No. 2-14-0786 Opinion filed November 16, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-898 ) DEMOND L. HUNT, ) Honorable ) John F. McAdams, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant, Demond L. Hunt, was convicted of two counts of armed

robbery (720 ILCS 5/18-2(a)(2) (West 2012)) and one count of aggravated battery (720 ILCS

5/12-3.05(f)(2) (West 2012)). On appeal, he argues that: (1) he was not proven guilty beyond a

reasonable doubt, and (2) his trial counsel was ineffective for failing to tender a jury instruction

on accomplice witness testimony. We affirm.

¶2 I. BACKGROUND

¶3 On February 14, 2014, defendant was charged by indictment with two counts of armed

robbery, one count of aggravated battery, and one count of unlawful possession of a weapon by a

felon. Prior to trial, the weapons charge was severed, and the State proceeded to trial on the

remaining counts.

¶4 Defendant’s jury trial began on April 14, 2014. In his opening statement, the assistant

State’s Attorney said that the jury “should question” the credibility of State witness Mariah

Romero and that she was “a liar” who had lied to the police. He further stated that Romero had a

deal with the State, allowing her to plead guilty to obstructing justice rather than face charges for

armed robbery, and that the jury “should question her credibility based on all of that.” He

additionally stated that, if the case were based on Romero’s testimony alone, the jury should find

defendant not guilty, but that the jury was going to hear testimony from several other witnesses.

Defense counsel similarly argued that the Romero was not believable.

¶5 We now summarize events according to the victims’ testimony. On November 27, 2013,

Beth Keller and Britany Garcia were working at the office of the University Heights apartment

complex, at 1120 Varsity Boulevard in De Kalb. Keller was the property manager, and Garcia

worked in the office part-time. Shortly after 4 p.m., a woman came into the office. Keller was

on the phone and asked if she could help her. The woman said that she had a question, and

Keller asked her to wait one moment. However, shortly before Keller got off the phone, the

woman left.

¶6 About 2 to 15 minutes later, a man with a rubbery white “Michael Myers” mask came

into the office. Keller could see that the man was black, as she could see his skin through the

mask’s eyeholes. Garcia could not see the man’s skin, but his voice sounded like that of a black

man. Garcia said that she was 5 feet 4 inches tall and that the man was a couple of inches taller

and “a little bit heavier set.” The man had a small black revolver in his hands. He repeatedly

told Keller and Garcia to get on the floor. Garcia got on her knees and put her hands up. Keller

refused to get down, and she hit the “panic button” to call the police. The man hit her on the

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right side of her face with the gun, knocking her down. He asked for money, but Garcia said that

they could not open the safe. After the man “realized he wasn’t going to get anything,” he took

Keller’s purse, which was under her desk, and Garcia’s phone before running out the door.

Keller’s purse contained her engagement ring, wedding band, Social Security card, and driver’s

license, and some credit cards, cash, and cigarettes. Garcia’s phone was a white Nokia Lumia.

After the man left, Garcia called 911.

¶7 Keller later learned that the police recovered the engagement ring but not the wedding

band. At trial, she identified a photograph of the ring. Garcia testified that on January 23, 2014,

she went to the police department and identified a cell phone as hers based on its contents,

including photographs and music. At trial, Garcia was shown a picture of a gun recovered by the

police, and she testified that it appeared to be the same size and color as the robber’s gun.

¶8 Romero provided the following testimony. Along with defendant, she was charged with

armed robbery in connection with the incident. The minimum sentence for that charge was 21

years. She also had a misdemeanor shoplifting charge pending in an unrelated case. Romero

had spoken to the assistant State’s Attorney twice about her testimony. In exchange for her

“truthful testimony” at trial, the State would dismiss the armed robbery charge and she would be

allowed to plead to obstructing justice and receive a sentence of conditional discharge.

¶9 On November 27, 2013, Romero was living at 1120 Varsity Boulevard, in apartment 314,

with defendant. They were in a dating relationship, and she was currently pregnant with their

child. Only Romero’s name was on the apartment lease, but they both had keys to the apartment.

On the day in question, Romero told defendant that she was going to the apartment complex

office because she wanted to “break” her lease and move out. Romero went to the office and

saw two women there. The older woman asked her to wait a minute, and Romero left. She

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returned to her apartment briefly; defendant was not there at that time. Romero then went

downstairs to her neighbor’s apartment. After a couple of minutes, she saw defendant in the

hallway. Two police officers entered the hallway, and defendant “basically fled” from Romero.

