People v. Barker
Annotate this Case
FIRST DIVISION
AUGUST 3, 1998
No. 1-96-4115
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ANTHONY R. BARKER,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
94 CR 20165
Honorable
Ralph Reyna,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Defendant Anthony Barker was found guilty of aggravated reckless
homicide and reckless homicide after an automobile accident in which a
young woman, Ruth Erwin, was killed. Defendant, who had been driving
under the influence of alcohol and cocaine, ran a stop light at a high
rate of speed and crashed into Ms. Erwin's vehicle. Following a jury
trial, defendant was convicted and sentenced to 13 years in prison.
On appeal, defendant asserts the following: (1) the State's
repeated references to the victim's family and the victim's good
character resulted in plain error; (2) the trial court erred in
admitting the incriminating hospital statement of witness and
passenger John Vargas as substantive evidence; (3) defendant was
denied effective assistance of counsel due to numerous alleged errors
on the part of defense counsel; and (4) defendant's sentence was
excessive and should be reduced.
Upon review, we affirm defendant's conviction and sentence.
I. FACTS
On July 23, 1994, at approximately 3:30 a.m., defendant ran a red
light at a high rate of speed, striking the vehicle of Ruth Erwin as
she proceeded southbound through an intersection. Ms. Erwin was
killed instantly. There were four eyewitnesses to the accident, all
of whom identified defendant as the driver of the car at the time of
the accident. Mitchell Prestler testified defendant was driving at
the time of the accident, and he observed the vehicle enter the
intersection on a red light. He estimated the vehicle's speed to be
at least 70 miles per hour. He also observed an Hispanic male, later
identified as John Vargas, in the passenger side of the car at the
time of the accident. Mr. Prestler's brother, Michael, also testified
that he observed defendant in the driver's seat and Vargas in the
passenger seat. Another witness, Ahmed Hill, also testified as to the
high rate of speed and identified defendant as the driver of the
vehicle and Vargas as the passenger. Finally, witness Henry Hill
testified defendant was the driver and Vargas the passenger at the
time of the crash.
Following the accident, defendant and Vargas were transported to
Northwestern Hospital. At the hospital, Vargas gave a statement to
Assistant State's Attorney Joe Roddy in which he described the facts
leading up to the crash. In his statement, Vargas stated that he and
defendant had been driving around in defendant's car since 2 p.m. that
afternoon. He stated they stopped at a liquor store and purchased a
six-pack of beer and, later in the evening, stopped at a bar, Cafe
Fresco, where defendant got out of the vehicle and proceeded into the
bar. After defendant exited the bar carrying a glass containing a
dark liquid, the two continued to drive around and returned again to
the liquor store to purchase another six-pack of beer. Vargas stated
that at that time, the two began to snort cocaine. In the early
morning hours, defendant was involved in a police chase in which he
ran several red lights and was driving at a very high rate of speed.
In his statement, Vargas estimated defendant Barker was traveling at
over 85 miles an hour at the time his vehicle struck the victim's
vehicle.
The defense presented at trial was that Vargas, not defendant,
was the driver of the vehicle at the time of the crash. At trial,
Vargas admitted giving the statement to Assistant State's Attorney
Roddy but denied making the statements incriminating defendant as the
driver of the vehicle. Vargas testified he did not remember who was
driving at the time of the accident. At trial, defendant testified he
passed out from the cocaine and that Vargas was driving at the time of
the accident.
Defendant appeals his conviction of aggravated reckless homicide
and reckless homicide and his sentence of 13 years in prison.
II. ANALYSIS
A. Prosecutor's Remarks
Defendant first contends the State improperly appealed to the
sympathy of the jury with various references to the family of the
deceased, the good character of the deceased, and the defendant's
criminal associate, John Vargas. By failing both to object at trial
and raise this argument in a posttrial motion, defendant has waived
any alleged error with regard to this issue. People v. Enoch, 122 Ill. 2d 176, 185, 522 N.E.2d 1124 (1988). Defendant, however, argues
the remarks constitute plain error. Under the plain error doctrine,
issues not properly preserved may be considered on review. Plain
error may be shown when the evidence in the case is closely balanced
or when the alleged error is so fundamental that it denied the
defendant's right to a fair trial. People v. Burgess, 176 Ill. 2d 289, 680 N.E.2d 357 (1997).
An examination of the record supports defendant's contention that
the prosecution's remarks and the direct examination of the victim's
father regarding the deceased's background and character, as well as
the remarks about the character of defendant's associate, were
improper. Illinois law is clear that such attempts to appeal to the
emotions of the jurors are not permissible. See People v. Hope, 116 Ill. 2d 265, 508 N.E.2d 202 (1986); People v. Henderson, 142 Ill. 2d 258, 323, 568 N.E.2d 1234 (1990). However, in the present case, these
comments did not deny defendant a fair trial in light of the
overwhelming evidence of his guilt.
The prosecution presented clear and basically uncontroverted
evidence supporting a guilty verdict. Significantly, four witnesses
at the scene identified defendant as the driver of the automobile.
Additionally, a Chicago police officer testified that, after the
crash, defendant stated "it was me," and a doctor who treated
defendant at the hospital testified that defendant stated he was
driving the vehicle at the time of the crash. Defendant tested
positive for both alcohol and cocaine following the crash. Several
witnesses also testified as to the high rate of speed at which the
vehicle was traveling immediately before the crash, as well as the
fact the car ran the red light at the intersection where the crash
occurred.
In a written statement, the passenger in defendant's car, Vargas,
identified defendant as the driver of the car, noted defendant had run
a red light at a high rate of speed immediately before the crash, and
stated he and defendant had been drinking alcohol and ingesting
cocaine that night. In light of the overwhelming evidence in the
case, we fail to see how the conduct of the prosecution, though
improper, denied defendant a fair trial.
Alternatively, the prosecutorial errors are not so fundamental as
to have denied defendant's right to a fair trial. Every defendant is
entitled to a fair trial free from prejudicial comments by the
prosecution. People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248
(1996). However, improper remarks by a prosecutor generally do not
constitute reversible error unless they result in substantial
prejudice to the accused and were material to his conviction. People
v. Sims, 285 Ill. App. 3d 598, 606, 673 N.E.2d 1119 (1996). Illinois
courts have specifically addressed references to a victim's family and
found that, although improper, such remarks do not necessarily
constitute reversible error.
