                                     2018 IL App (1st) 150487
                                                                                   SIXTH DIVISION
                                                                                       May 18, 2018

                                           No. 1-15-0487


                                          IN THE

                               APPELLATE COURT OF ILLINOIS

                                 FIRST JUDICIAL DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the Circuit Court of
                                                              )   Cook County.
       Plaintiff-Appellee,                                    )
                                                              )
v.                                                            )   No. 11 CR 12720 (1)
                                                              )
RONALD JACKSON,                                               )
                                                              )   Honorable Dennis J. Porter,
       Defendant-Appellant.                                   )   Judge Presiding.
                                                              )
                                                              )


       JUSTICE DELORT delivered the judgment of the court, with opinion.
       Presiding Justice Hoffman and Justice Connors concurred in the judgment and opinion.

                                             OPINION

¶ 1    The State charged defendant, Ronald Jackson, and a codefendant, Marvin Fields, with,

among other things, one count of attempted murder of a peace officer. Defendant and Fields

were tried jointly before separate juries. Fields’s jury acquitted him of the main offense but

convicted him on the lesser included offense of attempted murder. 1 Defendant’s jury saw things

differently and convicted him of the more serious crime of attempted murder of a peace officer.

Defendant contends that this difference in outcomes was the result of ineffective assistance of

counsel and of other errors which permeated his trial. We affirm and correct the mittimus.


       1
        This court affirmed Fields’s conviction. See People v. Fields, 2016 IL App (1st) 142763-U.
1-15-0487



¶ 2                                       BACKGROUND

¶ 3    Because defendant was tried jointly with Fields and each defendant had his own jury,

some testimony which we discuss below was presented to defendant’s jury but not Fields’s, and

vice versa. Unless otherwise specified, however, all the testimony and evidence we describe was

presented to both juries.

¶ 4    At trial, Officer Victor Portis testified that on the evening of January 12, 2011, he and his

partner, Officer Andrew Dennis, were patrolling a four-block area in the Roseland neighborhood

of Chicago as part of a “violence suppression mission.” They patrolled in an unmarked police

vehicle. Because their mission required that they be inconspicuous, Officer Portis was wearing

“civilian dress,” with his badge displayed on a chain hanging from his neck.

¶ 5    During the patrol, Officer Portis saw two people in an alley between State Street and

Lafayette Avenue. When he approached to conduct a field interview, one of the individuals fled

west towards Lafayette Avenue, while the other person remained behind. Officer Portis gave

chase. At the intersection of 120th Street and State Street, he saw two different people, whom he

identified at trial as defendant and Fields, running east on 120th Street onto State Street. Fields

was wearing a black jacket with a fur collar, and defendant was wearing a black jacket. When

they were half a block apart, Officer Portis yelled “stop,” “get back,” and announced his office.

Fields then stopped, raised a gun, and fired at him. Jackson was one to two feet behind Fields.

¶ 6    Officer Portis returned fire and dove behind a vehicle, injuring his wrist in the process.

As bullets continued to rain down on his position, Officer Portis radioed for assistance. Shortly

thereafter, Officer Dennis arrived in his police vehicle, and the suspects fled. A few minutes

later, Officer Portis was informed that Fields had been taken into custody. Officer Portis went to

Fields’s location and identified him as “the one that fired the initial shot.”




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¶ 7    On cross-examination before defendant’s jury only, Officer Portis testified that he did not

see two people firing at him. He reiterated that he saw Fields fire at him but stated with respect to

defendant, “I saw him on scene, but no, I did not see him firing at me.” Upon further direct

examination before defendant’s jury, Officer Portis testified that he saw multiple muzzle flashes

coming from Fields and defendant’s direction. Fields then cross-examined Officer Portis in front

of his jury only. Responding to a question posed by Fields’s attorney, Officer Portis testified that

he was wearing a grey hooded jacket and grey pants on the date in question.

¶ 8    Officer Dennis testified that while Officer Portis pursued the person who fled, he

remained behind to speak to the other person who did not flee. Within 20 to 25 seconds,

however, Officer Dennis heard gunfire, so he ended the interview and drove towards 120th and

State Street, where he saw multiple muzzle flashes from gunfire and Officer Portis crouching

behind a car. Officer Dennis stated that the person firing the gun was wearing a black coat with a

fur hood. When the shooting stopped, he drove to Officer Portis and picked him up. At trial,

Officer Dennis identified defendant as the person he saw firing towards Officer Portis.

¶ 9    On cross-examination before defendant’s jury only, Officer Dennis testified that he only

saw one shooter, who was wearing a black coat with fur trim. He acknowledged learning at a

later date that Fields, not Jackson, was wearing a black coat with fur trim. Thereafter, pressed by

trial counsel, Officer Dennis conceded that “the person that [he] saw shooting was Marvin

Fields, not [defendant.]” Officer Dennis then admitted, again at defense counsel’s behest, that he

did not see defendant with a firearm at any point.

¶ 10   On cross-examination before Fields’s jury only, Officer Dennis testified that he and

Officer Portis were in civilian clothes. He further testified that when he heard the gunfire, he did

not hear anyone saying anything.




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¶ 11   Sergeant Eric Jackson testified that he was supervising the violence suppression mission.

Sergeant Jackson stated that he was near 120th Street and Lafayette Avenue when he heard

Officer Portis’s distress call. The sergeant was wearing civilian clothes and driving an unmarked

police vehicle. After hearing the call, he exited his vehicle. He then saw a man, whom he later

identified as defendant, exit from a gangway “at 119th Street on the east side of Lafayette” and

begin walking “briskly” north on Lafayette Avenue. Sergeant Jackson observed defendant

discard a black jacket and gloves he was wearing and then run into a gangway towards 119th

Street and Perry Street and hop a fence. Defendant emerged near 11925 South Perry Street,

where he was detained. Once Sergeant Jackson heard that defendant had been caught, he went

back to collect the jacket and gloves that defendant had dropped. Sergeant Jackson later learned

that Fields was detained a few blocks away in an abandoned house and that two firearms were

discovered where he was hiding. On cross-examination before Fields’s jury only, he testified

that, other than what he heard on the radio, he did not hear Officer Portis say anything during the

shooting.

