No. 1-16-0705 Opinion filed March 29, 2019

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) No. 12 CR 16111 v. ) ) COURTNEY LEWIS, ) The Honorable ) Thomas J. Byrne, Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant Courtney Lewis was convicted after a jury trial of aggravated

unlawful use of a weapon (AUUW) and sentenced to one year in the Illinois

Department of Corrections (IDOC). On appeal, defendant claims: that the

State failed to perfect its impeachment of defense witnesses; that the trial court

abused its discretion by denying defense counsel's request to have the gun No. 1-16-0705

tested for fingerprints; and that the fines and fees order must be corrected. The

State agrees that certain fines and fees must be corrected. For the following

reasons, we affirm defendant's conviction and order the correction of certain

fines and fees.

¶2 BACKGROUND

¶3 The trial court declared a mistrial after defendant's first trial due to a

hung jury. Prior to his second trial, defendant moved the court to permit

fingerprint testing of the gun in question. The trial court denied the motion,

observing that the handling of the gun during the first trial would have

obliterated any fingerprints on it and "the time to test this weapon for prints has

come and gone."

¶4 At the second trial, the State called three police officers to testify, and the

defense called defendant and a friend of defendant's. The trial was basically a

credibility dispute between two competing versions of the events: the officers

versus defendant and his friend.

¶5 The evidence at trial established that Chicago police officers Joseph

Montesdeoca, Pablo Delgado, Orlando Long and Brock1 arrived in the vicinity

1 Officer Brock did not testify and his first name does not appear in the record. 2 No. 1-16-0705

of 108th Street and South Eggleston Avenue in Chicago at 2 a.m. on August 18,

2012, in response to the report of an armed man in that area.

¶6 Officer Joseph Montesdeoca testified that he arrived with his partner

Officer Pablo Delgado in an unmarked Chevy Tahoe. The two officers were in

plain clothes, but wearing bullet-proof vests with silver badges on the front and

the word "Police" on the back. After Montesdeoca stopped their vehicle and

exited, defendant looked at him, grabbed the right side of his waistband, and ran

south on Eggleston Avenue. Montesdeoca chased him on foot. As they ran,

defendant looked back, pulled a gun out from his right side, dropped it on the

ground and then ran into a yard, through a gangway and into a rear yard with a

six-foot chain link fence. As Montesdeoca chased defendant, Montesdeoca

yelled that he was a police officer and told defendant to stop, but defendant did

not stop. After defendant jumped the chain link fence, he fell. After

Montesdeoca jumped the fence, he found defendant hiding near the basement

door of the house. Montesdeoca told him to stop and handcuffed him. After

handcuffing defendant, Montesdeoca was joined by Officer Long, who had the

gun that defendant had dropped. On cross, Montesdeoca admitted that it would

have been difficult to observe the items identifying him as a police officer.

¶7 Officer Pablo Delgado testified that he and his partner, Officer Joseph

Montesdeoca, were 15 to 20 feet away from defendant when they first observed

3 No. 1-16-0705

defendant on Eggleston Avenue and that defendant was the only person on the

street at that time. Montesdeoca, who was driving, stopped their vehicle and

both officers exited. As Montesdeoca approached, defendant grabbed his

waistband on the right side and ran. After defendant ran a short distance he

pulled a gun out of his waistband and dropped it on the front yard of a house.

While Montesdeoca pursued and arrested defendant, Delgado went to retrieve

the gun.

¶8 Later, after defendant was arrested and standing by a police vehicle,

Delgado read defendant his Miranda rights. Defendant acknowledged that he

understood his rights and agreed to speak with the officer. Defendant stated that

he was carrying the gun for protection. However, on cross-examination,

Delgado admitted that this statement was not memorialized or signed by

defendant.