One of the officers asked her to step out of the apartment and state her name. She gave the false

name of Margaret Cartwright because she had a pending warrant for retail theft. The officers

took her to the police station and questioned her.

¶ 10 At the station, a detective asked Romero about the robbery that had just occurred in the

office. Because of her warrant, Romero initially lied and said that she did not know anything

about it. Romero later implicated Edcedric Williams and a man named “John-John” as having

been involved in the robbery. She did not have any information suggesting that they

participated, and at trial she could not explain why she named them.

¶ 11 At some point in the conversation, the detective said that he knew that Romero was lying

about her name and “everything else,” so Romero told him her real name. However, she

identified Williams in a photo lineup as having been involved in the robbery. She kept lying to

protect herself from the warrant, not to protect defendant. The detective exited and entered the

room again and said that the police knew everything that had happened, so Romero then

implicated defendant in the robbery. Romero also identified him in a photo lineup as having

robbed the office. However, she initially identified him as “Demond Oliver,” even though she

knew that Oliver was not his real last name.

¶ 12 Romero consented to a search of her apartment. At trial, Romero identified pictures of

her bathroom that showed a cell phone on the vanity. She had been in the bathroom 20 to 30

minutes before the robbery, and she did not know how the cell phone came to be there. Romero

also identified pictures showing a boot that belonged to her, with a gun inside. Romero

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recognized the gun as belonging to defendant; she had last seen him with it weeks before the

robbery. Romero further identified pictures of the following items as belonging to defendant: a

clipper bag, a wallet, and two debit cards, an identification card, and a Social Security card all

with defendant’s name.

¶ 13 Romero agreed that she had lied to the police several times during the course of the

investigation. She further agreed that, in light of those lies and the deal she had made with the

State, people would have a hard time believing anything she said. However, she said, her

testimony that day was the truth.

¶ 14 On cross-examination, Romero agreed that she had also told the police that she was

telling the truth. When she first saw the two officers in the apartment building, she told one

officer that she had not seen anything suspicious. Romero then told the second officer that she

had observed two unfamiliar males, and she described their clothing. At the police station,

Romero initially said that she had started off that day in her apartment, with a person named

Kiera Evans, and that she then left and went to apartment 218 with a person named Delaney

Offord. Romero said that she went to the office to get some change and that in the hallway she

saw a black male with a black or gray hoodie and a mixed-race Hispanic man. Romero then

changed her story and told the police that she started off in apartment 218 with Offord, Offord’s

sister “Jasmine,” and Jasmine’s boyfriend. Romero said that at this point John-John and a

biracial man came in and talked about committing a robbery.

¶ 15 After Romero gave the police her real name, she told them that she had been at the

apartment of Wargineele Dixon, Williams’ girlfriend, in University Village. Williams was there

and he asked her if she knew of a place that he could rob. Romero suggested her apartment

complex, and she went there with him. Williams showed her the handgun he was going to use,

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and she said that she would stake out the office first. After telling the police this story, Romero

identified Williams in a photo lineup. Williams was a black male between 5 feet 4 inches and 6

feet tall.

¶ 16 Romero characterized defendant as living with her in her apartment, but she agreed that

he actually just stayed with her on occasion. At the time of the robbery, she believed that she

was pregnant, but it had not been confirmed. She knew that defendant also had another

girlfriend. In Romero’s apartment, defendant’s possessions were in a single travel bag. When

Romero was arrested, she had $87 cash in her possession.

¶ 17 Romero agreed that it was her understanding that, in order to get the plea deal, her

testimony had to be against defendant. Pursuant to the deal, she would not have to spend

additional time in jail and would not have to report to a probation officer. Also, her retail theft

charge would be dismissed. Romero agreed that being in jail was “not pleasurable” and that

prison would likely be worse.

¶ 18 On redirect examination, Romero testified that, when defendant fled from the hallway,

he passed one of the officers and went down a staircase in the middle of the hallway.

Immediately afterward, Romero testified that an officer was coming toward them and “just

missed” defendant. Romero had earned the $87 while working at Party City.

¶ 19 Romero then testified that earlier in the day on November 27, 2013, defendant had asked

if she knew where the apartment office kept money. Defendant had also asked her to go down

and “scope out” the office for him.

¶ 20 On re-cross-examination, Romero agreed that she was not concerned about what

happened to defendant. She further agreed that, on the witness stand, she had offered conflicting

versions about defendant’s movements in the hallway when the officers entered.

