provided the State with both a video recording and an exterior audio recording in
       other cases.

¶ 13       The State moved to admit a certified copy of defendant’s prior conviction, and
       defense counsel had “no objection.” The State told the jury that defendant was
       convicted of murder in 1990.

¶ 14       Sherry Walls testified for the defense. Sherry lived in Joliet at the time of the
       offense. She and defendant attended high school together and were best friends. On
       May 15, 2013, Sherry used defendant’s car to move some belongings from her
       Calumet Park home to her new address at 201 West Zarley Boulevard in Joliet,
       where her daughter and son-in-law lived. After defendant picked her up, Sherry
       dropped him off at his house and went to her Calumet Park address. Sherry picked
       up some clothes and her two guns, a “Cobra” and a “.380.” She put the .380 in the
       glove compartment and the Cobra in the center console of defendant’s car.

¶ 15       Sherry picked up defendant from his home, dropped him off at her daughter’s
       home, and then continued using his car to run errands. When Sherry returned,
       defendant and her son-in-law helped her carry groceries upstairs to the apartment.
       Sherry grabbed her purse and ran to use the bathroom. The next day, she looked in




                                               -4-
       her purse and saw that she only had the .380 gun. Sherry testified that she did not
       tell defendant that she left the other gun in his car.

¶ 16       Sherry testified that she purchased the Cobra on September 27, 2010. At trial,
       she identified the receipt for that gun purchase. The receipt bore her signature and
       the gun’s serial number. She also identified the gun that the police retrieved from
       defendant’s car as the gun she purchased. The serial number on her receipt matched
       the serial number on the gun found in defendant’s car.

¶ 17       Defendant testified that he was 45 years old and lived in Chicago with his wife
       of 16 years. They had a 27-year-old son. Defendant has worked at Jewel warehouse
       in Melrose Park in the sanitation building maintenance department for 14 years.

¶ 18       Defendant testified that, on May 15, he loaned his car to Sherry Walls to move
       some things from her old address. She picked him up, and they went back to her
       home at 201 West Zarley Boulevard. Sherry left in defendant’s car. When she
       returned, defendant and Sherry’s son-in-law went downstairs to help her carry
       things into the house. He did not know that Sherry had put her two guns in his car.

¶ 19       The next day, at around 1:15 a.m., defendant was driving his car and approached
       a stop sign at Chicago Street and Zarley Boulevard. He signaled and turned left
       onto Chicago Street. He saw police lights behind him and immediately pulled over.
       When Deputy Hannon approached him, defendant had his hands on the steering
       wheel at positions “10 and 2.” He did not move toward the center console, nor was
       he nervous, shaking, or sweating.

¶ 20       Defendant rolled down his window and gave Deputy Hannon his driver’s
       license, proof of insurance, and registration. Deputy Hannon returned defendant’s
       documents and then asked what defendant was doing in Joliet. Defendant explained
       that he had just left his friend’s home after watching the Oklahoma City Thunder
       game.

¶ 21       Deputy Hannon told defendant to get out of the car and directed him to the back
       of the car. Deputy Hannon asked defendant why he was acting nervous, and
       defendant denied being nervous. Deputy Hannon again asked defendant what he
       was doing on Zarley Boulevard and then asked defendant if he had any weapons or
       drugs. Defendant said he did not and repeated where he had been. Defendant




                                              -5-
       testified that he never told Deputy Hannon there was a gun in the center console of
       his car.

¶ 22       Deputy Hannon handcuffed defendant and said he was doing it for safety
       reasons. After Deputy Ambrosini arrived, Deputy Hannon searched defendant’s
       car. Defendant did not see where he searched. Deputy Ambrosini also searched the
       car and brought out the gun. Only then did defendant realize the gun was in his car.

¶ 23       Following closing arguments, the jury was given the definition and issues
       instructions for unlawful possession of a weapon by a felon. The definition
       instruction stated:

              “A person commits the offense of unlawful possession of a weapon by a
          felon when he[,] having previously been convicted of murder, knowingly
          possesses a firearm.” (Emphasis added.)

       The issues instruction provided:

              “To sustain the charge of unlawful possession of a weapon by a felon, the
          State must prove the following propositions:

                First Proposition: That the defendant knowingly possessed a firearm;

          and

              Second Proposition: That the defendant had previously been convicted of
          the offense of Murder[.]

              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.

              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.” (Emphasis added.)

       The jury was also given Illinois Pattern Jury Instructions, Criminal, No. 3.13X
       (approved Dec. 8, 2011), instructing:




                                               -6-
              “Ordinarily evidence of a defendant’s prior conviction of an offense may
          not be considered by you as evidence of his guilt of the offense with which he
          is charged.