¶9 Officer Orlando Long testified that he was with his partner, Officer

Brock, in a marked police vehicle when they received a call about a man with a

gun. Officers Montesdeoca and Delgado arrived first, exited their vehicle and

began chasing someone. Long exited his vehicle and retrieved a gun that was

lying in the front yard of a home on Eggleston Avenue. On cross-examination,

Long admitted that he did not use gloves when he retrieved the gun, that he did

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not place it in an envelope or bag at the scene, and that the gun was not

examined for fingerprints.

¶ 10 The parties then stipulated that defendant had never been issued a

Firearm Owners Identification card, and the State rested.

¶ 11 The defense then called defendant and his friend, Joshua Reed. Reed

testified that he was 22 years old at the time of the second trial, which was held

on October 22, 2015, over three years from the date of the offense. Reed

testified that he had known defendant since childhood. At the time of

defendant's arrest, they spent a lot of time together, but they had since had a

falling out and were no longer friends at the time of trial. Reed did not observe

a gun in defendant's possession and was not aware that defendant ever carried a

gun.

¶ 12 Reed attended a party with defendant and Allen Carley at 108th Street

and Eggleston Avenue at 9 or 10 p.m. The party, which lasted about two hours,

was attended by 15 to 20 people, and strippers performed. After the party

ended, there were about 15 people, including Reed, in front of the house,

talking and heading to their vehicles. As they were standing in front of the

house, a vehicle drove down Eggleston Avenue very fast and without lights on.

Everyone scattered and Reed ran because he thought it could be a drive-by

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shooting. Reed and Carley ran in the same direction but he did not observe

where defendant ran and did not observe defendant again that night.

¶ 13 On cross-examination, the State asked Reed a series of questions which

defendant discusses on appeal. As a result, we provide the colloquy below:

"Q. And you said that was a stripper party, right?

A. Yes, sir.

Q. And were people drinking at the party?

A. I'm actually not too sure.

Q. There were 15 to 20 people there at the party?

A. Yes, sir.

Q. And you were all in the same room, right?

A. A lot—some people were in different areas.

Q. Okay. Did you stay in the same room the whole night?

A. Relatively, it was like—it was sort of two rooms, living room,

dining room.

Q. Okay. And were those two rooms next to each other?

A. Yes.

Q. Okay. And you were at the party for a few hours, right?

***

6 No. 1-16-0705

A. Yes, yes.

Q. And it's your testimony here today that you don't know if people

were drinking?

A. No sir. I don't.

Q. What about smoking weed? Were people smoking weed?

DEFENSE COUNSEL: Relevance.

THE COURT: Overruled.

A. I'm not sure.

Q. Were you drinking?

A. No.

Q. Were you smoking weed?

A. No.

Q. What about the defendant? Was he drinking?

A. No.

Q. Did he smoke any weed?

A. No, not to my knowledge.

Q. What about your friend Allen?

A. Not to my knowledge.

Q. So yes or no.

7 No. 1-16-0705

A. No."

¶ 14 Defendant testified that he had turned 20 years old the month before the

party and that he arrived at the party with Joshua Reed and Allen Carley. When

it ended, there were 15 to 20 people standing outside, in small groups. Reed,

Carley and defendant stopped to talk to friends in the neighborhood. As they

were standing outside, defendant heard yelling and observed a vehicle driving

fast down the street, with its headlights off. Fearing a drive-by shooting,

defendant ran south down Eggleston Avenue, while Reed and Carley ran in a

different direction. Defendant ran through a yard and a gangway, and jumped a

gate into a backyard. When he did not hear yelling or gunshots, he went to the

gate and observed a police officer in the front yard with a flashlight. As the

officer approached the gate, he pointed his gun at defendant and told him to go

down on the ground. After defendant complied, the officer jumped the fence

and handcuffed defendant's hands behind his back. The officer lifted defendant

over the fence with the help of other officers and placed defendant into the back

of a police vehicle.

