Opinion
No. 1-18-1614
05-07-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON PAYNE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 13 CR 11391
Honorable Alfredo Maldonado, Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Connors and Harris concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for first degree murder is affirmed. Court rejects his claim that there was insufficient evidence that he knew his actions were practically certain to cause death or great bodily harm when he ran over the victim with a car. The trial court properly denied defendant a new trial based on an alleged ineffective assistance of trial counsel.
¶ 2 Following a bench trial, defendant Aaron Payne was found guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and sentenced to 35 years in prison. On appeal, he contends that the State failed to establish beyond a reasonable doubt that he knew his actions were practically certain to cause death or great bodily harm, and therefore, his conviction should be reduced to
reckless homicide.
¶ 3 In the alternative, Mr. Payne contends that the trial court erred by denying him a new trial based on ineffective assistance of trial counsel. One of the ways he claims that trial counsel was deficient is by failing to explain in closing argument why Mr. Payne was guilty of reckless homicide rather than murder, and he argues that posttrial counsel was deficient for not raising this issue in his posttrial motion. For the reasons that follow, we affirm.
¶ 4 I. BACKGROUND
¶ 5 Mr. Payne was charged by indictment with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2012)) following the death of Andrew Prather. Count I alleged that Mr. Payne intended to kill or do great bodily harm, while count II alleged that Mr. Payne knew his actions created a strong probability of death or great bodily harm. He was convicted on count II.
¶ 6 A. The Trial
¶ 7 This incident arises from a conflict between two families who lived next door to each other: the Prathers and the Paynes. The Prather family includes Denise and her four sons, Andrew, Antoine, Anthony, and Antonio. The Payne family includes Inger and her son, Aaron, the defendant in this case. We will refer to the members of these two families by their first names to avoid confusion, except for Aaron, whom we will refer to as Mr. Payne.
¶ 8 Denise testified that on April 21, 2013, she lived on 91st Street in Chicago with her two youngest sons, Anthony and Antonio, while her two older sons lived elsewhere. At around noon that day, Denise returned from the grocery store. As she was walking from her car to her house, Inger confronted her and "fussed" about Denise trying to hit Inger with Denise's car. They had a "little heated" exchange. Later that day, a brick was thrown through one of Denise's windows.
¶ 9 One of Denise's younger sons then called Andrew and Antoine, and they came to the house.
Andrew arrived in about 15 minutes. He had come from work and was wearing his red Pizza Hut shirt and black pants. Antoine arrived shortly thereafter. Antoine was in a van with Shaniqua "Tekia" Daniels and Treniece Thomas. Andrew and Antoine came in the house and the women stayed in the van. Through a screen door, Denise saw Inger "fussing" and "ranting" and on the telephone. Shortly after that the police arrived.
¶ 10 When police officers arrived, they spoke with Inger, searched Denise's home, and arrested Antonio. Andrew then went to speak to the women in the van. At this point, men Denise had never seen before "rush[ed]" out of Inger's home and made comments to Andrew. Andrew replied that he would not fight there and ran away. The men chased Andrew. Inger remained on the stoop and made a phone call.
¶ 11 Just after Andrew ran away, Mr. Payne arrived in a white car (which was later identified as a Buick) with a female passenger and parked behind the van. Mr. Payne ran to the van, jumped on it, and then went to the house and tried to open Denise's locked front door. Denise heard Inger "hollering" that "he" was running down the street wearing a red shirt. Mr. Payne said, " 'I am going to kill that n***,' " entered the white Buick, and "sped" off. The women in the van drove after Mr. Payne.
¶ 12 A few minutes later, Denise got a call from Ms. Thomas, one of the women in the van. Denise then drove her own car two blocks toward the expressway and saw Andrew on the ground, unconscious and with a bloody head. Andrew was hospitalized, underwent surgery, and died four days later. On May 13, 2013, Denise spoke to detectives and identified Mr. Payne in a lineup.
¶ 13 During cross-examination, Denise denied having prior verbal altercations with Inger and admitted she did not see a car hit Andrew. When the police searched her home, they recovered several BB guns. She testified that she did not remember testifying before the grand jury that Mr.
Payne exited the passenger side of the car that he arrived in, that a woman was driving, or that Mr. Payne reentered the passenger side, and the woman reentered the driver's side. She did not remember telling the police that a woman drove the car away, and she reiterated that Mr. Payne drove.
