No. 1-18-0737 Order filed November 5, 2020 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 3266 ) ANTONIO SCOTT, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.

JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for aggravated battery with a firearm affirmed where the victim’s identification of defendant was credible and sufficient to prove defendant guilty beyond a reasonable doubt, and trial counsel did not render ineffective assistance.

¶2 Following a bench trial, defendant Antonio Scott was convicted of aggravated battery with

a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)) and sentenced to 14 years’ imprisonment. On

appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt No. 1-18-0737

because the victim’s identification of him was not credible where it was inconsistent with the

victim’s initial statements to police, and there was no physical evidence implicating defendant.

Defendant also contends that trial counsel rendered ineffective assistance by opening the door to

testimony that defendant was in prison for five or six years prior to the shooting, which answered

the trial court’s question about how a shooting in 2017 could be an act of retaliation for the 2009

fatal shooting of defendant’s brother. We affirm.

¶3 Defendant was charged with four counts of attempted first degree murder and one count of

aggravated battery with a firearm for shooting Walter Harris. At trial, Harris acknowledged that

he had a 2010 conviction for aggravated driving under the influence (DUI) and served time in

prison. Harris testified that about 3:30 p.m. on January 27, 2017, he arrived at a house in the 5900

block of South Carpenter Street to visit his friend Antonio Campbell. As Harris walked towards

Campbell’s house, a red Impala drove past him. Harris observed defendant slumped down in the

passenger seat of the Impala, leaning back with his head tilted to the right. Defendant looked up at

Harris, and Harris looked down at defendant. Harris knew who defendant was because defendant

used to live across the street from Harris’ grandmother. Harris had been friends with defendant’s

brother, Roderick, who was known as “Bow Wow.” When Roderick was killed a few years earlier,

Harris had laid on the ground with him until the ambulance arrived. Harris learned who defendant

was after Roderick died. Harris identified defendant in court.

¶4 The Impala stopped a few houses away. There was no one else out on the street at the time.

As Harris stood on Campbell’s porch, defendant exited the Impala and ran towards Harris.

Defendant began shooting at Harris from outside the front gate of Campbell’s house. Harris was

shot in his right hand between his thumb and forefinger. Harris tried to enter the door to Campbell’s

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house, but it was locked. Harris “hopped” over the porch bannister to the ground below. He fell,

hit his head on the gas meter, and hit his head and back on the ground. Defendant continued

shooting “steady” at Harris. Harris “scrambled” to get away, “crawling real fast” on his hands and

knees. He heard gunshots hitting the house. Harris crawled into the gangway on the side of the

house and was shot in his left heel. The gunshots then stopped. Harris heard a total of 15 to 16

gunshots. The only person Harris saw shooting was defendant.

¶5 Harris reached the alley behind Campbell’s house and observed the Impala drive away.

Harris hopped back through Campbell’s yard to the gangway and yelled for Campbell to come

outside and take him to the hospital. Campbell, Brandon, 1 and Frederick Fizer came outside and

took Harris to St. Bernard Hospital. The bullet that entered Harris’ foot cracked his heel and was

surgically removed from under his knee.

¶6 At the time of the shooting, Harris was dating Shameka Peppers. On the way to the hospital,

Harris called Peppers and told her he had been shot and to meet him at the hospital. The prosecutor

asked Harris “[d]id you tell her who shot you?” Harris replied, “[y]eah. I told everybody who shot

me.” At the hospital, Harris initially spoke with some police officers. The officers spoke with

Peppers first, then Harris. The officers told Harris that Campbell’s house was on fire and

questioned him about the fire. The house was not on fire while Harris was there. Harris did not

identify defendant as the shooter to those officers because they did not ask him questions “like

that,” but instead, were focused on the fire. Harris was told that detectives would come to see him

in a couple of days. Harris testified that he would rather talk to the detectives. Harris denied that

1 Brandon’s last name does not appear in the record.

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he told anyone that “Christopher” shot him. On February 2, 2017, Harris viewed a photo array at

the police station and identified defendant as the person who shot him.