¶ 15 Defendant did not know why he was arrested; he was not read his rights;

and he did not speak to the officers. After he arrived at the police station, he

was informed why he had been arrested. Defendant testified that he did not

own a gun and did not have a gun at the party or after it.

8 No. 1-16-0705

¶ 16 On cross-examination, the State asked defendant a series of questions

which defendant discusses on appeal. As a result, we provide the colloquy

below:

"Q. And during the course of this stripper party, were you drinking?

A. No.

Q. Were your friends drinking?

A. No.

Q. And were you smoking weed?

A. No.

Q. Anyone else smoking weed?

A. No.

Q. So everyone was enjoying the party sober; is that right?

A. Yes.

Q. Okay. No one else at the party was having any alcohol or weed at

the time?

A. Not that I'm aware.

***

Q. You're having a good alcohol-free time, right?

A. No. No.

9 No. 1-16-0705

Q. No? And [sic] alcohol free time, is that right?

A. Yes. "

¶ 17 The State then asked the following questions concerning the strippers:

"Q. Okay. And you were hanging out at the party for two or three

hours, right?

A. Yes.

Q. Are you spending money on the strippers?

A. I threw a few dollars, yeah.

Q. You threw a few dollars. Where did you throw the few dollars?

A. On the floor.

Q. On the floor. And did the women pick it up.

A. Yes.

Q. Okay. And what about your friends? What about Joshua Reed?

A. I believe they did.

Q. You believe they did what?

A. Throw money.

Q. At the strippers?

A. I believe so.

Q. Okay. And are these dollars? Are these 5s? Are these 10s?

10 No. 1-16-0705

A. Dollars.

Q. Okay. So you were tipping the girls dollars; is that right?

A. Yes.

Q. And you don't know where they came from or whether or not there

were actually professional strippers, right?

DEFENSE COUNSEL: Objection to the form of the question where

he came from.

THE COURT: It's already been asked and answered. I'm going to

request that you move on."

When defense counsel objected "to the form" of the last question, the trial court

directed the prosecutor to "move on."

¶ 18 During closing argument, defense counsel argued that it was not illegal to

watch strippers and that it was "offensive that in a case where marijuana and not

illegal drugs or illicit contraband of any type are the issue that the State can

continue to hammer home that [defendant] and his friends must have been

smoking marijuana because they're young men in a bad neighborhood."

¶ 19 In rebuttal argument, the State responded:

"Now you need to look at the story that was told to you by the

defendant and his friend because there are certain things in the story that

just don't make sense. 11 No. 1-16-0705

It's clear that what they're telling you is a story that was tailored for

you. They'll admit certain things. They won't admit others. There's a

reason why we're asking you [sic] certain questions about the party.

They'll admit there were strippers. They won't even admit there were

people at the party that might have been drinking. It's silly."

¶ 20 The jury found defendant guilty of AUUW. Defendant filed a posttrial

motion for a new trial claiming that the trial court had erred in denying

defendant's request to have the gun tested for fingerprints and that the State's

cross-examination created undue prejudice. The trial court denied the motion

and, after considering factors in mitigation and aggravation, sentenced

defendant to one year with IDOC. This timely appeal followed.

¶ 21 ANALYSIS

¶ 22 On appeal, defendant claims: that the State failed to perfect its

impeachment of defense witnesses; that the trial court abused its discretion by

denying defense counsel's request to have the gun tested for fingerprints; and

that the fines and fees order must be corrected. The State agrees that certain

fines and fees must be corrected. For the following reasons, we affirm

defendant's conviction and order the correction of certain fines and fees.

12 No. 1-16-0705

¶ 23 I. Impeachment

¶ 24 First, defendant claims that this court should reverse his conviction and

remand for a new trial because the State failed to perfect its impeachment of

defendant and Joshua Reed on the issues of underage drinking and marijuana

use.