In People v. Bartall, 98 Ill. 2d 294, 322, 456 N.E.2d 59 (1983),
quoting People v. Wilson, 51 Ill. 2d 302, 307 (1972), the court stated
that every mention of a deceased's family does not necessarily entitle
the defendant to a new trial "'since, in certain circumstances,
dependent upon the factual circumstances, such evidence and argument
can be harmless, particularly when the death penalty is not imposed.'"
As in Bartall, the misconduct in the present case, though improper,
was harmless error. See also People v. Shelton, 293 Ill. App. 3d 747,
755, 688 N.E.2d 831 (1997)(comments about the victim's family can
constitute harmless error where the defendant is not substantially
prejudiced); People v. Flax, 255 Ill. App. 3d 103, 627 N.E.2d 359
(1993)(statements arousing sympathy for the victim or the victim's
family, while generally improper, can constitute harmless error where
defendant is not substantially prejudiced).
Similarly, in People v. Carreon, 225 Ill. App. 3d 133, 587 N.E.2d 532 (1992), the prosecutor made improper references to the murder
victim's family during closing argument. The court stated that such
comments are improper and unprofessional, but may be harmless error
where the evidence of defendant's guilt is overwhelming and the jury
was instructed not to consider closing arguments as evidence.
Carreon, 225 Ill. App. 3d at 147. In the present case, the jury was
also specifically instructed not to consider opening statements and
closing arguments as evidence. People v. Howard, 147 Ill. 2d 103,
148, 588 N.E.2d 1044 (1991).
The case of People v. Mapp, 283 Ill. App. 3d 979, 670 N.E.2d 852
(1996), offers guidance as to how to deal with serious prosecutorial
misconduct in a case where the evidence against the defendant is
overwhelming. In Mapp, the State made improper comments at trial
appealing to the sympathy of the jury and made reference to the
defendant's guilt by association with a known criminal. The court
condemned the prosecutor's remarks but noted the remarks did not play
a role in the jury's return of a guilty verdict. Mapp, 283 Ill. App.
3d at 991. The court held that, despite serious prosecutorial
misconduct in the case, the overwhelming evidence pointed to the
defendant's guilt. Mapp, 283 Ill. App. 3d at 991.
After careful review of the record, we conclude that the properly
admitted evidence in this case was so overwhelming that no fair-minded
juror could reasonably have voted to acquit the defendant. See People
v. Carlson, 92 Ill. 2d 440, 449, 442 N.E.2d 504 (1982). We find that
any error that resulted from the prosecutor's improper conduct was
harmless beyond a reasonable doubt. However, we emphasize that
nothing in this opinion should be interpreted as approving the
prosecutorial misconduct exhibited here, and we strongly admonish the
prosecution to eliminate this form of misconduct.
B. Admissibility of Prior Inconsistent Statement
Defendant next contends the trial court erred in admitting the
written statement Vargas made in the hospital as a prior inconsistent
statement under section 115-10.1 of the Code of Criminal Procedure
(725 ILCS 5/115-10.1 (West 1996)). Defendant claims Vargas' statement
should not have been admitted as substantive evidence because it was
not inconsistent with his trial testimony. We have found however,
that Vargas' statement was inconsistent with his trial testimony. We
also note that a trial court's determination of the admissibility of
evidence will not be disturbed absent an abuse of discretion. People
v. Edmundson, 247 Ill. App. 3d 738, 744, 617 N.E.2d 446 (1993).
Pursuant to section 115-10.1 (725 ILCS 5/115-10.1 (West 1996)), prior
inconsistent statements are admissible as substantive evidence where
the witness is subject to cross-examination and the statements were
made under oath or signed by the witness.
Section 115-10.1 governs when a prior inconsistent statement is
admissible as substantive evidence. The statute reads in relevant
part:
"115-10.1. Admissibility of Prior Inconsistent
Statements. In all criminal cases, evidence of a statement
made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the
hearing or trial, and
(b) the witness is subject to cross-examination concerning
the statement, and
(c) the statement -
***
(2) narrates, describes, or explains an event or
condition of which the witness had personal
knowledge, and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath the
making of the statement either in his testimony
at the hearing or trial in which the admission
into evidence of the prior statement is being
sought, or at a trial, hearing, or other
proceeding ***." 725 ILCS 5/115-10.1 (West
1996).
Following the accident, Vargas agreed to and signed a handwritten
statement given to Assistant State's Attorney Roddy while in the
hospital emergency room. In this statement, Vargas indicated he and
defendant were driving around on the night of July 22, 1994, drinking
beer and snorting cocaine. At different points in the evening, they
stopped at a liquor store and a bar called Cafe Fresco. Vargas stated
defendant was driving the car when he became involved in a police
chase. After eluding the police, Vargas stated defendant continued
driving over 85 miles per hour and ran a number of red lights. Vargas
stated he told defendant to slow down, but defendant refused, drove
through a red light, and smashed into the victim's car.
Contrary to defendant's assertions, the portions of Vargas' trial
testimony that related to the events leading up to and including the
accident were in fact directly inconsistent with his handwritten
statement. Upon direct examination, Vargas testified he was driving
around in defendant's car after being picked up by defendant. He
testified that they drove around the neighborhood but denied making
any stops. This testimony is directly inconsistent with his statement
that he and the defendant stopped at a liquor store and at a bar
called Cafe Fresco. Vargas also claimed that, although he remembers
being with defendant prior to the accident, he did not remember who
was driving the car. Vargas also denied making various other
admissions in the signed statement.
Defendant relies on People v. Redd, 135 Ill. 2d 252, 553 N.E.2d 316 (1990), to support his argument that the prejudice to defendant in
admitting this statement as substantive evidence is no different than
when a witness in court asserting his fifth amendment (U.S. Const.,
amend. V) privilege refuses to testify and then his prior statement is
admitted into evidence. Defendant cites Redd for the proposition that
a witness's in-court assertion of the privilege against self-
incrimination could not be considered "inconsistent" for purposes of
section 115-10.1.
We do not believe the Redd analysis is applicable in the present
case. Here, there has been no assertion of the fifth amendment
privilege. In addition, the case at bar can be clearly distinguished
on its facts. Some portions of Vargas' testimony were inconsistent
with his written statements, others indicated a lack of memory or a
selective memory. Additionally, Vargas denied making certain
admissions in his statement. Section 115-10.1 was designed to allow
cross-examination in precisely this sort of situation, to "prevent a
turncoat witness from backing away from a former statement made under
circumstances indicating it was likely to be true by merely denying
the statement." People v. Fauber, 266 Ill. App. 3d 381, 390-91, 640 N.E.2d 689 (1994).
Defendant further claims that the admission of the Vargas
statement as substantive evidence against defendant denied defendant
his constitutional guarantees to confrontation and due process of law.