              However, in this case, because the State must prove beyond a reasonable
          doubt the proposition that the defendant has previously been convicted of
          Murder, you may consider evidence of defendant’s prior conviction of the
          offense of Murder only for the purpose of determining whether the State has
          proved that proposition.” (Emphases added.)

¶ 24      The jury found defendant guilty of unlawful possession of a weapon by a felon.
       Defendant was sentenced to seven years in prison in May 2015.

¶ 25       On appeal, defendant argued, among other things, that his defense counsel was
       ineffective because he failed to stipulate to defendant’s felon status, thereby
       allowing the jury to hear highly prejudicial evidence that he was a convicted
       murderer. In analyzing defendant’s claim under Strickland v. Washington, 466 U.S.
       668 (1984), the appellate court did not determine whether defense counsel’s
       performance was deficient. Rather, it found that defendant could not show he
       suffered prejudice by the alleged deficiencies. 2018 IL App (3d) 150736-U, ¶¶ 36-
       38. According to the appellate court, even if defense counsel had offered to stipulate
       to defendant’s prior felony conviction, the jury still would have learned that
       defendant had committed a felony and could speculate that he was convicted of
       “the most serious crime.” 2018 IL App (3d) 150736-U, ¶ 38. The appellate court
       further reasoned that Deputy Hannon’s testimony, as it included defendant’s
       admission to having a gun in the car, prevented any reasonable probability of a
       different trial outcome. 2018 IL App (3d) 150736-U, ¶¶ 12, 38. Justice Holdridge
       dissented, finding no strategic reason to admit the prior conviction into evidence
       and that prejudice resulted from its admission because the evidence was otherwise
       close. 2018 IL App (3d) 150736-U, ¶¶ 44-46 (Holdridge, J. dissenting). The
       appellate court denied defendant’s petition for rehearing. This court allowed
       defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2018).


¶ 26                                       ANALYSIS




                                               -7-
¶ 27       Defendant asks this court to address whether counsel may be deemed
       ineffective for failing to stipulate to a defendant’s prior conviction for purposes of
       proving his felon status. Defendant claims he was thereby prejudiced.

¶ 28       In criminal prosecutions, a defendant has a constitutional right to effective
       assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8;
       People v. Peterson, 2017 IL 120331, ¶ 79. Claims alleging ineffective assistance of
       counsel are governed by the standard set forth in Strickland, 466 U.S. 668. See
       People v. Domagala, 2013 IL 113688, ¶ 36 (citing People v. Albanese, 104 Ill. 2d
       504 (1984) (adopting the Strickland standard)).

¶ 29       “To prevail on a claim of ineffective assistance of counsel, a defendant must
       demonstrate that counsel’s performance was deficient and that the deficient
       performance prejudiced the defendant.” Domagala, 2013 IL 113688, ¶ 36 (citing
       Strickland, 466 U.S. at 687). “More specifically, a defendant must show that
       counsel’s performance was objectively unreasonable under prevailing professional
       norms and that there is a ‘reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different.’ ”
       Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 687). “A
       ‘ “reasonable probability” ’ is ‘ “a probability sufficient to undermine confidence
       in the outcome” ’ of the proceeding.” Peterson, 2017 IL 120331, ¶ 79 (quoting
       People v. Simpson, 2015 IL 116512, ¶ 35, quoting Strickland, 466 U.S. at 694). A
       defendant must satisfy both prongs of the Strickland standard to prevail on an
       ineffective assistance of counsel claim. Peterson, 2017 IL 120331, ¶ 79.

¶ 30       Here, defendant argues that his trial counsel was ineffective for failing to
       stipulate to his felon status, thereby allowing the jury to consider the highly
       prejudicial evidence that he was previously convicted of murder. It is undisputed
       that the only purpose for admitting evidence of defendant’s prior conviction was to
       prove his felon status.

¶ 31       The State’s brief focuses solely on whether defendant was prejudiced by
       counsel’s failure to stipulate to his felon status. The State maintains that the
       appellate court “correctly found that defendant did not demonstrate Strickland
       prejudice.” The State posits that, even if counsel had offered to stipulate to
       defendant’s prior felony conviction, defendant “likely would have suffered some
       prejudice resulting from jury speculation about the nature of his prior crime.”



                                               -8-
¶ 32       The issue in this case calls for a straightforward application of Strickland to
       defendant’s ineffective assistance of counsel claim. Defendant was charged with
       unlawful possession of a weapon by a felon. Defendant argues that, faced with these
       facts, reasonably effective defense counsel would attempt to prevent the jury from
       learning that defendant’s prior felony conviction was for murder since the nature of
       his prior conviction was not relevant to proving his felon status.