¶ 25 The State argues that the issue is forfeited. To preserve a purported error

for consideration by a reviewing court, a defendant must both: (1) object to the

error at trial; and (2) raise the error in a posttrial motion. People v. Sebby,

. "Failure to do either results in forfeiture." Sebby,

. In the case at bar, defense counsel objected at trial to one

question on the ground of relevance but then let the vast majority of the

questions on strippers, alcohol and marijuana go by without an objection, until a

question about whether the strippers were professionals. Defense counsel

objected only to the form of the question, and the trial court instructed the

prosecutor to "move on." The objections to a couple out of a number of

questions on these subjects is not enough to preserve this issue for review. In

addition, defendant did not object at trial on the ground of imperfected

impeachment, which is the issue he raises now on appeal. In his appellate brief,

defendant concedes that he did not object specifically at the time. Thus, the

issue is forfeited for our review.

13 No. 1-16-0705

¶ 26 However, the plain error doctrine permits a reviewing court to consider

an unpreserved error: (1) when a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales

of justice against the defendant, regardless of the seriousness of the error; or (2)

when a clear or obvious error occurred and that error is so serious that it

affected the fairness of the defendant's trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence. Sebby,

; People v. Piatkowski,

(2007). Defendant

argues plain error under both prongs of the plain error doctrine.

¶ 27 The first step under either prong of the plain error doctrine is to

determine whether a clear or obvious error occurred. Sebby,

; Piatkowski,

.

¶ 28 "[It] is proper on cross-examination to develop all circumstances within

the knowledge of the witness that explain, qualify, discredit or destroy his direct

testimony." People v. Stevens,

. "Additionally, '[a]ny

permissible matter which affects the witness' credibility may be developed on

cross-examination.' " Stevens,

(quoting People v. Kliner,

(1998)). "The extent of cross-examination with respect to an

appropriate subject of inquiry rests in the sound discretion of the trial court."

Stevens,

, ¶ 16. An abuse of discretion occurs only when the

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trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable

person would take the view adopted by the trial court. People v. Patrick,

(2009).

¶ 29 In the case at bar, we cannot say that the trial court abused its discretion

when it did not, sua sponte, cut off further questioning until an objection by

defense counsel. When the defense counsel did object—although on the basis

of form—the trial court did instruct the prosecutor to "move on." Since we

cannot find a clear or obvious error, there can be no plain error.

¶ 30 Defendant argues that " '[i]t is improper for the prosecutor to ask a

witness questions for purposes of impeachment unless the prosecutor is

prepared to offer proof of the impeaching information.' " People v. McCoy,

(quoting People v. Olinger,

(1986)).

¶ 31 Defendant argues that it was improper for the State to ask extensive

questions about strippers, alcohol and marijuana. However, with respect to

strippers, it was the defense that interjected this piece of information into the

trial, offering the stripper party as an alibi as to where defendant was when the

police arrived—as opposed to walking up Eggleston Avenue alone as the

officers had testified. The State was exploring the veracity of his alibi by cross-

15 No. 1-16-0705

examining about the dollar bills that defendant and Reed claimed that they

merely tossed on the floor and that the women then had to pick up.

¶ 32 On appeal, the State argues that a late-night, alcohol-free, stripper party

strains common sense and plausibility; and, thus, the State argues that the

prosecutor was cross-examining to probe their credibility. At trial, defendant's

friend, Joshua Reed, testified that, although he was present for a few hours and

the party occurred in only two rooms, he was not sure whether people at the

party were drinking or smoking marijuana. In contrast to Reed, defendant was

sure, and sure that they were not. Considering the contrast between their

answers, the State explored this issue on its cross-examination of defendant.

¶ 33 In response, defendant relies heavily on this court's opinion in People v.

McCoy,

. As we explain below, McCoy is nothing

like the case at bar.

¶ 34 In McCoy, the following exchange occurred during the State's cross-

examination of the defendant:

" '[ASSISTANT STATE'S ATTORNEY]: You actually told him that

if he [the dying victim] said anything you would kill his family, didn't

you?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

16 No. 1-16-0705

[ASSISTANT STATE'S ATTORNEY]: Did you?

