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                                    Appellate Court                           Date: 2019.04.16
                                                                              12:33:37 -05'00'




                      People v. Bradford, 2019 IL App (4th) 170148



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



District & No.          Fourth District
                        Docket No. 4-17-0148


Filed                   February 1, 2019
Modified upon
denial of rehearing     February 22, 2019



Decision Under          Appeal from the Circuit Court of Macon County, No. 16-CF-730; the
Review                  Hon. Robert C. Bollinger, Judge, presiding.



Judgment                Affirmed.


Counsel on              James E. Chadd, Patricia Mysza, and Eric E. Castañeda, of State
Appeal                  Appellate Defender’s Office, of Chicago, for appellant.

                        Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
                        Robinson, and Thomas R. Dodegge, of State’s Attorneys Appellate
                        Prosecutor’s Office, of counsel), for the People.



Panel                   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.
¶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


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       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.”
¶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
       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.




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¶ 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).
¶ 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 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 concluding that the basis of an expert’s opinion is a matter for cross-examination since it

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       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
       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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