¶ 33      In People v. Walker, 211 Ill. 2d 317 (2004), this court examined the problem
       with admitting other-crimes evidence of a prior conviction when its only purpose
       was to prove the defendant’s felon status. This court considered the United States
       Supreme Court decision of Old Chief v. United States, 519 U.S. 172 (1997), and
       applied that case to Illinois law. Walker, 211 Ill. 2d at 330-40.

¶ 34       The defendant in Old Chief was charged under a federal statute making it
       unlawful for a felon to possess a firearm (18 U.S.C. § 922(g)(1) (1988)), assault
       with a dangerous weapon, and using a firearm in relation to a crime of violence.
       Before trial, the defendant offered to stipulate to his prior conviction to avoid
       revealing its name and nature. Old Chief, 519 U.S. at 174-76. The government
       refused to join in the stipulation, and the trial court allowed the government to
       introduce the order of judgment and commitment for the defendant’s prior felony
       of “ ‘assault resulting in serious bodily injury.’ ” Old Chief, 519 U.S. at 177.

¶ 35       The Supreme Court resolved the issue by applying Federal Rule of Evidence
       403. Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant
       evidence if its probative value is substantially outweighed by a danger of one or
       more of the following: unfair prejudice, confusing the issues, misleading the jury,
       undue delay, wasting time, or needlessly presenting cumulative evidence.”

¶ 36       Under Rule 403, the Supreme Court held that, when the government needs only
       to prove a defendant’s felon status, evidence of the name and nature of the prior
       conviction should generally be excluded because it has no probative value and
       presents a substantial danger of unfair prejudice. Old Chief, 519 U.S. at 185-92.
       The Supreme Court reasoned that the jury could consider the defendant’s prior “bad
       act” as “raising the odds” that he committed the offense charged “or, worse, as
       calling for preventative conviction” even if the defendant was innocent. Old Chief,
       519 U.S. at 180-81. The name and nature of the prior conviction could “lure the




                                              -9-
       factfinder into declaring guilt on a ground different from proof specific to the
       offense charged.” Old Chief, 519 U.S. at 180.

¶ 37       The Supreme Court opined that a trial court’s evaluation of an evidentiary
       item’s probative value and potential for undue prejudice should be guided “by
       placing the result of that assessment alongside similar assessments of evidentiary
       alternatives.” Old Chief, 519 U.S. at 184-85. In dealing with the prior conviction
       element of the statute at issue in Old Chief, the Supreme Court found that “there
       can be no question that evidence of the name or nature of the prior offense generally
       carries a risk of unfair prejudice to the defendant” and less prejudicial means of
       proof—such as a stipulation or admission—could establish the defendant’s felon
       status. Old Chief, 519 U.S. at 185-86.

¶ 38        In Walker, this court adopted Old Chief’s reasoning and holding. Walker, 211
       Ill. 2d at 336-43. We agreed with Old Chief that, in cases requiring proof of felon
       status, disclosing the nature of a defendant’s prior conviction created a risk of unfair
       prejudice. Walker, 211 Ill. 2d at 337-38, 341.

¶ 39      After this court’s decision in Walker, Illinois adopted the Illinois Rules of
       Evidence, and the pertinent rule is virtually the same as the federal rule at issue in
       Old Chief. Ill. R. Evid. 403 (eff. Jan. 1, 2011) (“Although relevant, evidence may
       be excluded if its probative value is substantially outweighed by the danger of
       unfair prejudice, confusion of the issues, or misleading the jury, or by
       considerations of undue delay, waste of time, or needless presentation of
       cumulative evidence.”).

¶ 40       Strickland requires a defendant satisfy two components to prevail on an
       ineffective assistance of counsel claim: (1) deficient performance and (2) prejudice.
       Peterson, 2017 IL 120331, ¶ 79. Applying Strickland to the facts of this case, we
       conclude that defense counsel performed deficiently. Here, in accordance with Old
       Chief and Walker, if defense counsel had offered to stipulate to defendant’s prior
       conviction, the trial court would have been obligated to accept the stipulation.
       Given the high risk of prejudice inherent in disclosing defendant’s prior murder
       conviction, defense counsel’s failure to stipulate to his felon status was objectively
       unreasonable. Informing the jury that defendant was previously convicted of
       murder could hardly benefit his defense. We can conceive of no reasonable trial




                                                - 10 -
       strategy for defense counsel not stipulating that defendant had a prior conviction
       for an unspecified felony.