In order for a statement to qualify for admission as a prior
inconsistent statement under section 115-10.1, the witness who made
the statement must be subject to cross-examination concerning the
statement. In the present case, defendant was free at trial to cross-
examine Vargas regarding the circumstances of the interrogation and
was afforded an adequate opportunity to test Vargas' lack of recall,
inconsistencies, and denials. The jury, faced with Vargas'
inconsistent statements, could have concluded that the out-of-court
statement was unreliable, but apparently chose not to do so.
The law is well settled that the confrontation clause is not
violated by admitting a declarant's out-of-court statements, as long
as the declarant is testifying as a witness and subject to cross-
examination. California v. Green, 339 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970). Based on the totality of the circumstances, we
find that the admission of the Vargas statement as substantive
evidence did not deprive defendant of his right to confrontation and
due process of law.
The statement also meets the remaining requirements for
admissibility under section 115-10.1; the statement describes events
of which Vargas had personal knowledge, and Vargas signed the
statement. Having met all the necessary requirements, Vargas'
statement was clearly admissible as substantive evidence as a prior
inconsistent statement under section 115-10.1.
Next, defendant asserts the statement should not have been
admitted because the court failed to ascertain its voluntariness.
Defendant cites People v. Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1993), for the proposition that the court had a duty to inquire
as to the voluntariness of Vargas' statement, specifically, if Vargas
was coherent when making the statement. In Johnson, this court stated
that even if a statement meets the requirements of section 115-10.1,
the court must make a finding that there is a sufficient evidentiary
basis from which a jury could find that the declarant's prior
statements were knowing and voluntary. Johnson, 255 Ill. App. 3d at
558.
However, in People v. Pursley, 284 Ill. App. 3d 597, 672 N.E.2d 1249 (1996), the court specifically addressed the holding in Johnson,
noting that the legislature determined what would constitute
reliability when drafting section 115--10.1 and indicated that,
"[t]herefore, a finding of reliability and voluntariness is
automatically made by concluding that a prior statement meets section
115-10.1's test." Pursley, 284 Ill. App. 3d at 609. The Pursley
court then noted that, "[a]ccordingly, no additional analysis is
needed." Pursley, 284 Ill. App. 3d at 609. See also People v. Carlos,
275 Ill. App. 3d 80, 84, 655 N.E.2d 1182 (1995) (the fact a statement
is admissible under section 115-10.1 of the Code already demonstrates
its reliability, and no additional evidence of the statement's
reliability need be shown).
We agree with the court's analysis in Pursley and find that if a
prior inconsistent statement meets section 115-10.1's requirements, it
may be admitted as substantive evidence without an independent
determination of its voluntariness. Pursley, 284 Ill. App, 3d at 609;
Carlos, 275 Ill. App. 3d at 84.
For the foregoing reasons, the trial court did not abuse its
discretion in admitting the Vargas statement as substantive evidence.
We therefore find the trial court properly admitted Vargas' statement
as a prior inconsistent statement under section 115-10.1 of the Code
of Criminal Procedure.
C. Ineffective Assistance of Counsel
Defendant next asserts a claim of ineffective assistance of
counsel based on a number of alleged deficiencies in the performance
of defense counsel at trial. The right to effective assistance of
counsel is guaranteed by both the federal and the state constitutions.
U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, 8. In
challenging the effectiveness of trial counsel, a defendant must
demonstrate that his or her counsel's performance was deficient and
fell below an objective standard of reasonableness. In addition, the
defendant must show that, but for defense counsel's deficient
performance, there is a reasonable probability that the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Strickland
test has been accepted in Illinois as the appropriate means for
evaluating an ineffective assistance of counsel claim, and it is the
appropriate test to utilize in the present case. See People v.
Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).
Judicial scrutiny of an attorney's performance must be highly
deferential, and a reviewing court will not inquire into areas
involving the exercise of discretion, judgment or trial strategy.
People v. Flewellen, 273 Ill. App. 3d 1044, 1048, 652 N.E.2d 1316
(1995). In assessing the validity of defendant's claim, we will
address each alleged failure of defense counsel individually.
Defendant first contends defense counsel was ineffective for
failing to object to the prosecutor's remarks concerning the victim's
character and the testimony of the victim's father regarding her
background. As we have previously addressed, improper remarks by a
prosecutor generally do not constitute reversible error unless they
result in substantial prejudice to the accused and were material to
his or her conviction. Sims, 285 Ill. App. 3d at 606. Though the
inflammatory nature of such comments is intensified when defense
objections to them are overruled by the trial court, they may still be
harmless error where the evidence is overwhelming. Carreon, 225 Ill.
App. 3d at 147. In the present case, any objection by the defense to
the improper arguments would not have altered the fact that the
evidence against defendant was overwhelming.
Further, defense counsel's strategy was based on the theory that
Vargas, not defendant, was driving at the time of the accident. His
argument centered around the portrayal of defendant as another victim
of Vargas, who was older, more experienced and had an extensive
criminal background. Defense counsel used references to defendant's
work and family relationships to contrast him with Vargas, whom he
argued caused the fatal crash. The prosecution's references to the
victim, her family and the tragic nature of the crash were not
inconsistent with the theory of defense which portrayed defendant as a
parallel tragic victim. The defense tactic not to object to the
tragic consequences of the crash can be viewed as a legitimate trial
strategy to establish credibility with the jury for the defense
theory.
Defendant next claims defense counsel failed to adequately
challenge the State witnesses who identified him as the driver of the
vehicle. A review of the trial transcripts reveals that defense
counsel did engage in the cross-examination of the witnesses who
identified defendant as the driver of the car. The defense attorney
was not ineffective simply because he was unable to discredit several
very credible eyewitness identifications. Moreover, defense counsel
did question these witnesses as to their opportunity and ability to
observe and addressed lighting and distance issues.
Defendant further claims defense counsel was ineffective because
no pretrial motion to suppress identification was ever filed. First,
a trial counsel's decision to file or not to file a pretrial motion is
a matter of professional judgment. People v. McPhee, 256 Ill. App. 3d
102, 106-07, 628 N.E.2d 523 (1993). Additionally, if there is no
reasonable likelihood that a motion to suppress would have been
granted, defendant has failed the prejudice prong of the Strickland
test. People v. Steels, 277 Ill. App. 3d 123, 660 N.E.2d 24 (1995).
