                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. McGhee, 2012 IL App (1st) 093404




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    VOLNEY McGHEE, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-09-3404


Filed                      January 24, 2012
Rehearing denied           February 9, 2012
Held                       The second-stage dismissal of defendant’s postconviction petition was
(Note: This syllabus       upheld, despite defendant’s allegations of ineffective assistance of both
constitutes no part of     his trial and appellate counsel, including appellate counsel’s failure to
the opinion of the court   raise on direct appeal the trial court’s dismissal of the jury after the
but has been prepared      verdict was returned without conducting a poll as requested by defense
by the Reporter of         counsel, since defendant failed to object to the trial court’s failure to poll
Decisions for the          the jury, the evidence was not closely balanced, appellate counsel would
convenience of the         not have prevailed on appeal if the issue had been raised under the
reader.)
                           prejudice prong of the plain-error doctrine, and under the second prong,
                           the failure to poll the jury was not a structural error requiring automatic
                           reversal but, rather, polling the jury is merely a procedural device and is
                           not an indispensable prerequisite to a fair trial; furthermore, the State’s
                           request for its full costs of the appeal on the ground that defendant’s
                           petition was frivolous was denied where the petition was dismissed at the
                           second stage and could not have been frivolous.
Decision Under             Appeal from the Circuit Court of Cook County, No. 99-CR-14723; the
Review                     Hon. Clayton J. Crane, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State
Appeal                      Appellate Defender’s Office, of Springfield, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                            Manny Magence, Assistant State’s Attorneys, of counsel), for the People.


Panel                       JUSTICE CONNORS delivered the judgment of the court, with opinion.
                            Justices Cunningham and Harris concurred in the judgment and opinion.



                                               OPINION

¶1          Following a direct appeal of his conviction for murder, attempted murder, and aggravated
        discharge of a firearm, defendant Volney McGhee filed a postconviction petition, alleging
        denial of his constitutional right to effective assistance of trial and appellate counsel. The
        circuit court dismissed the petition at the second stage. We affirm.

¶2                                         I. BACKGROUND
¶3           Most of the issues that defendant raises require only limited discussion of the facts, so
        we will briefly summarize the background of this case and will refer to additional facts and
        testimony as necessary in our analysis.1
¶4           The victim, Melvin Thornton, was shot dead at a gas station around 1 a.m. Witnesses at
        trial testified that while the victim was waiting in line at the gas station, a red car drove
        slowly by while defendant leaned out of a rear window, staring at the car that the victim had
        been riding in. A passenger in the front seat of the red car was identified as a friend of
        defendant’s. After driving by the gas station, the car flipped around and pulled into the
        opposite side of the station. Defendant got out of the red car carrying a gun and approached
        the car that the victim had been riding in. When defendant began to run toward the car, the
        driver of the car put the vehicle in reverse and attempted to flee, leaving the victim in the gas
        station parking lot. Defendant fired several shots at the fleeing vehicle and then turned
        toward the victim, who was standing close by. Defendant shot the victim in the face, and a
        second round struck the victim’s thigh as his body fell to the ground. Defendant fled, but he
        was later arrested and was identified as the shooter in a lineup about three months after the
        murder.
¶5           Defendant presented an alibi defense at trial. Laura Higgs, defendant’s wife’s


                1
                 A detailed recitation of the testimony at trial is contained in our decision on defendant’s
        direct appeal. See People v. McGhee, No. 1-03-0761 (2004) (unpublished order under Supreme
        Court Rule 23).

                                                    -2-
       grandmother, testified that defendant, his wife, and their two children were staying overnight
       with her at her apartment on the night the victim was killed. Higgs testified that defendant
       arrived at the apartment around 11:30 p.m. and that she saw defendant asleep in a bedroom
       around 1 a.m., which was about the time of the murder. Higgs testified that she did not hear
       anyone leave the apartment that evening.
¶6         The jury found defendant guilty of murder, attempted murder, and aggravated discharge
       of a firearm. We affirmed on direct appeal, in which defendant raised a number of issues
       including reasonable doubt, ineffective assistance of counsel, and prosecutorial misconduct
       in closing arguments. See People v. McGhee, No. 1-03-0761 (2004) (unpublished order
       under Supreme Court Rule 23).
¶7         Defendant then filed the instant postconviction petition pro se, raising additional issues
       of ineffective assistance of trial and appellate counsel. The trial court appointed
       postconviction counsel for defendant, but the petition was dismissed on the State’s motion
       at the second stage. The trial court found that, regardless of whether trial counsel’s
       performance was deficient, defendant was not prejudiced by any of the alleged errors raised
       in the petition due to the overwhelming evidence against him. Defendant timely appealed.

¶8                                         II. ANALYSIS
¶9         The circuit court dismissed defendant’s postconviction petition at the second stage of
       proceedings. At this stage, the State must either answer or move to dismiss the petition. See
       725 ILCS 5/122-5 (West 2010). The question for the court at this stage is “whether the
       petition and any accompanying documentation make a substantial showing of a constitutional
       violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001). If the petition makes such a
       showing, then the petition advances to stage three, at which the circuit court holds an
       evidentiary hearing on the petition’s claims. See 725 ILCS 5/122-6 (West 2010). We review
       the dismissal of a postconviction petition at the second stage de novo.
¶ 10       Defendant’s petition is a broad ineffective assistance of counsel claim regarding the
       performance of both his trial and appellate counsel. Four of the claims are primarily directed
       at his trial counsel, but they also implicate his appellate counsel because they were not
       included among the ineffective assistance of counsel claims that defendant’s appellate
       counsel raised on direct appeal. See People v. Williams, 209 Ill. 2d 227, 233 (2004) (noting
       that although the doctrine of res judicata ordinarily bars litigation of issues that were or
       could have been raised in a prior proceeding, such an issue may be raised in a postconviction
       petition if, among other things, “the waiver stems from the ineffective assistance of appellate
       counsel”). As to his trial counsel, defendant alleges ineffective assistance of counsel due to
       (1) failure to properly support defendant’s alibi defense with additional witnesses and
       evidence, (2) failure to object to certain testimony, (3) failure to present expert testimony
       regarding the reliability of eyewitnesses, and (4) failure to challenge defendant’s sentence
       as excessive. The fifth claim is directed solely at his appellate counsel for failure to raise on
       direct appeal the trial court’s failure to poll the jury at the request of defendant after it
       returned its verdict.
¶ 11       Ineffective assistance of counsel claims are governed by the familiar standard of