¶ 41       Indeed, deficient performance in this case is not seriously disputed. In its brief,
       the State makes no attempt to justify defense counsel’s failure to stipulate to
       defendant’s felon status as trial strategy. The record in this case clearly shows that
       defense counsel’s failure to stipulate to defendant’s felon status was not based on
       any legitimate trial strategy but, rather, on a misapprehension of the law that was
       shared by the prosecutor and the trial judge. Of course, we know that under Walker,
       that understanding was wrong. See Walker, 211 Ill. 2d at 320 (holding that “trial
       court committed reversible error when it admitted evidence of the name and nature
       of defendant’s prior felony conviction rather than accept defendant’s offer to
       stipulate to his felon status”). Instead of offering to stipulate, defense counsel in
       this case agreed with the misapprehension by both the prosecutor and the trial court
       judge that the law required disclosing the nature of defendant’s prior felony
       conviction to the jury. Accordingly, we find that, under Strickland, defendant has
       shown that his counsel’s performance “was objectively unreasonable under
       prevailing professional norms.” Domagala, 2013 IL 113688, ¶ 36.

¶ 42       Next, turning to the prejudice component, Strickland requires the defendant
       show there was a reasonable probability that the result of the proceedings in this
       case would have been different if the jury had not learned that defendant was
       previously convicted of murder. See Domagala, 2013 IL 113688, ¶ 36. Defendant
       argues that the nature of the prior conviction and the closeness of the evidence in
       this case made defense counsel’s ineffective assistance prejudicial and that there is
       a reasonable probability that, but for counsel’s unprofessional errors, the result of
       the proceeding would have been different. According to defendant, when the jurors
       heard the evidence and were considering his innocence or guilt for possessing a
       gun, they knew that he had previously been convicted of murder. Defendant
       contends that the specter of his murder conviction and its inherently prejudicial
       nature loomed over his entire trial.

¶ 43      The State counters that defendant’s prior murder conviction was only
       mentioned a few times during the trial itself. In the State’s case-in-chief, the
       prosecutor mentioned that defendant was convicted of murder in 1990. The prior
       murder conviction was also mentioned when discussing defendant’s felon status




                                               - 11 -
       during the prosecutor’s closing argument. The State also points out that the jury
       was given a limiting instruction informing them that they should only consider
       defendant’s prior murder conviction for the limited purpose of establishing
       defendant’s felon status and we should presume the jury followed that instruction.

¶ 44      Defendant counters that the trial court also told the jury that his felon status was
       due to a prior conviction for murder when he read the indictment to them and, thus,
       was the first thing the jurors heard, before any evidence was presented at trial.
       Defendant also points out that the prosecutor repeatedly mentioned his prior murder
       conviction during closing argument and during rebuttal at least six times.

¶ 45        We know from Walker that this type of prior conviction evidence generally has
       little probative value and creates a high risk of unfair prejudice to the defendant.
       Walker, 211 Ill. 2d at 338. Old Chief defines what unfair prejudice means in this
       context: it is the capacity of the evidence to lure the jury into finding the defendant
       guilty “on a ground different from proof specific to the offense charged.” Old Chief,
       519 U.S. at 180. More specifically, it carries the inherent risk of overpersuading the
       jury that the defendant is a bad person who is more likely to commit the charged
       offense “or, worse, as calling for preventative conviction” even if the jury believes
       that the defendant might be innocent of the charged crime. Old Chief, 519 U.S. at
       180-81.

¶ 46       Here, both the bad character reasoning and the “or worse” scenario recognized
       in Old Chief apply. The jury was to decide only whether defendant knowingly
       possessed the handgun found in the closed console of his car. Although the
       evidence was that defendant’s conviction was from 1990, the jurors did not know
       the length of his sentence and could have speculated that defendant was only
       recently released from prison before being found with a gun in his car. The capacity
       of this evidence to influence the jury inappropriately and to persuade them to
       convict defendant as a preventative measure regardless of the evidence on the
       offense charged was great. However, although we believe defense counsel’s
       ineffectiveness was highly prejudicial, we cannot say whether defense counsel’s
       ineffectiveness alone resulted in prejudice. Rather, we must also look to the
       evidence in the case. See People v. Hughes, 2012 IL 112817, ¶ 65 (“Although we
       recognize that there may be circumstances where a defendant could prove that the
       deficient performance affected the outcome ***, the question whether a given




                                               - 12 -
       defendant has made the requisite [Strickland] prejudice showing will turn on the
       facts of a particular case.”).