¶ 12   Officer Chris Skarupinski testified that he was driving in an unmarked police vehicle

with two other officers in support of the violence suppression mission. He explained that he and

his fellow officers “were in plain clothes, which would be jeans or sweaters.” Around 9 p.m.,

Officer Skarupinski’s unit was driving near 111th Street and Wentworth Avenue and received a

call of shots fired at an officer. In response, they drove to an alley near 119th Street and

Lafayette Avenue and exited their vehicle. When Officer Skarupinski saw defendant running

through an alley, he began running on the street in a direction parallel to defendant’s path of

travel. The officers eventually cornered defendant in a yard on Perry Street. At that point, Officer

Skarupinski drew his service weapon and ordered defendant to the ground, while another officer




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attempted to detain him. Defendant did not comply and instead resisted arrest, so a third officer

took defendant to the ground. Defendant continued resisting, and his compliance was not

achieved until a fourth officer, Officer Timothy Davis, arrived on scene and deployed a Taser on

defendant.

¶ 13   On cross-examination before defendant’s jury only, Officer Skarupinski testified that he

never saw defendant with a weapon at any point and that the police did not recover a weapon

from defendant. He noted that defendant was actually released from custody the following

morning and that he was not brought back into police custody until July 11, 2011.

¶ 14   Officer Timothy Davis testified that he was patrolling the neighborhood in a marked

police vehicle. Around 9 p.m., Officer Davis heard Officer Portis’s distress call and drove to

11925 South Perry Street. When he arrived, he saw other officers struggling to take defendant

into custody. Officer Davis explained that defendant “wouldn’t show his arm, and he wouldn’t

give up his other arm.” Officer Davis announced that he was going to deploy his Taser, but

defendant continued resisting. Officer Davis then tasered defendant and he became compliant.

¶ 15   Nancy DeCook, a forensic investigator for the Chicago Police Department, testified that

she recovered 15 .40-caliber shell casings at 12010 South State Street. Less than a quarter block

away, at 12025 South State Street, she recovered five .45-caliber shell casings. She then went to

12011 South Lafayette Avenue, where Fields was detained, and processed the area. There, she

recovered a Sig Sauer pistol and a .40-caliber Smith and Wesson pistol.

¶ 16   Marc Pomerance, a forensic scientist with the Illinois State Police, testified as an expert

in the field of firearms and firearms identification. During his testimony, Pomerance identified

the firearms recovered from 12011 South Lafayette Avenue. He explained that the Sig Sauer was

a .40-caliber Smith and Wesson pistol, and that the other gun was a .40-caliber semiautomatic




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Smith and Wesson firearm. He examined 15 of the shell casings that were recovered and found

that 10 were fired from the Sig Sauer and 5 were fired from the other gun.

¶ 17   Ellen Chapman, a forensic scientist with the Illinois State Police, testified as an expert in

the field of gunshot residue (GSR). Chapman explained that the samples taken from defendant’s

hands “contained particles that were characteristics of background samples.” As a result, she

concluded that defendant “may not have discharged a firearm. If he did discharge a firearm, then

the particles were removed by activity, not deposited, or not detected by our procedures.” She

noted, however, that it was “quite possible” that if a shooter was wearing gloves, they would

prevent GSR from contacting the shooter’s skin. Thereafter, Chapman testified that one of

defendant’s gloves “contained tri-component and consistent gunshot residue particles,” which

led her to conclude that the glove’s surface “contacted a primer gunshot residue related item or

was in the environment of a discharged firearm. Similarly, Chapman testified that the right cuff

area of defendant’s jacket also “contained tri-component and consistent gunshot residue

particles,” which likewise caused her to conclude that the right cuff of the jacket “either

contacted a gunshot residue item or was in the environment of a discharged firearm.”

¶ 18   On cross-examination, Chapman clarified that she did not conclude that defendant

discharged a firearm. She acknowledged that it was possible for a person’s clothes to test

positive for GSR if the person was in an area where a gun was fired or next to a person

discharging a firearm.

¶ 19   After the State rested, defendant presented his case-in-chief, which consisted entirely of

testimony from Chicago police detective William Sullivan. Detective Sullivan testified that he

was assigned to investigate the shooting and that he interviewed Officer Portis as part of that

investigation. Defense counsel asked Detective Sullivan whether Officer Portis said there were




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multiple shooters. In response, Detective Sullivan stated, “What he stated is that he saw only one

of two shooters, but he saw multiple muzzle flashes once he engaged the individual that was

shooting at him.” He then testified that Officer Portis said he only saw one shooter.

¶ 20   Before the case was submitted to the jury, the court held an instruction conference. At

defendant’s request, the court instructed the jury on the lesser included offenses of straight

attempted murder and aggravated discharge of a firearm. After deliberations, the jury found

defendant guilty of attempted murder of a peace officer.

¶ 21   Afterwards, defendant argued that his trial counsel was ineffective for, among other

things, failing to call Fields to testify. Defendant contends that Fields would have told the jury

that defendant was not present at the scene of the shooting. The court appointed a new lawyer

from the public defender’s office to serve as posttrial counsel and held a Krankel hearing. See

People v. Krankel, 102 Ill. 2d 181 (1984). Trial counsel testified at the hearing, but his testimony

was limited to explaining the basis for his decision not to call Fields to testify in defendant’s

case-in-chief. After that testimony, the court denied defendant’s posttrial motion. Thereafter, the

court sentenced defendant to 38 years’ imprisonment, which consisted of 23 years for the base

offense, plus a 15-year enhancement because defendant personally discharged a firearm during

the offense.