                                                 -3-
       Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504
       (1984) (adopting Strickland). There are two prongs to the test: first, the defendant must show
       that counsel’s performance was deficient, and second, the deficient performance must be
       prejudicial to the defendant. See People v. Petrenko, 237 Ill. 2d 490, 496 (2010). The
       performance prong is satisfied if “counsel’s performance was objectively unreasonable under
       prevailing professional norms,” and the prejudice prong is satisfied if there is a “reasonable
       probability that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different.” (Internal quotation marks omitted.) Id. at 496-97. The test is essentially
       the same for a claim of ineffective assistance of appellate counsel, in which the defendant
       “must show both that appellate counsel’s performance was deficient and that, but for
       counsel’s errors, there is a reasonable probability that the appeal would have been
       successful.” Id. at 497.
¶ 12       Appellate counsel is only required to raise meritorious issues on appeal (see People v.
       Easley, 192 Ill. 2d 307, 329 (2000)), so defendant’s constitutional claims of ineffective
       assistance of appellate and trial counsel depend on whether his underlying substantive claims
       of error have merit. If they do not, then defendant’s appellate counsel cannot be faulted for
       not raising them in the direct appeal and defendant’s petition would accordingly fail to make
       the required “substantial showing” of a constitutional violation.

¶ 13                                   A. Failure to Poll the Jury
¶ 14        We will begin with defendant’s argument that his appellate counsel was ineffective
       because appellate counsel did not raise on direct appeal the issue of the trial court’s failure
       to poll the jury upon request, given that this is the most complex issue that defendant raises.
¶ 15        In every criminal trial, the defendant has the absolute right to poll the jury after it returns
       its verdict. See People v. Rehberger, 73 Ill. App. 3d 964, 968 (1979). This right has long
       been recognized in Illinois and is rooted deep in our common law. See, e.g., Nomaque v.
       People, 1 Ill. 145, 150 (1825) (“The prisoner had a right to have the jurors polled: this right
       could not have been exercised where the presence of the jurors was dispensed with. *** In
       the present case, the verdict was not even sealed; it was liable to alteration, and besides, the
       court had no legal evidence that it was the verdict of the jury.”); Martin v. Morelock, 32 Ill.
       485, 487 (1863) (“Either party has the right to have the jury examined by the poll before the
       verdict is recorded.”). The purpose of polling the jury is to ensure that the verdict is in fact
       unanimous. See Rehberger, 73 Ill. App. 3d at 968. There are two important points underlying
       the right to poll the jury. First, “[t]he finding of a jury does not become a verdict until it has
       been received, accepted by the court and recorded of record. [Citations.] In other words, a
       verdict is not final until pronounced and recorded in open court.” Rehberger, 73 Ill. App. 3d
       at 968. Second, “[t]he opportunity for jurors to show their assent or dissent to a verdict is
       basic to our system which requires unanimity among the jurors since if any of the jurors
       dissents from the verdict, it cannot be recorded.” Id.
¶ 16        There are several basic scenarios in which jury-polling errors can potentially occur, each
       of which requires a slightly different analysis. In one scenario, the court does not allow
       enough time between the return of the verdict and the dismissal of the jury for the defendant


                                                   -4-
       to request a poll. See, e.g., People v. Wheat, 383 Ill. App. 3d 234, 235-42 (2008) (trial court
       allowed no more than two seconds for the defendant to request a jury poll before discharging
       the jury, and defense counsel requested a poll immediately after the jury was discharged but
       while the jurors were still present in the courtroom). In another scenario, the defendant asks
       the court to poll the jury and, during the poll, a juror gives some type of ambiguous response.
       See, e.g., People v. McDonald, 168 Ill. 2d 420, 461-63 (1995) (when asked the question,
       “ ‘[W]as this and is this now your verdict,’ ” a juror responded, “ ‘Reluctantly, yes your
       Honor.’ ”); People v. Herron, 30 Ill. App. 3d 788, 789 (1975) (jury foreman responded, “ ‘It
       wasn’t, but it is.’ ”). In a third scenario, the defendant timely requests a jury poll but the court
       dismisses the jury without conducting the poll. See, e.g., Rehberger, 73 Ill. App. 3d at 968
       (jury returned sealed, unanimous verdict on four out of six charges but deadlocked on
       remaining charges, and the trial court declared a mistrial but then entered judgment on the
       four charges 3½ months after the jury was discharged and without conducting a poll).
¶ 17       This case deals with the third scenario. After the jury returned its verdict, defense counsel
       stated, “I want them polled, Judge.” The trial court acknowledged defense counsel’s request
       and proceeded to thank the jurors for their service, but then dismissed the jury without
       conducting the poll. There is no indication in the record that a poll was ever conducted. In
       fairness to the trial court, the mistake appears to have been inadvertent and defense counsel
       never followed up on the request to poll the jury. Yet the mistake was made, and both
       defendant and the State agree that it was error for the trial court to fail to poll the jury upon
       defendant’s timely request.
¶ 18       The dispositive question for this case, however, is what kind of error this is, and on this
       point the parties strenuously disagree. Defendant failed to object when the trial court
       dismissed the jury without conducting the poll and did not include this issue in his motion
       for a new trial, so his appellate counsel could only have raised the issue on direct appeal
       under the plain error doctrine.2 See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (in order to
       preserve an issue for review, a defendant must both object at trial and include the alleged
       error in a written posttrial motion); see also People v. McLaurin, 235 Ill. 2d 478, 496 (2009)
       (“[D]efendant in the present case did not properly preserve his objections. Because [the
       defendant] has forfeited his claims, we review them only for plain error.”). An error is
       reversible under the plain error doctrine only when:
                    “ ‘(1) a clear or obvious error occurred and the evidence is so closely balanced
                that the error alone threatened to tip the scales of justice against the defendant,
                regardless of the seriousness of the error, or (2) a clear or obvious error occurred and
                that error is so serious that it affected the fairness of the defendant’s trial and
                challenged the integrity of the judicial process, regardless of the closeness of the
                evidence. [Citation.]’