¶7 On cross-examination, Harris confirmed that he knew who defendant was because Harris

was raised on that block of Carpenter and defendant used to “hang” with “the guys” who lived

across the street. Harris had previously seen defendant but never spoke with him. Harris spent a

lot of time with defendant’s brother Roderick ever since Roderick was young. He described

Roderick as “a little kid I used to give dollars and stuff to.” Harris never had a problem with

defendant.

¶8 Harris observed two people inside the Impala. He knew defendant was the passenger

because he looked defendant in the face. Harris denied telling any police officers or detectives that

there were three unknown men inside the Impala. He reiterated that the initial officers at the

hospital were focused on how the fire started and told Harris that a detective would come to speak

with him. Harris acknowledged that the initial officers asked how he was shot, and he gave them

the address. The officers stated that they previously raided that house and asked defendant about

his involvement with the men there.

¶9 Harris testified that he told Detective Robert Kuchay who shot him when he met with

Kuchay at the police station. Kuchay did not come to the hospital. Harris did not know anyone

named “Christopher” and never told Kuchay that Christopher shot him. Harris could not recall

what the shooter was wearing. Defendant began running and shooting immediately when he exited

the Impala. He began firing the shots from 40 feet away and got as close as 8 feet from Harris. The

shooter never said anything to Harris.

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¶ 10 On redirect examination, Harris testified that he was receiving pain medication when he

spoke with the officers at the hospital. He told those officers that he had been shot, where it

occurred, and what happened. They told Harris that the detectives would come to see him.

¶ 11 Chicago detective Joseph Murtaugh testified that he showed a photo array to Harris on

February 2 at the police station. Harris identified defendant as the man who shot him.

¶ 12 Chicago police evidence technician David Seiber testified that he processed the crime

scene at 6:30 p.m. on the night of the shooting. Seiber photographed the scene and the house,

which had sustained fire damage. Seiber identified photographs of 17 fired cartridge casings he

recovered from the street, the parkway, and outside the fence in front of the subject house.

¶ 13 On cross-examination, Seiber testified that 16 of the recovered shell casings were .40-

caliber, and one was .380-caliber. The .380-caliber casing was recovered from the parkway in front

of the house next to the subject house.

¶ 14 Chicago police officer Michael Pfeiffer testified that about 3:40 p.m. on January 27, he and

his partner, Officer Jack Miller, spoke with Harris at the hospital regarding the shooting. After

speaking with Harris, Pfeiffer spoke with Peppers in the lobby. After his conversation with

Peppers, Pfeiffer was given the name “Antonio Scott.” Pfeiffer also met with Detective Kuchay at

the hospital and gave him defendant’s name.

¶ 15 On cross-examination, Pfeiffer testified that Harris described the vehicle and described the

gunman as a black man in his 20s. Harris did not give Pfeiffer a specific name. Generally, Pfeiffer

asks all victims if they know who shot them. On redirect examination, Pfeiffer testified that after

he received defendant’s name, Detective Kuchay spoke with Harris; Pfeiffer did not.

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¶ 16 Detective Robert Kuchay testified that when he arrived at the hospital, Pfeiffer gave him

information that he received from Peppers. Kuchay spoke with Peppers, who gave him a name.

Kuchay then spoke with Harris, who gave him the name “Antonio.” Harris did not know Antonio’s

last name. Kuchay used the name Antonio and the information from Peppers to compile a photo

array that included defendant’s photograph. Kuchay identified defendant in court. A few days later,

Kuchay gave the photo array to Detective Murtaugh to show to Harris. After the photo array was

shown to Harris, Kuchay issued an investigative alert for defendant.

¶ 17 On cross-examination, Kuchay denied that Harris gave him the name “Christopher.”

Kuchay acknowledged that his supplemental case report indicated that Harris told him that he was

shot by Christopher.