¶ 47       Defendant argues that, in finding that he was not prejudiced by defense
       counsel’s ineffectiveness, the appellate court focused solely on Deputy Hannon’s
       testimony while ignoring defendant’s testimony and the testimony of his witness,
       Sherry Walls. The State counters that the video evidence corroborated Deputy
       Hannon’s testimony because it shows a strong inference that defendant admitted
       the gun was in the car, when defendant was handcuffed after a brief conversation
       and the gun was recovered shortly thereafter.

¶ 48       We have thoroughly examined the record, including the evidence and video
       presented at trial. We agree with defendant that the evidence was closely balanced
       and that there was a reasonable probability that the prior murder conviction
       evidence tipped the scales against defendant. As argued by defendant, this case
       essentially involved a credibility contest between Deputy Hannon’s version of
       events and the version presented by defendant and his witness, Sherry Walls.

¶ 49       Deputy Hannon testified that he pulled defendant over for the traffic violations
       of failing to signal within 100 feet of a stop sign and speeding. He testified that, as
       he pulled behind defendant’s vehicle, he observed defendant make a movement
       toward the center console. Deputy Hannon stated that, as he approached, defendant
       immediately put his hands up in the air and was acting very nervous. Deputy
       Hannon returned to his squad car and confirmed that defendant’s license and
       insurance were valid. When he returned to defendant’s vehicle, Deputy Hannon felt
       that defendant was still acting nervous so he ordered defendant out of the vehicle.
       When Deputy Hannon asked him why he was so nervous, Deputy Hannon claimed
       that defendant volunteered, “I have a loaded firearm in the front center console of
       my car.” Deputy Hannon then handcuffed defendant.

¶ 50       Although the State presented a video of the traffic stop, there was no audio that
       may have corroborated the statement that defendant purportedly made to Deputy
       Hannon. The video does not show defendant dipping his right shoulder toward the
       center console when his vehicle was stopped, as testified to by Deputy Hannon. Nor
       did police test the handgun for defendant’s fingerprints. Accordingly, there was no
       extrinsic evidence to corroborate Deputy Hannon’s account of the incident
       regarding defendant’s alleged statement.



                                               - 13 -
¶ 51        Defendant’s testimony contradicted Deputy Hannon’s version of the incident.
       Defendant denied reaching toward the center console and denied being nervous.
       Defendant denied telling Deputy Hannon there was a gun in the car, claiming that
       he did not know the gun was present. Defendant also presented the testimony of
       Sherry Walls, who explained why defendant would not have known the gun was in
       the car. Sherry testified that the gun belonged to her and claimed she accidentally
       left it in defendant’s car the day before when she borrowed the car to move. Sherry
       brought a receipt for the gun verifying she was the owner. The receipt was entered
       into evidence. Sherry further testified that she did not realize she had left the gun
       in the car until the next day and stated that she never told defendant that she had
       put the gun in his car.

¶ 52       In our view, this case presents a classic case of closely balanced evidence. The
       jury was faced with two plausible versions of events that depended on witness
       credibility. The jury was tasked with deciding whose version to believe. Because
       the evidence was closely balanced, we believe that informing the jurors that
       defendant was previously convicted of murder made Deputy Hannon’s version
       more plausible and tipped the scales against defendant. Accordingly, we find there
       was a reasonable probability of a different result, had defense counsel prevented
       the jury from being informed of the nature of defendant’s prior felony conviction.
       For these reasons, based on the specific facts of this case, we hold that defense
       counsel’s performance was ineffective and defendant was prejudiced. In other
       words, defendant has met his burden of showing there is a “ ‘reasonable probability
       that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different.’ ” Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466
       U.S. at 694).

¶ 53        In light of our holding, we must consider whether a new trial would subject
       defendant to double jeopardy. See People v. Diggins, 235 Ill. 2d 48, 58 (2009).
       Defendant does not dispute the sufficiency of the evidence and has not raised a
       claim that double jeopardy bars a new trial. This case hinged on witness credibility,
       and viewing the evidence in the light most favorable to the prosecution, we believe
       it is possible that a jury could have believed Deputy Hannon’s testimony over that
       of defendant and Sherry Walls. We find there was sufficient evidence that the jury
       could have found defendant guilty beyond a reasonable doubt and therefore hold
       that double jeopardy does not preclude a new trial. See Diggins, 235 Ill. 2d at 58.




                                              - 14 -
       Nothing in this opinion should be construed as a finding regarding defendant’s guilt
       that would be binding on remand. See Diggins, 235 Ill. 2d at 58.


¶ 54                                    CONCLUSION

¶ 55      We reverse the judgment of the appellate court affirming defendant’s
       conviction and remand the case to the circuit court for further proceedings.


¶ 56      Reversed and remanded.




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