There is no evidence that any police misconduct caused the
identifications nor is there evidence to suggest such a motion would
have been successful or was patently meritorious. People v. Stewart,
217 Ill. App. 3d 373, 577 N.E.2d 175 (1991). In fact, the evidence
shows that all the witnesses had an excellent opportunity to observe
defendant. Therefore, counsel's decision not to file such a motion
was a matter of professional judgment and does not support defendant's
claim of ineffective assistance of counsel. People v. Martin, 236
Ill. App. 3d 112, 120, 603 N.E.2d 603 (1992).
Defendant also alleges defense counsel was ineffective for
failing to properly cross-examine Vargas at trial regarding his
physical and mental condition at the time he gave his statement.
However, an examination of the record indicates that defense counsel
made a strategic choice not to cross-examination Vargas as to his
condition following the accident. This was consistent with his theory
of defense, which was summed up in his closing argument as follows:
"[Vargas] was not dazed, he was not confused. He was a
frightened criminal who wanted to put the blame on anyone he
could. And there was this 18-year-old kid who trusted him,
who was foolish enough to use his cocaine and who was
affected by it and had no idea what this man was doing."
For defense counsel to elicit information that Vargas was in no
condition to give a clear statement as to who was driving would
undermine defense counsel's theory that Vargas knew what he was doing
when he gave a statement which said defendant was driving and had made
a calculated decision to protect himself by telling police that
defendant was the driver.
Also, the limited cross-examination at trial was all that was
necessary to elicit from Vargas that he didn't recall who was driving
at the time of the accident. This statement, made under oath at
trial, left open the possibility that Vargas was the driver rather
than defendant. We believe defense counsel's limited cross-
examination of Vargas was a trial tactic to support the defense theory
that defendant was not driving at the time of the accident and thus is
properly characterized as trial strategy. People v. Patten, 240 Ill.
App. 3d 407, 413, 608 N.E.2d 351 (1992).
Finally, defendant claims defense counsel was ineffective for
failing to tender Illinois Pattern Jury Instructions, Criminal, No.
23.30 (3d ed. 1996) (hereinafter IPI Criminal 3d), which states that
if a defendant's blood-alcohol level is more than .05% but less than
.10% there can be no presumption that the defendant was or was not
under the influence of alcohol.
Though this instruction appears to apply to defendant, whose
blood-alcohol level was .08%, defendant fails to establish why the
failure of his attorney to tender this instruction was ineffective
assistance of counsel. First, the State's testimony that defendant
was driving while impaired is not based solely on his blood-alcohol
limit but also on the fact he had cocaine in his system. The State's
witness, Dr. Leikin, testified that the combination of both these
substances in defendant's system resulted in impaired driving
function. In light of this testimony, IPI Criminal 3d, which deals
only with alcohol intoxication, is not determinative of whether
defendant's driving was impaired. In addition, where the evidence
against a defendant is overwhelming, the lack of a particular
instruction is rendered harmless in light of the other instructions,
arguments of counsel and a generally fair trial. People v. Campbell,
275 Ill. App. 3d 993, 996-97, 657 N.E.2d 87 (1995).
Significantly, it should be noted that in the case at bar, the
defense presented was unrelated to whether defendant was under the
influence of alcohol; rather, defense counsel argued defendant was not
the person driving the car at the time of the accident. Defense
counsel's election not to utilize this instruction was consistent with
this trial strategy and, therefore, did not constitute ineffective
assistance of counsel.
Though we find that defense counsel's performance was not
deficient as defendant has alleged, even if this were not the case,
defendant has failed to satisfy the second prong of the Strickland
test for ineffective assistance of counsel, i.e., whether there is a
reasonable probability that the outcome of the jury verdict would have
been different.
In order to show a reasonable probability that the trial result
would have been affected, a defendant must demonstrate more than
simply that his counsel's errors had some conceivable effect on the
outcome of the proceeding. McPhee, 256 Ill. App. 3d at 106, quoting
People v. Patten, 240 Ill. App. 3d 407, 413, 608 N.E.2d 351 (1992).
Rather, defendant must show that counsel's deficient performance was
sufficient to undermine confidence in the outcome. McPhee, 256 Ill.
App. 3d at 106, quoting Patten, 240 Ill. App. 3d at 413. A defendant
is entitled to competent representation, not perfect representation.
People v. Purnell, 126 Ill. App. 3d 608, 623, 467 N.E.2d 1160 (1984).
Any alleged "failure" on the part of trial counsel was not
outcome determinative as the evidence of defendant's guilt was
overwhelming. There was sufficient evidence to find defendant was
guilty beyond a reasonable doubt based on the evidence, including
defendant's admissions to police and to the treating physician that he
was the driver, the four eyewitnesses, the Vargas written statement,
the uncontroverted evidence as to defendant's alcohol and cocaine use,
and medical evidence that the combined effects of alcohol and cocaine
in defendant's system were sufficient to create an increased risk of
being in a motor vehicle accident.
In light of this overwhelming evidence, any deficiencies of
defense counsel, including choices of trial strategy and tactics, were
not outcome determinative, and defendant has failed to meet the
Strickland test for ineffective assistance of counsel.
D. Sentencing
Finally, defendant contends his sentence of 13 years was
excessive, as an unintentional traffic accident was involved. However,
a trial court is vested with considerable discretion in imposing a
sentence. People v. Beck, 295 Ill. App. 3d 1050, 693 N.E.2d 897
(1998). The law is well settled that a sentence within the statutory
limits will not be disturbed on review absent an abuse of discretion.
People v. Wilber, 279 Ill. App. 3d 462, 469, 664 N.E.2d 711 (1996).
In the present case, the maximum statutory sentence for
aggravated reckless homicide is 14 years, and defendant's sentence of
13 years is within statutory limits. A sentence is presumptively
correct, and only where such a presumption has been rebutted by an
affirmative showing of error will a reviewing court find that the
trial court abused its discretion. People v. Beck, 295 Ill. App. 3d
1050, 693 N.E.2d 897 (1998). There is no such error here, and we find
that the trial court properly reviewed mitigating and aggravating
circumstances in sentencing defendant to 13 years. There is nothing
in the record to indicate an abuse of discretion in the present case.
III. Conclusion
We find that although the State's references to the victim's
family and the victim's good character were improper, they did not
constitute plain error. We also find the trial did not err in
admitting the incriminating hospital statement of witness and
passenger John Vargas as substantive evidence. Additionally, we do
not find defendant's trial counsel was ineffective, and we affirm the
sentence imposed by the trial court.
In light of the overwhelming evidence in this case, any error was
harmless beyond a reasonable doubt. Accordingly, we affirm
defendant's conviction and sentence.
Affirmed.