¶ 22                                        ANALYSIS

¶ 23   We first consider defendant’s argument that his trial attorney was ineffective because,

when he cross-examined the police witnesses, he did not elicit testimony demonstrating that the

defendant did not know that Officer Portis was a police officer. Defendant specifically argues

that when trial counsel cross-examined Officers Portis and Dennis and Sergeant Jackson, he

should have proceeded as Fields’s attorney did, and elicited testimony (1) from Officer Portis




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explaining that he was dressed to blend into the community and (2) from Officer Dennis and

Sergeant Jackson that they did not hear Officer Portis yelling that he was a police officer.

¶ 24   Ineffective assistance of counsel claims are governed by the familiar two-part test set

forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A

defendant raising a Strickland claim “must show that counsel’s performance was deficient” and

“that the deficient performance prejudiced the defense.” Id. at 687.

¶ 25   We begin by considering whether trial counsel’s performance was constitutionally

deficient. “ ‘Strickland’s first prong sets a high bar.’ ” People v. Jones, 2017 IL App (1st)

143766, ¶ 41 (quoting Buck v. Davis, 580 U.S. ___, ___, 137 S. Ct. 759, 775 (2017)). To meet

that high hurdle, “ ‘the defendant must prove that counsel made errors so serious, and that

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

guaranteed by the sixth amendment.’ ” Id. (quoting People v. Evans, 186 Ill. 2d 83, 93 (1999)).

In so doing, the defendant must “ ‘overcome the strong presumption that the challenged action or

inaction may have been the product of sound trial strategy.’ ” Id. (quoting People v. Manning,

241 Ill. 2d 319, 327 (2011)).

¶ 26   During the Krankel hearing, defendant could have asked trial counsel to explain why he

conducted his cross-examinations in the manner he did. He did not. The record therefore does

not reveal why trial counsel did not question the police witnesses about what they heard and

what they were wearing. Nonetheless, People v. Veach, 2017 IL 120649, makes clear that the

barren nature of the record does not render this argument procedurally improper. But it matters

substantively because “[w]hen the record is silent on the motivations underlying counsel’s

tactical decisions, the appellant usually cannot overcome the strong presumption that counsel’s

conduct was reasonable.” (Internal quotation marks omitted.) Jones v. State, 500 S.W.3d 106,




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114 (Tex. Crim. App. 2016). That describes the case before us. Defendant’s argument boils

down to a disagreement about trial strategy, and strategic decisions, such as the “decision of

whether and how to conduct a cross-examination,” are “generally a matter of trial strategy” and

thus “cannot support a claim of ineffective assistance of counsel.” People v. Tolefree, 2011 IL

App (1st) 100689, ¶ 34.

¶ 27   Before trial, defense counsel knew that the State had GSR evidence implicating

defendant. And, when Officer Portis testified, he stated that, while he saw multiple muzzle

flashes coming from defendant’s and Fields’s position, the only person whom he definitively saw

firing a gun was Fields. Faced with this evidence, trial counsel embarked on an all-or-nothing

defense, arguing that defendant was present when the shooting took place but did not himself fire

a weapon. In pursuit of that strategy, defense counsel cross-examined the police witnesses to

emphasize that (1) no one saw defendant fire a gun and (2) no one saw defendant even possess a

gun. In our view, for two reasons, trial counsel may have reasonably believed that, to

successfully pursue that strategy, it was necessary to limit his cross-examination of the police

witnesses to those two topics. First, the strategy fit the facts and allowed trial counsel to use the

State’s own witnesses to repeatedly supply exculpatory testimony in support of defendant.

Second, trial counsel may have feared that asking questions that strayed from his central theory

of the case would have distracted the jury and taken its focus away from the exculpatory

testimony the police witnesses were providing. In a similar vein, trial counsel might have also

been concerned that emphasizing facts that would have shown that Officer Portis was not

identifiable as a police officer would have undermined his central defense theory by telling the

jury, in essence, “my client did not shoot, but if he did shoot, then he was not aware that he was

shooting at a police officer.” Under these facts, we are unable to conclude that trial counsel, by




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virtue of pursuing an all-or-nothing strategy, was “ ‘not functioning as the “counsel”

guaranteed…by the Sixth Amendment.’ ” Buck, 580 U.S. at ___, 137 S. Ct. at 775 (quoting

Strickland, 466 U.S. at 687).

¶ 28   Despite this, defendant suggests that trial counsel was ineffective because, by pursuing an

all-or-nothing strategy, he neglected to present evidence that would have enabled the jury to find

defendant did not know Officer Portis was a police officer and thus return a verdict on the lesser

included offense of straight attempt murder. We do not agree. First, because the State itself

presented enough evidence to enable a reasonable juror to have reasonable doubt as to whether

defendant knew he was shooting at a police officer, trial counsel, as we explained above, may

have concluded that additional questions were unnecessary and would have actually been

detrimental to the defense.

¶ 29   Second, defendant’s argument would be viable only if we could assume it is per se

unreasonable to pursue an all-or-nothing defense when the jury has received a lesser included

offense instruction. But that is not the law. To the contrary, this court has repeatedly recognized

that the decision to pursue an all-or-nothing defense is a “valid trial strategy.” People v. Walton,

378 Ill. App. 3d 580, 589 (2007). And, we have explained, “[t]he mere fact that an ‘all-or­

nothing’ strategy proved unsuccessful does not mean counsel performed unreasonably and

rendered ineffective assistance.” People v. Fields, 2017 IL App (1st) 110311-B, ¶ 28. Rather, this

court has explained, an “all or nothing” strategy may be unreasonable only if it (1) was “based

upon counsel’s misapprehension of the law” (Walton, 378 Ill. App. 3d at 589) or (2) was the

functional equivalent of withdrawing a lesser-included offense instruction (People v.