¶ 14 During redirect, Denise denied having problems with Inger or her children. Denise did not see her sons or the women in the van threaten anyone. Denise clarified that she did not have a clear view of the white Buick when it left the scene, but saw Mr. Payne run and jump inside it, which led her to believe he entered the driver's seat.
¶ 15 Ms. Thomas, one of the women who had arrived in the van with Antoine, testified that on April 21, 2013, after Antoine got a phone call, she, Antoine, and Ms. Daniels entered Ms. Daniels's van and drove to Denise's home. When they got there, she and Ms. Daniels stayed in the van, while Antoine went in his mother's house. Inger—with whom Ms. Thomas had previously socialized—spoke to Ms. Daniels from the porch. Ms. Daniels did not respond. Inger then went inside to get her phone and made a call.
¶ 16 Shortly thereafter, police officers arrived. The police searched the van and Denise's home and arrested Antoine. After the police left, Ms. Thomas got in the driver's seat of the van. Andrew was talking to Ms. Daniels when four or five young men surrounded him and said, "your brother isn't here to save you now." Andrew replied that, if they wanted him, they would have to chase him to his vehicle. He ran away and the men chased him. Shortly thereafter, the men returned, but Andrew did not. Inger made another phone call.
¶ 17 Several minutes later, a white car arrived. Mr. Payne exited the driver's side and entered Inger's home. A few minutes later, Mr. Payne came out of the house and sat on the van's hood. He next went to Denise's home and tried to "twist" the doorknob. Inger then loudly said that "he"
was wearing a red shirt and heading toward the expressway. Mr. Payne ran to the white car, entered the driver's side, and drove in the direction that Andrew had run.
¶ 18 Ms. Thomas then headed east on 91st Street to go home. She saw the car that Mr. Payne had driven off in about one quarter mile from the house and she also saw Andrew. Andrew was ahead of the car and by trees and two garbage cans, bent over, trying to catch his breath, and walking on the pavement. She passed Mr. Payne's car which was moving slowly so that she could pick up Andrew, but Mr. Payne accelerated. Mr. Payne then swerved in what appeared to her to be an attempt to hit Andrew, but hit the garbage cans instead. At that point, Andrew "took off running." Mr. Payne then sped up. As Andrew ran, he looked back and "hopped" on the hood of the car that Mr. Payne was driving. Mr. Payne then braked, and Andrew rolled off. As Andrew got up, Mr. Payne accelerated and ran him over.
¶ 19 Through the van's rearview mirror, Ms. Thomas saw the front of the white car that Mr. Payne was driving roll over Andrew and stop. Mr. Payne then quickly drove away. Ms. Thomas made a U-turn and exited the van while Ms. Daniels called 9-1-1. Andrew was bleeding from the ear and mouth. The following day, Ms. Thomas spoke to detectives and identified Mr. Payne in a photographic array. On May 13, 2013, she identified Mr. Payne in a line-up.
¶ 20 Ms. Thomas then identified certain photographs, including one of the "crime scene where Andrew was hit" and one which was a close-up of the area where she found Andrew on the ground after he was struck. She noted the location of the white car "right before" it struck Andrew, the position of Andrew's body after he was struck, and the direction the white car went after striking Andrew. These photographs are included in the record on appeal and do not depict garbage cans.
¶ 21 During cross-examination, Ms. Thomas denied telling police that seven men confronted Andrew; rather, she said four to five. Ms. Thomas was in front Mr. Payne when he swerved and
hit the garbage cans. On cross-examination, Ms. Thomas acknowledged that much of what she saw—Mr. Payne hitting the garbage cans, Andrew on the car's hood, and Mr. Payne running Andrew over—she observed through the rearview mirror and rear window of the van. During redirect, Ms. Thomas estimated that about two minutes elapsed between when she passed the white car and when it ran over Andrew.