O'BRIEN and GALLAGER, JJ., concur.
AUGUST 3, 1998
No. 1-96-4115
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ANTHONY R. BARKER,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
94 CR 20165
Honorable
Ralph Reyna,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Defendant Anthony Barker was found guilty of aggravated reckless
homicide and reckless homicide after an automobile accident in which a
young woman, Ruth Erwin, was killed. Defendant, who had been driving
under the influence of alcohol and cocaine, ran a stop light at a high
rate of speed and crashed into Ms. Erwin's vehicle. Following a jury
trial, defendant was convicted and sentenced to 13 years in prison.
On appeal, defendant asserts the following: (1) the State's
repeated references to the victim's family and the victim's good
character resulted in plain error; (2) the trial court erred in
admitting the incriminating hospital statement of witness and
passenger John Vargas as substantive evidence; (3) defendant was
denied effective assistance of counsel due to numerous alleged errors
on the part of defense counsel; and (4) defendant's sentence was
excessive and should be reduced.
Upon review, we affirm defendant's conviction and sentence.
I. FACTS
On July 23, 1994, at approximately 3:30 a.m., defendant ran a red
light at a high rate of speed, striking the vehicle of Ruth Erwin as
she proceeded southbound through an intersection. Ms. Erwin was
killed instantly. There were four eyewitnesses to the accident, all
of whom identified defendant as the driver of the car at the time of
the accident. Mitchell Prestler testified defendant was driving at
the time of the accident, and he observed the vehicle enter the
intersection on a red light. He estimated the vehicle's speed to be
at least 70 miles per hour. He also observed an Hispanic male, later
identified as John Vargas, in the passenger side of the car at the
time of the accident. Mr. Prestler's brother, Michael, also testified
that he observed defendant in the driver's seat and Vargas in the
passenger seat. Another witness, Ahmed Hill, also testified as to the
high rate of speed and identified defendant as the driver of the
vehicle and Vargas as the passenger. Finally, witness Henry Hill
testified defendant was the driver and Vargas the passenger at the
time of the crash.
Following the accident, defendant and Vargas were transported to
Northwestern Hospital. At the hospital, Vargas gave a statement to
Assistant State's Attorney Joe Roddy in which he described the facts
leading up to the crash. In his statement, Vargas stated that he and
defendant had been driving around in defendant's car since 2 p.m. that
afternoon. He stated they stopped at a liquor store and purchased a
six-pack of beer and, later in the evening, stopped at a bar, Cafe
Fresco, where defendant got out of the vehicle and proceeded into the
bar. After defendant exited the bar carrying a glass containing a
dark liquid, the two continued to drive around and returned again to
the liquor store to purchase another six-pack of beer. Vargas stated
that at that time, the two began to snort cocaine. In the early
morning hours, defendant was involved in a police chase in which he
ran several red lights and was driving at a very high rate of speed.
In his statement, Vargas estimated defendant Barker was traveling at
over 85 miles an hour at the time his vehicle struck the victim's
vehicle.
The defense presented at trial was that Vargas, not defendant,
was the driver of the vehicle at the time of the crash. At trial,
Vargas admitted giving the statement to Assistant State's Attorney
Roddy but denied making the statements incriminating defendant as the
driver of the vehicle. Vargas testified he did not remember who was
driving at the time of the accident. At trial, defendant testified he
passed out from the cocaine and that Vargas was driving at the time of
the accident.
Defendant appeals his conviction of aggravated reckless homicide
and reckless homicide and his sentence of 13 years in prison.
II. ANALYSIS
A. Prosecutor's Remarks
Defendant first contends the State improperly appealed to the
sympathy of the jury with various references to the family of the
deceased, the good character of the deceased, and the defendant's
criminal associate, John Vargas. By failing both to object at trial
and raise this argument in a posttrial motion, defendant has waived
any alleged error with regard to this issue. People v. Enoch, 122 Ill. 2d 176, 185, 522 N.E.2d 1124 (1988). Defendant, however, argues
the remarks constitute plain error. Under the plain error doctrine,
issues not properly preserved may be considered on review. Plain
error may be shown when the evidence in the case is closely balanced
or when the alleged error is so fundamental that it denied the
defendant's right to a fair trial. People v. Burgess, 176 Ill. 2d 289, 680 N.E.2d 357 (1997).
An examination of the record supports defendant's contention that
the prosecution's remarks and the direct examination of the victim's
father regarding the deceased's background and character, as well as
the remarks about the character of defendant's associate, were
improper. Illinois law is clear that such attempts to appeal to the
emotions of the jurors are not permissible. See People v. Hope, 116 Ill. 2d 265, 508 N.E.2d 202 (1986); People v. Henderson, 142 Ill. 2d 258, 323, 568 N.E.2d 1234 (1990). However, in the present case, these
comments did not deny defendant a fair trial in light of the
overwhelming evidence of his guilt.
The prosecution presented clear and basically uncontroverted
evidence supporting a guilty verdict. Significantly, four witnesses
at the scene identified defendant as the driver of the automobile.
Additionally, a Chicago police officer testified that, after the
crash, defendant stated "it was me," and a doctor who treated
defendant at the hospital testified that defendant stated he was
driving the vehicle at the time of the crash. Defendant tested
positive for both alcohol and cocaine following the crash. Several
witnesses also testified as to the high rate of speed at which the
vehicle was traveling immediately before the crash, as well as the
fact the car ran the red light at the intersection where the crash
occurred.
In a written statement, the passenger in defendant's car, Vargas,
identified defendant as the driver of the car, noted defendant had run
a red light at a high rate of speed immediately before the crash, and
stated he and defendant had been drinking alcohol and ingesting
cocaine that night. In light of the overwhelming evidence in the
case, we fail to see how the conduct of the prosecution, though
improper, denied defendant a fair trial.
Alternatively, the prosecutorial errors are not so fundamental as
to have denied defendant's right to a fair trial. Every defendant is
entitled to a fair trial free from prejudicial comments by the
prosecution. People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248
(1996). However, improper remarks by a prosecutor generally do not
constitute reversible error unless they result in substantial
prejudice to the accused and were material to his conviction. People
v. Sims, 285 Ill. App. 3d 598, 606, 673 N.E.2d 1119 (1996). Illinois
courts have specifically addressed references to a victim's family and
found that, although improper, such remarks do not necessarily
constitute reversible error.
In People v. Bartall, 98 Ill. 2d 294, 322, 456 N.E.2d 59 (1983),
quoting People v. Wilson, 51 Ill. 2d 302, 307 (1972), the court stated
that every mention of a deceased's family does not necessarily entitle
the defendant to a new trial "'since, in certain circumstances,
dependent upon the factual circumstances, such evidence and argument
can be harmless, particularly when the death penalty is not imposed.'"