¶ 18 On redirect examination, Kuchay recalled that Harris told him that he was unsure of the

gunman’s last name, but that he was Bow Wow’s little brother. Harris also told Kuchay that Bow

Wow’s name was Roderick, that he was killed in 2009, and that Roderick was Christopher’s older

brother. This interview occurred at the hospital. Kuchay had a second conversation with Harris

when he came to the police department to view the photo array. During the second interview,

Harris did not use the name Christopher. Harris told Kuchay that when Roderick was shot and

killed, “he” was on the scene holding Roderick in his arms, and that was how Harris remembered

and recognized defendant.

¶ 19 Shameka Peppers, Harris’ former girlfriend, testified that Harris called her shortly after

3:30 p.m. on January 27 while he was on his way to the hospital. Harris told her what happened

and said “Antonio” was involved. Harris did not give her a last name. Peppers knew of defendant

and knew his last name. At the hospital, Peppers gave the police defendant’s full name.

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¶ 20 On cross-examination, Peppers testified that when Harris told her “Antonio” shot him, she

knew he meant defendant. Peppers knew defendant’s brother and used to do defendant’s mother’s

hair.

¶ 21 Pursuant to the court’s questioning, Peppers explained that when Harris said “Antonio”

shot him, she knew he was referring to defendant because she knew defendant did not like Harris

since defendant’s brother was killed in 2009. The court asked, “[p]eople are doing something about

it in 2017?” Peppers explained that after his brother was killed, defendant was incarcerated.

Defense counsel objected and asked that Peppers’ response be stricken. The court struck the part

about being incarcerated and stated, “I’m not going to consider that.”

¶ 22 The prosecutor had no questions based on the court’s questioning. Defense counsel asked

Peppers if defendant’s brother “was shot in 2009?” Peppers replied, “[y]es.” Counsel asked, “[t]his

happened in [sic] January 27, 2017, correct?” Peppers again replied, “[y]es.” The prosecutor stated,

“Judge, he opened the door now.” The following colloquy then occurred:

“[THE PROSECUTOR:] Why do you think that in 2017, all of a sudden, Antonio

Scott would be the one shooting Walter?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled. The door is open. You may answer.

[PEPPERS]: Because Antonio, right after his brother got killed, he got in trouble

with the jail. Do [sic] could nothing about it then. He in jail for five, six years or

something.”

On recross-examination, Peppers acknowledged that she knew defendant was released from prison

in 2015. Counsel asked, “[s]o, two more years passed by?” Peppers replied, “[y]es.”

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¶ 23 The State presented a stipulation that forensic scientist Elizabeth Haley, an expert in

firearms examination, analyzed the 17 fired cartridge casings recovered from the scene. Haley

found that the 16 .40-caliber Smith and Wesson casings were all fired from the same firearm, and

the single .380-caliber casing was suitable for further testing.

¶ 24 The defense called Chicago police officer Jack Miller who testified that he and his partner,

Officer Pfeiffer, met with Harris at the hospital. Pfeiffer spoke with Harris while Miller took notes.

Harris told Pfeiffer that a red Impala occupied by three unknown men pulled up in front of the

house. An unknown man exited the vehicle and began walking toward Harris. The offender

displayed a handgun and fired approximately 10 to 15 shots. Miller did not recall Harris identifying

the name of the person who fired the weapon.

¶ 25 On cross-examination, Miller acknowledged that Harris was being treated for two gunshot

wounds while he was being interviewed. Miller agreed that Harris never told the officers that he

did not know who the shooter was, but rather, Harris did not give them a name.

¶ 26 On redirect examination, Miller confirmed that he wrote the general case report, and the

name of the offender does not appear in that report. Nor does the report indicate that Harris was

reluctant or hesitant to tell the officers who shot him.