Shamlodhiya, 2013 IL App (2d) 120065, ¶ 20). But neither criterion applies here. As to the first,

defendant has not argued that trial counsel’s strategy resulted from a misunderstanding of the




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law. As to the second, defendant does argue that trial counsel abandoned the lesser included

offense instruction, but that argument ignores the fact that the State elicited evidence that

supported the instruction. And more importantly, the argument distorts the record. During

closing argument, trial counsel explicitly argued that it was questionable whether Officer Portis

was not recognizable as a police officer at the time of the shooting:

                       “Marvin Fields engaged into [sic] gunfight with a person

               that is in plainclothes, which is not as clear as day that he is an

               officer. Let’s clear that up right now. It is not clear as day that he is

               an officer. He was on a violence suppression mission in the area

               wearing plainclothes so that he could blend in the area to suppress

               crime in a high crime area.”

Under these facts, trial counsel’s strategic decision to pursue an all-or-nothing defense did not

deprive defendant of his right to the effective assistance of counsel.

¶ 30   In his reply brief, defendant suggests trial counsel’s failure to elicit testimony that would

have supported a finding of guilt on the lesser include offense was unreasonable because

defendant “specifically chose not to pursue an all-or-nothing defense” by requesting the lesser

included offense instruction. This argument fails. To begin, it ignores the facts that (1) the State

itself elicited evidence germane to the lesser included offense instruction, and (2) trial counsel

actually emphasized that exact evidence during closing argument. But more to the point, it is

based on a faulty premise, namely that to function as “counsel” as the sixth amendment

understands that term, an attorney must deviate from his planned trial strategy when his client

requests a lesser included offense instruction. We are unaware of any precedent so holding, and

in fact the United States Supreme Court has suggested that the opposite holds true. In Faretta v.




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California, 422 U.S. 806, 820 (1975), the Court explained that “when a defendant chooses to

have a lawyer manage and present his case, law and tradition may allocate to the counsel the

power to make binding decisions of trial strategy in many areas.” And in New York v. Hill, 528

U.S. 110, 114-15 (2000), it explained that because defense attorneys “must have *** full

authority to manage the conduct of the trial,” their decisions “are generally given effect as to

what arguments to pursue [citation], what evidentiary objections to raise [citation], and what

agreements to conclude regarding the admission of evidence.” (Internal quotation marks

omitted.)

¶ 31   Consistent with that principle, the Illinois Supreme Court has explained that, with the

exception of five specific decisions—the decision to file an appeal, enter a plea, waive a jury

trial, testify, and submit a lesser included offense instruction—“trial counsel has the right to

make the ultimate decision with respect to matters of tactics and strategy after consulting with

his client.” (Internal quotation marks omitted.) People v. Brocksmith, 162 Ill. 2d 224, 228 (1994).

¶ 32   In the face of this authority, defendant has not cited any case, and we have found none

ourselves, holding that defense attorneys have an absolute duty to alter their trial strategy when

the defendant requests a lesser included offense instruction. If anything, the opposite seems to be

true. See id. at 229 (holding that defendants are entitled to make strategic decision of whether to

submit a lesser included offense instruction after “the conclusion of the evidence”); see also

Strickland, 466 U.S. at 689 (admonishing that lower courts considering claims under the Counsel

Clause refrain from second-guessing trial counsel and instead “indulge a strong presumption ***

that, under the circumstances, the challenged action ‘might be considered sound trial strategy’ ”

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))); Kelly v. Lazaroff, 846 F.3d 819, 830

(6th Cir. 2017) (rejecting ineffective assistance claim that argued that defense attorney should




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have pursued defense of mitigation in murder trial by emphasizing certain testimony). We

therefore reject defendant’s claim that trial counsel was ineffective for failing to more vigorously

pursue a trial strategy that accommodated the lesser-included offense instructions.

¶ 33   Defendant cites People v. King, 316 Ill. App. 3d 901 (2000), People v. Bell, 152 Ill. App.

3d 1007 (1987), and People v. Solomon, 158 Ill. App. 3d 432 (1987), but each case is inapposite.

In King, an attorney performed deficiently because he failed to call the only witness who could

have corroborated the defendant’s defense. King, 316 Ill. App. 3d at 916. In Bell, the attorney

failed to investigate seven witnesses who could have given crucial testimony about the

defendant’s victim that would have corroborated the defendant’s otherwise uncorroborated self-

defense claim. Bell, 152 Ill. App. 3d at 1013. And in Solomon, the defendant argued entrapment

but the lawyer failed to call the only witness who could have corroborated the defense. Solomon,

158 Ill. App. 3d at 436.

¶ 34   Defendant’s next claim relates to testimony the State elicited from Officers Portis,

Dennis, and Skarupinski. Specifically, the State asked them if they had received any police

awards or commendations. Officers Portis, Dennis, and Skarupinski testified that they had

received various commendations, medals, and awards, many of which bore impressive names.

Defendant argues that trial counsel was ineffective for failing to object to this testimony because

it was irrelevant and improperly bolstered the police witnesses in the eyes of the jury while

diminishing defendant.

¶ 35   “A defendant’s guilt must be established by legal and competent evidence, uninfluenced

by bias or prejudice raised by irrelevant evidence.” People v. Bernette, 30 Ill. 2d 359, 371

(1964). The determination of whether evidence was “legal and competent” hinges, in turn, on

whether the evidence was relevant and admissible. Evidence is relevant if it has “any tendency to




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make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1,

2011). And relevant evidence is admissible so long as its probative value is not substantially

outweighed by the danger that it will unduly prejudice the party against whom it is admitted. Ill.