[DEFENDANT]: No.

[ASSISTANT STATE'S ATTORNEY]: No?' " McCoy,

.

In McCoy, the prosecutor essentially told the jury, in a flat-out statement, that

defendant "actually told" (emphasis added) the dying murder victim "that if he

said anything" defendant "would kill his family." McCoy,

. The prosecutor made this assertion, without any evidence

whatsoever that such a statement had been made. McCoy,

.

¶ 35 In marked contrast to McCoy, the prosecutor in the instant case asked

questions and did not state that defendant "actually told" the officers about

drugs or alcohol; the subject of those questions was alive and well and on the

witness stand and, thus, able to deny, and did; defense counsel did not object to

most of the questions; and when defense counsel did eventually object, the trial

court told the prosecutor to "move on." As a result, we do not find defendant's

reliance on McCoy persuasive.

¶ 36 For the foregoing reasons, we cannot find a clear and obvious error and,

thus, there can be no plain error. Sebby,

; Piatkowski,

.

17 No. 1-16-0705

¶ 37 Defendant asks this court that, if we do not find plain error, to consider

the issue alternatively as ineffective assistance of counsel. Defendant argues

that trial counsel rendered unreasonable assistance by failing to preserve the

impeachment issue for appeal.

¶ 38 To determine whether a defendant was denied the effective assistance of

counsel, we apply the well-known test set forth in Strickland v. Washington,

(1984). People v. Albanese,

(1984) (adopting

the Strickland test). Under Strickland, a defendant must show both that (1) his

counsel's performance was deficient; and (2) his counsel's deficient

performance prejudiced him. People v. Cordell,

(2006).

However, the failure of counsel to argue an issue or violation cannot satisfy

either prong of Strickland, where the issue or violation did not occur. People v.

Jones,

. In the case at bar, the State was asking

questions about whether there was, or was not, alcohol or marijuana

consumption at a stripper party, where the defense first introduced the party as

an alibi for defendant's whereabouts, and where one defense witness was not

sure if there was such consumption while defendant was adamant that there was

not. Unlike both McCoy or People v. Robertson,

(1990),

which defendant also cites, the State did not assert that it was in possession of a

18 No. 1-16-0705

statement that it did not produce.2 We cannot find that counsel rendered

unreasonable assistance for failing to raise the impeachment issue when such an

issue was unlikely to succeed.

¶ 39 In sum, we cannot find either plain error or ineffective assistance of

counsel on this basis.

¶ 40 II. Fingerprint Testing

¶ 41 Second, defendant claims that the trial court erred by not allowing

defense counsel to have the gun tested for fingerprints. However, he does not

claim bad faith on the part of the police in failing to preserve the gun so that it

could be tested for prints. See Arizona v. Youngblood,

(1988)

("unless a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute a denial of

due process").

¶ 42 Defendant concedes that the trial court's finding is subject to review only

for an abuse of discretion. People v. Sutton,

(2004)

(the trial court's denial of the defendant's request to retest DNA evidence was

2 In Robertson, "the prosecutor insinuated that" the defendant's mother "had made several statements to an investigator, which she either denied or could not recall." Robertson,

. However, the "State never offered the testimony of the investigator or his report to complete the impeachment of the witness." Robertson,

. The appellate court reversed due to "the State's repeated failure to perfect its impeachment." Robertson,

. 19 No. 1-16-0705

subject to an abuse-of-discretion review). As we observed above, an abuse of

discretion occurs only when the trial court's ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by

the trial court. Patrick,

.

¶ 43 In the case at bar, we cannot find an abuse of discretion by the trial court.

The trial court found that, due to the way that the gun was handled at the first

trial, any prints were likely obliterated. Defendant argues that the trial court's

reasoning is flawed because testing the gun was the only way to determine what

effect, if any, handling and time had on any original fingerprints on the gun.