¶ 22 Cherada Airhart testified that on April 21, 2013, she was Mr. Payne's girlfriend and pregnant with their child. At around noon, Mr. Payne drove them to Inger's home in Ms. Airhart's Buick. During the drive, Mr. Payne received a phone call. When they arrived at Inger's home, Ms. Airhart remained in the car and Mr. Payne went inside Inger's home. After two minutes, Mr. Payne returned, and they left. As they were driving, Ms. Airhart was looking at her phone when she felt a "bump, like an impact," looked up from her phone, and saw a boy in a red shirt falling off the front passenger side of the car. Mr. Payne then drove over the boy. When Mr. Payne asked if the boy was "okay," she looked back and saw the boy on the ground, so she said she did not know. Mr. Payne turned the wrong way onto a one-way street and drove home. Once there, Mr. Payne said it was an accident and he would turn himself in. When Ms. Airhart's uncle, Corey Westbrooks, called later that day asking for money she owed him for the Buick, she returned the car to him because she did not have the funds.
¶ 23 Ms. Airhart admitted that Mr. Payne did not turn himself in for several weeks and that she did not speak to police until after Mr. Payne had been arrested for the crime.
¶ 24 Corey Westbrooks testified that he sold his niece, Ms. Airhart, the Buick in exchange for monthly payments totaling $850. On the evening of April 21, 2013, he asked Ms. Airhart to return the Buick due to nonpayment and she did. A few days later, he took the Buick to the auto shop where he worked for repairs. He sold the Buick and put its license plates on his van. He met with
detectives on April 30, 2013, and gave them the license plates that were previously on the Buick.
¶ 25 Chicago police detective James Scannell testified that on the afternoon of April 21, 2013, he and his partner spoke with Denise, Ms. Daniels, and Ms. Thomas at a hospital. Detective Scannell then developed a photo array which he showed to Ms. Thomas on April 22, 2013. Ms. Thomas identified a photograph of Mr. Payne. Following further investigation, Detective Scannell and his partner met with Mr. Westbrooks on April 30, 2013, and received the license plates that were previously on the Buick. Detective Scannell was present on May 13, 2013, when Denise and Ms. Thomas identified Mr. Payne in a line-up. On June 1, 2013, the Buick was recovered.
¶ 26 The parties stipulated that the assistant medical examiner who conducted Andrew's autopsy concluded that the cause of death was a closed head injury caused by a car striking him and the manner of death was homicide. They also stipulated that trace evidence recovered from the Buick's lower passenger side trim behind the front wheel well and the underside of the "front frame cross member" revealed one possible body hair fragment that was not suitable for further comparison and one possible piece of vegetation. Mr. Payne's motion for a directed verdict was denied.
¶ 27 Mr. Payne testified that, on April 21, 2013, he and Ms. Airhart drove to Inger's home and arrived at around noon. Mr. Payne spoke to Inger inside the house. During this conversation, Inger said she had an altercation with her neighbor and the neighbor's son drew a firearm, so she called the police and had the son arrested. Mr. Payne denied saying he was "going to kill that n***." Sunday dinner was postponed, so Mr. Payne left after 15 to 20 minutes. After driving about one-half block, "a guy came from out of nowhere with his shirt over his face." Mr. Payne did not know this person but saw him approach from the "angle" of the passenger side of the car and jump on the hood. Mr. Payne, who was traveling at 15 miles per hour on the street, lowered his head, braked,
and then "hit the gas and got away." He was scared and startled by the "whole situation," namely, that someone jumped on his car just after people had been around his mother with firearms, but he did not deliberately run this person over.
¶ 28 During cross-examination, Mr. Payne acknowledged that he and Ms. Airhart were married at the time of trial. He also testified that Ms. Airhart did not come into his mother's house and he was unsure if she exited the car. He denied that Inger told him which direction Andrew ran or what Andrew was wearing. Mr. Payne also denied speaking to Inger on the stoop. Mr. Payne decided to leave because Inger postponed dinner and he wanted to be home by 3 p.m. as he had plans to visit his "other girlfriend's house." Mr. Payne braked because he was shocked when the man jumped on the hood. The man was wearing a bright red or orange shirt. Mr. Payne did not stop the car; rather, he sped off and did not recall feeling a thump. He did not see a van in front of the car, did not look back or check on the man, and did not call 9-1-1. He turned himself into the court on May 7, 2013, after speaking with his attorney. Mr. Payne did not contact the police because he did not trust Chicago police officers.
¶ 29 In rebuttal, the State presented Mr. Payne's certified copy of conviction for possession of a controlled substance in case number 08 CR 17635 for impeachment purposes.