R. Evid. 403 (eff. Jan. 1, 2011).

¶ 36   In People v. Roman, 323 Ill. App. 3d 988, 998-99 (2001), this court held that evidence

about the awards a police officer had received was irrelevant to the issue of defendant’s guilt or

innocence and awarded the defendant relief under the plain-error doctrine. Although defendant

has raised this issue under the rubric of ineffective assistance of counsel rather than plain error,

the distinction is immaterial. See People v. Wood, 2014 IL App (1st) 121408, ¶ 56. Here,

evidence about the police officers’ awards was irrelevant to any of the issues at trial. Thus, a

Rule 401 objection to this evidence would have been sustained. Moreover, even if the evidence

had some iota of relevance, trial counsel could have still objected based on Rule 403 because the

introduction of this evidence carried a substantial risk of inducing the jury to feel sympathy and

camaraderie with the testifying police officers.

¶ 37   Citing People v. Evans, 209 Ill. 2d 194 (2004), the State suggests that trial counsel’s

decision not to object may have been tactical move born out of a desire not to draw undue

attention to this testimony. But in Evans, the statement at issue was “isolated and cryptic.” Id. at

221. The same cannot be said for the testimony at issue here, as the State asked multiple police

witnesses to testify about their awards and commendations. Moreover, the suggestion that this

was a tactical decision rings hollow since an objection at the outset would have prevented any of

this evidence from reaching the jury.




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¶ 38   Since defendant has established deficiency, we must consider whether trial counsel’s

error prejudiced defendant. To establish prejudice, defendant must show that there is “a

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

would have been different.” Strickland, 466 U.S. at 694. Defendant cannot make this showing.

The evidence established that (1) defendant was present at the scene of the shooting, (2) Officer

Portis saw multiple muzzle flashes, (3) defendant was seen leaving the scene of the shooting, (4)

as he left he discarded a jacket and gloves he was wearing despite it being nighttime in the dead

of winter, (5) the police recovered the jacket and gloves and subjected them to forensic testing,

(6) which revealed the presence of GSR on the jacket and one of the gloves, (7) defendant

actively fled when he became aware the police were nearby, and (8) defendant vigorously

resisted arrest despite being engaged by four police officers. Under these facts, we do not believe

the evidence about the officers’ awards affected the outcome of defendant’s trial. As such, his

Strickland claim fails.

¶ 39   We next consider defendant’s argument that trial counsel was ineffective for failing to

object to certain comments during the State’s closing argument. “A prosecutor has wide latitude

in making a closing argument and is permitted to comment on the evidence and any fair,

reasonable inferences it yields.” People v. Glasper, 234 Ill. 2d 173, 204 (2009). “[C]losing

arguments must be viewed in their entirety, and the challenged remarks must be viewed in

context.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007). When reviewing comments made during

closing argument, the relevant question is whether the prosecutor’s comments “engender

substantial prejudice against a defendant such that it is impossible to say whether or not a verdict

of guilt resulted from them.” Id. at 123. Substantial prejudice exists when “the improper remarks

constituted a material factor in a defendant’s conviction.” Id. “If the jury could have reached a




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contrary verdict had the improper remarks not been made, or the reviewing court cannot say that


the prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial


should be granted.” Id.


¶ 40    During closing argument, the State argued, “[t]his is not Iraq. This is not Bagdad [sic]. 


But those two guys turned the streets of Roseland here in Chicago, in our city, into a war zone. 


They turned it into a warzone when they lit up the street and tried to kill Officer Portis.” Later,


the State argued:


                        “He just tried to murder a Chicago police officer, a Chicago

                police officer that’s [sic] job was out there to prevent that type of

                violence. He was on a violence suppression mission. Their entire

                job was to protect the citizens of this community with all of these

                different residences, with all of these families, at night. People are

                in there cooking dinner, watching TV, and this defendant and his

                codefendant are out there firing up the neighborhood, trying to kill

                Officer Portis.

                        Officer Portis is out there trying to stop this violence, and

                this defendant and Defendant Fields are out creating the violence.

                Officer Portis’ job out there was to stop what actually took place

                that night, that type of violence. This is a violence suppression

                mission zone, and they had officers out there.”

Still later, the State argued:

                        “Ladies and gentlemen, Officer Portis was out there doing

                his job that night. He was out there trying to protect the citizens of




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               Roseland. They were out there trying to protect the citizens of

               Roseland from the defendant and his partner, defendant Fields.

               And while Officer Portis is out there trying to protect all of these

               people from *** this defendant and Defendant Fields, he almost

               got murdered.”

¶ 41   Defendant contends that trial counsel should have objected to these statements because

they “emphasized that, since [defendant] created a danger to Portis and the citizens of Roseland,

he should be punished for his conduct, regardless of his intent.” This argument is without merit.

To begin, the State never argued that it did not have to prove intent. In fact, during its closing

argument, it specifically argued that the volume of shots fired at Officer Portis was evidence that

defendant and Fields “were trying to murder” Officer Portis.

¶ 42   More importantly, trial counsel was not ineffective for failing to object to these

statements. An objection would have been futile because all of the challenged remarks were fair

comments on the evidence. The statement that defendant turned Roseland into a warzone

reminiscent of Baghdad, while colorful, was a fair description of the scene that unfolded at 120th

and State Streets on the night of January 12, 2011: two men engaged in a gunfight with a third

man on a city street, both sides ducking for cover, and bullets pinging off of parked cars caught

in the crossfire. The same is true of the remaining statements. Defendant complains that the

prosecutor stated that defendant tried to kill Officer Portis, but that is a fair conclusion from the

evidence presented. Defendant also criticizes the State’s comment that Officer Portis was on a

violence suppression mission, but that was also a matter of historical fact in the case. He takes

issue with the State’s mentioning that Officer Portis’s job was to protect Roseland, but that was

an accurate statement. And finally, he assails the prosecutor for telling the jury that defendant




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was shooting while people in their homes nearby were eating dinner and watching TV, but that

was a fair inference—the shooting was in a residential neighborhood during the evening at a time

when it would be reasonable to expect people to be eating dinner or watching television.