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¶ 21 De Kalb County Deputy Sheriff Doug Brouwer testified that inmates entering the jail

received thorough pat-downs to make sure that they had no drugs or weapons. It was not

“common” to find contraband that had not been found up to that point, but “it happened quite a

bit.” In such situations, the contraband was generally small. On December 5, 2013, he

participated in defendant’s booking process. When patting down one of the cargo pockets on

defendant’s pants, Brouwer found a diamond engagement ring. De Kalb police officer Keith

Ehrke testified that he transported defendant from the police department to the jail and saw

Brouwer find the ring in defendant’s pocket. Ehrke agreed that he did not search defendant

before transporting him, even though his department’s policies stated that inmates should be

searched before transportation.

¶ 22 Police officers testified about recovering from Romero’s apartment the items that

Romero identified as belonging to defendant, including the gun, as well as the cell phone that

Garcia identified as hers.

¶ 23 De Kalb police officer Paul Mott testified as follows. On December 5, 2013, Mott

learned that defendant had been taken into custody in Steger, Illinois, by the U.S. Marshals

Service. Mott made arrangements to pick up defendant. When Mott and Detective Mark

Nachman met up with the marshals, the marshals indicated that defendant had already been

searched for weapons. Nachman conducted a pat-down of defendant before putting him in the

patrol car.

¶ 24 Upon returning to De Kalb, Mott interviewed defendant. He told defendant of the

charges, and defendant said that he had been to De Kalb only one time and was being framed.

Defendant next said that he wanted to tell the truth but that he could not. Romero’s name came

up a couple of times in their conversation. Defendant said that Romero did not know what was

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going on and he asked what he could do to keep her “out of this.” He later asked how long it

would be before she was released and what he needed to do to have her released. Defendant then

asked how much time someone would get if he were honest about what happened. Last,

defendant said that he was sorry, but he could not implicate himself. Mott did not transcribe his

conversation with defendant verbatim but rather wrote a summary of the conversation a few days

after defendant’s arrest.

¶ 25 On cross-examination, Mott agreed that Keller told him that her purse contained $76,

consisting of three $20 bills, one $5 bill, and the remainder in $1 bills. When Romero was

arrested, she had $87, consisting of three $20 bills, one $10 bill, two $5 bills, and seven $1 bills.

Romero gave the officers many different stories when she was interviewed. Romero mentioned

several people who might have been involved in the robbery, including Jon Rounsaville. Mott

spoke to Rounsaville and ruled him out as having any involvement. He spoke to Offord’s

employer, who verified where Offord was that day. Mott could not remember if he or Sergeant

Steve Lekkas spoke to Williams. Mott also could not remember if he spoke to Jasmine and

could not remember if he asked anyone whether they had seen defendant in the area of the

robbery on the day in question.

¶ 26 When Mott transported defendant to the police department, he conducted a “complete

custodial search,” which was a pat-down of his exterior. Mott did not find anything on

defendant. Mott agreed that defendant never said that he robbed anyone or had proceeds from

the robbery. Mott also agreed that defendant was worried about what would happen to Romero,

who had been in custody for about eight days at the time.

¶ 27 On redirect examination, Mott testified that the police knew that Williams was not

involved in the robbery, because he had an alibi.

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¶ 28 The State rested, and defendant made a motion for a directed finding, which the trial

court denied.

¶ 29 U.S. Marshal Michael Urgo then testified that he arrested defendant on December 5,

2013. He patted down defendant’s exterior clothing to search for weapons, and he found a pack

of cigarettes in one of defendant’s upper pants pockets. In another pocket, Urgo found a plastic

bag with a green leafy substance. During the search, Urgo was wearing gloves that were a little

thicker than batting gloves.

¶ 30 Lekkas testified as follows. He was part of the group of officers who responded to the

robbery. He spoke to a man named David Billups, who was about to visit apartment 218, and a

man named Nick Robinson, who was in apartment 218. He did not question these individuals

again after defendant was named as a suspect.

¶ 31 After Romero named Williams as having been involved in the robbery, Lekkas went to

Dixon’s apartment and she said that Williams had not been there in about one month and that he

was living in Chicago with his grandmother. Dixon called the grandmother in Lekkas’s

presence, and the grandmother said that she had just seen Williams. Dixon allowed Lekkas to

search the apartment, and he did not find any men’s clothing. Dixon said that she knew Romero

and that they had not gotten along since they were arrested together. Dixon said that Romero

was lying and probably protecting her own boyfriend. The police never interviewed Williams as

a suspect.