As in Bartall, the misconduct in the present case, though improper,
was harmless error. See also People v. Shelton, 293 Ill. App. 3d 747,
755, 688 N.E.2d 831 (1997)(comments about the victim's family can
constitute harmless error where the defendant is not substantially
prejudiced); People v. Flax, 255 Ill. App. 3d 103, 627 N.E.2d 359
(1993)(statements arousing sympathy for the victim or the victim's
family, while generally improper, can constitute harmless error where
defendant is not substantially prejudiced).
Similarly, in People v. Carreon, 225 Ill. App. 3d 133, 587 N.E.2d 532 (1992), the prosecutor made improper references to the murder
victim's family during closing argument. The court stated that such
comments are improper and unprofessional, but may be harmless error
where the evidence of defendant's guilt is overwhelming and the jury
was instructed not to consider closing arguments as evidence.
Carreon, 225 Ill. App. 3d at 147. In the present case, the jury was
also specifically instructed not to consider opening statements and
closing arguments as evidence. People v. Howard, 147 Ill. 2d 103,
148, 588 N.E.2d 1044 (1991).
The case of People v. Mapp, 283 Ill. App. 3d 979, 670 N.E.2d 852
(1996), offers guidance as to how to deal with serious prosecutorial
misconduct in a case where the evidence against the defendant is
overwhelming. In Mapp, the State made improper comments at trial
appealing to the sympathy of the jury and made reference to the
defendant's guilt by association with a known criminal. The court
condemned the prosecutor's remarks but noted the remarks did not play
a role in the jury's return of a guilty verdict. Mapp, 283 Ill. App.
3d at 991. The court held that, despite serious prosecutorial
misconduct in the case, the overwhelming evidence pointed to the
defendant's guilt. Mapp, 283 Ill. App. 3d at 991.
After careful review of the record, we conclude that the properly
admitted evidence in this case was so overwhelming that no fair-minded
juror could reasonably have voted to acquit the defendant. See People
v. Carlson, 92 Ill. 2d 440, 449, 442 N.E.2d 504 (1982). We find that
any error that resulted from the prosecutor's improper conduct was
harmless beyond a reasonable doubt. However, we emphasize that
nothing in this opinion should be interpreted as approving the
prosecutorial misconduct exhibited here, and we strongly admonish the
prosecution to eliminate this form of misconduct.
B. Admissibility of Prior Inconsistent Statement
Defendant next contends the trial court erred in admitting the
written statement Vargas made in the hospital as a prior inconsistent
statement under section 115-10.1 of the Code of Criminal Procedure
(725 ILCS 5/115-10.1 (West 1996)). Defendant claims Vargas' statement
should not have been admitted as substantive evidence because it was
not inconsistent with his trial testimony. We have found however,
that Vargas' statement was inconsistent with his trial testimony. We
also note that a trial court's determination of the admissibility of
evidence will not be disturbed absent an abuse of discretion. People
v. Edmundson, 247 Ill. App. 3d 738, 744, 617 N.E.2d 446 (1993).
Pursuant to section 115-10.1 (725 ILCS 5/115-10.1 (West 1996)), prior
inconsistent statements are admissible as substantive evidence where
the witness is subject to cross-examination and the statements were
made under oath or signed by the witness.
Section 115-10.1 governs when a prior inconsistent statement is
admissible as substantive evidence. The statute reads in relevant
part:
"115-10.1. Admissibility of Prior Inconsistent
Statements. In all criminal cases, evidence of a statement
made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the
hearing or trial, and
(b) the witness is subject to cross-examination concerning
the statement, and
(c) the statement -
***
(2) narrates, describes, or explains an event or
condition of which the witness had personal
knowledge, and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath the
making of the statement either in his testimony
at the hearing or trial in which the admission
into evidence of the prior statement is being
sought, or at a trial, hearing, or other
proceeding ***." 725 ILCS 5/115-10.1 (West
1996).
Following the accident, Vargas agreed to and signed a handwritten
statement given to Assistant State's Attorney Roddy while in the
hospital emergency room. In this statement, Vargas indicated he and
defendant were driving around on the night of July 22, 1994, drinking
beer and snorting cocaine. At different points in the evening, they
stopped at a liquor store and a bar called Cafe Fresco. Vargas stated
defendant was driving the car when he became involved in a police
chase. After eluding the police, Vargas stated defendant continued
driving over 85 miles per hour and ran a number of red lights. Vargas
stated he told defendant to slow down, but defendant refused, drove
through a red light, and smashed into the victim's car.
Contrary to defendant's assertions, the portions of Vargas' trial
testimony that related to the events leading up to and including the
accident were in fact directly inconsistent with his handwritten
statement. Upon direct examination, Vargas testified he was driving
around in defendant's car after being picked up by defendant. He
testified that they drove around the neighborhood but denied making
any stops. This testimony is directly inconsistent with his statement
that he and the defendant stopped at a liquor store and at a bar
called Cafe Fresco. Vargas also claimed that, although he remembers
being with defendant prior to the accident, he did not remember who
was driving the car. Vargas also denied making various other
admissions in the signed statement.
Defendant relies on People v. Redd, 135 Ill. 2d 252, 553 N.E.2d 316 (1990), to support his argument that the prejudice to defendant in
admitting this statement as substantive evidence is no different than
when a witness in court asserting his fifth amendment (U.S. Const.,
amend. V) privilege refuses to testify and then his prior statement is
admitted into evidence. Defendant cites Redd for the proposition that
a witness's in-court assertion of the privilege against self-
incrimination could not be considered "inconsistent" for purposes of
section 115-10.1.
We do not believe the Redd analysis is applicable in the present
case. Here, there has been no assertion of the fifth amendment
privilege. In addition, the case at bar can be clearly distinguished
on its facts. Some portions of Vargas' testimony were inconsistent
with his written statements, others indicated a lack of memory or a
selective memory. Additionally, Vargas denied making certain
admissions in his statement. Section 115-10.1 was designed to allow
cross-examination in precisely this sort of situation, to "prevent a
turncoat witness from backing away from a former statement made under
circumstances indicating it was likely to be true by merely denying
the statement." People v. Fauber, 266 Ill. App. 3d 381, 390-91, 640 N.E.2d 689 (1994).
Defendant further claims that the admission of the Vargas
statement as substantive evidence against defendant denied defendant
his constitutional guarantees to confrontation and due process of law.