However, this argument is duplicitous. Defendant did not want the gun tested

in order to discover the effects of handling on the gun. He wanted the testing to

argue that his fingerprints were not on it—which could easily be due to

handling rather than their original absence.

¶ 44 The trial court found that such testing would no longer have any

evidentiary value. As the trial court succinctly phrased it, "the time to test this

weapon for prints has come and gone because it hasn't been handled as a piece

of evidence to preserve any original prints." We cannot find that the trial court

abused its discretion in finding that a fingerprint test, whatever its results, no

longer had any evidentiary value. Defendant does not dispute the trial court's

factual finding that the gun was handled at the first trial in a way that was likely

20 No. 1-16-0705

to obliterate prints; and he concedes that the trial court permitted defense

counsel to argue that the gun was never tested. Thus, we cannot find an abuse

of discretion on these facts.

¶ 45 III. Fines and Fees

¶ 46 Lastly, defendant asks this court to correct the fines and fees order

entered in this case. The State concedes defendant is correct with respect to

half of them. With the half that are in dispute, our supreme court recently ruled

with respect to all but one in the State's favor. People v. Clark,

,

¶ 51. With respect to that one, a $25 "Court Services (Sheriff)" charge (55

ILCS 5/5-1103 (West 2016)), the defendant in Clark withdrew his challenge to

it, so our supreme court did not make a specific finding as to whether it was a

fine or a fee. Clark,

. A fee "is not subject to defendant's

presentence credit." Clark,

. However, the logic of Clark

compels us to find that the "Court Services (Sheriff)" charge is also a fee.

¶ 47 According to the statute, the purpose of this charge is to "defray[ ]court

security expenses incurred by the sheriff in providing court services or for any

other court services deemed necessary by the sheriff to provide for court

security." 55 ILCS 5/5-1103 (West 2016). In the statute itself, the legislature

labeled this charge a "fee." 55 ILCS 5/5-1103 (West 2016). In Clark, when our

supreme court found that the $2 State's Attorney Records Automation charge

21 No. 1-16-0705

was a fee, it based its decision on the fact that the legislature had labeled this

charge as a fee, that this label is evidence of the legislature's intent, and that

"[e]very prosecution necessarily involves the state's attorney and necessarily

generates records, which must be automated." Clark,

, ¶¶ 26-

27. Similarly, in the case at bar, the legislature has labeled the charge as a fee,

and every prosecution necessarily involves the sheriff and court services.

¶ 48 In Clark, the supreme court also found that the Felony Complaint Filed,

(Clerk) charge was a fee, because the legislature had labeled it as a fee, and its

purpose was "to reimburse the court for the costs of filing a felony case."

Clark,

. Similarly, in the case at bar, the legislature

has labeled the charge as a fee, and its purpose is to reimburse the sheriff for the

security expenses incurred in providing court services.

¶ 49 We do not see a need to compare every charge discussed in Clark to the

fee at issue, although they would all support our finding. The couple of

examples discussed above are sufficient to establish that this charge is a fee.

¶ 50 In sum, pursuant to our authority under Illinois Supreme Court Rule 615,

we reduce the fines and fees order by $145 for a new total of $749. People v.

Brown,

. Since the State has conceded these

issues on appeal, we vacate the $25 "Quasi-Criminal Complaint/Conviction

(Local Prosecutor)" charge, the $5 "Electronic Citation Fee", and the $50

22 No. 1-16-0705

Quasi-Criminal Complaint Conviction (Clerk)" charge; and we find that the

defendant is entitled to apply his presentence credit against the $15 State Police

Operations Fee and the $50 Court Systems Fee.

¶ 51 CONCLUSION

¶ 52 For the foregoing reasons, we affirm defendant's conviction and sentence,

but correct his fines and fees order as described above.

¶ 53 Affirmed; fines and fees order corrected.

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