¶ 32 In the State’s closing argument, the assistant State’s Attorney stated that, if Romero were

the only witness, the jury should find defendant not guilty. He said that: Romero was a liar;

some of the things she testified to were probably lies; and she lied when it suited her and to

protect defendant. However, he further said that the circumstantial evidence, including the items

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identified as defendant’s found in Romero’s apartment and Keller’s ring found in defendant’s

pocket, showed that the State had proven its case beyond a reasonable doubt. Defense counsel

argued that the jury could not believe Romero, so there was no credible evidence that defendant

committed the crimes.

¶ 33 After more than nine hours of deliberation, the jury found defendant guilty of the charges.

On May 15, 2014, defendant filed motions for a new trial and for judgment notwithstanding the

verdict. The trial court denied the motions on June 24, 2014.

¶ 34 At the sentencing hearing on August 6, 2014, the trial court found that all three counts

merged into one armed robbery count. It sentenced defendant to 23 years’ imprisonment.

Defendant timely appealed.

¶ 35 II. ANALYSIS

¶ 36 A. Sufficiency of the Evidence

¶ 37 Defendant first argues that he was not proven guilty beyond a reasonable doubt. When

faced with a challenge to the sufficiency of the evidence, we must determine whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia,

(1979); People v. Collins,

(1985). The trier of

fact has the responsibility to assess witnesses’ credibility, weigh their testimony, resolve

inconsistencies and conflicts in the evidence, and draw reasonable inferences from the evidence.

People v. Sutherland,

(2006). We will not set aside a criminal conviction

unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable

doubt of the defendant’s guilt. People v. Lloyd,

.

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¶ 38 Defendant’s sole challenge to the evidence’s sufficiency is that the State failed to prove

the element of identity, i.e., that he was the masked robber.

¶ 39 Defendant cites People v. Ash,

(1984), and People v. Wilson,

(1977). In Ash, our supreme court stated that the trier of fact may base a conviction on the

uncorroborated testimony of an accomplice, but that such testimony must be cautiously

scrutinized on appeal. Ash,

. The court stated that, if a witness is hoping for a

reward from the prosecution, the witness’s testimony should not be accepted unless it carries

within it an “ ‘absolute conviction of its truth.’ ”

(quoting People v. Williams,

(1976)). The court stated that such a standard was not met in the case before it, because the

accomplice was seeking a lenient sentence; he admitted that he would “ ‘do just about anything’

” to avoid being incarcerated with the three men he had testified against; he chose to testify only

after the prosecution threatened to rescind the agreements that had been negotiated; and the

testimony allegedly corroborating the accomplice’s testimony did not pertain to who committed

the crime. Id. at 493-94.

¶ 40 In Wilson, our supreme court held that the defendant was not proven guilty beyond a

reasonable doubt where the only evidence linking him to a robbery was an accomplice’s

testimony and the accomplice was promised immunity for his testimony. Wilson,

. The court noted that the victim never identified the defendant as the robber and that she

described the robber as being seven inches shorter.

¶ 41 Defendant argues that, like the accomplice witnesses in Ash and Wilson, Romero was the

only person who identified him as the offender. Defendant notes that Romero testified in

exchange for avoiding an armed robbery conviction carrying a minimum sentence of 21 years

and that she also avoided an unrelated retail theft charge. Romero was promised that she could

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plead guilty to obstructing justice and receive 12 months’ conditional discharge. Defendant cites

Romero’s testimony that she could receive the benefit of her bargain if she provided truthful

testimony, which she believed required implicating him as the offender. Defendant argues that

Romero’s inducement to testify against him is enough to call into question whether her testimony

bore the “absolute conviction of truth.”

¶ 42 Defendant argues that doubts about Romero’s veracity were compounded by her

exposure as a habitual liar and her inconsistent testimony. Defendant points out that Romero

admitted repeatedly lying to the police about her name and involvement in the robbery. He

argues that she gave no fewer than six different versions of the events surrounding the crime and

identified multiple suspects by description, by name, and from photo arrays. Defendant

maintains that, at trial, Romero also gave different accounts of his involvement, including never-

before-heard details about his escape from the apartment complex following the robbery.