In order for a statement to qualify for admission as a prior
inconsistent statement under section 115-10.1, the witness who made
the statement must be subject to cross-examination concerning the
statement. In the present case, defendant was free at trial to cross-
examine Vargas regarding the circumstances of the interrogation and
was afforded an adequate opportunity to test Vargas' lack of recall,
inconsistencies, and denials. The jury, faced with Vargas'
inconsistent statements, could have concluded that the out-of-court
statement was unreliable, but apparently chose not to do so.
The law is well settled that the confrontation clause is not
violated by admitting a declarant's out-of-court statements, as long
as the declarant is testifying as a witness and subject to cross-
examination. California v. Green, 339 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970). Based on the totality of the circumstances, we
find that the admission of the Vargas statement as substantive
evidence did not deprive defendant of his right to confrontation and
due process of law.
The statement also meets the remaining requirements for
admissibility under section 115-10.1; the statement describes events
of which Vargas had personal knowledge, and Vargas signed the
statement. Having met all the necessary requirements, Vargas'
statement was clearly admissible as substantive evidence as a prior
inconsistent statement under section 115-10.1.
Next, defendant asserts the statement should not have been
admitted because the court failed to ascertain its voluntariness.
Defendant cites People v. Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1993), for the proposition that the court had a duty to inquire
as to the voluntariness of Vargas' statement, specifically, if Vargas
was coherent when making the statement. In Johnson, this court stated
that even if a statement meets the requirements of section 115-10.1,
the court must make a finding that there is a sufficient evidentiary
basis from which a jury could find that the declarant's prior
statements were knowing and voluntary. Johnson, 255 Ill. App. 3d at
558.
However, in People v. Pursley, 284 Ill. App. 3d 597, 672 N.E.2d 1249 (1996), the court specifically addressed the holding in Johnson,
noting that the legislature determined what would constitute
reliability when drafting section 115--10.1 and indicated that,
"[t]herefore, a finding of reliability and voluntariness is
automatically made by concluding that a prior statement meets section
115-10.1's test." Pursley, 284 Ill. App. 3d at 609. The Pursley
court then noted that, "[a]ccordingly, no additional analysis is
needed." Pursley, 284 Ill. App. 3d at 609. See also People v. Carlos,
275 Ill. App. 3d 80, 84, 655 N.E.2d 1182 (1995) (the fact a statement
is admissible under section 115-10.1 of the Code already demonstrates
its reliability, and no additional evidence of the statement's
reliability need be shown).
We agree with the court's analysis in Pursley and find that if a
prior inconsistent statement meets section 115-10.1's requirements, it
may be admitted as substantive evidence without an independent
determination of its voluntariness. Pursley, 284 Ill. App, 3d at 609;
Carlos, 275 Ill. App. 3d at 84.
For the foregoing reasons, the trial court did not abuse its
discretion in admitting the Vargas statement as substantive evidence.
We therefore find the trial court properly admitted Vargas' statement
as a prior inconsistent statement under section 115-10.1 of the Code
of Criminal Procedure.
C. Ineffective Assistance of Counsel
Defendant next asserts a claim of ineffective assistance of
counsel based on a number of alleged deficiencies in the performance
of defense counsel at trial. The right to effective assistance of
counsel is guaranteed by both the federal and the state constitutions.
U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, 8. In
challenging the effectiveness of trial counsel, a defendant must
demonstrate that his or her counsel's performance was deficient and
fell below an objective standard of reasonableness. In addition, the
defendant must show that, but for defense counsel's deficient
performance, there is a reasonable probability that the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Strickland
test has been accepted in Illinois as the appropriate means for
evaluating an ineffective assistance of counsel claim, and it is the
appropriate test to utilize in the present case. See People v.
Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).
Judicial scrutiny of an attorney's performance must be highly
deferential, and a reviewing court will not inquire into areas
involving the exercise of discretion, judgment or trial strategy.
People v. Flewellen, 273 Ill. App. 3d 1044, 1048, 652 N.E.2d 1316
(1995). In assessing the validity of defendant's claim, we will
address each alleged failure of defense counsel individually.
Defendant first contends defense counsel was ineffective for
failing to object to the prosecutor's remarks concerning the victim's
character and the testimony of the victim's father regarding her
background. As we have previously addressed, improper remarks by a
prosecutor generally do not constitute reversible error unless they
result in substantial prejudice to the accused and were material to
his or her conviction. Sims, 285 Ill. App. 3d at 606. Though the
inflammatory nature of such comments is intensified when defense
objections to them are overruled by the trial court, they may still be
harmless error where the evidence is overwhelming. Carreon, 225 Ill.
App. 3d at 147. In the present case, any objection by the defense to
the improper arguments would not have altered the fact that the
evidence against defendant was overwhelming.
Further, defense counsel's strategy was based on the theory that
Vargas, not defendant, was driving at the time of the accident. His
argument centered around the portrayal of defendant as another victim
of Vargas, who was older, more experienced and had an extensive
criminal background. Defense counsel used references to defendant's
work and family relationships to contrast him with Vargas, whom he
argued caused the fatal crash. The prosecution's references to the
victim, her family and the tragic nature of the crash were not
inconsistent with the theory of defense which portrayed defendant as a
parallel tragic victim. The defense tactic not to object to the
tragic consequences of the crash can be viewed as a legitimate trial
strategy to establish credibility with the jury for the defense
theory.
Defendant next claims defense counsel failed to adequately
challenge the State witnesses who identified him as the driver of the
vehicle. A review of the trial transcripts reveals that defense
counsel did engage in the cross-examination of the witnesses who
identified defendant as the driver of the car. The defense attorney
was not ineffective simply because he was unable to discredit several
very credible eyewitness identifications. Moreover, defense counsel
did question these witnesses as to their opportunity and ability to
observe and addressed lighting and distance issues.
Defendant further claims defense counsel was ineffective because
no pretrial motion to suppress identification was ever filed. First,
a trial counsel's decision to file or not to file a pretrial motion is
a matter of professional judgment. People v. McPhee, 256 Ill. App. 3d
102, 106-07, 628 N.E.2d 523 (1993). Additionally, if there is no
reasonable likelihood that a motion to suppress would have been
granted, defendant has failed the prejudice prong of the Strickland
test. People v. Steels, 277 Ill. App. 3d 123, 660 N.E.2d 24 (1995).
