Opinion
NO. 4-15-0067
05-03-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON M. TOSH, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of McLean County
No. 13CF1477
Honorable Robert L. Freitag, Judge Presiding.
JUSTICE POPE delivered the judgment of the court.
Justices Holder White and Appleton concurred in the judgment.
ORDER
¶ 1 Held: Defense counsel had a valid strategic reason to allow the State to introduce the unredacted videotaped interviews of defendant by the police as evidence at trial.
¶ 2 In April 2014, a jury found defendant, Aaron M. Tosh, guilty of two counts of aggravated battery to a child, and he was sentenced to 18 years in the Department of Corrections (DOC). On appeal, defendant argues he was denied effective assistance of counsel when his trial counsel failed to object to the publication of defendant's unredacted videotaped police interrogations. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In November 2013, defendant was charged by indictment with two counts of aggravated battery of a child under the age of 13 when he knowingly caused great bodily harm to K.W. by causing a skull fracture and an arm fracture (720 ILCS 5/12-3.05(b)(1) (West 2012)).
¶ 5 At the April 2014 jury trial, defense counsel's opening statement included the following: "You will also likely hear [defendant's] recorded statement, some two hours of his interrogation by Officer Tyler. You will hear his consistent denials during the entirety of that interrogation. That was on the 27th. On the 28th, there was an additional interrogation where you will hear his consistent denials."
¶ 6 Britani Wells testified she was the mother of three children, including Da. (age 4), Do. (age 2), and K.W. (age 14 months). Sometime in September 2013, defendant moved into the house in Anchor, Illinois, in which Wells and the children lived. Wells and defendant were in a dating relationship.
¶ 7 Wells testified on or about October 18, 2013, K.W., who was just learning how to walk, fell and hit the middle of his forehead on the corner of the coffee table. Wells took K.W. to the hospital a couple of days later, when she noticed a "mushy bruise" on his head. The hospital staff told Wells it was a hematoma and, as it began to heal, the blood would drain down K.W.'s face, causing his face to become puffy. In the days following the injury, the hematoma drained more toward the right side, causing puffing of the face and "raccoon" bruises. Then it began to heal and the bruises were fading. Wells took photos of K.W.'s face on October 23, October 25, and the morning of October 26, 2013. The photos corroborated Wells' testimony K.W.'s face appeared to be healing by the morning of October 26, 2013.
¶ 8 On the morning of October 26, 2013, K.W. acted like he did not feel well, whining and wanting to be held. Wells thought he might be getting a cold. He would not eat and, every time she tried to lay him down to change his diaper, he would push himself up with both his arms. K.W. fell asleep around noon while he was sitting up on the couch. When Wells tried to lay him down in his bed, K.W. pushed himself back up using both arms. Wells, Da., and
defendant had dinner around 6 p.m., but K.W. did not eat anything.
¶ 9 Around 6:30 p.m., Wells decided to go to the grocery store to pick up some Pedialyte. She went to the store in Colfax, Illinois, about six minutes from home. Wells took Da. with her to the store, leaving defendant and K.W. home. When she left, K.W. was running around and crying. He wanted to go along with Wells. Wells' trip to the store was corroborated by a surveillance video and store receipt.
¶ 10 When Wells returned home, K.W. was on the couch. As he ran up to Wells, she noticed the right side of his face was a little swollen. He looked different from when Wells left because he had a new mark on his head. He was still whining like he was sick. Wells immediately decided to take K.W. back to the hospital. She left the house about 15 minutes later and left Da. with defendant.
¶ 11 Wells originally planned to take K.W. to the hospital in Bloomington, Illinois, to get a second opinion. However, after she headed in that direction, she changed her mind and decided to go back to the hospital in Gibson, Illinois. She stopped back by the house to tell defendant her plans because defendant did not have a phone. She arrived at the hospital approximately 30 minutes later.
¶ 12 By the time Wells got to the hospital, K.W.'s head was more swollen and she noticed he would not use his right arm when she tried to give him a bottle. (Wells had put a bottle in the car seat with K.W. when they left for the hospital. She did not see K.W. drink the bottle, but it was empty by the time they arrived at the hospital. Wells took a photograph of K.W.'s face shortly after arriving at the hospital because he was looking even worse. K.W. was transported by ambulance to Carle Hospital in Champaign, Illinois, for X-rays, a computerized tomography (CT) scan, and blood work. Wells took more photographs of K.W. on October 27,
2013, while he was at Carle Hospital. These photographs depicted deeper bruises on K.W.'s face. His right eye was swollen shut and his right ear was displaced such that it was almost down in line with his chin and toward the back of his head. One photograph shows K.W.'s right arm in a cast and sling.