¶ 30 After closing argument, the court first noted that Denise was "impeached" by her grand jury testimony and did not see the incident. The court found Ms. Thomas to be the most credible witness, noting that she saw Mr. Payne follow Andrew, strike garbage cans while trying to hit him, and then actually hit him. The court also said that Ms. Airhart's testimony largely corroborated Ms. Thomas, although Ms. Airhart said that there were no garbage cans. The court then discussed Ms. Airhart's bias, as she was Mr. Payne's wife and the mother of his child. The court found "large chunks" of Mr. Payne's testimony to be "completely incredible." Specifically, the court noted his
testimony that Ms. Airhart never got out of the car although his claim was that they had gone to his mother's house for dinner, that they left because Mr. Payne wanted to leave early for another commitment, and that a man with a red shirt (who turned out to be Andrew) just happened to jump on the car that he was driving. Although the court found that Mr. Payne testified credibly that he drove the car that hit Andrew, the chain of events he described was "entirely incredible."
¶ 31 The court found Mr. Payne not guilty of count I for first degree murder predicated on intending to kill or do great bodily harm to Andrew. However, the court found the State had established beyond a reasonable doubt that Mr. Payne knew his actions created a strong probability of death or great bodily harm and found him guilty of count II for first degree murder. Specifically, the court said it was:
"less concerned or less focused on the words of the defendant and more on the actions of the defendant. Here Miss Ms. Thomas testified that the defendant was intentionally trying to strike the decedent. He swerved and hit garbage cans and followed the decedent *** in a car. For whatever reason, *** it doesn't matter. What matters is whether or not such acts create a strong probability of death or great bodily harm knowing that such acts.
I think it's looking at the evidence and looking at the evidence in the context of common sense, chasing someone in a car and intentionally trying to hit them does create a strong probability of death or great bodily harm. In that, I think the defense was somehow asking that this Court at least consider *** reckless homicide ***, this is not reckless homicide. This conduct here is far more than reckless. The record that has been established, the testimony that came out, this was not reckless. This was greater than reckless conduct."
¶ 32 B. Posttrial Proceedings
¶ 33 Mr. Payne filed a motion for a new trial. On December 20, 2016, trial counsel told the court that Mr. Payne wished to terminate his services due to ineffective assistance. Mr. Payne requested new counsel, and the court appointed an assistant public defender. On January 6, 2017, Mr. Payne stated he wished to proceed pro se, which the court permitted after it had admonished him on the consequences of this choice. On April 6, 2017, Mr. Payne again asked for counsel to be appointed, and the trial court appointed another assistant public defender to represent him.
¶ 34 Mr. Payne then filed, through posttrial counsel, a motion and two supplemental motions for a new trial raising, in pertinent part, numerous allegations of ineffective assistance of trial counsel. These included allegations that trial counsel failed to (1) communicate with and visit Mr. Payne, (2) respond to messages that Ms. Airhart sent on Mr. Payne's behalf, including those regarding potential witnesses, (3) make an opening statement, and (4) cross-examine and impeach Ms. Thomas. The motions alleged that trial counsel failed to use certain police reports and photographs to attack Ms. Thomas's and Detective Scannell's testimony regarding the existence of garbage cans "at the scene." On May 23, 2018, the court held a hearing on Mr. Payne's motions.
¶ 35 At the hearing, Mr. Payne called Ms. Airhart, who testified that while on the phone with Mr. Payne, she would text and email counsel to relay information and questions from Mr. Payne. On September 20, 2015, she texted trial counsel the phone number of Demetria Darby, who had seen the accident and would speak with counsel. On November 7, 2015, Ms. Airhart emailed counsel a list of questions from Mr. Payne regarding the trial, Ms. Darby, and another potential witness, Otis Craig.
¶ 36 In November and December 2015, Ms. Airhart emailed counsel several requests from Mr.
Payne that counsel visit him. On December 21, 2015, Ms. Airhart sent counsel an email regarding a scheduled bench trial and counsel's lack of a response to Mr. Payne. On April 26 and 27, 2016, she sent texts to counsel asking about an offer from the State and whether Mr. Payne would have to wait until June to learn his case status. She texted counsel on April 29, April 30, May 3, June 20, June 25, and July 2, 2016, asking counsel to visit Mr. Payne, and did not receive any response. On July 20, 2016, she texted counsel asking him to visit Mr. Payne to "set the defense." The following day, she texted counsel to ask if he had any documents explaining what was recovered from Mr. Payne's clothing. On August 15, 2016, she texted counsel asking if he would visit Mr. Payne.