               2
                Notably, defendant does not argue that his trial counsel was ineffective for failing to
       preserve the issue for appeal. Had the error been preserved, appellate counsel could have addressed
       the issue as one of harmless error rather than plain error, which would have resulted in a different
       analysis and placed the burden on the State. See McLaurin, 235 Ill. 2d at 495.

                                                   -5-
                The first step of plain-error review is determining whether any error occurred.
            [Citation.] ***
                In plain-error review, the burden of persuasion rests with the defendant. [Citation.]”
            People v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 19        Because both parties agree that an error occurred, the question is only whether
       defendant’s claim might have been successful on direct appeal under either prong of the plain
       error doctrine. In his direct appeal, however, defendant raised some claims of ineffective
       assistance of trial counsel. When we evaluated the evidence against him in the context of the
       prejudice prong of Strickland, we found that the evidence was not closely balanced and
       defendant was accordingly not prejudiced by any alleged error. See People v. McGhee, No.
       1-03-0761, order at 13 (2004) (unpublished order under Supreme Court Rule 23).
       Defendant’s appellate counsel would therefore have been unsuccessful had the jury-polling
       issue been raised on direct appeal under the first prong of the plain-error doctrine. See People
       v. White, 2011 IL 109689, ¶ 133 (“[T]he closely-balanced-evidence prong of plain error is
       similar to an analysis for ineffective assistance of counsel based on evidentiary error insofar
       as a defendant in either case must show he was prejudiced.”).
¶ 20        Defendant therefore could only have succeeded on this issue on direct appeal if the error
       falls under the second prong of the plain-error doctrine. Under this prong, “[p]rejudice to the
       defendant is presumed because of the importance of the right involved, regardless of the
       strength of the evidence.” (Internal quotation marks omitted.) (Emphasis omitted.)
       Thompson, 238 Ill. 2d at 613. The supreme court has equated the second prong of the plain-
       error doctrine with structural error, which is “a systemic error which serves to erode the
       integrity of the judicial process and undermine the fairness of the defendant’s trial.” (Internal
       quotation marks omitted.) Id. at 613-14 (quoting People v. Glasper, 234 Ill. 2d 173, 197-98
       (2009)).
¶ 21        The question, then, is whether the trial court’s failure to poll the jury on defendant’s
       request is the kind of error that mandates reversal regardless of whether defendant was
       prejudiced by the error. It does not appear from our own research or the briefs of the parties
       that this question has previously been addressed in this context, so we treat it as a question
       of first impression. Even so, the supreme court analyzed a similar question in Glasper and
       Thompson, which we take as our guides for this case. In Glasper, the supreme court
       considered whether a trial court’s failure to question the venire pursuant to the version of
       Illinois Supreme Court Rule 431(b) (eff. May 1, 1997) then in effect was a structural error.
       See Glasper, 234 Ill. 2d at 189. Under the now-defunct version of Rule 431(b) and the
       supreme court’s ruling in People v. Zehr, 103 Ill. 2d 472 (1984), the trial court was required
       to question the venire regarding the four Zehr principles only if requested to do so by the
       defendant. See Glasper, 234 Ill. 2d at 189. The supreme court concluded that the trial court’s
       failure to comply with Rule 431(b) was not a structural error and was therefore subject to
       harmless-error review. See id. at 199. The supreme court came to the same conclusion in
       Thompson when it considered the amended version of Rule 431(b), which mandated that the
       trial court question the venire regarding the four Zehr principles regardless of whether the
       defendant requested it. See Thompson, 238 Ill. 2d at 605-07; see also id. at 614 (“Unlike the
       preamended rule requiring questioning only upon the defendant’s request, the amended rule