¶ 13 On cross-examination, Wells stated she did not see K.W. sustain any injuries or have any accidents on October 26, 2013. She did not see defendant do anything to K.W.
¶ 14 Wells testified on previous occasions she had left the children under defendant's supervision. As far as disciplining the children, to her knowledge, defendant never spanked them. He did report to Wells if he disciplined the children with time-outs or standing in the corner.
¶ 15 Wells testified she was interviewed by the police for approximately an hour, some of which was videotaped. The detectives never suggested defendant was the likely perpetrator. Wells did consider that possibility when she was being questioned While she was being questioned, Wells acknowledged she was aware she could be arrested. She told the police everything she knew, including the photographs she had taken on her phone. She willingly let the police search her phone.
¶ 16 Dr. Brent Reifsteck testified he became involved in K.W.'s case when he arrived at Carle Hospital. During his testimony, a stipulation was read to the jury regarding the various X-rays and CT scans taken of K.W.'s head and body on the evening of October 26, 2013, and the morning of October 27, 2013, at the Gibson Area Hospital and Carle Hospital. Dr. Reifsteck testified the X-rays and CT scans revealed displacement of the right ear. It also revealed soft tissue swelling extending around the right ear up around the right eye and forehead above the eye. The images also revealed a new oblique fracture of the humerus bone of the right arm. The
images did not reveal K.W. also suffered a basilar skull fracture; rather, that diagnosis was confirmed by clinical features, including the significant displacement of K.W.'s right ear which was indicative of soft tissue swelling and internal damage as a result of a basilar skull fracture. Dr. Reifsteck opined these injuries were caused by significant force, such as a car accident or falling from a second-story height, or by blunt force trauma by an adult. In his opinion, they could not have been caused by an accidental fall or from being struck with an object by a four-year-old child. The broken arm would have been caused by a direct hit by an adult or being thrown against something by an adult.
¶ 17 Tim Tyler testified in his capacity as a detective with the McLean County sheriff's department. He interviewed defendant for approximately 2 ½ hours on October 27, 2013. The interview was videotaped. The entire videotaped interview was published to the jury.
¶ 18 A transcript of the videotape is not in the record. We have reviewed the videotape. Defendant maintained he and Wells were the only people home on October 26, 2013, along with K.W. and Da. He stated K.W. had a "head thing" after having hit his head on the coffee table a couple of weeks prior. They had taken K.W. to the hospital sometime after he fell. K.W. had a swollen forehead and black eyes. He appeared to be getting better, but for the past two days had been fussy, crying, not eating, not sleeping, and would not let anyone put him down or lay him down in his crib. Sometime in the afternoon, Wells decided to go to the store to get some Pedialyte for K.W. Defendant indicated Da. stayed home. Defendant said Da. was "always running around wild" and would hit his brothers with whatever objects he could find. In the past, he had hit K.W. with a tennis racket and with a blue metal pole he had broken off of his bed. Defendant stated there was no chance Da. struck K.W. while Wells was at the store. He opined he could see no way Da. could have broken K.W.'s arm even if he had pulled on it. Wells
was gone for approximately 20 minutes. While she was gone, defendant said he watched football while K.W. slept on the couch, and Da. was running around as usual. Defendant maintained K.W. slept the entire time Wells was gone and slept for another hour or so after she returned. Defendant could not explain how K.W.'s arm was broken. He maintained he did not even discipline the children because he did not like disciplining someone else's children.
¶ 19 In response to a comment by Tyler, defendant maintained he saw no difference in K.W.'s behavior from the past two days up to when Wells returned from the store. Tyler advised defendant Wells had reported when she came back from the store, she immediately noticed K.W. had gotten worse and needed to go to the hospital. Defendant responded Wells "says that all the time though." Defendant thought a couple of hours passed from the time Wells came home from the store until she left for the hospital. They fixed dinner, ate, did laundry, and fed K.W. the Pedialyte.