Defendant cites inconsistencies in Romero’s testimony about where he was before the robbery,

what they talked about, when he was in the apartment building hallway, and whether he walked

by any police officers when leaving the hallway. He further argues that Romero stated, for the

first time at trial, that she and defendant discussed a potential robbery and that she went to the

office to scope it out.

¶ 43 Defendant argues that, as in Wilson, the other witnesses and the circumstantial evidence

provided information about what happened during the incident but did not corroborate that he

was the offender. Defendant points out that Keller and Garcia described the offender only as a

black male who was a little bit taller than 5 feet 4 inches and “heavier set.” Defendant maintains

that, although Garcia testified that the State’s photograph of the gun found in Romero’s

apartment showed a gun of the same size and color as the one used in the incident, Garcia

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admitted viewing the photograph in preparation for trial, so she might have identified the gun

based on that prior viewing as opposed to her memory of the gun wielded by the offender.

¶ 44 Defendant argues that the police officers’ testimony also does not corroborate Romero’s

testimony. Defendant argues that his personal possessions found in Romero’s apartment

established only that he might have been there at some point and left some things there. He

maintains that the presence of the phone and the gun there implicated him only because Romero

linked him to those items. Defendant notes that, although Romero had identified Williams as the

offender and Williams matched the offender’s race and approximate height, it was unclear

whether the police interviewed Williams. Defendant argues that it appears that the police simply

credited Dixon’s statement that Williams had not been in her apartment for about one month and

that Romero was probably lying to protect defendant. Defendant asserts that his own statements

to Mott at most indicated that he was concerned about what would happen to Romero.

Defendant maintains that, even if his statements could be considered inculpatory, they were

unreliable because, rather than recording them verbatim, Mott only summarized them, a few days

after defendant’s arrest.

¶ 45 Regarding the presence of the ring in his pocket, defendant argues that its discovery was

dubious given that it was found after he had previously been searched at least four times and

only after he had failed to confess. Defendant contends that, although the jury could accept the

State’s argument that it was unreasonable to infer that the police planted the ring on defendant,

the jury could not infer that he was guilty of the robbery based solely on his unexplained

possession of the ring. Defendant cites People v. Housby,

(1981). There, our

supreme court stated that a person’s recent and exclusive possession of items stolen in a

burglary, without a reasonable explanation, gives rise to the permissive inference that the

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possession was obtained by the burglary. Id. at 422-24. Such an inference is proper if (1) there

is a rational connection between a person’s recent possession of property stolen in a burglary and

that person’s participation in the burglary; (2) the person’s guilt of the burglary is more likely

than not to flow from the recent, unexplained, and exclusive possession of the burglary proceeds;

and (3) there is evidence corroborating the person’s guilt. Id. at 424. Defendant argues that,

although the evidence here satisfied the second Housby prong, it did not satisfy the first and third

prongs. As to the first prong, defendant argues that his possession of a single item taken during

the robbery was not proximate to the time or place of the offense, as he was arrested eight days

later and about 80 to 90 miles from the scene. As to the third prong, defendant argues that the

only other evidence linking him to the crime was Romero’s unreliable accomplice testimony.

¶ 46 We conclude that there was sufficient evidence to prove defendant guilty of the robbery

beyond a reasonable doubt. Romero ultimately identified defendant as the robber to the police,

and at trial she testified that he was the offender. Romero further testified that: she was in a

relationship with defendant, and he was the father of her unborn child; she was living at 1120

Varsity Boulevard in De Kalb, and defendant stayed with her sometimes and had a key; the

police found items in her apartment, including an identification card, a Social Security card,

debit cards, and a gun, that belonged to defendant; a phone that police found in her bathroom

was not there 20 to 30 minutes before the robbery; earlier on the day of the robbery, defendant

asked if she knew where the apartment complex office kept money; and defendant asked her to

“scope out” the office for him.

¶ 47 As Romero was an accomplice, her testimony must be cautiously scrutinized, especially

considering that her plea deal allowed her to avoid the possibility of at least 21 years’

imprisonment for armed robbery. See Ash,

; see also People v. Zambrano, 2016

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IL App (3d) 140178, ¶ 27 (an accomplice’s testimony should be viewed with suspicion and

accepted only with great caution, especially if the witness was promised leniency or immunity).

However, Romero’s testimony was corroborated by Keller’s and Garcia’s testimony and by

physical evidence. Specifically, Keller and Garcia testified that a woman came into the office

and left and that the robber entered shortly afterward. They testified that the robber was a black

male holding a black revolver and Garcia testified that the revolver looked similar to the gun

police found in Romero’s apartment. Garcia also testified that the robber took her Nokia Lumia

cell phone, and the evidence established that it was the phone found in Romero’s bathroom.

