FIRST DIVISION September 12, 2016 No. 1-14-0511

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. ) 07 CR 15601-03 ) THADIEUS GOODS, ) ) Honorable Frank G. Zelezinski, Defendant-Appellant. ) Judge Presiding. )

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

OPINION

¶1 After a jury trial, defendant, Thadieus Goods, was found guilty of first degree murder

(720 ILCS 5/9-1(a)(2) (West 2010)) and of personally discharging a firearm that proximately

caused the victim’s death. Prior to trial, defendant’s attorney asserted compulsion as an

affirmative defense, but the court granted the State’s motion to bar this defense because

compulsion is not available as a defense to first degree murder in Illinois. In mitigation at

sentencing, due to a fear for his safety being threatened if he was known to be a “snitch,”

defendant requested to present in camera the testimony of an assistant State’s Attorney to whom

defendant had provided information while in prison regarding an alleged solicitation of murder No. 1-14-0511

of an 11-year-old victim in an unrelated criminal sexual abuse case. The court denied his request

and sentenced defendant to 65 years in prison. On appeal, defendant argues that his trial counsel

was ineffective for failing to assert self-defense and ask for the corresponding jury instructions,

the court failed to properly exercise its discretion in refusing to allow defendant’s mitigation

witness to testify in camera, and his 65-year sentence was excessive. For the following reasons,

we reverse the judgment of the trial court and remand for a new trial.

¶2 I. BACKGROUND

¶3 Pierre Jordan was found shot to death in the parking lot of an apartment complex located

at 3700 174th Court in Lansing on June 30, 2007. Defendant, along with Ronnell Hansbrough,

Torrey Hansbrough, and Tina Robinson, was charged with eight counts of first degree murder for

Jordan’s death.

¶4 A. Pretrial Motions

¶5 On July 2, 2007, defendant was arrested by Chicago police on an unrelated misdemeanor

offense. He remained in custody until July 4, 2007, when he was brought before a judge for a

bond hearing and the misdemeanor charge was dismissed. Immediately after the dismissal,

defendant was rearrested by Lansing police in connection with Jordan’s murder. While in

custody, defendant was interrogated and provided a videotaped statement. Subsequently,

defendant was indicted by a grand jury. On July 23, 2009, defendant filed a motion to quash

arrest and suppress evidence, arguing that his arrest was made without a valid search or arrest

warrant and that his conduct prior to arrest did not give rise to probable cause. Defendant also

argued that the statement he gave while in custody should be suppressed due to the lack of

probable cause. Defendant filed another motion to suppress the statement on April 21, 2011. 1

1 It appears from the record that the filing of two motions to suppress was due to the fact that defendant was initially represented by the public defender’s office and later by a private attorney. 2 No. 1-14-0511

The second motion to suppress asserted that prior to interrogation, defendant stated that he knew

nothing of Jordan’s murder and had nothing to say, but that “due to the physical, physiological,

mental, educational, emotional and/or psychological state, capacity and condition of the

[d]efendant, he was incapable and unable to appreciate and understand the full meaning of his

Miranda rights [(Miranda v. Arizona,

(1966))] and any statement was therefore not

*** made voluntarily, knowingly and intelligently.” Defendant also argued that he had been told

that his wife had been arrested and that if he did not cooperate she would be charged with

murder, rendering the statement defendant ultimately made a product of coercion. On August 24,

2011, after hearing argument, the court denied defendant’s motion to suppress, stating that “the

State has met their burden at this juncture.” The court further stated that it “[felt] that the

defendant was appropriately advised of his rights and waived his rights at the appropriate times”

and that “there was no right in any way [defendant] be allowed to speak to anybody, be it [his]

mother, girlfriend, or whoever.”

¶6 On April 21, 2011, defendant also filed a motion to dismiss the indictment, which was

later amended on September 8, 2011. The motion to dismiss asserted that an officer gave false

testimony to the grand jury, which resulted in the true bill directed against defendant. The court

conducted a hearing on the amended motion to dismiss the indictment on October 18, 2011. At

the hearing, the defense argued that at the grand jury, an officer falsely testified that the police

had learned defendant and the three other defendants had planned to kill Jordan, as there was no

evidence of a plan in any of the defendants’ statements. Also, the defense pointed to the officer’s

grand jury testimony that made it seem as though defendant was the sole person involved in the

murder because it was not made clear that codefendant Ronnell Hansbrough was the person who

Specifically, the public defender was given leave to withdraw and private counsel was given leave to file his appearance on July 16, 2010, which was in between the filing of the two motions to suppress. 3 No. 1-14-0511

shot Jordan first. The court denied defendant’s motion to dismiss, finding that there was not a

willing falsity or willingness to deceive the grand jury, and thus not enough to overturn the

indictment.

¶7 B. Trial

¶8 Prior to the commencement of defendant’s jury trial, the State filed a motion in limine

seeking to admit the inculpatory portion of defendant’s videotaped statement from July 4 and

July 5, 2007, and exclude the other portions of defendant’s statement that dealt with how he

knew Jordan and mentioned the prior time defendant served in prison. The State’s motion in

limine also sought to preclude defendant from offering any evidence of Jordan’s prior bad acts

because defense counsel “failed to allege self-defense and/or file a Lynch motion.” On March 26,

2007, the day before defendant’s trial began, the court heard argument on the State’s motion in

limine. Regarding the admission of defendant’s videotaped statement, the State asserted that it

only intended to introduce the inculpatory portion of defendant’s statement and the portion

showing defendant received Miranda warnings. It would not be showing the portions where

defendant talked about how he knew Jordan and their imprisonment together, where defendant

denied any involvement in Jordan’s murder, or where defendant asked for an attorney. In

response, the defense argued that including only the inculpatory portions would be extremely

prejudicial to defendant, especially since defendant spent so much time at the beginning of his

interrogation denying any involvement. The defense argued that it was not until the police

mentioned defendant’s girlfriend and her health problems that defendant stated he was involved.

The defense conceded that it was amenable to having the portions of the statement that

referenced defendant’s previous criminal background redacted from the video. The court ruled

that it would not allow the jury to hear all of defendant’s statement. However, it allowed cross-

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examination on the issue of what occurred prior to defendant admitting his involvement, how

long the interrogation went on, and the fact that defendant initially denied his involvement.

¶9 The court next addressed the State’s motion in limine regarding the use of the victim’s

prior bad acts. The State asserted that because defense counsel had not alleged self-defense or

filed a Lynch motion, any prior bad acts by Jordan should be barred. The defense objected to the

State’s motion “because we are introducing [an] affirmative defense which may indeed get into

prior bad acts which would be why the person felt compelled to do what he did.” Defense

counsel then confirmed that he was, in fact, alleging the defense of compulsion, not self-defense.

The court replied that “[prior bad acts] would not come in for [compulsion] anyway. So that’s

where we stand. Unless you’re alleging self-defense, this is not even an issue. So they’re not

allowed anyway.” Defense counsel then argued that if defendant testified as to why he felt

compelled to do what he did, it would be because he knew Jordan had committed prior acts and

because of his personal knowledge of Jordan “being in a situation where he has [had] to use a

gun in the past.” The court ultimately determined that it could not rule on this matter at the time

and reserved its rulings for defendant’s testimony. The parties then engaged in jury selection.