¶ 20 Tyler left the room during the interview to check on K.W.'s status at the hospital. When he returned, he related to defendant that K.W. had suffered fresh fractures of his arm and skull, which had occurred within the past day. Throughout the interview, defendant acknowledged he and Wells were the only adults at home with the children, but he maintained he had no idea how K.W. had been injured. He insisted he had not struck or harmed K.W. Tyler suggested defendant was the only person who could have harmed K.W. because he was the only adult alone with K.W. during the 20-minute period Wells ran to the store, and Da. could not have inflicted those injuries. Tyler suggested no one would believe defendant had not inflicted K.W.'s injuries, either intentionally or accidentally. Defendant acknowledged he was being blamed, but he continually and adamantly denied harming K.W. or that any kind of accident occurred. Tyler
repeatedly asked for an explanation of how K.W. could have these new injuries and defendant said he had none, but he did not harm K.W.
¶ 21 Tyler left the room to take a phone call. When he returned, he told defendant his story was "falling apart." Tyler said he personally thought defendant had done it because there was no one else in the house. Defendant stated again he was only alone with K.W. for 10 minutes, insisted he did not harm K.W., and said he "would not hurt that kid." Defendant insisted nothing changed with K.W. from Friday until Wells got home from the store on Saturday. Defendant maintained over and over he did not hurt K.W. but could not explain how K.W. sustained the new injuries.
¶ 22 While the trial was in a brief recess, the trial court noted no objections were made during the presentation of the videotaped interview. The court indicated it understood that may have been for strategic purposes or counsel not wanting to draw attention to certain matters. However, the court also noted numerous times during the interview when Tyler referred to his beliefs, his opinions, and what other people had said. The court asked defense counsel if he wanted the court to issue a cautionary instruction to the jury in light of the fact the entire interview had been published to the jury without redaction. Defense counsel asked for an instruction to be given. The jury was orally instructed as follows:
"At the end of the day yesterday and for most of the morning this morning, you have had the opportunity to review People's Exhibit 7A, the recording of the interview conducted between [Tyler] and [defendant]. During the course of that interview as you listened to it, there were portions of the interview during which [Tyler] was stating things regarding his opinion, his belief, and what others may have said to him, including the doctors and including [Wells]. What was said by
[Tyler] in regard to those things, his opinions, his beliefs[,] and what others have said to him is not evidence in this case and is not to be considered by you as evidence in this case. The evidence in [the videotape] consists of the questions that were asked by [Tyler] and any responses or statements made by the defendant himself during the entirety of [the videotape]."
¶ 23 Tyler testified he conducted a second interview of defendant on October 27, 2013. The entire videotaped interview was published to the jury.
¶ 24 Transcripts of the videotape are not in the record. We have reviewed the videotape. On the videotape, Tyler showed defendant photographs of how K.W. currently looked. The photographs showed K.W. with an eye swollen shut and his ear displaced. Defendant insisted the photographs depicted how K.W. looked in the days before Wells went to the store. Tyler advised defendant that was not consistent with what the doctors were saying, i.e., the injuries were only hours old.
¶ 25 Tyler repeatedly asked for an explanation of how the injuries occurred. Defendant repeatedly said he could not explain it, but he adamantly denied hurting K.W. Tyler told defendant he did not think K.W. deserved to be sitting in the hospital like this. Tyler asked again who could have done this and asked defendant whether whoever had done it deserved to be arrested. Defendant said, "yes." Defendant continued to maintain K.W.'s face looked like that before.
¶ 26 Tyler left the room to make a call related to the investigation. Over the next few minutes, the videotape shows defendant sitting alone in the room with the photographs of K.W. still spread on the table. He looked over the photographs and then put his head down on the
table. When Tyler returned to the room, he continued to question defendant about K.W.'s injuries.
¶ 27 Tyler asked defendant whether Da. was home during the time Wells went to the store. Defendant said he thought Da. was home. Then again, he thought maybe Wells took Da. with her, but he could not remember. As he thought about it, he thought Da. came into the house with Wells when she returned from the store. Defendant said K.W. was asleep on the couch while Wells was gone.
¶ 28 Tyler again questioned defendant about the photographs. Then Tyler showed defendant another photograph, in which K.W. was crying but both eyes were open and both arms were up on the couch. Tyler advised defendant that photograph was taken by Wells on her phone and it was taken earlier in the day on Saturday. Tyler suggested something happened during the time defendant was watching K.W. by himself. Defendant again denied doing anything to K.W. Tyler asked defendant, "How do you explain this away?" Defendant said he could not. He said he was not a violent person and had never been in a fight in his life. Defendant insisted he would not do anything to hurt a child and insisted he would not hurt K.W.