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       imposes a duty on trial courts to perform the questioning in every criminal case tried by a
       jury.”).3
¶ 22        The supreme court’s reasoning in both Glasper and Thompson is highly instructive. The
       supreme court noted in Glasper that there are only “ ‘a very limited class of cases’ ” in which
       an error has been deemed structural. (Internal quotation marks omitted.) See Glasper, 234
       Ill. 2d at 198 (quoting Neder v. United States, 527 U.S. 1, 8 (1999)); see also Thompson, 238
       Ill. 2d at 609 (noting that structural errors include “a complete denial of counsel, trial before
       a biased judge, racial discrimination in the selection of a grand jury, denial of self-
       representation at trial, denial of a public trial, and a defective reasonable doubt instruction”).
       Unlike other errors that had previously been deemed structural, the supreme court observed
       that Rule 431(b) was a rule of the court rather than a fundamental right or other constitutional
       protection, and “[t]he violation of a Supreme Court Rule does not mandate reversal in every
       case.” Glasper, 234 Ill. 2d at 193, 198; see Thompson, 238 Ill. 2d at 609.
¶ 23        Perhaps most importantly, the supreme court highlighted the distinction between the
       procedural requirement of questioning the venire pursuant to Rule 431(b) and the
       fundamental prohibition against a defendant being tried by a biased jury. The supreme court
       emphasized that although “trial before a biased jury is structural error subject to automatic
       reversal, failure to comply with Rule 431(b) does not necessarily result in a biased jury. Rule
       431(b) questioning is simply one way of helping to ensure a fair trial and impartial jury. ***
       Although compliance with Rule 431(b) is important, violation of the rule does not
       necessarily render a trial fundamentally unfair or unreliable in determining guilt or
       innocence.” Thompson, 238 Ill. 2d at 610-11; see also id. at 614 (“A finding that defendant
       was tried by a biased jury would certainly satisfy the second prong of plain-error review
       because it would affect his right to a fair trial and challenge the integrity of the judicial
       process. Critically, however, defendant has not presented any evidence that the jury was
       biased in this case.”). There are consequently two related but different rights at issue in this
       kind of situation: the substantive right to be tried by a fair and impartial jury and the
       procedural right to have the venire questioned pursuant to Rule 431(b). Only errors regarding
       the former, not the latter, require automatic reversal without consideration of prejudice to the
       defendant.
¶ 24        The supreme court’s reasoning in Thompson and Glasper is directly analogous to this
       case. Similarly to those cases, there are two related but distinct rights at issue here. The first


               3
                Although the issue in both Glasper and Thompson was essentially the same, the procedural
       posture of the cases was slightly different. In Glasper, the defendant had preserved the error, so the
       dispositive question was whether the error was subject to harmless-error review or required
       automatic reversal because it was structural. See Glasper, 234, Ill. 2d at 185-86. In Thompson, the
       defendant failed to preserve the error, and the supreme court ultimately applied the plain-error
       doctrine. See Thompson, 238 Ill. 2d at 605, 611. See generally McLaurin, 235 Ill. 2d at 495
       (“[W]here the defendant has made a timely objection and properly preserved an error for review, the
       reviewing court conducts a harmless-error analysis in which the State has the burden of persuasion
       with respect to prejudice. [Citation.] However, where the defendant fails to make a timely objection
       and therefore forfeits review, the reviewing court will examine the record only for plain error.”).

                                                    -7-
       is a defendant’s subtantive right to a unanimous verdict. As we have already noted, this right
       is so basic to our legal system that a nonunanimous verdict cannot be recorded. See
       Rehberger, 73 Ill. App. 3d at 968. Like the right to a trial by an unbiased jury, the right to a
       unanimous verdict is among the most fundamental of rights in Illinois. See People v. Strain,
       194 Ill. 2d 467, 475 (2000) (noting that the right to trial by jury guaranteed under article I,
       section 13, of the Illinois Constitution of 1970 includes “the right to have the facts in
       controversy determined, under the direction and superintendence of a judge, by the
       unanimous verdict of twelve impartial jurors who possess the qualifications and are selected
       in the manner prescribed by law” (internal quotation marks omitted)). We may safely assume
       then, without deciding, that a conviction based on a nonunanimous verdict is an error that
       would require automatic reversal under the second prong of the plain-error doctrine.
¶ 25        But that is not what happened in this case. As in Thompson and Glasper, there is a
       second, procedural right at issue. The supreme court in those cases found that, rather than
       being an indispensable part of a fair trial, a defendant’s right to a Rule 431(b) inquiry at issue
       was merely a procedural device promulgated by supreme court rule that aids in the selection
       of an impartial jury. See Thompson, 238 Ill. 2d at 614 (“Rule 431(b) questioning is only one
       method of helping to ensure the selection of an impartial jury. [Citation.] It is not the only
       means of achieving that objective.”). Similarly, the requirement that the trial court poll the
       jury upon request is a common-law rule that is designed to help ensure that the jury’s verdict
       is unanimous, but it is not the sole means of ensuring a unanimous verdict. Other procedural
       requirements exist; for example, the requirement that the jurors individually sign the verdict
       form. Like questioning the venire under Rule 431(b), polling the jury is merely a procedural
       device that helps to ensure that the jury’s verdict is unanimous, but it is not an indispensable
       prerequisite to a fair trial.
¶ 26        In light of the supreme court’s analysis in Thompson and Glasper, we must conclude that
       polling the jury on request, while mandatory, is not so fundamental that the failure to do so
       affects the fairness of a defendant’s trial and challenges the integrity of the judicial process.
       Cf. id. at 615. Although some evidence that the verdict was not unanimous could potentially
       satisfy the second prong of the plain-error doctrine, defendant in this case has not offered us
       any evidence that the verdict was not unanimous other than the trial court’s failure to poll the
       jury. The record is bare of any indication to the contrary, and in fact not one but three
       separate guilty verdict forms, one for each count, were signed by all 12 jurors. Without more,
       defendant cannot meet his burden of persuasion and the second prong of the plain-error
       doctrine cannot excuse his failure to preserve this issue.
¶ 27        In arguing for a contrary result, defendant relies on several cases that we will address
       briefly. In People v. Townsend, 5 Ill. App. 3d 924 (1972), the jury returned a sealed verdict,
       but the verdict was not opened and read in court until after the jury had been dismissed. See
       id. at 925. We reversed, noting that “[t]here is no evidence in the record to substantiate that
       the defendant or his counsel ever agreed to the sealed verdict or to its return other than by the
       jury.” Id. The dispositive fact in Townsend is that the verdict was returned outside of the
       presence of the jury, which as we noted above precludes the verdict from being recorded. See
       Rehberger, 73 Ill. App. 3d at 968. Such a scenario did not occur in this case, so Townsend
       is unhelpful.