¶ 27 The trial court found that it was “persuaded beyond any question” that Harris knew

defendant. The court pointed out that Harris was close friends with defendant’s brother, that he

was with Roderick when he was shot and killed, and that he had known who defendant was for

years. The court noted that Harris identified defendant to the police and in court, and stated that

Harris persuaded the court that defendant was the person who shot him. The court stated that

because Harris was shot in the hand and foot, it gave defendant the benefit of the doubt and

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acquitted him of the attempted first degree murder charges. The court found defendant guilty of

aggravated battery with a firearm.

¶ 28 In his motion for a new trial, defendant argued that Harris’ testimony identifying him as

the shooter was inconsistent where Harris did not provide defendant’s name to the initial officers

at the hospital but later identified defendant, a person whom Harris had known for many years.

Defendant argued that Harris did not know who shot him. Defendant further argued that there was

no evidence corroborating Harris’ identification such as a gun, gunshot residue, DNA, or another

witness that placed defendant at the scene. Defendant also argued that Harris was a convicted

felon, which affected his credibility.

¶ 29 The trial court responded that identification was an important issue in this case and that

defendant had made the same arguments at trial. The court stated that it listened carefully to Harris’

testimony and the sequence of events. The court further stated:

“I find that he identified Mr. Scott, the person that he knows and I cannot emphasize

enough that he knows him, he knows him, he was there when the brother got shot. He

knows who this is. He talked to his girlfriend and told her about it right after he was

hospitalized.

Police were concerned about an arson that had taken place also. They were

investigating simultaneously. He was very adamant and consistent with his identification

of Mr. Scott. I believed him beyond a reasonable doubt.”

The trial court denied then defendant’s posttrial motion and sentenced him to 14 years’

imprisonment.

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¶ 30 On appeal, defendant first contends that the State failed to prove him guilty beyond a

reasonable doubt because Harris’ testimony identifying him as the shooter was not credible where

it was inconsistent with Harris’ initial statements to police. Defendant asserts that Harris initially

told police that he observed three unknown men inside a vehicle and one of those men exited the

vehicle and began shooting at him. Defendant argues that Harris later told police that “Christopher”

shot him. Defendant notes that Harris told Peppers he was shot by “Antonio,” but argues that Harris

did not tell police that he recognized defendant, nor did he give the initial officers defendant’s

name. Defendant claims that Harris’ inconsistencies and his status as a convicted felon rendered

his testimony not credible. He also asserts that there was no physical evidence linking him to the

shooting.

¶ 31 The State responds that the evidence was sufficient to prove defendant guilty where Harris

knew defendant, clearly observed defendant shooting at him, positively identified defendant to

Peppers immediately after being shot, and positively identified defendant in a photo array and at

trial. The State asserts that Harris’ identification of defendant satisfied all the factors for reliability

announced in Neil v. Biggers,

(1972). The State further argues that Harris explained

that he did not give the initial officers defendant’s name because they were focused on the fire and

told him a detective would investigate the shooting. The State also argues that Harris’ prior

conviction for aggravated DUI was not a crime of dishonesty and had no impact on his credibility.

¶ 32 In reply, defendant asserts that the issue is not whether the Biggers factors were satisfied,

but instead, whether Harris was a sufficiently credible witness to sustain the conviction.

¶ 33 When a defendant claims that the evidence is insufficient to sustain his conviction, this

court must determine whether, after viewing the evidence in the light most favorable to the State,

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any rational trier of fact could have found the elements of the offense proved beyond a reasonable

doubt. People v. Brown,

(citing Jackson v. Virginia,

(1979)). This standard applies whether the evidence is direct or circumstantial, and does not allow

this court to substitute its judgment for that of the fact finder on issues involving witness credibility

and the weight of the evidence. People v. Jackson,

(2009). Under this

standard, all reasonable inferences from the evidence must be allowed in favor of the State. People

v. Lloyd,

.

¶ 34 In a bench trial, the trial court is responsible for determining the credibility of the witnesses,

weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences

from therein. People v. Siguenza-Brito,

(2009). We will not reverse a criminal

conviction based upon insufficient evidence unless the evidence is so improbable or unsatisfactory

that there is reasonable doubt as to defendant’s guilt (People v. Beauchamp,

(2011)),

nor simply because defendant claims that a witness was not credible or that the evidence was

contradictory (Siguenza-Brito,

).