¶ 10 On the following day, March 27, 2012, prior to opening statements, the State raised the

argument that the defense of compulsion was not available to defendant in this case because he

was charged with murder. Primarily relying on the cases of People v. Anderson,

, and People v. Gleckler,

(1980), the State asserted that “there is 185

years of case law that says that compulsion is not a defense for first degree murder.” Defense

counsel responded that he was aware of death penalty cases where compulsion was allowed to be

asserted and that even though this was not a death penalty case, “it is still a murder case.” The

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court then read directly from section 7-11 of the Criminal Code of 2012 (Code), titled

“compulsion,” which reads:

“A person is not guilty of an offense other than an offense, punishable with death,

by reason of conduct that he or she performs under compulsion of threat or

menace of the imminent infliction of death or great bodily harm, if he or she

reasonably believes death or great bodily harm will be inflicted upon him or her, or upon

his or her spouse or child, if he or she does not perform that conduct.” 720 ILCS 5/7-

11(a) (West 2012).

The court further noted that the statute had not been amended to explicitly include first degree

murder, rather than “an offense punishable with death,” even though Illinois no longer

recognized the death penalty, thus, requiring the court to look to case law, which made clear that

compulsion was a prohibited defense in a first degree murder case. Recognizing this as “black

letter law,” the court granted the State’s request and barred defendant from asserting compulsion

as a defense.

¶ 11 Thereafter, the trial began with the parties presenting their opening statements. In its

case-in-chief, the State first called Edward Jordan, the father of the victim, to testify. Edward

testified that he saw Jordan on June 29, 2007, the evening prior to the murder, and that Jordan

appeared “fine” and “healthy.” The State next called Juanita Seals, a woman who lived in the

apartment complex where Jordan was killed. Seals testified that on June 30, 2007, at

approximately 3 a.m., she was asleep in her bedroom in her apartment at 3700 174th Court in

Lansing and was awakened by “popping sounds” that were coming from outside her bedroom in

the parking lot. Seals testified she originally thought the sounds were firecrackers but then

realized they sounded like gunshots, so she “got up and got down on [her] knees and looked out

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of [her] window,” which looked out on the parking lot. She stated that when she looked out the

window, she saw two males standing over another man who was laying flat on his face, and one

of the two males who was standing was shooting the man on the ground. Seals testified that she

could not see the two mens’ faces, but she saw that one was heavyset and the other was shorter

than the heavier man. The heavyset man was the one she observed shooting downward at the

third man, and she could see fire coming from the gun. Seals also testified that she could “hear

the sounds of the bullets coming from the gun, the actual shooting, pow, pow, pow, pow.” Seals

estimated that she observed four to five shots. Then, she crawled back to her bed and called 911.

She testified that while on the phone, she was asked to look back out the window, which she did,

and saw the two men were gone. The man who was shot was still laying “flat on his face” in the

parking lot. Seals testified that she heard additional shots while she was on the phone with 911

but could not see who was shooting. Seals stated that “anywhere from four to six minutes total”

elapsed from the time she first heard the popping sounds until she saw the men were gone. Seals

also stated that the area in the parking lot was well-lit enough for her to see that there were two

male shooters but not well-lit enough for her to see the actual gun, only the fire coming from it.

¶ 12 The State then called Officer Todd Yonker, the Lansing police officer who was first on

the scene, to testify. Officer Yonker testified that on June 30, 2007, at approximately 3:10 a.m.,

he was alone on patrol when he received a dispatch regarding gunshots and “a man down in the

parking lot” at 3700 174th Court. When he arrived at that location, he saw a man lying face

down with his hands tucked underneath his body. He believed the man had been shot because he

also saw shell casings and a lot of blood. Officer Yonker testified that he did not touch or move

the body and did not allow anyone else to touch or move the body until the evidence technician

or photographer arrived.

7 No. 1-14-0511

¶ 13 Sergeant Robert Deel of the state police was called next. Sergeant Deel testified that at

the time of Jordan’s murder, he was working as a crime scene investigator. He arrived at the

scene at approximately 7:30 a.m. on June 30, 2007, where he met with Detective Smith of the

Lansing police department and conducted a walk-through of the area. He testified that he saw a

blue tarp, which he later learned was covering the body of the victim. He took photographs of the

scene, including the tarp over the body, as well as the body after the tarp was removed. Sergeant

Deel testified that when the tarp was removed, he observed the victim laying face down with his

hands underneath his torso in the pockets of his jacket. He also stated that Jordan’s vehicle was

parked in the parking lot where his body was found and that he recovered 18 cartridge casings

and some spent projectiles that were found once the victim’s body was rolled over.

¶ 14 The State next called Sergeant John Daley of the Burnham police department to testify on

its behalf. Sergeant Daley testified that in July 2007, he was working with the south suburban

major crimes task force in the investigation of the shooting death of Jordan. On July 5, 2007, he

had a conversation with codefendant Ronnell Hansbrough 2 at the Lansing police station.

Through his conversation with Ronnell, Sergeant Daley was directed to a Dumpster behind an

apartment building in Calumet City, where he saw a black plastic bag in the corner of the

Dumpster that was otherwise empty at the time. Inside the bag was a black Glock semiautomatic

handgun and an extended, 30-round clip. He stated that he did not recall the exact number of

rounds that were in it, but there were “quite a few.” There was also one loose round in the bag.

An evidence technician from Lansing police department recovered the items, photographed

them, and placed the gun into an evidence box separate from the rounds. Next, the State called

2 Sergeant Daley testified that Ronnell Hansbrough went by the name of “Endo.” However, in defendant’s videotaped statement, he referred to Ronnell and Endo as two different people. Also, in Sergeant Bailey’s testimony, which is set forth later in this opinion, he stated that Ronnell and Endo were brothers. For purposes of this opinion, we presume that Ronnell and Endo are not the same person. 8 No. 1-14-0511

Officer Dana Tatgenhorst of the Lansing police. Officer Tatgenhorst testified that she was

present for Jordan’s autopsy on July 1, 2007. She stated the autopsy was performed by Dr.

Michelle Jordan. At the autopsy, Officer Tatgenhorst observed Dr. Jordan remove 13 copper

bullet jackets from Jordan’s body.

¶ 15 On the second day of trial, the State called Jeffrey Parise, a forensic scientist of the

Illinois State Police forensic science command who specialized in firearms identification. Upon

request of the State and with no objection from the defense, Parise was declared an expert in the

field of firearms and firearms identification. Parise testified that he received nine exhibits from

the Lansing police department that included the gun recovered from the Dumpster, 18 cartridge

cases, and a number of projectiles. Parise stated that he examined a Glock semiautomatic pistol

with an extended magazine that held 31 cartridge cases. Parise testified that 5 of the 18 recovered

cartridge cases were .45 caliber and were fired by the same firearm but not the Glock

semiautomatic pistol that was recovered from the Dumpster. Rather, Parise stated that six of the

recovered cartridge cases were, in fact, fired from the recovered Glock and that those cases were

9-millimeter caliber. The remaining seven cases were .380 caliber and were not fired from the

recovered Glock semiautomatic pistol. Parise testified that these seven .380-caliber cases were

fired from a 9-millimeter Makarov, which is a Russian gun, or possibly a 9-millimeter Luger.

Parise stated that there were “at least three guns” used here.

¶ 16 The next witness called by the State was Dr. Ariel Goldschmidt, an employee of the

Cook County Medical Examiner’s Office. Upon request from the State and with no objection

from the defense, the court declared Dr. Goldschmidt an expert in the field of forensic pathology.

Dr. Goldschmidt testified that he reviewed the autopsy report of Dr. Jordan, the doctor who

actually performed Jordan’s autopsy. Dr. Goldschmidt stated that Jordan had multiple gunshot

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wounds, including, inter alia, three to the back of the head, one to the back of the neck, three to

the back, one to the shoulder, three to the armpits, two to the left arm, and one to the left chest.

