                                                                           Opinion filed February 1, 2019
                                   2019 IL App (4th) 170148
                                                                           Modified upon denial of
                                           NO. 4-17-0148                   Rehearing February 22, 2019

                                IN THE APPELLATE COURT

                                           OF ILLINOIS

                                     FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                      )       Appeal from the
            Plaintiff-Appellee,                            )       Circuit Court of
            v.                                             )       Macon County
 AHQUAVIOUS BRADFORD,                                      )       No. 16CF730
            Defendant-Appellant.                           )
                                                           )       Honorable
                                                           )       Robert C. Bollinger,
                                                           )       Judge Presiding.

               JUSTICE DeARMOND delivered the judgment of the court, with opinion.
               Justices Knecht and Cavanagh concurred in the judgment and opinion.

                                            OPINION
¶1             In June 2016, the State charged defendant, Ahquavious Bradford, with two counts

of aggravated discharge of a firearm. The State dismissed one of the counts, and in November

2016, the trial court conducted a jury trial. The jury found defendant guilty on a single count of

aggravated discharge of a firearm, and the court sentenced him to 12 years of imprisonment with

2 years of mandatory supervised release.

¶2             On appeal, defendant argues he was denied effective assistance of counsel

because trial counsel failed to object to the conclusions of the State’s firearm identification

expert, which were unsupported by a proper foundation. We affirm.

¶3                                     I. BACKGROUND

¶4             In June 2016, Jasmine Adams’s brother posted a picture on Facebook and asked if

anyone could identify the person. Adams testified she recognized the man in the picture as

defendant because they went to school together, and she had texted back and forth with him a
“couple of times.” Later that June day, she called defendant to let him know her brother was

looking for him. Once Adams identified defendant as the man in the picture, she and her brother,

along with some other people, drove around looking for defendant. Adams and her brother

spotted defendant and pulled over. As they were getting out of the car and telling defendant to

come to their car to talk, defendant said, “What’s up? What’s up, bro?” and then moved behind a

tree and started shooting at them, firing five to seven shots. During the shooting, Iisha Dean, a

resident of the community where the shooting occurred, was sitting in her car talking to some of

her neighbors when she heard four or five gunshots and saw someone pointing a gun at a truck.

Adams and her group drove off.

¶5             After the shooting, police officers stopped the car containing Adams, her brother,

and other family members and friends. Upon stopping the car, officers found evidence of what

appeared to be bullet holes on the driver’s side and three bullets from inside the vehicle. They

also found a gun under the passenger’s seat, drugs, and a weight scale. The officers inquired into

the shooting, and Adams said defendant shot at them. Police officers executed a search of the

residence in which defendant was staying at the time. The officers found defendant hiding in the

attic, lying facedown in the insulation. A handgun was found in the bedroom, the closet to which

contained access to the attic. The handgun was located in the drawer of a dresser located in the

same bedroom, within three to four steps from the entryway to the attic.

¶6             As a result of the stop, Adams was charged with aggravated unlawful use of a

weapon, which was ultimately dismissed by the State in return for her testimony in this case. In

addition, the State agreed to obtain an order quashing an outstanding warrant she had in an

unrelated misdemeanor case.




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¶7             Defendant was charged with two counts of aggravated discharge of a firearm (720

ILCS 5/24-1.2(a)(2) (West 2014)), one of which was dismissed by the State. The remaining

count alleged defendant knowingly discharged a firearm in the direction of a vehicle, which he

reasonably should have known to be occupied by a person. In November 2016, the case

proceeded to a jury trial.

¶8             Carolyn Kersting, a 30-year veteran with the Illinois State Police, worked as a

forensic scientist specializing in firearms identification since 2001. She was called to testify

about the forensic examination of the firearm taken from defendant’s residence, along with her

examination of both test-fired bullets and those retrieved from Adams’s vehicle by the police.

She was tendered as an expert in firearms identification, and defendant’s counsel neither

questioned her thereon nor objected to her being so qualified. Kersting testified about the

examination process in general and then explained what she did in this case, discussing both

general class characteristics such as rifling and caliber and individual characteristics peculiar to a

particular firearm “through the manufacturing process or through rust, corrosion, [or] use and

abuse damage.” She explained the use of a comparison microscope when analyzing bullets to

look for individual characteristics in order to determine whether a particular bullet was fired

from a particular firearm.

               “We use a comparison microscope for making decisions on fired

               evidence and test shots. And that is two microscopes combined

               together by an optical bridge, that means we can look at two items

               at the same time and take a hairline and move them back and forth,

               and at this point we’re looking at those individual characteristics to

               see if the pattern reproduces.”



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¶9             Kersting explained how she first fired test shots in order to examine them

microscopically, looking for particular patterns reproduced from test to test. She then compared

those to the bullets in evidence, looking for similar patterns. While it is not always possible to

make a positive identification, Kersting was able to in this case based on the aforementioned

method. As a result, it was her professional opinion that the fired bullets submitted as evidence

were fired by the firearm seized from defendant’s residence. On cross-examination, counsel

requested more detail as to how she was able to form her conclusion. She explained:

               “When we make a finding, we are using the individual

               characteristics that are transferred to the cartridge case or the

               bullets in the form of the firing process. So in bullets, the

               individual characteristics within the bore are transferred to the

               bullet through the firing process. So these individual characteristics

               or complex microscope patterns will be similar from bullet to

               bullet fired within that firearm. When I fired the test shots, I put

               the test shots on the microscope to see if there were reproducing

               patterns, and then aligned those—those markings with different

               ink. And then I put my test—correction—I put the evidence bullet

               up on the scope in comparison to the test and I was able to find that

               the patterns reproduced from test to the fired evidence.”