¶ 35 To prove defendant guilty of aggravated battery with a firearm as charged in this case, the

State was required to show that, in committing a battery, he knowingly discharged a firearm, other

than a machine gun or a firearm equipped with a silencer, and caused injury to another person,

specifically, that he shot Harris about the body. 720 ILCS 5/12-3.05(e)(1) (West 2016).

¶ 36 “Proof of physical evidence connecting a defendant to a crime has never been required to

establish guilt.” People v. Williams,

(1998). Identification of a defendant by a

single witness is sufficient to sustain a conviction where the witness viewed defendant under

circumstances that permitted a positive identification. People v. Slim,

(1989).

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Such identification is sufficient even where defendant presents contradictory testimony, as long as

the witness had an adequate opportunity to view the offender, and provided a positive and credible

identification in court.

¶ 37 In assessing identification testimony, the court considers: (1) the witness’ opportunity to

view the offender at the time of the offense; (2) his degree of attention; (3) the accuracy of the

witness’ prior description of the offender; (4) the witness’ level of certainty at the identification

confrontation; and (5) the length of time between the offense and the identification confrontation.

People v. Lewis,

(1995) (enumerating the factors set forth in Biggers,

).

¶ 38 Here, viewed in the light most favorable to the State, the record shows that all the factors

weigh in support of the trial court’s finding that Harris’ identification of defendant as the shooter

was reliable. Harris testified that as the Impala drove past him, he observed defendant slumped

down in the passenger seat, leaning back with his head tilted to the right. Defendant looked up at

Harris, and Harris looked down at defendant, looking him in the face. Harris testified that he knew

who defendant was because defendant used to live across the street from Harris’ grandmother,

defendant used to hang out with guys who lived across the street from Harris, and Harris had been

good friends with defendant’s brother, Roderick. Harris further testified that he observed defendant

exit the Impala, run towards him, and shoot at him. Defendant came as close as eight feet from

Harris. Harris, Peppers and Kuchay all testified that shortly after the shooting, Harris named

defendant as the man who shot him. Five days after the shooting, Harris identified defendant in a

photo array. Harris also identified defendant in court.

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¶ 39 The testimony thereby shows that Harris had more than an ample opportunity to view

defendant at the time of the offense and his degree of attention was very high. Harris had known

defendant for years and recognized him immediately, rendering his identification of defendant

accurate and certain. Furthermore, Harris identified defendant by name to Peppers and Kuchay

shortly after the shooting while being treated at the hospital. All the factors therefore support the

court’s finding that Harris’ identification of defendant was reliable.

¶ 40 Defendant’s argument that Harris’ testimony identifying him as the shooter was

inconsistent and not credible is unpersuasive. It was the trial court’s responsibility to weigh all the

evidence and determine whether it was sufficient to find that Harris positively identified defendant

beyond a reasonable doubt. Siguenza-Brito,

. Here, Harris testified that he did not

give defendant’s name to the officers who initially spoke with him at the hospital, Pfeiffer and

Miller, because they did not ask him questions “like that,” but instead, asked him several questions

about the house fire. The officers told Harris that detectives would come to see him. Harris testified

that he would rather speak with the detectives, and in fact, identified defendant by name to

Detective Kuchay a short time later. Harris denied telling police that there were three unknown

men inside the Impala. Miller agreed that Harris never told the officers that he did not know who

the shooter was, but rather, Harris did not give them a name. Harris also denied that he told anyone

that “Christopher” shot him. Although the name “Christopher” appeared in Kuchay’s supplemental

case report, Kuchay denied that Harris gave him the name “Christopher” and testified that Harris

told him “Antonio” shot him.