¶ 29 Tyler left the room again briefly. When he returned, he advised defendant he was facing two Class X counts of aggravated battery to a child, one for the head and one for the arm. Tyler indicated, with the before and after photographs, "It don't get much better than this." Defendant again insisted he did not injure K.W. Tyler stated all the evidence pointed to him, and defendant again said he was not responsible for the injuries. Tyler said a videotape at the store showed Da. was with his mother, leaving K.W. alone with defendant at the house. Tyler asked defendant if he was some type of "monster," who took the first opportunity he had to "shut this
kid up to make him quit crying." When defendant insisted again he never touched K.W., Tyler retorted, "You touched him that day." Defendant again insisted he did not harm K.W.
¶ 30 After the interview was published to the jury, the trial court orally instructed the jury as follows:
"All right, ladies and gentlemen, before we resume direct examination of [Tyler], once again, I want to instruct you that you have viewed the contents of Exhibit 7B [the second videotape]. During that interview[,] anything that was said by [Tyler] regarding his own beliefs or his own opinions or what someone else said to him is not evidence for you to consider. The evidence consists only of the questions that he posed and the responses or statements made by the defendant during the interview."
¶ 31 The defense did not present any evidence.
¶ 32 Defense counsel asked for a directed finding of not guilty, arguing Wells had as much opportunity to inflict the injuries to K.W. as did defendant. The trial court denied the motion.
¶ 33 During closing arguments, defense counsel noted the fact defendant had been subjected to two lengthy interviews and unwaveringly maintained his innocence throughout. He stated:
"It's two hours of [Tyler] saying to [defendant], [']yes, you did.['] He says, [']no, I didn't.['] [']Yes, you did.['] [']No, I didn't.['] [']I believe you did.['] That went on for two and a half hours, and then it went on again the next day after [Tyler] said, [']hey, we're done here, this is it.['] And he goes back the next day. [']I think you did it.['] [']No, I didn't.[']
* * *
*** You observed his demeanor in two and a half hours. [Tyler] poking him with a stick, did he get mad? Did he flare up? ***
The [j]udge has told you to disregard what [Tyler] said. It's not evidence. You're not instructed to disregard the effect that was intended to have on him, which was to get him to confess to something he did not do. That's when he offered all the options. That's why he left the room and came back with a little bit more information each time, or the more my phone rings, the less credible you get.
All of that was intended, was calculated to get [defendant] to confess to something he didn't do. And it went on and on and on. If what happened to [K.W.] in ten seconds was inhumane, a close second is that interrogation."
Counsel also suggested Wells had as much opportunity to harm K.W. as did defendant.
¶ 34 The jury found defendant guilty of both counts of aggravated battery to a child.
¶ 35 In July 2014, prior to sentencing, private counsel was retained and the public defender's office was allowed to withdraw. Counsel filed an amended motion for a new trial arguing, inter alia, ineffective assistance of counsel because trial counsel failed to object to publication of both videotaped interviews in their entirety, where they were "laden with [Tyler's] opinions [and] theories" about the evidence. After hearing arguments at the September 2014 hearing on the motion for a new trial, the trial court denied the motion on the ground cautionary instructions were given.
¶ 36 The case immediately proceeded to sentencing. The trial court merged the two counts for purposes of sentencing and sentenced defendant to 18 years in DOC on one count of aggravated battery to a child.
¶ 37 In October 2014, defendant filed a motion to reconsider the sentence. In January 2015, the trial court denied the motion.
¶ 38 This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 As an initial matter, we note this case involves a direct appeal of defendant's allegation he received ineffective assistance of counsel for counsel's failure to object to the publication of both of the unredacted videotaped police interrogations. Defendant maintains counsel's failure to ensure the irrelevant and prejudicial portions of the two videotaped interrogations were redacted and, therefore, not shown to the jury, was objectively unreasonable and deprived him of a fair trial. Where "consideration of matters outside of the record is required in order to adjudicate the issues presented for review, the defendant's contentions are more appropriately addressed in proceedings on a petition for post-conviction relief." People v. Kunze, 193 Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296 (1990).
¶ 41 Expounding on the Kunze holding, this court recently suggested cases raising ineffective-assistance-of-counsel claims on direct appeal be divided into one of three categories. People v. Veach, 2016 IL App (4th) 130888, ¶ 72, 50 N.E.3d 87. Category A cases involve direct appeals raising ineffective assistance of counsel, which the appellate court should decline to address, as they require consideration of matters outside of the record. Id. ¶¶ 74-75. Category B cases involve direct appeals raising ineffective assistance of counsel, which the appellate court may address because they are clearly groundless. Id. ¶ 82. Category C cases involve direct
appeals raising ineffective assistance of counsel which an appellate court may address because trial counsel's errors were so egregious that any answers to questions regarding what led counsel to make those errors simply would not matter. Id. ¶ 85.