Defendant’s wallet and personal possessions were found in Romero’s apartment, and, though he

argues that they show only that he might have been there at some point, the nature of the items,

including his identification card and two debit cards, circumstantially indicates that he was living

or staying in the apartment on the day of the robbery. Keller testified that the assailant stole her

purse, which contained her engagement ring, and she identified the ring as the one that police

found in defendant’s pocket eight days after the incident. Defendant’s statements to Mott

indicated that he had an ongoing relationship with Romero. Moreover, though defendant did not

confess, he offered somewhat inculpatory statements by saying that he wanted to tell the truth

but could not; stating that Romero did not know what was going on; and asking how much time

someone would get if he were honest about what happened.

¶ 48 Thus, unlike in Ash and Wilson, aside from Romero’s testimony, there was corroborating

evidence linking defendant to the crime, including that Keller’s ring was found in his pocket.

Although defendant seems to take the position that we cannot consider the ring’s presence

because the circumstances do not satisfy the Housby test, that test applies only to instructions

advising a jury of the inferences it may draw. People v. Richardson,

(1984).

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Here, defendant has not challenged any jury instructions on this issue, nor was the jury even

instructed about a presumption regarding robbery proceeds. Moreover, in closing argument, the

defense brought up the possibility that someone planted the ring on defendant or that Romero

gave it to him after the robbery occurred. It was up to the jury to determine whether to accept or

reject the evidence and the theories presented at trial. People v. Washington,

(2007).

¶ 49 As for the police investigation of Williams, the defense highlighted through its cross-

examination and closing argument the limited nature of that investigation, and it was the jury’s

role to weigh that evidence. See People v. Frazier,

. Similarly,

both the prosecution and the defense emphasized Romero’s deal with the State and her

credibility problems, with the prosecution stating in closing that she was a “liar” and probably

told some lies on the witness stand. “[W]hile subject to careful scrutiny, the testimony of an

accomplice, whether it is corroborated or uncorroborated, is sufficient to sustain a criminal

conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.” People v.

McLaurin,

(1998). The evidence against defendant cannot be characterized as

overwhelming, but considering Romero’s testimony, along with the corroborating evidence

mentioned, a rational trier of fact could have determined that defendant committed the crime

beyond a reasonable doubt.

¶ 50 B. Ineffective Assistance of Counsel

¶ 51 Defendant next argues that his trial counsel was ineffective for failing to tender the

pattern jury instruction regarding accomplice witness testimony. For a claim of ineffective

assistance of counsel, a defendant must satisfy the two-pronged test set forth in Strickland v.

Washington,

(1984). People v. Hodges,

(2009). As to trial

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counsel, the defendant must first establish that, despite the strong presumption that counsel acted

competently and that the challenged action was the product of sound trial strategy, counsel’s

representation fell below an objective standard of reasonableness under prevailing professional

norms such that he or she was not functioning as the counsel guaranteed by the sixth amendment.

People v. Manning,

(2008). Second, the defendant must establish prejudice

by showing a reasonable probability that the proceeding would have resulted differently absent

counsel’s errors. People v. Valdez,

. A failure to satisfy either prong of the

Strickland test precludes a finding of ineffectiveness. People v. Simpson,

.

Where, as here, a claim of ineffective assistance was not raised in the trial court, we review the

issue de novo. People v. Lofton,

, ¶ 24.

¶ 52 Defendant argues that his trial counsel should have tendered Illinois Pattern Jury

Instructions, Criminal, No. 3.17 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.17). That

instruction states:

“When a witness says he was involved in the commission of a crime with the

defendant, the testimony of that witness is subject to suspicion and should be considered

by you with caution. It should be carefully examined in light of the other evidence in the

case.” Id.

The instruction should be given if the totality of the evidence and the reasonable inferences

derived from the evidence establish probable cause to believe that the witness participated in the

crime, as either a principal or an accomplice. People v. Davis,

(2004).

The instruction’s purpose is to warn the jury that the witness might have a strong motivation to

provide false testimony for the State in exchange for immunity or some other lenient treatment.

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Id. at 798. When accomplices testify, courts have found no valid reason for not requesting IPI

Criminal 4th No. 3.17. Id. at 795.