                                                  -8-
¶ 28       Also inapposite for the same reason is Rehberger, 73 Ill. App. 3d at 969. Although in that
       case we did discuss the defendant’s inability to poll the jury, the dispositive fact in Rehberger
       was that “the verdicts on the charges upon which the jurors reached agreement were never
       pronounced in open court in the presence of the jurors either at the conclusion of jury
       deliberations or before judgments were entered 3½ months late. *** In short, there were no
       final verdicts upon which the court could enter judgments.” Id. Unlike Rehberger, the verdict
       in this case was read in front of the jury.
¶ 29       Defendant also relies on People v. DeStefano, 64 Ill. App. 2d 389 (1965). In that case,
       the jury declared that it could not reach a verdict and the trial court declared a mistrial. After
       the jury was dismissed, however, it was discovered that the jury had apparently reached a
       verdict on one count. The court recalled the jury and retrieved the verdict form from the jury
       room, which had been left unattended. The jury read a verdict of guilty on one count and
       defense counsel asked to poll the jury, which the trial court failed to do. See id. at 402-05.
       We reversed, basing our decision not only on the trial court’s failure to poll the jury but also
       on the extraordinary irregularities surrounding the return of the verdict. See id. at 408-09.
¶ 30       The facts in DeStefano are highly unusual and are distinguishable from this case. Unlike
       this case, there was ample evidence in the record in DeStefano that raised questions about
       the unanimity of the verdict. Not only did the jury declare that it was deadlocked moments
       before it was released, the jurors mingled with members of the gallery and the prosecutors
       in the courtroom before they were recalled. Moreover, the written jury verdict form was
       apparently left unsealed and unattended in the jury room outside of the presence of the jurors
       and the bailiffs. See id. at 402-05. Including the trial court’s failure to poll to jury on request
       in addition to the other facts, DeStefano presented a situation in which serious questions were
       raised about the unanimity of the verdict, which required reversal for a new trial under the
       plain-error doctrine. See id. at 408. Unlike DeStefano, in this case there is only the failure
       to poll the jury on request, which is a significantly different situation.
¶ 31       The last case that defendant relies on is People v. Wheat, 383 Ill. App. 3d 234 (2008). In
       Wheat, after the jury returned its verdict, the trial court dismissed the jury without providing
       the defendant with an opportunity to request a jury poll. Defense counsel requested a poll
       immediately after the trial court dismissed the jury, but the trial court denied the motion yet
       continued to speak to the jury for about another minute. See id. at 235-37. The appellate
       court found that the trial court had erred by denying the defense motion to poll the jury and
       reversed for a new trial. See id. at 242.
¶ 32       Although defendant is correct that Wheat is on point factually, there is an analytical issue
       that Wheat did not fully explore. After determining that the trial court erred by failing to poll
       the jury, the court in Wheat summarily reversed without engaging in any sort of harmless-
       or plain-error review. See id. There are no other facts mentioned in Wheat that might indicate
       the verdict was not unanimous, and in fact Wheat nowhere makes clear whether the polling
       issue was even preserved. Crucially, Wheat appears to assume that the failure to poll the jury
       on request is by itself a structural error that requires reversal without further analysis. See id.
       Wheat cites only to DeStefano, which as we have already mentioned is not useful in this
       situation due to its extraordinary facts and which likewise contains no harmless- or plain-
       error analysis. This is in stark contrast to Glasper, where the supreme court conducted an

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       extensive analysis on the pre-amendment version of Rule 431(b), which is in all important
       procedural respects indistinguishable from the jury-polling requirement, yet found that a Rule
       431(b) error was not structural and was instead amenable to harmless-error review.
       Thompson similarly contained an extensive analysis of the second prong of the plain-error
       doctrine. Because there does not appear to be a reasoned basis for Wheat’s rule of automatic
       reversal in the event that the trial court merely fails to poll the jury on request, we must
       respectfully decline to follow it.
¶ 33       Based on our analysis above, we must conclude that the trial court’s failure to poll the
       jury on request does not require reversal under the second prong of the plain-error doctrine.
       Given that the trial court’s failure to poll the jury was not preserved and defendant could not
       carry his burden under either prong of the plain-error doctrine, defendant’s appellate counsel
       cannot be faulted for failing to raise the issue in defendant’s direct appeal. Defendant was
       therefore not denied effective assistance of appellate counsel in his direct appeal.

¶ 34                           B. Failure to Support the Alibi Defense
¶ 35        Defendant also argues that his trial counsel was ineffective for failing to properly bolster
       his alibi defense. The only witness to testify on defendant’s behalf was Laura Higgs,
       defendant’s wife’s grandmother, who as defendant himself concedes was not a convincing
       witness. Higgs claimed that she specifically remembered that defendant stayed with her on
       the night of the murder because it was his birthday, but when pressed she was unable to recall
       the birthday of defendant’s wife or, more damagingly, her full name. Defendant maintains
       that defense counsel failed to present additional alibi evidence and witnesses and failed to
       properly cross-examine prosecution witnesses.
¶ 36        As defendant acknowledges, “[t]here is a strong presumption that trial counsel’s actions
       were the result of trial strategy rather than incompetence, and a court of review, therefore,
       will not second-guess decisions which involve counsel’s discretion or strategy.” People v.
       Humphries, 257 Ill. App. 3d 1034, 1041 (1994); id. at 1045 (“The decision to pursue a given
       line of defense at trial is a tactical one.”); see also People v. Segoviano, 189 Ill. 2d 228, 248
       (2000) (“Counsel has the ultimate authority to direct trial strategy and we will generally not
       sustain a claim of ineffectiveness of counsel based on inadequate trial strategy except where
       counsel entirely fails to conduct any meaningful adversarial testing.” (Internal quotation
       marks omitted.)). The complete failure to investigate a viable defense, however, can be
       objectively unreasonable and support an ineffective assistance claim. See, e.g., People v.
       Alfaro, 227 Ill. App. 3d 281 (1992) (postconviction petition in which defendant claimed that
       trial counsel failed to investigate viable entrapment defense).
¶ 37        One important piece of evidence presented at trial that linked defendant to the murder
       was the fact that he owned a red, four-door 1995 Chevrolet Cutlass, a car that fits the
       description of the vehicle that witnesses saw him riding in at the murder scene. In his
       postconviction petition, however, defendant presented an affidavit from his wife in which
       she attested that the vehicle was inoperable at the time of the murder due to a car accident
       that she had been in three days before. Defendant also included the affidavit of a tow truck
       driver who retrieved the vehicle and a copy of the towing receipt. Defendant’s wife attested