¶ 41 When finding defendant guilty, the trial court stated that it was “persuaded beyond any

question” that Harris knew defendant and that defendant was the person who shot Harris. In

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denying defendant’s posttrial motion, the court considered and rejected the same arguments

defendant raises here. The court stated that it could not “emphasize enough” that Harris knew

defendant, that Harris was “very adamant and consistent with his identification” of defendant, and

that the court believed Harris “beyond a reasonable doubt.” Based on this record, we find no reason

to disturb the trial court’s determination.

¶ 42 Defendant next contends that his trial counsel rendered ineffective assistance by opening

the door to Peppers’ testimony that defendant was in prison for five or six years prior to the

shooting, which explained how defendant’s shooting of Harris in 2017 could have been in

retaliation for the 2009 fatal shooting of defendant’s brother. Defendant points out that counsel

objected to Peppers’ initial testimony that defendant was incarcerated after his brother was killed.

He argues that the objection shows that counsel believed such testimony was prejudicial to

defendant. Defendant argues that there was no reasonable justification for counsel to open the door

and pursue his line of questioning with Peppers. Defendant claims he was prejudiced by counsel’s

action because it painted him as a convicted felon and buttressed the claim that he shot Harris in

retaliation for his brother’s shooting. Defendant asserts that the Peppers’ testimony was “central

to the ultimate issues” and bolstered a weak case against him where Harris’ identification was not

credible and there was no physical evidence linking defendant to the shooting.

¶ 43 The State responds that counsel was not ineffective because defendant was not prejudiced

by Peppers’ testimony. The State argues that the challenged testimony had no impact on the court’s

guilty finding where the court emphasized that Harris knew defendant and that Harris’

identification of defendant as the person who shot him was credible. The State asserts that nothing

in the record suggests that the testimony that defendant was incarcerated for an unknown offense

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for an unknown length of time had any influence on the outcome. The State argues that counsel

made a strategic choice to attempt to show the weakness of the retaliation motive suggested by

Peppers, and counsel cannot be found ineffective by questioning his strategy in hindsight.

¶ 44 Claims of ineffective assistance of counsel are evaluated under the two-prong test set forth

by the United States Supreme Court in Strickland v. Washington,

(1984). People v.

Veach,

, ¶ 29. To support a claim of ineffective assistance of counsel, defendant

must demonstrate that counsel’s representation was deficient, and as a result, he suffered prejudice.

Strickland,

. Specifically, defendant must show that counsel’s performance was

objectively unreasonable, and that there is a reasonable probability that the outcome of the

proceeding would have been different if not for counsel’s error. Veach,

, ¶ 30. The

manner in which counsel cross-examines a particular witness involves the exercise of professional

judgment which is entitled to substantial deference on review. People v. Pecoraro,

(1997). However, if defendant cannot prove that he suffered prejudice, this court need not

determine whether counsel’s performance was deficient. People v. Givens,

(2010). Moreover, Strickland requires defendant to demonstrate actual prejudice, and mere

speculation as to prejudice is not sufficient. People v. Bew,

(2008) (and

cases cited therein).

¶ 45 Here, the record shows that defendant suffered no prejudice from Peppers’ testimony that

he had been incarcerated. As discussed above, the trial court found defendant guilty because it was

“persuaded beyond any question” that Harris knew defendant and credibly identified defendant as

the person who shot him. There is no indication in the record that the court gave any consideration

to Peppers’ testimony that defendant had been incarcerated, or to her speculation that defendant

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shot Harris in retaliation for his brother’s killing. The court made no mention of defendant’s

incarceration or the alleged retaliation motive. The court, in fact, gave defendant the benefit of the

doubt and acquitted him of the attempted first degree murder charges. Based on this record, we

cannot find a reasonable probability that the outcome of the trial would have been different if

counsel had not opened the door to Peppers’ testimony. Veach,

. Because

defendant suffered no prejudice, counsel’s actions did not constitute ineffective assistance. Givens,

.

¶ 46 For these reasons, we affirm the judgment of the circuit court of Cook County.

¶ 47 Affirmed.

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