¶ 37 The State called Mr. Payne's trial counsel, Richard Dickinson, who testified that he previously represented Mr. Payne's mother and uncle and had known Mr. Payne's family for 30 years. He first represented Mr. Payne in 2012 on a charge of being an armed habitual criminal and was then retained in this matter. Mr. Payne's mother paid him approximately $15,000 for the two cases. Counsel did not remember being paid by Ms. Airhart.
¶ 38 During the pendency of the two cases, Mr. Dickinson attended Mr. Payne's court dates almost every month at two different courthouses. He spoke to Mr. Payne many times at the Bridgeview courthouse where the facilities made meetings easier. Mr. Dickinson would bring the portions of the file relevant to the meeting and discuss defenses and the circumstances of the offense with Mr. Payne. While Mr. Payne admitted he ran over Andrew, Mr. Payne also suggested the defense of a second car running over Andrew and "indicated" he could get a witness to testify to that. Mr. Payne and Inger told Mr. Dickinson that he could be provided with witnesses to say what he needed, but Mr. Dickinson testified that he would not knowingly suborn perjury. When Mr. Dickinson inquired about Ms. Darby's potential testimony, Mr. Payne stated that she would
say whatever counsel needed. Mr. Dickinson concluded that Ms. Darby's potential testimony was just a "story."
¶ 39 Mr. Dickinson and Mr. Payne also discussed Ms. Airhart's grand jury testimony and potential trial testimony. Their discussion about possible defenses was complicated by the version of events presented in Ms. Airhart's grand jury testimony. However, Mr. Payne did not "perceive" the seriousness of the case. Mr. Dickinson rarely responded to Ms. Airhart's communications because she had testified before the grand jury. He considered her a State's witness, and he did not want the appearance of impropriety. Likewise, he did not respond to Ms. Airhart after Mr. Payne's trial began on June 22, 2016.
¶ 40 While Mr. Dickinson represented Mr. Payne, their relationship was "strained" because Mr. Payne tried to manipulate Mr. Dickinson into fashioning the defense Mr. Payne wanted. At one point, Ms. Airhart filed a complaint with the Attorney Registration and Disciplinary Commission (ARDC) on Mr. Payne's behalf. When Mr. Dickinson asked why, Mr. Payne stated that he was preparing for an ineffective assistance of counsel claim "down the road." The ARDC complaint was subsequently dismissed.
¶ 41 Mr. Dickinson explained that he did not make an opening statement because it was a bench trial and he assumed the court could "keep up with the evidence." He stipulated to factual matters in the interest of judicial economy, but cross-examined witnesses to the best of his ability on "germane" matters to ensure that truthful testimony was elicited. While he did not question Ms. Thomas about the garbage cans, he asked Ms. Airhart whether she noticed the car striking garbage cans before striking Andrew. Based upon what Mr. Payne told him and the testimony at trial, Mr. Dickinson could not present any additional defenses.
¶ 42 The trial court denied the motion for a new trial. The trial court found that Mr. Payne did
not receive ineffective assistance of counsel, noting that it was not ineffective to refuse to interview witnesses the lawyer thought would suborn perjury. The court found that the lack of impeachment of Ms. Thomas on certain points was de minimis and would not have changed the trial's outcome.
¶ 43 Mr. Payne's pre-sentence investigation reported that he had seven previous felony convictions. The State recommended a sentence close to the 60-year maximum. The trial court sentenced Mr. Payne to 35 years in prison. Mr. Payne filed a motion to reconsider his sentence, which the trial court denied.
¶ 44 II. JURISDICTION
¶ 45 Mr. Payne's motion to reconsider sentence was denied on June 25, 2018, and he timely filed his notice of appeal that same day. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013) and 606 (eff. Dec. 11, 2014), governing appeals from final judgments in criminal cases.
¶ 46 III. ANALYSIS
¶ 47 A. Sufficiency of the Evidence
¶ 48 On appeal, Mr. Payne first contends that he was not proven guilty beyond a reasonable doubt because the evidence did not establish he knew his actions were practically certain to cause death or great bodily harm to Andrew. He argues that, because the evidence established only that he consciously disregarded the risks of his actions, this court should reduce his first degree murder conviction to reckless homicide.