                                                 -10-
       that she did not recover the vehicle for several weeks, and she also included repair receipts
       for the vehicle.
¶ 38        The problem with defendant’s argument is that the record demonstrates that, far from
       failing to investigate, trial counsel was fully aware of this evidence and more. As part of
       required pretrial discovery from defense counsel for defendant’s alibi defense, the State
       received copies of the documentation related to defendant’s vehicle. The State investigated
       the issue, but found that the towing receipt number was not in the proper sequence, the
       writing on the tow receipt did not appear to be that of the tow company owner, and the
       writing and signature on the repair receipt were not that of the repair shop owner. All of this
       information was disclosed to defense counsel before trial. Contrary to defendant’s argument,
       the record is clear that not only did defense counsel thoroughly investigate defendant’s alibi
       defense but also made a deliberate choice not to present evidence regarding defendant’s
       vehicle because of its questionable validity. We see no reason to question defense counsel’s
       decision on this matter of trial strategy.
¶ 39        Defendant also argues that defense counsel failed to properly cross-examine and impeach
       one of the eyewitnesses during the trial. Ebony Pruitt testified that the car that defendant was
       riding in at the time of the shooting had a rear spoiler. There was some evidence presented
       at trial that defendant’s car did not have a spoiler, but Pruitt was not confronted about this
       apparent disparity. Defendant argues that his counsel was ineffective for failing to follow up
       on this point.
¶ 40        The record demonstrates that Pruitt was heavily cross-examined by defense counsel, in
       particular about her ability to observe the scene and her consumption of alcohol preceding
       the murder. Among other things, it was revealed that Pruitt saw defendant’s vehicle at the
       police station parking lot when she arrived in June for the lineup. At that time, she was
       uncertain whether it was the exact same vehicle that she had seen at the crime scene. In fact,
       she testified that she was uncertain about the make and model of the car, other than that it
       was red and had a rear spoiler. The other eyewitness, Michael Hobson, who was the driver
       of the car that the victim had been riding in, identified a picture of defendant’s car as the
       vehicle. Defendant argues that this conflict calls Pruitt’s testimony into question and that she
       could have been further impeached had she been confronted about the spoiler.
¶ 41        Although probative, the spoiler issue is collateral to the material question of whether
       defendant was the shooter. Both Pruitt and Hobson identified defendant, and Hobson testified
       that he recognized defendant from prior encounters. (In fact, the evidence indicated that
       Hobson was actually defendant’s intended target on the night of the murder.) Moreover, it
       was never conclusively established at trial that the red car at the scene was in fact defendant’s
       Oldsmobile, and it is possible that the red car belonged to someone else. Given the extensive
       cross-examination of Pruitt in the record and the collateral nature of the spoiler issue, defense
       counsel’s choice not to pursue the issue is one of legitimate trial strategy.
¶ 42        Defendant’s last argument on this subject is that defense counsel should have presented
       his wife at trial in support of his alibi defense, instead of or in addition to her grandmother.
       As with the other evidence and contrary to defendant’s argument that counsel failed to
       investigate this witness, however, the record demonstrates that defense counsel spoke to


                                                 -11-
       defendant’s wife prior to trial and was aware of the substance of defendant’s wife’s proposed
       testimony yet chose not to have her testify. Also as with the other evidence, the decision of
       whether to call a particular witness is one of trial strategy. See People v. West, 187 Ill. 2d
       418, 432 (1999). There is nothing in the record that causes us to question defense counsel’s
       strategic choice not to call defendant’s wife, particularly when defense counsel was aware
       of her potential testimony and had Higgs available to support the alibi defense instead.
¶ 43       There is one final observation that we must make. Defendant argues that defense
       counsel’s choice on this point was unreasonable because, according to defendant, defense
       counsel must have refused to call defendant’s wife solely because she was related to him,
       which is a fact that she could potentially be impeached with on grounds of bias. Not only is
       this assumption about defense counsel’s reasons speculative and unsupported by the record,
       the only case that defendant cites for this proposition is People v. Timms, 59 Ill. App. 3d 129
       (1978). Yet not only does Timms not stand for this proposition, it has nothing to do with
       ineffective assistance of counsel in general, much less the kind of failure to investigate that
       defendant claims happened in this case. In Timms, the trial court refused to grant defense
       counsel a one-day continuance in the middle of trial in order to secure the attendance of three
       alibi witnesses who were related to defendant. See id. at 134-35. We found this to be an
       abuse of discretion by the trial court and reversed, and we expressly did not reach the
       remaining issues on appeal. See id. at 137. Timms accordingly has no bearing on the
       ineffective assistance of counsel issues that defendant raises here, and we cannot fathom why
       he would support his argument on this point solely with that case.