There were 13 projectiles recovered from Jordan’s body. Dr. Goldschmidt testified that he could

not say whether Jordan was deceased before the last gunshot wound was received. However, he

testified that there was blood in Jordan’s upper chest around his lungs, which meant that

although he could have been brain dead, his heart was still pumping after he was shot. Dr.

Goldschmidt testified that the cause of Jordan’s death was multiple gunshot wounds and the

manner of death was homicide.

¶ 17 Sergeant Scott Bailey, a member of the investigation division of the Lansing police

department and south suburban major crime task force, was called next by the State. Sergeant

Bailey testified that shortly after 3 a.m. on June 30, 2007, he responded to the scene at 3700

174th Court, where he saw a deceased male who had been shot. He testified that pursuant to his

investigation, he learned that the names of the people who were involved with Jordan’s death

were Ronnell Hansbrough, a/k/a “Little Bro,” and Torrey Hansbrough. Regarding the physical

build of defendant and Ronnell, Sergeant Bailey stated that defendant “is a lot bigger and heavy,

thicker,” and that Ronnell was “thinner, shorter.” He also stated that Ronnell, Endo, and Torrey

were all brothers. Sergeant Bailey testified that he and Sergeant Daley spoke with defendant on

July 5, 2007, at about 4 p.m. in the Lansing police department criminal investigation interview

room. He stated that he had spoken with defendant on two previous occasions, where defendant

had denied any involvement with Jordan’s death. He also testified that the second conversation

ended when defendant asked for an attorney.

¶ 18 Sergeant Bailey further testified that the conversation with defendant at approximately

4 p.m. began with him “reminding [defendant] of his Miranda [w]arnings.” Defendant was also

10 No. 1-14-0511

made aware that audio and visual recordings of the conversation were being made. Sergeant

Bailey testified that Endo, Ronnell, and Torrey were all brothers and that defendant’s girlfriend,

Tina Robinson, was also known as “Baby Cakes.” On cross-examination, Sergeant Bailey agreed

with defense counsel that defendant had concerns for Robinson and kept trying to get the police

to put them in the same room so he could talk to her. Sergeant Bailey testified that Robinson

became so ill while in custody that she had to be taken to the hospital, and the officers made a

point of telling that to defendant.

¶ 19 The DVD of defendant’s statement from July 5, 2007, was published to the jury. In his

statement, defendant stated that Jordan, who defendant knew to be a cocaine dealer, told him that

he was “fitting to go in on them,” referring to robbing Endo and Ronnell, because they had “balls

of money wrapped up *** in plastic.” Jordan asked defendant to get him in the apartment

complex, but defendant would not because there were cameras on every door and he did not

want to be seen with Jordan. Defendant stated that a couple days to a week before Jordan’s

murder, he told Endo that Jordan “want to run in your momma house, and he not playing,” to

which Endo replied “ ‘let him run his a*** in there, we gonna off his a*** in there.’ ” Sometime

thereafter, defendant spoke with Jordan and again told him, “I ain’t going nowhere to be in front

of no camera.” Defendant told the officers he knew that “if I got knowledge of [Jordan] running

in they crib, he getting down on me when he get through with them.”

¶ 20 The following day Jordan pulled up to the apartment complex with his girlfriend in the

front seat, his daughter in the backseat, and a gun on his lap. Jordan asked defendant if he did his

“homework,” and defendant replied that he had after seeing the gun on Jordan’s lap. Defendant

stated he was thinking “we gotta get this motherf*** out the way, straight up.” After seeing

Jordan, defendant called Endo and told him that Jordan was at the building. Defendant stated that

11 No. 1-14-0511

Endo said, “ ‘I’m fitting to shoot the s*** out this n***,’ ” referring to Jordan. Defendant told

the officers that when talking to Endo, he said, “ ‘My momma live here just like your momma.

You know, come on let’s—I’m ready to get it over with.’ ” On Friday, the day before Jordan was

killed, defendant was with Robinson over at defendant’s mom’s apartment. After defendant

received a call from Jordan, who said that he was “ready to get it cracking,” he then called Endo

and told him to give defendant a gun. Endo was not nearby, so he told Ronnell to get defendant a

gun, which he did. Defendant stated that Ronnell gave him a “Russian [9-]millimeter.”

¶ 21 That night, Jordan picked up defendant, drove around the back of apartment complex,

and backed into a parking spot. Defendant stated that at this point, he did not know that Ronnell

was already there. Defendant and Jordan both got out of the car, and Jordan went to the trunk and

“did something, put on a black jacket.” Defendant also said he saw Jordan “fumbling in his

waist.” Defendant watched Jordan, thinking “you ain’t fitting to just pop me and try and run in

and they crib because he’ll get down like this.” Defendant and Jordan walked through the

parking lot, then Ronnell “come out of nowhere, boom, hit his a***” and Jordan fell. Defendant

stated that Ronnell had “scared the s*** out of me” and when Jordan fell, defendant also fell to

the ground. Defendant said he then got up and “[b]oom, boom, boom, I get to giving it to him.”

Defendant further stated that Ronnell hit Jordan first, then he shot Jordan, and then Ronnell shot

Jordan again with Jordan’s own gun.

¶ 22 Defendant told the officers that after the shooting, he ran to the building. Endo, Ronnell,

and “B” came to pick him up and Endo said, “ ‘I love you, bro, man that was love ***. You

didn’t have to tell us s***. You could have let that n*** come in on me.’ ” Defendant told Endo

that “[w]hen you can’t trust somebody you gotta get them out of the way.” Defendant said that

he feared for his mother’s life like Endo feared for his mother’s life. Defendant told the officers,

12 No. 1-14-0511

“[w]e was fitting to be gone,” and “had bus tickets and everything.” Defendant and the others

then went to a Holiday Inn Express where they cleaned the guns. On Sunday, Endo took the guns

in a bag and “took them whenever he wanted to take them.” Near the end of his interview,

defendant stated that “if any motherf*** go down for this case, it gotta be me, Ronnell and Endo.

Cause Endo said kill the motherf***, me and Ronnell run up on the n***. Bottom line.”

¶ 23 Thereafter, the State rested its case-in-chief and the defense moved for a directed verdict,

which was denied. On the final day of trial, March 29, 2012, the defense rested without

presenting any evidence. Prior to deliberation, the court heard argument on jury instructions. The

State proposed that the jury should be given an accountability instruction. The defense objected,

arguing that the evidence did not show that defendant was responsible for Ronnell’s conduct

because he did not know that Ronnell was already at the apartment or that he was going to shoot

Jordan at that time. According to defense counsel, defendant did not do anything to promote or

facilitate this crime. Rather, he merely told Endo that someone may be coming to the apartment

complex to rob or kill him. In response, the State asserted that the evidence had shown that

defendant worked in conjunction with Ronnell, planning the murder in advance. The State

pointed to the defendant’s statement where he admitted he asked Endo to give him a gun. The

court overruled the defense’s objection and allowed the accountability instruction, which stated:

“A person is legally responsible for the conduct of another person when, either

before or during the commission of the offense, and with the intent to promote or

facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid,

or attempts to aid the other person in the planning or commission of the offense.” Illinois

Pattern Jury Instructions, Criminal, No. 5.03 (4th ed. 2000).

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Defendant’s counsel did not ask for an instruction regarding self-defense or second degree

murder.