¶ 10           Defendant’s counsel asked about the similarity of impressions made by the same

machine of a particular manufacturer, and Kersting noted “a lot of studies on this,” which found

the tool used to bore the barrels changes slightly with each use, thereby imparting “a different set

of individual characteristics of patterns.” Although she could not recall the authors of studies by



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name or their dates of publication, she said she read them herself, that they could be found in the

literature, and she was aware they have existed “over the time of firearm identification” and have

been “reverified” as true. Defendant presented no evidence. The jury convicted defendant of

aggravated discharge of a firearm, and the trial court sentenced him to 12 years’ imprisonment in

the Illinois Department of Corrections followed by 2 years of mandatory supervised release.

¶ 11           This appeal followed.

¶ 12                                     II. ANALYSIS

¶ 13           Defendant argues his trial counsel provided ineffective assistance of counsel by

failing to object to the State’s firearm identification expert giving her opinion without properly

laying the foundation. We disagree.

¶ 14           A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney’s performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20, 808

N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687, 694). “ ‘Effective assistance of

counsel refers to competent, not perfect representation.’ ” Evans, 209 Ill. 2d at 220 (quoting

People v. Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). “It is axiomatic that a

defense counsel will not be deemed ineffective for failing to make a futile objection.” People v.

Holmes, 397 Ill. App. 3d 737, 745, 922 N.E.2d 1179, 1187 (2010).




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¶ 15           To establish the second prong of Strickland, “[a] defendant establishes prejudice

by showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the

result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890

N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability that would

be sufficient to undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4. “A

defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the

prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25

N.E.3d 601.

¶ 16           Defendant contends it was error for his counsel not to object to what he

characterizes as an “unreliable firearm expert’s testimony” due to what defendant claims was an

inadequate foundation for her testimony. In support of his “first prong” argument, defendant

relies on People v. Safford, 392 Ill. App. 3d 212, 910 N.E.2d 143 (2009). In Safford, 392 Ill.

App. 3d at 227, the court found there was no proper foundation for the testimony of the State’s

expert in latent fingerprint identification where the expert did not provide a sufficiently detailed

reason for his opinion. As was noted by the State, “Safford has been heavily criticized, and

characterized as an ‘outlier.’ ” People v. Robinson, 2018 IL App (1st) 153319, ¶ 19, 105 N.E.3d

957 (citing People v. Negron, 2012 IL App (1st) 101194, ¶ 41, 984 N.E.2d 491, People v.

Wilson, 2017 IL App (1st) 143183, ¶¶ 41-42, 86 N.E.3d 1231, and People v. Simmons, 2016 IL

App (1st) 131300, ¶¶ 120-28, 66 N.E.3d 360). The Robinson court went on to note it was unable

to find any published case that followed Safford’s reasoning. Robinson, 2018 IL App (1st)

153319, ¶ 19. Under Illinois Rule of Evidence 705 (eff. Jan. 1, 2011), an expert “may testify in

terms of opinion or inference and give reasons therefor without first testifying to the underlying

facts or data, unless the court requires otherwise. The expert may in any event be required to



                                               -6-
disclose the underlying facts or data on cross-examination.” Under Rule 705, the burden is on the

defense “ ‘during cross-examination to elicit the facts underlying the expert opinion.’ ” Negron,

2012 IL App (1st) 101194, ¶ 42 (quoting Wilson v. Clark, 84 Ill. 2d 186, 194, 417 N.E.2d 1322,

1327 (1981)). The court in Simmons continued the criticism of Safford, noting the majority’s

holding ran counter to Rule 705 and a number of Illinois Supreme Court cases concluded that the

basis of an expert’s opinion is a matter for cross-examination since it goes to the weight to be

given the expert’s testimony and not its admissibility. Simmons, 2016 IL App (1st) 131300,

¶ 121 (“ ‘[T]he basis for a witness’ opinion generally does not affect his standing as an expert;

such matters go only to the weight of the evidence ***.’ ” (quoting Snelson v. Kamm, 204 Ill. 2d

1, 26, 787 N.E.2d 796, 810 (2003))).

¶ 17           Here, Kersting testified to her methodology, procedure, and the purpose of her

examination of test-fired slugs and the bullets submitted by the police, all of which were

admitted into evidence. She explained what she was looking for and how she went about testing

it. She then opined that based upon her examination of the two samples of fired bullets, the

submitted slugs were fired from the same gun. Defendant’s counsel immediately asked for more

detail on cross-examination and was provided it. Thus, there was a sufficient foundation, which

precluded defendant’s counsel from objecting, and therefore, there was no deficient performance.

¶ 18           Defendant also fails to satisfy the second “prejudice” prong. Despite defendant’s

claim, the expert’s opinion was neither the only nor the most damaging evidence against him. At

trial, the State presented evidence of the police officers’ execution of a search on the residence,

in which defendant was staying at the time, a short time after the shooting, where they found him

hiding in the attic, facedown in the insulation with the gun only a few steps from the attic door.

Although Adams was impeached by her deal with the State, her testimony was inevitably given



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more weight once the officers discovered defendant and the gun. That, coupled with the evidence

of flight, as well as the testimony of Dean, who saw someone shooting at a vehicle with people

inside, does not lead us to believe there was a reasonable probability the jury would have found

defendant not guilty even without the ballistics evidence. Therefore, even if defense counsel

objected and had Kersting’s testimony omitted, there is no reasonable probability the outcome

would have changed. Since there was no proper basis upon which to exclude the expert

testimony, defendant’s ineffective assistance of counsel claim fails under both prongs of

Strickland.

¶ 19                                  III. CONCLUSION

¶ 20          For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $50 statutory assessment against defendant as costs of this

appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 21          Affirmed.




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