¶ 49 When reviewing a challenge to the sufficiency of the evidence, "the question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in
original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from the facts presented at trial. Id. "In reviewing the evidence, this court will not retry the defendant, nor will we substitute our judgment for that of the trier of fact." Id. A defendant's conviction will be reversed only when the evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of his guilt. People v. Newton, 2018 IL 122958, ¶ 24.
¶ 50 To sustain a conviction for first degree murder, the State had to prove that Mr. Payne knew his acts created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2) (West 2012). A person acts knowingly when he is consciously aware that a result is practically certain to be caused by his conduct. 720 ILCS 5/4-5(b) (West 2012).
¶ 51 The difference between reckless homicide and first degree murder involving a car is "the mental state that accompanies the conduct resulting in the victim's death." People v. Alsup, 373 Ill. App. 3d 745, 749-50 (2007). Often, "the distinction rests in the degree to which the acts [that the] defendant performed risk death or great bodily harm." (Internal quotation marks omitted.) Id. at 750. Whether a defendant's particular acts produce a "strong probability" of death or great bodily harm for knowing first degree murder or are "likely" to cause death or great bodily harm for reckless homicide presents a question of fact to be determined by the trier of fact based on all the circumstances of the case. (Internal quotation marks omitted.) Id. A defendant's mental state may be inferred from circumstantial evidence and is generally a question for the trier of fact. People v. Eubanks, 2019 IL 123525, ¶ 74.
¶ 52 The State is not required to show that the defendant had the specific intent to kill or do great bodily harm or that he knew with certainty that someone would die as a result of his actions.
Alsup, 373 Ill. App. 3d at 753. The State was required to show "only that he knew of the strong probability that he would cause at least one of those results." (Emphasis in original.) People v. Oelerich, 2017 IL App (2d) 141281, ¶ 68. Our supreme court has held that the "requisite mental state" for knowing first degree murder "may be inferred from the facts and circumstances of the evidence." People v. Howery, 178 Ill. 2d 1, 43 (1997). In other words, the defendant's "intent may be implied from the character of the act." Id.
¶ 53 When we view the evidence in Mr. Payne's case in the light most favorable to the State, we cannot say that no rational trier of fact could have found Mr. Payne guilty of first degree murder. Here, the evidence established that after Inger argued with Denise, a brick was thrown through Denise's window, and police were called, searched Denise's home, and arrested Antoine. Then Andrew was chased by a group of men who exited Inger's home. Shortly thereafter, Mr. Payne arrived. Ms. Thomas, who was seated in a van outside Denise's and Inger's homes, testified that when Mr. Payne exited Inger's home, he jumped on the van, which had brought one of Denise's sons to the house, and then tried to enter Denise's home.
¶ 54 Denise testified that after Mr. Payne tried to open her front door, she heard Inger yell that "he" was not there, but was running and wearing a red shirt and Mr. Payne reply, " 'I am going to kill that n***.' " Mr. Payne then drove in the direction that Andrew ran. Ms. Thomas testified that Mr. Payne swerved and hit garbage cans close to where Andrew was walking before Andrew hopped onto the hood. Then Mr. Payne braked, Andrew rolled off, Mr. Payne accelerated, and Andrew was run over. This evidence was more than sufficient to allow the trier of fact to find that Mr. Payne acted with knowledge that—when he hit the brakes, then accelerated, and then ran over Andrew—he was creating a strong probability of death or great bodily harm.
¶ 55 Mr. Payne, however, contends there was reasonable doubt as to whether he knew that his
actions created a strong possibility of death or great bodily harm. He points specifically to the fact that there was no evidence that he was speeding and that Ms. Thomas passed him because he was driving so slowly. He argues that his conduct when he ran Andrew over was consistent with recklessness when, due to fear, he lowered his head and accelerated.