¶ 24 Then, the parties presented their closing arguments. In his closing, defense counsel

argued that there was no plot to murder Jordan. He also stated that defendant did not have a gun

“until he was scared to death and got one” after seeing Jordan in his car with a weapon on his

lap. Defense counsel reminded the jury that defendant told Endo: “Look, this guy is crazy. He is

coming to rip you off. You better be prepared.” The defense argued that when defendant went to

the apartment complex on the night of the murder, he was afraid of Jordan. Later in the closing

argument, defense counsel again stated that defendant was scared, because he had just seen

Ronnell shoot Jordan and then Ronnell looked at him like he was going to kill him. The State

objected to this statement, but the court overruled the objection and reminded the jury that this

was argument, not evidence. At the conclusion of his closing, defense counsel stated: “The

[d]efendant did not act with Ronnell Hansbrough. He acted alone. He acted by himself, and he

was in fear of not only the Hansbroughs, he was in fear of the victim.”

¶ 25 After just over an hour of deliberation, the jury returned a verdict, finding defendant

guilty of first degree murder and guilty of personally discharging a firearm that proximately

caused death to another person.

¶ 26 C. Posttrial Motions and Sentencing

¶ 27 On May 2, 2012, defendant, through counsel, filed a motion for acquittal notwithstanding

the verdict or, in the alternative, for a new trial. The motion argued that the totality of the

evidence could not lead a reasonable trier of fact to the conclusion that the State proved its case

beyond a reasonable doubt; thus, acquittal was proper. On June 29, 2012, defendant, acting

pro se, filed an amended motion for acquittal notwithstanding the verdict or, in the alternative,

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for a new trial that was substantially similar to the original motion except that the amended

motion raised the additional argument that defendant received ineffective assistance of counsel

and that defendant did not understand what was taking place at trial because he had not been

given his psychotropic medication. Upon request of the defense, on June 1, 2012, the court

ordered that an examination of defendant’s fitness for sentencing take place. In a report dated

September 20, 2012, Dr. Nishad Nadkarni, a staff psychiatrist, stated that he found defendant fit

for sentencing as there was no evidence that defendant suffered from a bona fide major mental

illness or cognitive impairment that would preclude him from understanding the charge for

which he was convicted.

¶ 28 On November 6, 2012, when this matter was before the court for a status hearing,

defendant addressed the court and asked that he be allowed to proceed pro se because he

believed that his private counsel had a conflict due to defendant’s assertion of ineffective

assistance of counsel in his amended posttrial motion. Also on that date, defendant’s counsel

requested a contested hearing regarding defendant’s fitness for sentencing, which ultimately took

place on November 27, 2012. Dr. Nadkarni testified at the hearing, and the court ultimately

found defendant fit for sentencing.

¶ 29 On December 7, 2012, defendant’s private attorney was granted leave to withdraw as

counsel, and the public defender’s office was appointed. Through his appointed counsel,

defendant filed a motion for a new trial on June 4, 2013, arguing that defendant was deprived of

his right to due process and his right not to testify against himself when the court denied his

motion to suppress his statement and allowed his statement to be published to the jury.

Defendant argued that his statement was not given voluntarily and was the result of prolonged

custody at the Lansing police station and the information regarding his girlfriend, Tina Robinson.

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Defendant also argued that he was denied due process and a fair trial when the court did not

allow him to assert the defense of compulsion at trial. Further, defendant asserted that the court

erred in denying defendant’s motion for a directed verdict because there was no physical

evidence or conclusive eyewitness evidence tying defendant to Jordan’s murder. Likewise,

defendant argued the jury denied him due process through their finding of guilty when the only

direct evidence of defendant’s involvement was his own statement. Defendant claimed the jury

also denied him due process when they returned a verdict of guilty when Dr. Goldschmidt

testified that a shot by a large caliber bullet, such as the ones fired from codefendant

Hansbrough’s gun, would probably cause “brain death,” rendering Jordan dead before defendant

even shot him.

¶ 30 Defendant, through his appointed public defender, filed an amended motion for a new

trial on August 27, 2013, that contained substantially the same arguments as the original motion,

but added the allegation that his trial counsel was ineffective when counsel “strongly advised”

defendant against testifying despite the fact that defendant wanted to testify to give his side of

the story. Also, defendant argued his counsel was ineffective when he failed to present the

defense of self-defense and instead relied on the defense of compulsion, which was not available

in a murder prosecution. Further, defendant, through appointed counsel, filed an addendum to his

amended motion for new trial on August 30, 2013, that asserted that defendant also received

ineffective assistance of counsel when his trial counsel failed to object to the testimony of Dr.

Goldschmidt, as he was not the doctor who had performed Jordan’s autopsy. Also, the addendum

stated that defendant’s trial counsel failed to object to the admission of the certified copy of the

autopsy into evidence, which contained testimonial hearsay.

16 No. 1-14-0511

¶ 31 Also on August 30, 2013, the court conducted a hearing on defendant’s motion for a new

trial. Prior to the hearing, at defense counsel’s request, the court allowed the amended motion for

a new trial and the addendum to the amended motion to be incorporated into the original motion

for new trial. At the hearing, defendant’s counsel emphasized that reasonable doubt as to

defendant’s guilt existed where Dr. Goldschmidt testified that a person shot in the head with a

large caliber gun would probably be severely incapacitated, if not brain dead. Also, defense

counsel argued ineffective assistance by defendant’s trial counsel, stressing that counsel was

ineffective when he failed to object to Dr. Goldschmidt’s testimony because Dr. Goldschmidt

was not the medical examiner who performed Jordan’s autopsy, which meant defendant was not

able to cross-examine the doctor who had, in fact, performed the autopsy, a violation of

defendant’s rights under the confrontation clause. In response to defendant’s motions and

addendum, the State argued in part that defendant’s trial counsel was not ineffective for failing to

assert the theory of self-defense because the facts of this case did not support such a theory. The

State asserted that there was no evidence that defendant was afraid of Jordan. Also, the State

argued that counsel was not ineffective because “[h]e presented a defense for defendant that was

very effective but the evidence bore out that the defendant was in fact guilty.” Finally, the State

asserted that there was no ineffective assistance for failure to object to Dr. Goldschmidt’s

testimony where there was a statute that allowed him to testify as to another medical examiner’s

findings.

¶ 32 In its oral ruling, the court noted that it had presided over the case since its inception and

that it relied on its previous, “extensive” rulings on the issue regarding suppression of

defendant’s statement. Additionally, the court stated that there was identification of defendant’s

participation evidence other than his statement. Regarding the issue of defendant’s theory of

17 No. 1-14-0511

defense, the court stated, “[t]he defense initially wanted to consider a compulsion defense

however by [s]tatute and case law that was unavailable on a murder case.” The court did not

mention the issue of ineffective assistance of counsel for failure to assert the theory of self-

defense. As to Dr. Goldschmidt’s testimony, the court stated that his testimony was not improper

and testimony of that kind “has been allowed consistently through case law throughout as well as

by [s]tatute.” Ultimately, the court denied defendant’s motion for a new trial. The court stated

that it believed its previous rulings were appropriate and the jury’s decision was appropriate and

supported by the evidence. Also, the court found the conduct of the attorneys was appropriate,

specifically, the court noted that defendant’s trial counsel “gave the best representation and

defense that he could under the circumstances of what he had.”

¶ 33 A presentence investigative (PSI) report was filed with the court on January 27, 2014.

The report stated that it was based on a November 15, 2013, interview with defendant, juvenile

court records, defendant’s adult criminal history, and criminal court records. It also stated that a

probation officer spoke via telephone with defendant’s mother. The PSI report reflected that the

juvenile court records showed numerous charges against defendant, some violent and some

nonviolent, beginning at age 12. Similarly, defendant’s adult criminal history showed numerous

offenses, beginning when defendant was 17 years old. In 1995, he was charged with possession

of a stolen motor vehicle, pled guilty, and received two years probation, which was later

terminated due to his imprisonment on another offense in 1997. In 1996, defendant was arrested

twice: once in June in Chicago for aggravated possession of a stolen motor vehicle, for which he

pled guilty and received four years’ imprisonment, and once in July in Lee County for possession

of a stolen motor vehicle, for which he received five years’ imprisonment. 3 In October 2002,

3 It is unclear from the PSI report whether defendant’s five-year sentence was as a result of a guilty plea or trial. 18 No. 1-14-0511

approximately five months after he was released from prison, defendant was arrested for felony

possession/use of a firearm, a Class 3 offense, pled guilty, and was sentenced to two years’

imprisonment. In December 2003, two months after he was released, defendant was arrested for

unlawful use of a weapon by a felon, a Class 2 offense, for which he pled guilty and was

sentenced to four years’ imprisonment.