¶ 53 Defendant argues that the totality of the evidence presented at trial was sufficient to

establish probable cause that Romero participated in the armed robbery, so the jury should have

been given IPI Criminal 4th No. 3.17. The State concedes that trial counsel’s failure to tender

the instruction was objectively unreasonable and thereby satisfies the first prong of the

Strickland test.

¶ 54 The question remains whether the failure to request the instruction prejudiced defendant,

as required by Strickland’s second prong. In People v. McCallister,

(2000),

our supreme court held that, even though trial counsel did not request the accomplice-witness

instruction, the defendant failed to establish a reasonable probability that the trial would have

resulted differently had the instruction been given. It based this conclusion on: (1) the inherent

weaknesses of the defendant’s own testimony; (2) the strength of the evidence offered against the

defendant apart from the accomplice witness’s testimony; and (3) the instructions the jury

actually received.

.

¶ 55 Defendant analogizes his case to People v. Wheeler,

(2010), and

People v. Campbell,

(1995). In Wheeler, the court concluded that defense

counsel’s error in failing to tender the accomplice-witness instruction was not harmless, because

the evidence was closely balanced and the State’s case rested upon an accomplice as its key

witness. Wheeler,

. The court stated that, without the accomplice’s

testimony, there were no witnesses who could identify the defendant as the shooter and there was

no physical evidence linking the defendant to the crime.

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¶ 56 In Campbell, two accomplices, who were dating each other, testified against the

defendant pursuant to deals with the State. Campbell,

. Although there

was evidence that the defendant was at the scene of the crime, only the accomplices’ testimony

identified the defendant as the perpetrator of the offense.

The appellate court concluded that

defense counsel’s failure to tender the accomplice-witness instruction constituted ineffective

assistance of counsel.

.

¶ 57 As the State points out in its brief, Zambrano is also relevant to this issue. There, the

court held that defense counsel’s failure to submit the accomplice-witness instruction prejudiced

the defendant, because the accomplice was testifying under a grant of use immunity and his

testimony was the only evidence establishing the defendant’s participation in the crime.

Zambrano,

.

¶ 58 Defendant argues that, as in the above-cited cases, here the State’s case relied heavily on

the testimony of its accomplice witness, Romero. Defendant argues that she provided the only

evidence that he could access her apartment in her absence, that he was in De Kalb on the day of

the offense, that he possessed the gun found in her apartment and used in the robbery, and that he

expressed an intent to rob the apartment complex office and had done so. Defendant maintains

that these facts amount to the motive, means, and opportunity to commit the offense. Defendant

contends that, without Romero’s testimony, the State had nothing to prove that he was the

robber, nor could it establish more than a tenuous link between him, the gun in Romero’s

apartment, and the proceeds of the robbery. Defendant maintains that his alleged statements to

Mott were unreliable and only arguably inculpatory. Defendant also argues that, although the

State “disingenuously” encouraged the jury to question Romero’s credibility because she was a

“liar,” the jury had to believe at least some of her testimony for the State to meet its burden.

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¶ 59 After considering the record in this case, we conclude that defendant has failed to

sufficiently establish that the results of the trial would have been different had defense counsel

tendered the accomplice-witness instruction. Looking at the McCallister factors (see supra ¶

54), the first factor does not apply, because defendant did not testify. The second factor involves

the strength of the evidence offered against the defendant apart from the accomplice witness’s

testimony. McCallister,

. As discussed, there was corroborating evidence

linking defendant to the crime. Keller and Garcia described the perpetrator as a black male,

taller than 5 feet 4 inches and heavier set. The presence of defendant’s personal possessions in

Romero’s apartment, including his wallet with his identification, Social Security, and debit cards,

circumstantially indicates that he was staying or living in the apartment on the day in question.

Keller and Garcia described the offender as holding a black revolver, and Garcia testified that the

revolver looked similar to the gun police found in Romero’s apartment. Garcia’s cell phone,

which she testified that the robber took, was also found in Romero’s apartment. Keller testified

that the robber took her purse, which contained her engagement ring, and she identified as hers

the ring found in defendant’s pocket eight days after the robbery. Defendant’s conversation with

Mott contained somewhat inculpatory statements, including that he wanted to tell the truth but

could not, that Romero did not know what was going on, and that he wanted to know how much

time someone would get if he were honest about what happened. Finally, the police investigated

the other men Romero initially implicated in the robbery, but the police ruled them out as

suspects.

¶ 60 The third McCallister factor considers the instructions the jury actually received.