There is no evidence that any police misconduct caused the
identifications nor is there evidence to suggest such a motion would
have been successful or was patently meritorious. People v. Stewart,
217 Ill. App. 3d 373, 577 N.E.2d 175 (1991). In fact, the evidence
shows that all the witnesses had an excellent opportunity to observe
defendant. Therefore, counsel's decision not to file such a motion
was a matter of professional judgment and does not support defendant's
claim of ineffective assistance of counsel. People v. Martin, 236
Ill. App. 3d 112, 120, 603 N.E.2d 603 (1992).
Defendant also alleges defense counsel was ineffective for
failing to properly cross-examine Vargas at trial regarding his
physical and mental condition at the time he gave his statement.
However, an examination of the record indicates that defense counsel
made a strategic choice not to cross-examination Vargas as to his
condition following the accident. This was consistent with his theory
of defense, which was summed up in his closing argument as follows:
"[Vargas] was not dazed, he was not confused. He was a
frightened criminal who wanted to put the blame on anyone he
could. And there was this 18-year-old kid who trusted him,
who was foolish enough to use his cocaine and who was
affected by it and had no idea what this man was doing."
For defense counsel to elicit information that Vargas was in no
condition to give a clear statement as to who was driving would
undermine defense counsel's theory that Vargas knew what he was doing
when he gave a statement which said defendant was driving and had made
a calculated decision to protect himself by telling police that
defendant was the driver.
Also, the limited cross-examination at trial was all that was
necessary to elicit from Vargas that he didn't recall who was driving
at the time of the accident. This statement, made under oath at
trial, left open the possibility that Vargas was the driver rather
than defendant. We believe defense counsel's limited cross-
examination of Vargas was a trial tactic to support the defense theory
that defendant was not driving at the time of the accident and thus is
properly characterized as trial strategy. People v. Patten, 240 Ill.
App. 3d 407, 413, 608 N.E.2d 351 (1992).
Finally, defendant claims defense counsel was ineffective for
failing to tender Illinois Pattern Jury Instructions, Criminal, No.
23.30 (3d ed. 1996) (hereinafter IPI Criminal 3d), which states that
if a defendant's blood-alcohol level is more than .05% but less than
.10% there can be no presumption that the defendant was or was not
under the influence of alcohol.
Though this instruction appears to apply to defendant, whose
blood-alcohol level was .08%, defendant fails to establish why the
failure of his attorney to tender this instruction was ineffective
assistance of counsel. First, the State's testimony that defendant
was driving while impaired is not based solely on his blood-alcohol
limit but also on the fact he had cocaine in his system. The State's
witness, Dr. Leikin, testified that the combination of both these
substances in defendant's system resulted in impaired driving
function. In light of this testimony, IPI Criminal 3d, which deals
only with alcohol intoxication, is not determinative of whether
defendant's driving was impaired. In addition, where the evidence
against a defendant is overwhelming, the lack of a particular
instruction is rendered harmless in light of the other instructions,
arguments of counsel and a generally fair trial. People v. Campbell,
275 Ill. App. 3d 993, 996-97, 657 N.E.2d 87 (1995).
Significantly, it should be noted that in the case at bar, the
defense presented was unrelated to whether defendant was under the
influence of alcohol; rather, defense counsel argued defendant was not
the person driving the car at the time of the accident. Defense
counsel's election not to utilize this instruction was consistent with
this trial strategy and, therefore, did not constitute ineffective
assistance of counsel.
Though we find that defense counsel's performance was not
deficient as defendant has alleged, even if this were not the case,
defendant has failed to satisfy the second prong of the Strickland
test for ineffective assistance of counsel, i.e., whether there is a
reasonable probability that the outcome of the jury verdict would have
been different.
In order to show a reasonable probability that the trial result
would have been affected, a defendant must demonstrate more than
simply that his counsel's errors had some conceivable effect on the
outcome of the proceeding. McPhee, 256 Ill. App. 3d at 106, quoting
People v. Patten, 240 Ill. App. 3d 407, 413, 608 N.E.2d 351 (1992).
Rather, defendant must show that counsel's deficient performance was
sufficient to undermine confidence in the outcome. McPhee, 256 Ill.
App. 3d at 106, quoting Patten, 240 Ill. App. 3d at 413. A defendant
is entitled to competent representation, not perfect representation.
People v. Purnell, 126 Ill. App. 3d 608, 623, 467 N.E.2d 1160 (1984).
Any alleged "failure" on the part of trial counsel was not
outcome determinative as the evidence of defendant's guilt was
overwhelming. There was sufficient evidence to find defendant was
guilty beyond a reasonable doubt based on the evidence, including
defendant's admissions to police and to the treating physician that he
was the driver, the four eyewitnesses, the Vargas written statement,
the uncontroverted evidence as to defendant's alcohol and cocaine use,
and medical evidence that the combined effects of alcohol and cocaine
in defendant's system were sufficient to create an increased risk of
being in a motor vehicle accident.
In light of this overwhelming evidence, any deficiencies of
defense counsel, including choices of trial strategy and tactics, were
not outcome determinative, and defendant has failed to meet the
Strickland test for ineffective assistance of counsel.
D. Sentencing
Finally, defendant contends his sentence of 13 years was
excessive, as an unintentional traffic accident was involved. However,
a trial court is vested with considerable discretion in imposing a
sentence. People v. Beck, 295 Ill. App. 3d 1050, 693 N.E.2d 897
(1998). The law is well settled that a sentence within the statutory
limits will not be disturbed on review absent an abuse of discretion.
People v. Wilber, 279 Ill. App. 3d 462, 469, 664 N.E.2d 711 (1996).
In the present case, the maximum statutory sentence for
aggravated reckless homicide is 14 years, and defendant's sentence of
13 years is within statutory limits. A sentence is presumptively
correct, and only where such a presumption has been rebutted by an
affirmative showing of error will a reviewing court find that the
trial court abused its discretion. People v. Beck, 295 Ill. App. 3d
1050, 693 N.E.2d 897 (1998). There is no such error here, and we find
that the trial court properly reviewed mitigating and aggravating
circumstances in sentencing defendant to 13 years. There is nothing
in the record to indicate an abuse of discretion in the present case.
III. Conclusion
We find that although the State's references to the victim's
family and the victim's good character were improper, they did not
constitute plain error. We also find the trial did not err in
admitting the incriminating hospital statement of witness and
passenger John Vargas as substantive evidence. Additionally, we do
not find defendant's trial counsel was ineffective, and we affirm the
sentence imposed by the trial court.
In light of the overwhelming evidence in this case, any error was
harmless beyond a reasonable doubt. Accordingly, we affirm
defendant's conviction and sentence.
Affirmed.
O'BRIEN and GALLAGER, JJ., concur.
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