¶ 34 The PSI report also reflected that defendant had never been married but was in a

relationship and lived with codefendant, Tina Robinson, with whom he had two children, ages 14

and 15. Regarding defendant’s level of education and employment, the PSI report stated that he

attended school through eighth grade and had taken classes from time to time while in prison.

Also, defendant worked in 2006 and 2007 by maintaining vehicles for his brother’s

transportation service. Regarding defendant’s physical condition, the PSI report stated that “[h]e

was injured in 2012 in the jail when he was beaten and stabbed by a bunch of men, and his nose

was broken.” The PSI report also stated that defendant told the probation officer that he had been

treated since age 14 for bipolar disorder, schizophrenia, and depression. At the time of the PSI

interview, defendant was medicated with Seroquel and Wellbutrin. Defendant also told the

probation officer that he began smoking marijuana and drinking at the age of 11, and began

using cocaine at the age of 13.

¶ 35 Defendant’s sentencing hearing took place on February 10, 2014. The court began by

stating that it had the PSI report and asked if either side had any additions, deletions, or

modifications, which neither did. The State then presented aggravation testimony in the form of a

victim impact statement from Brenda Jordan, the victim’s mother. Thereafter, the court asked the

defense if it had any mitigation witnesses to call. The defense responded that it wished to call

Assistant State’s Attorney Dan Weiss in mitigation and requested that his testimony be taken in

19 No. 1-14-0511

camera. The court then asked the attorneys to come to his chambers to address this issue, and the

following exchange took place:

“THE COURT: At this time, we are outside the presence of all parties in a side-

[b]ar. Tell me what we’re doing.

MR. TYSON [Assistant Public Defender]: Your Honor, my client has worked

with Mr. Weiss to provide information regarding there was an inmate in the Cook County

Jail who was trying to solicit the murder of an 11-year-old victim in a criminal sexual

abuse case, a predatory criminal sexual abuse case, and my client was helpful to the

State’s Attorney’s [o]ffice with respect to that. He testified at the [g]rand [j]ury, et cetera.

And he’s been attacked in the jail and we’re concerned about this matter being in

open court that the information will get out and further jeopardize his safety while he’s

still in the custody of the Cook County [s]heriff, so we’re asking to do this in camera and

if the [c]ourt would consider the mitigation presented in camera for the purpose of

sentencing.

THE COURT: Ms. Morrissey?

MS. MORRISSEY [Assistant State’s Attorney]: Judge, as long as Mr. Goods—

this is his request and he is not going to bring up some later appellate issue about this,

I’m fine so that the State—the information about him being a snitch and possibly

information regarding the investigation regarding this other case does not come out in

open court, I’m fine with it as long as he’s waiving his right to having it heard in open

court.

20 No. 1-14-0511

MR. TYSON: Judge, I did ask him about that and he said he’s fine with it. So if

the [c]ourt wants to inquire as to, you know, if this is his request, that’s fine. He said he

would prefer it this way as well.

MS. MORRISSEY: And he waives his presence, obviously?

MR. TYSON: Yes.

MS. MORRISSEY: I would just ask that [Y]our Honor confirm that with him, so

he doesn’t later claim this to be an appellate issue.

THE COURT: I know what you’re agreeing upon is fine and well, but I don’t

know what the appellate court is going to agree on in the future. I’m not favorable to this.

We are in an open forum. Unless by statute it allows me to hold such procedures in

camera regardless of who agrees to it, I will not allow it.

You can rethink what you wish to question or present in mitigation, but anything

that goes will be in open court at this stage.”

The parties then reconvened in the courtroom and the following exchange occurred:

“THE COURT: Once again, we are in open court with all the parties present in

the matter of the People vs. Thadieus Goods.

Again, on behalf of the defense, do you wish to present mitigation testimony?

MR. TYSON: Your Honor, we do have present [a]ssistant State’s Attorney Dan Weiss,

who was prepared to offer mitigation testimony on behalf of Thadieus Goods, but I think

upon further consideration Mr. Goods does not wish to have that witness called in his

favor. Is that correct, Mr. Goods?

THE DEFENDANT: Yeah.

MR. TYSON: He does not wish to have Mr. Weiss called at this time.

21 No. 1-14-0511

THE COURT: Is that your decision, Mr. Goods?

THE DEFENDANT: Yeah, that’s my decision.

THE COURT: The record is clear. That’s his decision.”

¶ 36 The defense then stated that there were no other mitigation witnesses to be called. In

aggravation, the State argued that defendant’s conduct caused serious bodily harm when he

ambushed and executed Jordan. Also, the State emphasized that defendant had a history of

criminal activity and has been in the criminal justice system since the age of 12. The State went

through defendant’s juvenile and adult criminal history and then asked that the court sentence

defendant to life in prison.

¶ 37 In mitigation, the defense began by pointing out that the sentencing range for first degree

murder is 20 to 60 years’ imprisonment plus a 25-year enhancement where the jury found

defendant personally discharged a firearm causing Jordan’s death. Defense counsel asked that

the court sentence defendant to the minimum, which was 45 years’ imprisonment to be served at

100%, because the purpose of the sentence is punishment and even if he received the minimum,

defendant would have 45 years to think about the reason why he is in prison. Also, the defense

stated that a 45-year sentence would adequately deter others from engaging in this conduct,

protect society, and provide enough time for defendant, who would be in his seventies when

released, to rehabilitate. The defense went on to explain that the facts of this case showed that

there was a possibility of a robbery being committed by Jordan, who was armed, and that

sometimes people get killed in violent situations such as this. The defense concluded by asking

for the court to strongly consider a range of 45 to 50 years, if the court was not inclined to

impose the minimum sentence.

22 No. 1-14-0511

¶ 38 Defendant spoke in allocution. He apologized to the Jordan family and asked forgiveness.

Defendant stated that he has had years to reflect on his entire life, stating, “I’ve learned my

lesson and I will forever live a righteous, law abiding life.” He concluded by apologizing to his

brother and family for putting them though this situation and begged the court to show him

mercy.

¶ 39 In delivering its sentencing decision, the court explained that it reviewed all matters in

aggravation and mitigation. The court referred to defendant’s criminal background as “extreme,”

stating that there “appears to be about five prior adult felony convictions that just seem to be

happening over and over again. There’s an extensive juvenile background as well.” The court

also stated that the killing here “was very heinous in nature, with the victim laying on the

ground, being in a helpless form, being riddled by bullets by the defendant, as an independent

witness who observed indicated, and that certainly is an aggravating factor to the nature of what

occurred here.” The court considered defendant’s statement of remorse as mitigating but noted

that based on defendant’s track record, it did not believe defendant could be rehabilitated.

Ultimately, the court sentenced defendant to 65 years’ imprisonment, with 3 years’ mandatory

supervised release. Defense counsel then filed a motion to reconsider sentence instanter, which

the court denied, finding there was “extensive aggravation to warrant the sentence.” That same

day, defendant filed his notice of appeal.