¶ 44                                     C. Failure to Object
¶ 45       Defendant next argues that his trial counsel was ineffective for failing to object (1) when
       a witness was presented with a photograph of the lineup in which defendant was identified,
       and (2) when a witness testified about her past military service.
¶ 46       About three months after the murder, Hobson and Pruitt were separately brought in to
       view a lineup and each independently identified defendant as the shooter. A photograph was
       taken of this lineup, and Hobson later placed his initials on the photograph above defendant’s
       head in order to indicate the person whom he had identified as the shooter. At trial, this same
       photograph was shown to Pruitt when she recounted the lineup procedures, and she identified
       the photograph as an accurate reflection of the lineup and confirmed that she had identified
       defendant, the second person in the lineup, as the shooter. According to defendant, Pruitt’s
       identification of defendant was therefore tainted because “the State showed Pruitt a
       photograph which indicated [defendant] was the person she should claim was the shooter.”
       (Emphasis added.)
¶ 47       Although defendant is correct that suggestive lineup procedures have long been held to
       be impermissible (see Foster v. California, 394 U.S. 440 (1969)), that is not what happened
       here. Defendant does not challenge the lineup procedure itself but rather takes issue with
       Pruitt’s in-court testimony. The problem is that, as defendant neglects to mention in his brief,
       the record is clear that Pruitt identified defendant in court and recounted her emphatic
       identification of defendant during the lineup before she was shown the initialed photograph


                                                -12-
       by the State. There is simply nothing for the photograph to taint because Pruitt had already
       testified to the material issue of the identification of the shooter, and there is nothing in the
       record that indicates Pruitt’s identification might have been tainted. There was accordingly
       no reason for counsel to object.
¶ 48       The other incident that defendant complains of also occurred during Pruitt’s testimony.
       Pruitt testified that she had been an active-duty Marine for five years and had been honorably
       discharged. Defendant claims that this information amounted to the State improperly
       bolstering the credibility of one of its key eyewitnesses and that his counsel was ineffective
       for failing to object.
¶ 49       Defendant relies entirely on People v. Roman, 323 Ill. App. 3d 988, 998-99 (2001), in
       which we held that a police officer’s testimony that he had received a medal for valor was
       inadmissible hearsay and irrelevant to the question of defendant’s guilt. Roman relied on the
       federal case of United States v. Nazzaro, 889 F.2d 1158 (1st Cir. 1989), for the proposition
       that awards and commendations of a witness are inadmissible. See Roman, 323 Ill. App. 3d
       at 998. Pruitt did not, however, testify about any awards or commendations that she received
       during her military service. Instead, she mentioned her military service as part of her general
       background at the beginning of her testimony, which is information that is commonly
       provided by nearly every witness in every case. Cf., e.g., People v. Rhodes, 386 Ill. App. 3d
       649, 656-57 (2008) (noting that “[the witness’s] job [as defendant’s parole officer] at the
       time of trial was the sort of background information that every witness provides; thus, an
       objection to [the witness’s] preliminary testimony that he was a parole officer would not have
       succeeded.”). Moreover, Pruitt’s mention of her military service was brief and it was neither
       pursued nor mentioned during closing arguments by the State. There was no reason for
       defense counsel to object.
¶ 50       However, Pruitt’s military service was mentioned numerous times during the trial by
       defendant’s own counsel on cross-examination and during closing arguments in an apparent
       attempt to discredit her as a witness. Defense counsel brought up Pruitt’s service at least
       twice during cross-examination, once by asking whether she had seen people shot before, and
       once by asking whether she had been trained by the military to call police immediately after
       an incident in order to provide information. Defense counsel’s point behind these questions,
       which was elaborated on in closing argument, was that Pruitt was not a reliable eyewitness
       because of her failure to remain on the scene and apparent lack of an emotional reaction to
       the murder. Even if we were to consider Pruitt’s background to be inadmissible, which we
       do not, the party responsible for emphasizing it in front of the jury was defendant, not the
       State. See People v. Patrick, 233 Ill. 2d 62, 77 (2009) (regarding the doctrine of invited
       error). There is a possible argument to be made that defense counsel could be deemed
       ineffective on that ground, although this would likely be difficult to sustain given the leeway
       given to attorneys in their strategic choices. Regardless, that is not the argument that
       defendant makes here. Defendant maintains only that his counsel was ineffective for failing
       to object when the State first elicited the fact of Pruitt’s military service. An objection would
       have failed, so defense counsel cannot be faulted for not making one.