¶ 43   We next consider defendant’s argument that the State denigrated Jackson during closing

argument. During its rebuttal argument, the State argued, “[t]his defendant was not dressed that

evening how he is all cleaned up in court today, got the nice sweater on.” Trial counsel objected,

but the court overruled the objection. The prosecutor then continued, stating, “[h]e was not

wearing that that night.” That statement was unobjectionable because it was a fair comment on

the evidence where witnesses identified the defendant based on the clothing he wore on the night

in question. The trial evidence established that defendant was dressed differently than he was

when sitting before the jury.

¶ 44   We next consider defendant’s claim that the State denigrated the burden of proof during

closing argument. Defendant’s argument is predicated on the following colloquy that occurred

during the State’s rebuttal argument:

                       “Counsel talked about the burden, beyond a reasonable

               doubt. That is the standard. We embrace this burden. This is what

               the burden is, beyond a reasonable doubt. It doesn’t say no doubt.

               It says beyond a reasonable doubt.

                       There is [sic] prisons filled throughout America with

               people that have been found guilty beyond a reasonable doubt.

                       [TRIAL COUNSEL]: Objection.

                       THE COURT: Objection sustained.




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                       [ASSISTANT STATE’S ATTORNEY]: It is not an

               insurmountable burden. It is a burden that we embrace.”

¶ 45   To obtain a conviction, the State must prove every element of the offense beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970). Thus, the State may not offer

arguments to the jury that “reduce the State’s burden of proof to a pro forma or minor detail.”

People v. Speight, 153 Ill. 2d 365, 374 (1992) (citing People v. Eddington, 129 Ill. App. 3d 745,

780 (1984)).

¶ 46   Illinois courts have repeatedly held that comments similar to those uttered by the

prosecutor in the present case are proper. For example, in People v. Collins, 106 Ill. 2d 237, 277

(1985), the Illinois Supreme Court held that the following statement was not improper:

               “ ‘That is the same burden of proof in every case that is tried in

               this courtroom, every case that is tried in this county, and every

               case that is tried in this country. It is beyond a reasonable doubt.

               The penitentiary is full of people like Collins and Bracey who have

               been proved guilty beyond a reasonable doubt.’ ”

Similar comments were upheld in People v. Bryant, 94 Ill. 2d 514, 523 (1983), and People v.

Harris, 129 Ill. 2d 123, 159 (1989). We therefore reject defendant’s contention of error.

¶ 47   We next address defendant’s claim that the 15-year firearm enhancement does not apply

to the offense of attempted murder of a peace officer. Defendant concedes that he failed to

preserve this issue, but we may consider it as plain error because “the right to be lawfully

sentenced is substantive, as it affects a prisoner’s fundamental right to liberty.” (Internal

quotation marks omitted.) People v. Ritchey, 286 Ill. App. 3d 848, 852 (1997). To determine

whether the firearm enhancements apply, we must interpret section 8-4(c) of the Criminal Code




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of 1961 (720 ILCS 5/8-4(c) (West 2010)). We perform that task de novo. People v. Young, 2011

IL 111886, ¶ 10.

¶ 48   “When construing a statute, this court’s primary objective is to ascertain and give effect

to the legislature’s intent, keeping in mind that the best and most reliable indicator of that intent

is the statutory language itself, given its plain and ordinary meaning.” Id. ¶ 11. When interpreting

a statute with unambiguous terms, our role is to merely apply the statute as drafted by the

legislature. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010); see People v.

Glisson, 202 Ill. 2d 499, 505 (2002) (“Only where the language of the statute is ambiguous may

the court resort to other aids of statutory construction.”).

¶ 49   Section 8-4(c)(1) states:

                “(c) Sentence.

                A person convicted of attempt may be fined or imprisoned or both 


       not to exceed the maximum provided for the offense attempted but, except


       for an attempt to commit the offense defined in Section 33A-2 of this


       Code:


                       (1) the sentence for attempt to commit first degree murder

                is the sentence for a Class X felony, except that

                                 (A) an attempt to commit first degree murder when

                       at least one of the aggravating factors specified in

                       paragraphs (1), (2), and (12) of subsection (b) of Section 9­

                       1 is present is a Class X felony for which the sentence shall

                       be a term of imprisonment of not less than 20 years and not

                       more than 80 years;




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                      (B) an attempt to commit first degree murder while

             armed with a firearm is a Class X felony for which 15 years

             shall be added to the term of imprisonment imposed by the

             court;

                      (C) an attempt to commit first degree murder during

             which the person personally discharged a firearm is a Class

             X felony for which 20 years shall be added to the term of

             imprisonment imposed by the court;

                      (D) an attempt to commit first degree murder during

             which the person personally discharged a firearm that

             proximately caused great bodily harm, permanent

             disability, permanent disfigurement, or death to another

             person is a Class X felony for which 25 years or up to a

             term of natural life shall be added to the term of

             imprisonment imposed by the court; and

                      (E) if the defendant proves by a preponderance of

             the evidence at sentencing that, at the time of the attempted

             murder, he or she was acting under a sudden and intense

             passion resulting from serious provocation by the

             individual whom the defendant endeavored to kill, or

             another, and, had the individual the defendant endeavored

             to kill died, the defendant would have negligently or

             accidentally caused that death, then the sentence for the




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                       attempted murder is the sentence for a Class 1 felony[.]”