¶ 40 II. ANALYSIS

¶ 41 On appeal, defendant argues (1) he received ineffective assistance of counsel where his

attorney mistakenly believed that he was “not allowed” to present a self-defense theory to the

jury and thus never requested that the jury be instructed on self-defense or second degree murder,

(2) the trial court erred when it refused to hear Assistant State’s Attorney Weiss’s testimony in

23 No. 1-14-0511

camera because it deprived defendant of a fair sentencing hearing, and (3) defendant’s 65-year

sentence is excessive where the trial court attributed unreasonable weight to defendant’s juvenile

history and mischaracterized his adult criminal history as “extreme.” We agree with defendant

that he was denied ineffective assistance of counsel. We also address defendant’s arguments

regarding his sentencing hearing because if defendant is convicted after retrial, the same issues

may arise.

¶ 42 A. Ineffective Assistance of Counsel

¶ 43 The right to counsel guaranteed by both the United States and Illinois Constitutions

includes the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const.

1970, art. I, § 8; Strickland v. Washington,

(1984). Whether a defendant was denied

effective assistance of counsel is evaluated according to the two-prong test set forth in Strickland

v. Washington, which requires that a defendant show both that the representation provided at trial

was deficient and that such deficiency prejudiced the defendant.

.

¶ 44 On appeal, defendant argues that his trial counsel was deficient because although the trial

court only barred the defense of compulsion, his trial counsel apparently and mistakenly believed

that this meant he was also barred from asserting the defense of self-defense. Defendant further

contends that although perhaps unreasonable, a belief in self-defense was consistent with the

defense’s trial strategy and his counsel’s failure to request such a jury instruction was objectively

unreasonable and prejudicial. The State responds that trial counsel’s decision not to ask for self-

defense and accompanying second degree murder instructions was a reasonable strategy because

no evidence existed to support a self-defense theory where the evidence showed that Jordan was

already face down on the ground with his hands in his pockets when defendant began shooting

24 No. 1-14-0511

him. The State also argues that a self-defense instruction would have contradicted the strategy

presented by the defense.

¶ 45 In order to satisfy the first prong under Strickland, defendant must overcome a strong

presumption that, under the circumstances, the challenged action or inaction of counsel was a

valid trial strategy. People v. Bloomingburg,

(2004). “The

reasonableness of counsel’s actions must be evaluated from counsel’s perspective at the time of

the alleged error, and without hindsight, in light of the totality of the circumstances, and not just

on the basis of isolated acts.” People v. Nowicki,

(2008). It is important to

note that effective assistance refers to competent representation, not perfect representation.

Further, “mistakes in trial strategy or judgment will not, of themselves, render the representation

incompetent.”

¶ 46 To meet his burden for the second prong under Strickland, defendant must show that the

probability that counsel’s errors changed the outcome of the case is “sufficient to undermine

confidence in the outcome.” Strickland,

. In order to satisfy the prejudice prong,

defendant need not show that he would have been acquitted, only that a different outcome would

be reasonable, as prejudice may be found “even when the chance that minimally competent

counsel would have won acquittal is ‘significantly less than 50 percent’ as long as a verdict of

not guilty would be reasonable.” People v. McCarter,

(2008) (quoting

Miller v. Anderson,

(7th Cir. 2001)).

¶ 47 We must first decide if a self-defense theory was justified in this case. “ ‘A defendant in a

criminal case is entitled to have the jury instructed on any legally recognized defense theory

which has some foundation in the evidence, however tenuous.’ ” People v. Lewis,

(quoting People v. Looney,

(1977)). A defendant is

25 No. 1-14-0511

entitled to an instruction on self-defense if very slight or some evidence exists to support the

theory of self-defense. (Internal quotation marks omitted.)

“ ‘In order to instruct the jury on

self-defense, the defendant must establish some evidence of each of the following elements: (1)

force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger

of harm was imminent; (4) the threatened force was unlawful; (5) he actually and subjectively

believed a danger existed which required the use of the force applied; and (6) his beliefs were

objectively reasonable.’ ” (Emphasis in original.)

(quoting People v. Jeffries,

(1995)). The Illinois Supreme Court has made clear that “when the evidence supports the

giving of a jury instruction on self-defense, an instruction on second degree murder must be

given as a mandatory counterpart.” People v. Washington,

.

¶ 48 At trial, the State presented as evidence the defendant’s statement via a videotaped

interview that took place at the Lansing police department on July 4 and July 5, 2007. During

that statement, defendant said that Jordan had approached him and asked him to go with him to

the apartment complex where defendant’s and Endo’s mothers lived so that Jordan could rob

Endo and Ronnell, whom he knew had “balls of money wrapped up *** in plastic.” Defendant

told the officers that he knew that “if I got knowledge of [Jordan] running in they crib, he getting

down on me when he get through with them.” Defendant also told the officers that the following

day, Jordan pulled up to the apartment complex with his girlfriend in the front seat and his

daughter in the backseat to ask defendant if he had done his “homework.” At the time Jordan

pulled up, he had a “big a***” gun on his lap, which was revealed to defendant when Jordan

lifted his shirt. On the night of the murder, defendant stated that when he and Jordan got to the

apartment complex, he saw Jordan “fumbling in his waist” and was thinking that Jordan may just

“pop” him, then try to commit the robbery. Then, “Ronnell come out of nowhere, boom, hit his

26 No. 1-14-0511

a***” and Jordan fell. At this point, defendant stated he also fell to the ground. Then he got up

and started shooting Jordan. After that, Ronnell shot Jordan again with Jordan’s own gun. At

another point in his statement, defendant stated that he feared for his mother’s life.

¶ 49 In his closing, defense counsel argued that there was no plot to kill Jordan as the State

suggested. In fact, he stated that defendant did not even know Ronnell was hiding in the bushes

when he arrived at the apartment complex with Jordan. Defendant’s counsel further stated that

defendant “didn’t have a gun at all until he was scared to death and got one, and he got that

because *** [Jordan] was sitting in his car with a .40 caliber weapon in his lap. At that point,

defendant knew that he had to go out there because he was afraid for his life, from the victim in

this case, startled.” Later in his closing, defendant’s counsel again stated, “[Jordan] gets out a

long jacket, and he gets out a gun that has thirty-one possible bullets in it. The defendant is afraid

of this individual.” Defendant’s counsel also argued that defendant was scared after seeing

Ronnell shoot Jordan and that Ronnell looked at him like he was going to kill him. The State

objected to this statement and the court overruled the objection. Finally, near the end of his

closing, defendant’s counsel again asserted that defendant “was in fear not only of the

Hansbroughs, he was in fear of the victim.”

¶ 50 Defendant has shown that he established some evidence of each of the factors mentioned

above. Looking at defendant’s statement and the arguments made in his counsel’s closing, it is

clear that defendant’s feeling of “fear” was recurrent throughout the trial. According to his own

statement, defendant believed he was in danger. He also believed his mother was possibly in

danger. We emphasize that in order for a defendant to earn a self-defense instruction, he or she

need only show that very slight or some evidence supports that theory. See Lewis,

. Here, we believe that defendant has shown that force was threatened against

27 No. 1-14-0511

him when Jordan came to see defendant with a gun on his lap, asking if defendant had done his

“homework,” because Jordan’s actions amounted to a threat or at least could have reasonably

been interpreted as one. Additionally, by showing defendant the gun, Jordan became the initial

aggressor. On the night Jordan was killed, he had a gun with him again. Although defendant did

not see the gun, he saw defendant “fumbling in his waistband” and knew Jordan was at the

apartment complex in order to commit a robbery. Also, after defendant shot Jordan, Ronnell shot

Jordan with his own gun, showing that Jordan was, in fact, armed and the danger of harm to

defendant was imminent.