The

jury here received the pattern instruction on witness credibility, which states:

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“Only you are the judges of the believability of the witnesses and the weight to be

given to the testimony of each of them. In considering the testimony of any witness, you

may take into account his ability and opportunity to observe, his memory, his manner

while testifying, any interest, bias, or prejudice he may have, and the reasonableness of

his testimony considered in the light of all the evidence in the case.” Illinois Pattern Jury

Instructions, Criminal, No. 1.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 1.02).

This general instruction on witness credibility alone will not cure the failure to request the

accomplice-witness instruction. McCallister, 249 Ill. 2d at 96. However, in McCallister, our

supreme court stated that “the fact that the jury was told to consider, in general, the bias, interest

or prejudice of the witnesses may be considered as one factor, among others, which establishes

that [the] defendant was not prejudiced by his trial counsel’s failure to tender the accomplice

witness instruction.” (Emphasis in original.) Id. at 97.

¶ 61 Here, the jury was additionally given Illinois Pattern Jury Instructions, Criminal, No. 3.11

(4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.11), which pertains to prior inconsistent

statements and provides:

“The believability of a witness may be challenged by evidence that on some

former occasion he made a statement that was not consistent with his testimony in this

case. Evidence of this kind ordinarily may be considered by you for the limited purpose

of deciding the weight to be given to the testimony you heard from the witness in this

courtroom.”

¶ 62 Moreover, the assistant State’s Attorney specifically argued in both his opening and

closing statements that the jury should question Romero’s credibility; that she was “a liar” who

lied to the police; and that, if Romero were the only witness, the jury should find defendant not

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guilty. In his opening statement and in his direct examination of Romero, he highlighted that she

had a deal with the State whereby, in exchange for her testimony at trial, the armed robbery

charge against her would be dismissed and she could plead guilty to obstruction of justice and

receive conditional discharge. Defense counsel also argued in his opening and closing

statements that Romero was not believable, and, in his cross-examination of her, he brought out

the conflicting versions of events that she had given to the police and in her testimony. Defense

counsel similarly emphasized Romero’s deal with the State, including her belief that the

agreement required her to testify against defendant. As stated, the purpose of the accomplice-

witness instruction is to warn the jury that the witness might have a strong motivation to provide

false testimony for the State in return for some form of lenient treatment (Davis,

), and the attorneys’ arguments, coupled with the instructions that were given, clearly

warned the jury that it should view Romero’s testimony with suspicion.

¶ 63 In sum, considering (1) the evidence corroborating Romero’s testimony; (2) the

instructions that the jury did receive, namely IPI Criminal 4th No. 1.02 on general witness

credibility and IPI Criminal 4th No. 3.11 on prior inconsistent statements; and (3) the fact that, in

their opening and closing statements and in their examinations of Romero, the parties repeatedly

encouraged the jury to question Romero’s credibility, we conclude that defendant cannot show

that he was prejudiced by his counsel’s failure to tender the instruction on accomplice-witness

testimony.

¶ 64 The above-mentioned considerations distinguish this case from Wheeler, Campbell, and

Zambrano. Specifically, in those cases there was no physical evidence linking the defendants to

the crimes; the juries did not receive IPI Criminal 4th No. 3.11; and those trials did not include

repeated assertions by both parties that the juries should question the accomplices’ credibility.

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Defendant argues that arguments by the parties cannot substitute for jury instructions from the

court. See People v. Carini,

(1986) (instructing the jury as to matters

of law is a judicial function exclusively within the province of the trial court). We have no

quarrel with this general assertion. However, accepting that the failure to give the accomplice-

witness instruction was unreasonable, under Strickland and McCallister defendant was still

required to show a reasonable probability that the trial would have resulted differently had his

counsel tendered the instruction. In making this assessment, we considered the totality of the

circumstances (see People v. Furdge,

(2002)), which includes,

among other things, the parties’ examinations of the witnesses and their remarks to the jury. See

also Campbell,

(stating that counsel’s arguments can be considered in

the analysis). Notably, we also considered the evidence apart from Romero’s testimony and the

instructions that the jury did receive. Based on the record before us, defendant cannot show that

he was prejudiced by his counsel’s failure to tender the instruction on accomplice-witness

testimony, and he therefore cannot succeed on his claim that he received ineffective assistance of

counsel.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, we affirm the judgment of the De Kalb County circuit court. As

part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this

appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls,

(1978).

¶ 67 Affirmed.

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