                       720 ILCS 5/8-4(c)(1) (West 2010).

¶ 50   We find, based on section 8-4(c)(1)’s text and structure, that the firearm enhancements

contained in sections 8-4(c)(1)(B) through (D) may be applied to a sentence for attempted

murder of a peace officer under section 8-4(c)(1)(A). Section 8-4(c)(1) begins with a general

rule: the sentence for attempted murder is the sentence for a Class X felony, which is 6 to 30

years. Id.; 730 ILCS 5/5-4.5-25(a) (West 2010). But instead of ending with a period, section

(c)(1)’s general rule is followed by the phrase “except that,” which in turn has no following

punctuation. After the phrase “except that,” section (c)(1)’s five subsections appear. The first

subsection, section (c)(1)(A), states that an attempt to commit first degree murder when one of

three aggravating factors contained in section 9-1 of the Code are present, such as the victim

being a peace officer, is a Class X felony with an enhanced sentencing range, namely 20 to 80

years, as opposed to the baseline Class X range of 6 to 30 years. 720 ILCS 5/8-4(c)(1)(A) (West

2010). This subsection clearly demonstrates that the General Assembly intended to punish

attempted murder of peace officers more harshly by (1) defining attempted murder of a peace

officer as a Class X felony and (2) prescribing an enhanced sentencing range for the offense.

¶ 51   Section (c)(1)(A) is punctuated with a semicolon rather than a period. That makes matters

somewhat more complicated because semicolons typically precede a related but separate

concept. That suggests that section (c)(1)’s subsections must be read disjunctively, so that only

one subsection can apply to a given case. But there is reason to believe that the General

Assembly did not use semicolons to signify a disjunctive intent. Before subsection (E) of section

8-4(c)(1)—the last of the attempted murder subsections—there is subsection (D), and subsection

(D) ends with a semicolon followed by the word “and.” That—the use of the word “and” at the




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end of series of subsections each ending in a semicolon—signals that the General Assembly

intended for section (c)(1)’s exceptions to apply conjunctively, not disjunctively.

¶ 52   The statute’s plain text supports this interpretation. Section (c)(1)(A) defines the

attempted murder of a police officer as a Class X felony and prescribes a sentencing range.

Subsections (B) through (D), by contrast, describe attempted murder when a firearm is involved

as a Class X felony “for which” a certain period of years “shall be added to the term of

imprisonment imposed by the court.” See, e.g., 720 ILCS 5/8-4(c)(1)(B) (West 2010). The most

natural reading of section (c)(1) is that subsection (A) sets out an enhanced baseline sentencing

range for attempted murder of a peace officer, and then, depending on the facts of the case,

subsections (B), (C), or (D) come into play and require that the circuit court add time to the

sentence. See People v. Smith, 2012 IL App (1st) 102354, ¶ 114 (“Just as the firearm sentencing

enhancements in subsections (c)(1)(B), (C), and (D) must be added to the 6- to 30-year

sentencing range, so too must those enhancements be added to the higher 20- to 80-year

sentencing range.”).

¶ 53   Defendant suggests that interpreting section (c)(1)’s exceptions as applying conjunctively

creates the possibility that a defendant who attempts to kill someone using a gun and causes great

bodily harm could be subjected to all three firearm enhancements, since to injure someone with a

gun, one must necessarily possess a gun and fire it. We disagree. As a general matter, this court

will not interpret a statute as permitting double enhancements. People v. Guevara, 216 Ill. 2d

533, 545 (2005). The only time that prohibition may be lifted is if “the legislature clearly intends

for there to be a double enhancement, and that intention is clearly expressed” in the statute itself.

Id. at 545-46. But section 8-4(c)(1) “says what it says—or perhaps better put here, does not say

what it does not say” (Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U.S. ___,




                                                 23 

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___, 138 S. Ct. 1061, 1069 (2018))—and here, nothing in section 8-4(c)(1)’s plain text contains a

statement of legislative approval sanctioning double enhancements. See People v. Laubscher,

183 Ill. 2d 330, 337 (1998) (penal statutes “must be strictly construed in favor of the accused,

and nothing should be taken by intendment or implication beyond the obvious or literal meaning

of the statute”). As such, defendant’s fear of a double enhancement is unfounded.

¶ 54   We note that in People v. Douglas, 371 Ill. App. 3d 21, 26 (2007), a panel of this court

reached a contrary result, stating that section (c)(1)’s firearm enhancements did not apply to

attempted murder of a police officer. However, a subsequent panel of this court has explained

that the Douglas court’s analysis of section 8-4(c) was dicta. People v. Tolentino, 409 Ill. App.

3d 598, 606 (2011) (finding Douglas’s discussion of section 8-4(c) dicta and explaining that

“[t]he main issue in Douglas concerned the retroactive application of People v. Sharpe, 216 Ill.

2d 481 (2005), to the defendant’s sentence”). Moreover, we find the Douglas court’s analysis

unpersuasive. In Douglas, the court reasoned that, “[b]y creating a Class X offense carrying 20 to

80 years, the legislature well might have believed it was authorizing trial judges to impose severe

sentences. That is, the sentence already is enhanced, without the need for further provision.”

Douglas, 371 Ill. App. 3d at 26. That reasoning is inconsistent with our traditional mode of

statutory construction. When, as here, the General Assembly’s intent “can be ascertained from

the statute’s plain language, that intent must prevail without resort to other interpretive aids.”

Paris v. Feder, 179 Ill. 2d 173, 177 (1997).

¶ 55   We next consider defendant’s argument that the firearm enhancement was improperly

imposed because it was not properly alleged in the indictment or submitted to the jury as an

aggravating factor. Defendant argues that since the factor used to enhance his sentence—being

armed with a firearm (see 720 ILCS 5/8-4(c)(1)(B) (West 2010))—is not an element of the




                                                  24 

1-15-0487



offense, the State was obligated to (1) include the enhancing factor in the indictment, (2) submit

the enhancing fact to the jury, and (3) prove the enhancing fact beyond a reasonable doubt.

Defendant maintains that the State did none of those things and so concludes that the circuit

court improperly assessed the 15-year enhancement against him. We disagree.