¶ 51 Whether the aforementioned interpretations and beliefs by defendant are reasonable or

unreasonable is of no consequence to the trial court’s evaluation, thus we need not address that

issue here, as it is the role of the trier of fact, not the trial judge, to weigh the evidence and decide

whether that belief was reasonable or unreasonable. Washington,

(citing

People v. Lockett,

(1980)). For example, in Washington, the defendant

testified he saw the victim pull a gun, however, no weapon was found at the scene. Id. ¶ 42.

Thus, the court stated that, “the trier of fact in this case, if instructed properly, could determine

from the evidence that defendant was mistaken and that his belief in the need for self-defense

was unreasonable.” Id. Here, although the jury may ultimately determine that defendant’s beliefs

were unreasonable, we do not consider such a possibility when making our decision.

¶ 52 We find People v. Serrano,

(1997), to be helpful to our analysis. In

Serrano, the defendant argued he was denied effective assistance of counsel where compulsion

was his theory of defense, but his counsel never asked for an instruction regarding the defense of

compulsion.

. The defendant did not dispute that he was present for the armed robbery

at issue; rather, both he and his accomplice testified that he was forced to perform the criminal

28 No. 1-14-0511

acts at gunpoint.

. The defendant also stated that he did not inform the police afterwards

because he was told that he and his family would be harmed if he did.

The court found that he

was denied effective assistance because “it cannot be said that the jury, not having been

instructed on the defense of compulsion, knew that the defendant’s testimony concerning his

fears of immediate harm and being forced by the other two men to do the armed robbery could

provide a defense to the acts.”

The court opined that where counsel sets forth a defense, he

should have requested an instruction on the same and failure to do so “cannot be called trial

strategy and is evidence of ineffective assistance of counsel.”

(citing People v. Lewis,

(1992)).

¶ 53 Defendant argues that Serrano supports his position because it acknowledges that where

trial counsel failed to ask for an instruction that was supported by the evidence and argued in

closing, it amounted to ineffective assistance. In its response, the State fails to address this case.

Rather, the State argues that the evidence did not support a self-defense instruction, and even if it

did, the theory of self-defense or second degree murder would directly contradict the defense’s

strategy presented at trial. We find that in this case, like Serrano, there was evidence, albeit

slight, that warranted a jury instruction that was not given.

¶ 54 Defendant’s counsel initially attempted to assert compulsion as an affirmative defense

but was not allowed to, as such a defense has not been available in a murder case in Illinois for

quite some time (see People v. Gleckler,

(1980)), which we believe is further

evidence of his deficient performance. Only after the court denied trial counsel’s request to assert

compulsion did he present the theory that Jordan was already dead at the time defendant shot

him. However, as defendant points out in his brief, the assertion that Jordan was already dead is

29 No. 1-14-0511

of no help in a case in which the jury was to be given an accountability instruction. Further, the

motion for a new trial filed by defendant’s trial counsel states:

“That with all due respect the [c]ourt erred in allowing the [j]ury to be instructed

with the accountability instruction when [defendant] was totally unaware that the co-

defendant was going to kill the victim. Additionally, since the [c]ourt allowed the

defendant to be responsible for the co-defendant’s actions he should have also been

cloaked with the co-defendant’s defense of self-defense which he was not allowed thus

depriving him of his due process.”

The language used by defendant’s counsel is significant. He wrote in the motion that defendant

was not allowed the use of the defense of self-defense, which is simply not accurate. Rather,

defendant’s counsel could have asserted self-defense as an affirmative defense or asked for a jury

instruction regarding the same. He did neither. Instead, he set forth the defense that Jordan was

already dead, which is not objectively reasonable when the jury was to be given an instruction

regarding accountability. It also is not consistent with the original defense of compulsion. In his

statement, defendant said numerous times that he was afraid for his safety and for the safety of

his and Ronnell’s mothers, both of whom lived in the apartment complex. Further, in his closing

argument, defendant’s counsel mentioned that defendant was scared at least four times,

specifically stating that defendant only got the gun he used to shoot Jordan after Jordan visited

defendant with a gun in his lap. After a review of the evidence presented at trial and the

applicable law, we believe that defendant has sufficiently shown that his trial counsel’s failure to

ask for a self-defense instruction fell below an objective standard of reasonableness and

amounted to deficient representation.

30 No. 1-14-0511

¶ 55 Next, we find that defendant has sufficiently shown that he did, in fact, suffer prejudice

due to his trial counsel’s deficiency, satisfying the second prong of Strickland, which requires

that a 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,

. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.”

Defendant asserts that he was prejudiced by trial counsel’s misunderstanding of

the applicable law. The State responds that defendant’s argument is based on “utter speculation”

and cannot support a Strickland claim. The State also argues that even if a self-defense

instruction would have been given, no reasonable jury would have exonerated defendant or

found him guilty of the lesser included offense of second degree murder. We disagree.

¶ 56 Additionally, defendant argues that the conviction and sentence of his codefendant is

relevant in determining whether he suffered prejudice. A court may take judicial notice of

information that the Illinois Department of Corrections provides on its website. People v. Young,

(2005). In defendant’s brief, he provides a citation to the IDOC

website, which shows that his codefendant, Ronnell, was convicted of second degree murder

approximately 1 year prior to defendant’s trial and received a sentence of 15 years’

imprisonment; thus, we recognize and take judicial notice of this fact. That Ronnell was

convicted of second degree murder necessarily implies that the jury received an instruction as to

the same. It also provides evidence that a “reasonable probability” exists that defendant may

have benefitted from a self-defense and second degree murder instruction because, based on the

totality of the evidence, the outcome is undermined by the fact that we cannot definitively know

what the jury would have decided if presented with a self-defense instruction.

31 No. 1-14-0511

¶ 57 Where a defendant shows that his counsel argues a theory of the case, such as an

affirmative defense, but then fails to ensure that the jury is properly instructed on that theory, his

counsel’s failure cannot be deemed trial strategy and defendant has satisfied the first prong under

Strickland. See People v. Gonzalez,

(2008). Additionally, defendant has

satisfied the second prong of Strickland because he has shown that his trial counsel’s deficiency

resulted in prejudice. Therefore, based on the foregoing, we find defendant was denied effective

assistance of counsel; thus his conviction must be reversed and a new trial ordered.

¶ 58 B. Denial of a Fair Sentencing Hearing

¶ 59 Although we need not address defendant’s second argument on appeal, as we have

reversed his conviction and thus also his sentence, we choose to address it because if defendant

is convicted after retrial, this sentencing hearing issue may reoccur. See People v. Richee,

(2005) (recognizing that although it need not address the defendant’s remaining

claims after finding the trial court committed reversible error, the appellate court opted to

address an issue anyway as it was “likely to reoccur on retrial”). Thus, we feel it necessary to

address defendant’s claim that he was denied a fair sentencing hearing.

¶ 60 Defendant argues that he was denied a fair sentencing hearing where the trial court

denied his request to present his mitigating evidence in camera. Assistant State’s Attorney Dan

Weiss was present in court on the date of defendant’s sentencing hearing in order to testify on

behalf of defendant, who had previously testified before a grand jury and provided information

in order to assist the State in an unrelated case involving the alleged solicitation for the murder of

an 11-year-old victim of criminal sexual abuse. The State does not dispute that defendant

provided valuable information. Prior to sentencing, defendant had been beaten up and stabbed

while in jail and feared for his safety if he were to be labeled a “snitch” as a result of Weiss’s

32 No. 1-14-0511

testimony in open court. His counsel requested that the mitigation portion of the sentencing

hearing be held in camera to prevent possible harm to defendant. The State did not object but

merely requested that defendant’s counsel confirm that defendant waived his right to be present

at that portion of the hearing, which he did on behalf of defendant. The State also requested that

the court confirm with defendant that he waived his right in order to avoid any future appellate

issues, which his counsel said he would. The court nonetheless denied defendant’s request.