                                                 -13-
¶ 51                Failure to Present Expert Testimony Regarding Eyewitnesses
¶ 52        Defendant next argues that his trial counsel was ineffective for failing to present expert
       testimony on the reliability of eyewitness identification. Defendant’s petition included an
       affidavit from Dr. Geoffrey Loftus, who attested that he would have testified at trial about
       the influence of memory and perception on eyewitnesses. The case against defendant
       depended on the testimony of two eyewitnesses, so defendant argues that his counsel should
       have presented Dr. Loftus’ testimony in order to explain to the jury important points about
       the potential for misidentification.
¶ 53        The efficacy of eyewitness identification testimony and current safeguards regarding its
       reliability is one of the most cutting-edge topics in modern criminal procedure, and the law
       is rapidly evolving. For example, the New Jersey Supreme Court recently issued a landmark
       ruling on the subject that significantly changed the framework for evaluating the reliability
       of eyewitness testimony in that state (State v. Henderson, 27 A.3d 872 (N.J. 2011)), and the
       United States Supreme Court recently considered the subject under the federal Constitution
       in a similar case (Perry v. New Hampshire, ___ U.S. ___, 2012 U.S. LEXIS 579 (2012)).
¶ 54        Regardless of how the law in this area may change in the future, however, the current law
       in Illinois is clear on two critical points. First, as we have already mentioned, trial counsel
       has broad leeway in deciding whether to call a particular witness or to pursue a given
       strategy. See West, 187 Ill. 2d at 432; People v. Palmer, 162 Ill. 2d 465, 476 (1994) (noting
       that “counsel’s strategic choices are virtually unchallengeable”). Second and perhaps more
       importantly, our supreme court has at least twice previously considered and rejected
       arguments along these lines. See People v. Enis, 139 Ill. 2d 264, 285-91 (1990) (Enis I)
       (direct appeal); People v. Enis, 194 Ill. 2d 361, 391-93 (2000) (Enis II) (appeal on
       postconviction petition). The appellate court has also had the opportunity to consider the
       subject several times. See generally, e.g., People v. Aguilar, 396 Ill. App. 3d 43, 50-55
       (2009); People v. Allen, 376 Ill. App. 3d 511, 520-25 (2007); People v. Tisdel, 338 Ill. App.
       3d 465, 467-68 (2003). As these cases have noted, the trend in Illinois is to preclude expert
       testimony on the reliability of eyewitness identification on the ground that it invades the
       province of the jury as trier of fact. See, e.g., Enis I, 139 Ill. 2d at 286-87 (citing cases). The
       supreme court has also cautioned against “the overuse of expert testimony” and declared that
       it is “concerned with the reliability of eyewitness expert testimony [citations], whether and
       to what degree it can aid the jury, and if it is necessary in light of defendant’s ability to cross-
       examine eyewitnesses.” Id. at 289.
¶ 55        Enis I and II are fatal to defendant’s argument, though defendant neglects to mention
       them in his brief. Although Enis I was decided over 20 years ago and, as we mentioned, there
       have been many changes in the science and law of eyewitness identification in the interim
       (but see Enis I, 139 Ill. 2d at 286-87 (noting that other jurisdictions began to allow expert
       testimony on the subject in the preceding 10 years)), Illinois continues to reject, at least in
       practice, expert testimony on the reliability of eyewitnesses. We are unaware of, and
       defendant has not offered, any Illinois cases in which an attorney has been deemed
       ineffective for failing to offer, or a trial court has been found to have abused its discretion
       for refusing to allow, expert testimony on this subject. Cf. Enis I, 139 Ill. 2d at 290 (no abuse
       of discretion); Enis II, 194 Ill. 2d at 393 (finding that trial counsel was not ineffective for

                                                  -14-
       failing to seek additional expert opinions on the reliability of eyewitness identification);
       Aguilar, 396 Ill. App. 3d at 50-55; Tisdel, 338 Ill. App. 3d at 467-68. But see Allen, 376 Ill.
       App. 3d at 526 (reversing as an abuse of discretion the trial court’s decision to preclude
       eyewitness expert testimony due to the trial court’s “failure to conduct a meaningful inquiry”
       into the proposed expert testimony, but noting that “[w]e express no opinion on whether the
       trial court on remand should allow any part of [the expert testimony] to be heard by the
       jury”). We do observe, however, that the supreme court does not seem to have come to a
       definitive conclusion on whether expert testimony on this subject is categorically
       inadmissible. See Enis II, 194 Ill. 2d at 393 n.1 (“We have assumed, for purposes of
       evaluating defendant’s post-conviction claim, that Dr. Fulero’s testimony regarding problems
       associated with cross-racial identifications would have been properly admitted at trial. We
       express no opinion, however, as to whether such expert testimony generally aids the trier of
       fact in reaching its conclusion.”). Yet unless and until the supreme court decides to revisit
       this issue, we must conclude that it was not unreasonable for defense counsel to decline to
       present expert testimony regarding the reliability of eyewitness identification.

¶ 56                           E. Failure to Challenge the Sentence
¶ 57        Finally, defendant argues that his trial counsel was ineffective for failing to file a
       postsentencing motion attacking his sentence. The trial court sentenced defendant to
       concurrent terms of 40 and 30 years in prison, which defendant argues was excessive.
       Defendant acknowledges that he has several prior felony convictions, including for
       possession of a controlled substance, unlawful use of a weapon, and theft, and the record
       reveals additional misdemeanor and juvenile adjudications. Defendant, however, maintains
       that his youth, testimony in his favor by members of the community, and the facts that he had
       been recently employed and had a family weighed against imposing such a lengthy sentence.
¶ 58        Even if we assume for the purpose of argument that defense counsel should have filed
       such a motion, defendant cannot establish prejudice under Strickland. The trial court is
       vested with wide discretion in sentencing decisions, and its decision will not be disturbed so
       long as the sentence is within the statutory range, proper factors in aggravation and
       mitigation are considered, and the sentence is not “greatly at variance with the spirit and
       purpose of the law, or manifestly disproportionate to the nature of the offense.” People v.
       Stacey, 193 Ill. 2d 203, 209-10 (2000). In this case, defendant does not argue that the trial
       court considered improper factors in aggravation or mitigation, or that it is outside of the
       statutory range. Defendant seems to only take issue with how the trial court balanced the
       factors, which is not a valid reason for overturning the sentencing decision. The record
       demonstrates that the trial court was well within its discretion in imposing the sentence that
       it did, and defendant does not really explain what his counsel should have done differently
       regarding his sentencing other than filing a motion to reconsider the sentence. Because filing
       such a motion would have been fruitless, defendant was not prejudiced by defense counsel’s
       decision not to do so.




                                                -15-
¶ 59                                    III. CONCLUSION
¶ 60        Defendant was not denied effective assistance of trial counsel or appellate counsel.
       Because defendant’s postconviction petition does not make a substantial showing of a
       constitutional violation, the circuit court was correct to dismiss the petition at the second
       stage.
¶ 61        The State has also asked for reimbursement of its full costs for prosecuting this appeal
       on the ground that the defendant’s petition was frivolous. See 735 ILCS 5/22-105 (West
       2010). Given that the circuit court advanced defendant’s petition to the second stage of
       proceedings before dismissing it, the petition was not frivolous. See People v. Alcozer, 241
       Ill. 2d 248, 254-59 (2011) (equating the definition of frivolous in section 22-105 of the Code
       of Civil Procedure with the standard for dismissal of a postconviction petition at the first
       stage of proceedings). The State’s request is denied.

¶ 62      Affirmed.




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