¶ 56 However, Mr. Payne's conduct in running over Andrew cannot be viewed in a vacuum. The context includes all the events before the car ran over Andrew, including evidence of Mr. Payne's statement as he took off after Andrew that he was going to "kill" him. It also includes everything that occurred after, including the fact that he did not stop or contact the police, and that Ms. Airhart almost immediately returned the Buick to her uncle. The trier of fact in this case was not required to disregard inferences flowing naturally from the evidence before it, nor did it need to search out all possible explanations consistent with innocence and raise them to the level of reasonable doubt. In re Jonathon C.B., 2011 IL 107750, ¶ 60.
¶ 57 Ultimately, Mr. Payne's arguments are a request for us to reweigh the evidence in his favor, substitute our judgment for that of the trier of fact, and find him guilty of a different offense. This we cannot do. See McLaurin, 2020 IL 124563, ¶ 22; see also People v. Abdullah, 220 Ill. App. 3d 687, 693 (1991) ("A reviewing court has neither the duty nor the privilege to substitute its judgment for that of the trier of fact."). Rather, the question before us is whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense of which Mr. Payne was convicted. In this case, we cannot say that no rational trier of fact could have found that Mr. Payne knew that his actions created a strong possibility of death or great bodily harm. Accordingly, we affirm his conviction for first degree murder.
¶ 58 B. Ineffective Assistance of Trial Counsel
¶ 59 In the alternative, Mr. Payne contends that the trial court erred in denying him a new trial because his trial counsel was ineffective for failing to "establish" that Ms. Thomas's testimony that Mr. Payne struck garbage cans was "impossible" and for not adequately asserting that Mr. Payne committed reckless homicide rather than first degree murder.
¶ 60 Ineffective assistance of counsel claims are evaluated under the test described in Strickland v. Washington, 466 U.S. 668 (1984). A defendant must show his trial counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him. People v. Cherry, 2016 IL 118728, ¶ 24. Prejudice is a reasonable probability that, but for counsel's "unprofessional errors," the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A defendant must satisfy both prongs of the Strickland test to succeed on a claim of ineffective assistance of counsel. Cherry, 2016 IL 118728, ¶ 24.
¶ 61 "Determining whether defense counsel provided ineffective assistance involves a bifurcated standard of review, wherein we defer to the trial court's findings of fact unless they are against the manifest weight of the evidence, but make a de novo assessment of the ultimate legal issue of whether counsel's actions support an ineffective assistance claim." People v. Stanley, 397 Ill. App. 3d 598, 612 (2009); see also People v. Gavin, 2021 IL App (1st) 182085, ¶ 36.
¶ 62 "Counsel's performance is presumed to be reasonable, and 'strategic choices, made after investigating the law and the facts, are virtually unchallengeable.' " People v. Velez, 388 Ill. App. 3d 493, 502-03 (2009) (quoting People v. Griffin, 178 Ill. 2d 65, 86 (1997)). To succeed on a claim of ineffective assistance, a defendant must overcome the strong presumption that counsel's actions reflected sound trial strategy rather than incompetence. People v. Valladares, 2013 IL App (1st) 112010, ¶ 70.
¶ 63 Mr. Payne first contends that he was denied effective assistance by trial counsel's failure to establish that Ms. Thomas's testimony that Mr. Payne struck garbage cans was "impossible" because no garbage cans were observed by anyone else at the scene. He argues that the investigating officers did not document any garbage cans, and that this would have impeached Ms. Thomas's credibility had counsel properly raised the issue.
¶ 64 Generally, decisions on cross-examination and impeachment of witnesses may not serve as the basis of a claim for ineffective assistance of counsel because they are matters of trial strategy involving "the exercise of professional judgment which is entitled to substantial deference from a reviewing court." People v. Pecoraro, 175 Ill. 2d 294, 326-27 (1997). To succeed on an ineffective assistance claim, a defendant must show that counsel's approach to cross-examination was objectively unreasonable. Id. at 327.
¶ 65 At trial, Ms. Thomas testified that, as she drove behind the slowly moving white car, she saw Andrew near trees and garbage cans. As she continued to drive, she passed the white car driven by Mr. Payne and slowed so that Andrew could enter the van. As Andrew began to walk, Mr. Payne swerved and hit garbage cans. At that point, Andrew began to run, Mr. Payne accelerated, Andrew jumped on the car's hood, and was ultimately run over. Ms. Thomas estimated that two minutes passed between when she passed Mr. Payne and when he ran over Andrew.