¶ 61 The sixth amendment of the United States Constitution guarantees a public trial “as a

safeguard against any attempt to employ the courts as instruments of persecution,” and acts as

“an effective restraint on possible abuse of judicial power.” In re Oliver,

(1948); U.S. Const., amend. VI. “The central aim of a criminal proceeding must be to try the

accused fairly, and ‘[o]ur cases have uniformly recognized the public-trial guarantee as one

created for the benefit of the defendant.’ ” Waller v. Georgia,

(1984) (quoting

Gannett Co. v. DePasquale,

(1979)). “ ‘The presumption of openness may be

overcome only by an overriding interest based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that interest. The interest is to be articulated along

with findings specific enough that a reviewing court can determine whether the closure order was

properly entered.’ ” Waller,

(quoting Press-Enterprise Co. v. Superior Court,

(1984)).

¶ 62 Here, in denying defendant’s request for in camera proceedings, the trial court stated:

“I know what you’re agreeing upon is fine and well, but I don’t know what

the appellate court is going to agree on in the future. I’m not favorable to this. We are

in an open forum. Unless by statute it allows me to hold such procedures in camera

regardless of who agrees to it, I will not allow it.

33 No. 1-14-0511

You can rethink what you wish to question or present in mitigation, but anything

that goes will be in open court at this stage.”

We find the trial court’s assertion that it would not hold proceedings in camera unless presented

with statutory authority allowing it to do so to be problematic.

¶ 63 We recognize that Illinois does not have a statute that sets forth the framework that courts

are to use in determining if in camera proceedings are warranted. We believe that a statute or

rule that expressly allows a party or victim to present evidence in camera during sentencing

when good cause is shown may help avoid allegedly unfair sentencing hearings, like the one

presented in this case. Currently, section 5-4-1 of the Unified Code of Corrections, the Illinois

statute regarding sentencing, merely states that “a hearing shall be held to impose the sentence,”

and at the hearing, the court shall “consider evidence and information offered by the parties in

aggravation and mitigation.” 730 ILCS 5/5-4-1(a), (a)(4) (West 2014). The statute is silent

regarding a request from any party regarding in camera proceedings. We rely on a “good cause”

standard based on subsection (i)(4)(C) of Rule 32 of the Federal Rules of Criminal Procedure,

which reads:

“(C) In Camera Proceedings. Upon a party’s motion and for good cause, the court

may hear in camera any statement made under Rule 32(i)(4).” 4 Fed. R. Crim. P.

32(i)(4)(C).

¶ 64 Because we have not found an Illinois case in which a defendant sought to present

mitigation evidence in camera, we look to federal case law for support. In United States v.

Biagon,

(9th Cir. 2007), the Ninth Circuit Court of Appeals addressed the

4 Rule 32(i)(4) references a party or victim’s “opportunity to speak” at sentencing. “Opportunity to speak” includes the requirement that, inter alia, “[b]efore imposing sentence, the court must *** address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). 34 No. 1-14-0511

issue of whether the district court violated the defendant’s right of allocution when it denied a

motion to close the courtroom. At the beginning of the defendant’s sentencing hearing, his

attorney made a general, oral motion to close the courtroom, which the court denied.

at 846-

47. The defendant wanted the courtroom closed due to his cooperation with the government, in

which he offered “valuable information against his co-defendants and about the conspiracy in

general.”

. However, neither defense counsel nor the court ever stated in open court

during sentencing that the defendant had cooperated and provided information to the

government.

. In fact, the court went so far as to call the issue the “sort of elephant in

the room” that “we’re not going to discuss.” (Internal quotation marks omitted.)

The

defendant provided a statement in allocution wherein he sought forgiveness from the court.

¶ 65 On appeal, the Ninth Circuit determined that the district court did not violate the

defendant’s right of allocution.

The court pointed to Rule 32, which allows a statement to be

made in camera for good cause shown.

at 848 (quoting Fed. R. Crim. P. 32(i)(4)(C)). The

court stated that the defense did not make a motion pursuant to Rule 32 but merely made a

general, oral request for closure of the courtroom at the beginning of the sentencing hearing

without prior notice to the public, which is required before a court may close proceedings to

which a qualified right of access exists.

This failure to follow proper procedures was fatal to

the defense’s request.

However, in his concurrence, Judge Kleinfeld disagreed with this

reasoning by the majority.

(Kleinfeld, J., concurring). Judge Kleinfeld stated that there

was no requirement that a written motion be filed and the defense’s oral motion should have

invoked the court’s discretion under Rule 32.

Further, he wrote that, at times, there is a “good

reason” for holding sentencing hearings, at least partially, in camera.

. Specifically,

Judge Kleinfeld recognized:

35 No. 1-14-0511

“The most common reason for in camera proceedings during sentencing arises

when a defendant has cooperated with the government. The purpose is to protect him or

her from being murdered by individuals not sharing the defendant’s interest, or fellow

prisoners who find out that he was a ‘snitch.’ Many criminals have strong feelings about

people they call ‘snitches,’ even where their own cases were not affected. It is one thing

to send a defendant to jail or prison and quite another to set him up to be hurt or killed

there.”

¶ 66 The case before us is nearly identical to the situation Judge Kleinfeld discussed in his

concurrence in Biagon. Defendant cooperated with the State in an unrelated case involving

solicitation of the murder of an 11-year-old criminal sexual abuse victim. Defendant provided

valuable information and testified before the grand jury. Assistant State’s Attorney Weiss was in

court on the date of defendant’s sentencing hearing and ready to testify in mitigation on

defendant’s behalf. Defendant had previously been beaten and stabbed in prison and feared for

his safety should it become known that he acted as a “snitch” in the unrelated case. As Judge

Kleinfeld noted, “[m]any criminals have strong feelings about people they call ‘snitches.’ ”

Defendant’s attorney presented the trial court with this reasoning for his request to proceed with

mitigation in camera. However, the court, without any consideration of defendant’s interest in

proceeding in camera, denied his request because there was no statutory authority for proceeding

in that manner.

¶ 67 We believe defendant’s concerns for his safety amounted to good cause. We also believe

that creating a mechanism that would protect the safety of defendants who cooperate with the

government may encourage defendants to provide the State with information they acquire while

in jail or prison. This could ultimately help prevent violence or death to innocent victims, as was

36 No. 1-14-0511

allegedly prevented here. We recognize that the court below did not deny defendant the

opportunity to present mitigating evidence, it merely denied him the opportunity to do it in

camera. However, defendant had previously been injured by other inmates in the jail; thus, the

court was essentially asking defendant to choose between his safety and presenting mitigating

evidence, which we do not believe permits a fair hearing, especially where defendant did not

have any other mitigating evidence to present. As Judge Kleinfeld recognized, “[i]t is one thing

to send a defendant to jail or prison and quite another to set him up to be hurt or killed there.”

Given the dearth of case law in Illinois on this issue, and the fact that this issue may arise again

after defendant’s retrial if he is convicted, we found it imperative to address defendant’s second

argument on appeal.

¶ 68 C. Excessive Sentence

¶ 69 Based on our determinations in subsection I of this opinion, we need not address

defendant’s claims of an excessive sentence, as defendant is to receive a new trial that

necessarily also reverses his sentence of 65 years’ imprisonment.

¶ 70 III. CONCLUSION

¶ 71 Based on the foregoing, we reverse and remand this matter for a new trial.

¶ 72 Reversed and remanded.

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