¶ 42 Here, because defendant's claims of ineffective assistance of counsel are raised on direct appeal, both parties acknowledge this court could decline to address them pursuant to Veach. Defendant argues his ineffective-assistance claims fall within Category C because his counsel's errors were so egregious no justifiable explanation for the errors could possibly exist. The State argues we should reject defendant's allegations on the basis the record shows his allegations are without any possible merit. The State further argues counsel's decision not to seek redaction was one of trial strategy, which our courts are reluctant to deem erroneous. We agree with the State.
¶ 43 With ineffective-assistance-of-counsel claims, this court applies the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) the deficient performance resulted in prejudice to the defendant. Id. at 93, 708 N.E.2d at 1163-64. "More specifically, the defendant must demonstrate that counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.' " People v. Petrenko, 237 Ill. 2d 490, 496-97, 931 N.E.2d 1198, 1203 (2010) (quoting Strickland, 466 U.S. at 694). Both prongs of Strickland must be met, and failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Patterson, 192 Ill. 2d 93, 107, 735 N.E.2d 616, 626 (2000).
¶ 44 Defendants who claim ineffective assistance of counsel must overcome a strong presumption counsel's conduct was reasonable and effective.
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. *** [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689.
Our supreme court has "made it clear that a reviewing court will be highly deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel's performance from his perspective at the time, rather than through the lens of hindsight." People v. Perry, 224 Ill. 2d 312, 344, 864 N.E.2d 196, 216 (2007). "Because effective assistance refers to competent and not perfect representation, mistakes in trial strategy or judgment will not, of themselves, render the representation incompetent." People v. Moore, 2012 IL App (1st) 100857, ¶ 43, 964 N.E.2d 1276.
¶ 45 The decision whether to seek exclusion of all or part of defendant's statement to the police represents a matter of judgment or strategy entitled to great deference, which typically will not support a claim of ineffective assistance of counsel. People v. Snowden, 2011 IL App
(1st) 092117, ¶ 70, 956 N.E.2d 923, 938. Here, during the course of nearly three hours of police interrogation, defendant repeatedly asserted he did not do anything to K.W., maintained he did not harm K.W., and denied knowing how K.W.'s injuries occurred other than they were a continuation of a preexisting injury. Defense counsel reasonably decided, as a matter of trial strategy, not to seek suppression of this favorable, exculpatory evidence. People v. Ford, 228 Ill. App. 3d 212, 218, 592 N.E.2d 544, 548 (1992) (moving to suppress exculpatory evidence could be viewed as counterproductive). Further, counsel was able to argue to the jury how defendant withstood withering questioning by Tyler and unwaveringly maintained his innocence.
¶ 46 Further, by not seeking suppression of any part of defendant's interrogations, defense counsel was able to get defendant's denials of guilt before the jury without the risks involved in putting defendant on the stand, where he would be subject to impeachment by his prior convictions. (Defendant was currently on parole and, among other convictions, had been convicted of unlawful possession of a weapon by a felon, residential burglary, and burglary.) This was particularly true since it was unlikely defense counsel could have successfully sought admission of defendant's statements had they not been offered by the State, since self-serving statements by a defendant are viewed as inadmissible hearsay. People v. Patterson, 154 Ill. 2d 414, 452, 610 N.E.2d 16, 33 (1992). Given the difficulty defense counsel would have faced in getting defendant's statements admitted and before the jury, the decision not to object when they were presented by the State was reasonable.
¶ 47 Defendant's argument Tyler's opinions about defendant's credibility and guilt should have been barred by Moore, 2012 IL App (1st) 100857, ¶ 52, 964 N.E.2d 1276, is misplaced. In Moore, the State played a video of the defendant's police interrogation. The defendant argued his counsel should have objected on the grounds the video contained police
opinions of his credibility and guilt. The Moore court held, "[w]here the testimony is not a current comment on the defendant's credibility *** the police accusations may be seen as a standard interrogation tactic, rather than an improper opinion on [the defendant's] credibility." Id. See also People v. Crump, 319 Ill. App. 3d 538, 544, 745 N.E.2d 692, 697-98 (2001), People v. McClellan, 216 Ill. App. 3d 1007, 1013-014, 576 N.E.2d 481,485-86 (1991), and People v. Munoz, 398 Ill. App. 3d 455, 488, 923 N.E.2d 898, 925-26, (2010) (police officers may explain the sequential logic of their investigations, such as pointing out discrepancies in the defendants' versions of the events or leaving the room to permit the defendants to think it over, but officers are not permitted to give their opinions of the defendants' guilt as testimony at trial rather than in the context of videotaped interviews to explain the logic of the interviews and the defendants' answers).