¶ 56   The sixth amendment provides that criminal defendants “shall enjoy the right to *** trial,

by an impartial jury.” U.S. Const., amend. VI. In Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), the United States Supreme Court held that the right to trial by jury encompasses the

requirement that, with the exception of the fact of a prior conviction, “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum *** be submitted to a jury, and

proved beyond a reasonable doubt.” In response to that decision, the General Assembly amended

section 111-3 of the Code of Criminal Procedure by adding section (c-5), which provides:

               “[I]n all cases in which the imposition of the death penalty is not a

               possibility, if an alleged fact (other than the fact of a prior

               conviction) is not an element of an offense but is sought to be used

               to increase the range of penalties for the offense beyond the

               statutory maximum that could otherwise be imposed for the

               offense, the alleged fact must be included in the charging

               instrument or otherwise provided to the defendant through a

               written notification before trial, submitted to a trier of fact as an

               aggravating factor, and proved beyond a reasonable doubt.” 725

               ILCS 5/111-3(c-5) (West 2002).

¶ 57   Without more, we would be inclined to agree with defendant, since, strictly speaking, the

attempted first degree murder indictment did not allege that defendant was armed with a firearm.




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1-15-0487



But “[i]t is a well-established rule in Illinois that all counts of a multiple-count indictment should

be read as a whole and that elements missing from one count of an indictment may be supplied

by another count.” People v. Morris, 135 Ill. 2d 540, 544 (1990); see People v. Wade, 2015 IL

App (3d) 130780, ¶ 28. Here, defendant’s indictment for attempted murder alleged he “shot at”

Officer Portis. Although that language is ambiguous—it does not differentiate whether defendant

shot a bullet, a BB, or an arrow at Officer Portis—the remainder of the indictment filled in the

gap. Defendant was also charged with aggravated discharge of a firearm and aggravated

unlawful use of a weapon, and the indictment for those crimes alleged, respectively, that

defendant “knowingly discharged a firearm,” and “knowingly carried on or about his person a

firearm.” Therefore, defendant’s indictment sufficiently placed him on notice that he was being

accused of carrying a firearm when the offense took place.

¶ 58   Likewise, the fact that defendant was carrying a firearm was submitted to and decided by

the jury. At trial, the State’s only theory was that defendant fired a gun at Officer Portis (recall,

too, that the attempt first degree murder indictment alleged that defendant “shot at” Officer

Portis), and the jury found defendant guilty of attempted first degree murder. That means the jury

must have believed that defendant shot a gun at Officer Portis, which in turn means that the jury

must have found that defendant was “armed with a firearm.” 720 ILCS 5/8-4(c)(1)(B) (West

2010); see People v. Jackson, 2014 IL App (1st) 123258, ¶ 62 (“It is impossible for an individual

to pull the trigger of a firearm without simultaneously being armed with a firearm.”).

¶ 59   Moreover, even assuming that there was an Apprendi error, defendant would still not be

entitled to relief. Apprendi errors are subject to harmless error analysis. Washington v. Recuenco,

548 U.S. 212, 221-22 (2006); People v. Rivera, 227 Ill. 2d 1, 27 (2007). To determine if a

constitutional error such as an Apprendi error was harmless, we must ask whether it is “ ‘clear




                                                  26 

1-15-0487



beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the

error.’ ” People v. Thurow, 203 Ill. 2d 352, 368-69 (2003) (quoting Neder v. United States, 527

U.S. 1, 18 (1999)). Here, we find that any error was harmless beyond a reasonable doubt. Officer

Portis testified that he saw multiple muzzle flashes from the direction of Fields and defendant.

The police recovered 15 shell casings from the scene of the shooting, and a forensic analysis

revealed that they came from two different firearms. Moreover, defendant was observed fleeing

from the scene, and as he fled, he discarded items of clothing which tested positive for GSR. And

when defendant finally came face to face with the police, he vigorously resisted. Based on the

totality of the evidence presented at trial, the State proved beyond a reasonable doubt that

defendant was armed with a firearm at the time of the offense. Accordingly, any Apprendi error

that occurred in this case was harmless beyond a reasonable doubt.

¶ 60   Finally, defendant argues that certain entries relating to fines and fees on his mittimus

need to be corrected. Extended discussion of this issue is unnecessary and inappropriate given its

trivial nature as well as the fact it could have easily been corrected in the circuit court. See

People v. Smith, 2018 IL App (1st) 151402, ¶ 8 (“Given that the parties have 30 days to return to

the trial court to make corrections [to the mittimus], this court should not be the court of first

resort for [fines and fees] issues.”). We order two corrections to the mittimus. First, the mittimus

credits defendant with 1285 days of presentence credit. See 730 ILCS 5/5-4.5-100(a) (West

2014). Defendant was arrested on January 12, 2011 and released on January 13, 2011. He was

rearrested on July 11, 2011, and sentenced on January 15, 2015. Defendant should have been

credited with 1287 days of presentence credit. We correct the mittimus to so reflect.

¶ 61   Second, defendant was assessed $679 in fines and fees. However, the circuit court

erroneously imposed a $5 electronic citation fee (705 ILCS 105/27.3e (West 2014)) because




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attempted murder of a peace officer is not a traffic, misdemeanor, municipal ordinance, or

conversation case. We vacate this fee. We further order that defendant’s presentence

incarceration credit be applied to offset a $15 state police operations fee and a $50 court system

fee because these fees are actually fines. People v. Brown, 2017 IL App (1st) 142877, ¶¶ 71, 74.

Defendant further maintains that he is entitled a presentence credit for a $2 public defender

records automation fee and a $2 state’s attorney records automation fee. This court has

repeatedly held that these fees are in fact fees and thus not subject to offset. People v. Bowen,

2015 IL App (1st) 132046, ¶¶ 64-65. In sum, we correct defendant’s fines and fees order to

reflect a new total of $609 in fines and fees.

¶ 62                                      CONCLUSION

¶ 63   We affirm defendant’s conviction and sentence and correct the mittimus.

¶ 64   Affirmed; mittimus corrected.




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