¶ 66 Mr. Payne is correct that only Ms. Thomas testified that he hit garbage cans before striking Andrew. However, the record also reveals that trial counsel cross-examined both Ms. Thomas and Ms. Airhart regarding the garbage cans. Counsel's questions to Ms. Thomas focused on whether her ability to see the events was impacted by the fact that she observed them through the van's rearview mirror and rear window. Counsel also cross-examined Ms. Airhart, eliciting that she did not remember whether the car hit any garbage cans.
¶ 67 Mr. Payne focuses on the fact that his lawyer did not cross-examine Detective Scannell regarding the existence of garbage cans at the crime scene. While Mr. Payne argues that the detective's statement that no garbage cans were found in the immediate vicinity of Andrew's body would have destroyed Ms. Thomas's credibility, he ignores the fact that Ms. Thomas testified that Andrew "took off" running after the garbage cans were struck and approximately two minutes passed between when she passed Mr. Payne and when Andrew was hit. It is a reasonable inference that the location where Andrew's body fell after being struck was not the same location where the garbage cans were struck. Consequently, the fact that Detective Scannell might have testified that he did not see garbage cans would not necessarily have hurt Ms. Thomas's credibility. We cannot say that counsel's strategy was objectively unreasonable or that his failure to cross-examine the detective on this subject prejudiced Mr. Payne.
¶ 68 Mr. Payne also argues that trial counsel failed to "adequately" assert during closing argument that Mr. Payne committed reckless homicide rather than first degree murder. Mr. Payne acknowledges that trial counsel asserted during closing argument that there was no evidence that Mr. Payne changed the direction of the car to make Andrew jump on it or that Mr. Payne deliberately used the car to kill anyone. However, Mr. Payne argues that trial counsel failed to properly articulate why the evidence established that Mr. Payne was guilty, at most, of reckless homicide. Because this argument was not raised in his posttrial motion, Mr. Payne also argues that posttrial counsel was deficient for not raising this issue. In the alternative, he seeks second-prong plain error review on this issue. We find, however, that Mr. Payne has no claim of ineffective assistance on this basis and therefore posttrial counsel was not ineffective for failing to raise it and there is no need for plain error review.
¶ 69 First, Mr. Payne fails to show that his attorney was deficient in not presenting the defense
that Mr. Payne now argues would have been successful. At the hearing on Mr. Payne's motion and supplemental motion for a new trial, trial counsel testified that he discussed defenses with Mr. Payne. Mr. Payne offered to obtain witnesses who would say whatever counsel needed. Mr. Payne testified to a series of events that the trial court found completely not credible. However, this series of events suggested that his running over someone that he did not even know was Andrew was an accident, rather than reckless conduct.
¶ 70 Trial counsel explained that his trial strategy was limited by the facts told to him by Mr. Payne and what Ms. Airhart had already testified to before the grand jury. See Velez, 388 Ill. App. 3d at 502-03 (an attorney's strategic decisions, made after investigating the law and facts, are virtually unchallengeable). It was also limited by what appears to have been some effort by Mr. Payne to offer witnesses who he claimed would say whatever was needed. Mr. Payne cannot overcome the strong presumption that trial counsel's actions, including the arguments he made in closing, reflected sound trial strategy. Valladares, 2013 IL App (1st) 112010, ¶ 70.
¶ 71 Moreover, Mr. Payne cannot show prejudice. Regardless of whether trial counsel specifically argued that Mr. Payne was only guilty of reckless conduct, the trial court, in finding Mr. Payne guilty of first degree murder, noted that the defense's closing argument asked the court to "at least consider" reckless homicide and the court specifically rejected that request. See Strickland, 466 U.S. at 687-88. Thus, this argument was considered and rejected by the trial court.
¶ 72 Since there was no ineffective assistance by trial counsel, Mr. Payne's claim that posttrial counsel was ineffective for failing to raise this issue also fails (People v. Brown, 2017 IL App (1st) 142877, ¶¶ 55-56), and without error, his related request for plain error review is unfounded (People v. Hood, 2016 IL 118581, ¶ 18).
¶ 73 Accordingly, after considering Mr. Payne's complaints with trial counsel's performance
both individually and cumulatively, we find that the trial court did not err in rejecting Mr. Payne's claim of ineffective assistance and denying him a new trial.
¶ 74 IV. CONCLUSION
¶ 75 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 76 Affirmed.