¶ 48 The further holding in Moore, referencing other-crimes evidence in the defendant's statement that should not have been given to the jury, has no application here. In Moore, the court gave the jury the entire taped statement despite the fact only a part of it had been offered and admitted into evidence. Moore, 2012 IL App (1st) 100857, ¶ 36, 964 N.E.2d 1276.
¶ 49 The case before us is analogous to People v. Theis, 2011 IL App (2d) 091080, 963 N.E.2d 378. In Theis, during the course of interrogating the defendant, the officer remarked (1) the defendant needed to be honest with him; (2) the officer knew the defendant did it; (3) based on what the officer knew of the evidence, the defendant's statements did not make him look good; and (4) the officer knew the defendant's statement maintaining he did not do anything was not true. Id. ¶ 31. On appeal, the defendant argued the trial court should have redacted the officer's remarks from his statement as hearsay. The appellate court rejected this contention,
noting the officer's remarks were admissible to show their effect on the defendant and, without the officer's remarks, the defendant's replies would have been nonsensical. Id. ¶¶ 32-33. The same is true in the case sub judice.
¶ 50 Here, Tyler's testimony at trial included the fact he investigated the case, his identification of defendant in open court, and that he had conducted two videotaped interviews of defendant, which were subsequently entered into evidence and shown to the jury. During the course of the videotaped interviews, Tyler did indicate his opinion (1) defendant had harmed K.W. and (2) defendant's version of the events did not match Wells' statements or the medical information available. However, at no time did Tyler testify about his current opinion of defendant's guilt or credibility.
¶ 51 Further, after the jury viewed each videotaped interview, the trial court instructed the jury they were not to consider Tyler's opinions or beliefs, or any statements Tyler told defendant were made by Wells or the doctors, because none of that was evidence. Rather, the evidence consisted only of the questions posed and responses or statements made by defendant during the interview. A "jury is presumed to follow the instructions that the court gives it." People v. Taylor, 166 Ill. 2d 414, 438, 655 N.E.2d 901, 913 (1995). We see no reason to believe the jury in this case did not follow the twice-given instruction, limiting any possible prejudice arising from Tyler's opinions and beliefs made during the course of interviewing defendant.
¶ 52 Here, the strategic nature of trial counsel's decision to allow defendant's unredacted interviews to be aired to the jury is reflected in his opening statement and closing argument, i.e., despite being subjected to two lengthy interviews, defendant unwaveringly maintained his innocence throughout. Counsel's performance did not fall below an objective standard of reasonableness because his decision to allow the unredacted videotaped interviews
was sound trial strategy. Therefore, defendant has not proved the first prong of the Strickland ineffective-assistance test.
¶ 53 Additionally, the outcome of defendant's trial would not have been different had defense counsel sought to excise Tyler's opinions from the videotaped interviews. The evidence established K.W. suffered severe trauma when left alone with defendant while Wells went to the store. Photographs of K.W.'s bruises taken in the days after he first hit his head on the coffee table showed they were healing and fading just as the hospital staff had predicted. One photograph was taken sometime earlier on the day Wells went to the store. K.W. is seen crying, but with no other visible injuries beyond the fading bruises around his eyes. Both arms are depicted up on the couch, and Wells testified K.W. was using both arms normally. However, when she returned from the store, Wells immediately noticed things had changed. K.W. had new injuries to his face and head. After they arrived at the hospital, Wells took more photographs of K.W., showing the injuries emerging more prominently. His right eye was swollen shut and his right ear was pushed down and behind the level of his chin. Wells testified K.W. would not use his right arm when she tried to give him a bottle after they arrived at the hospital. At the hospital, K.W. was diagnosed with a skull fracture and a broken arm, both fresh injuries. According to the doctor, these injuries were caused by significant force or blunt trauma which could only have been inflicted by an adult. The evidence pointed to defendant being the perpetrator of these injuries during the time he was left alone with K.W.
¶ 54 Even if defense counsel had successfully sought to redact Tyler's stated opinions and beliefs from the interview, the jury had sufficient evidence to find defendant guilty. Therefore, defendant has also failed to prove the prejudice prong of the Strickland test.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).
¶ 57 Affirmed.