Opinion
5-22-0271
05-14-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS D. BOYKIN, Defendant-Appellant.
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 Macon County. No. 21-CF-726 Honorable James R. Coryell, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Vaughan and Justice Cates concurred in the judgment.
ORDER
BARBERIS JUSTICE
¶ 1 Held: Sufficient evidence supported defendant's convictions and sentences for attempted first degree murder and armed violence; conviction and sentence for the lesser included offense of aggravated fleeing or attempting to elude a police officer for speeding vacated, where conviction served as predicate offense to armed violence; and trial counsel did not provide ineffective assistance of counsel.
¶ 2 Following a jury trial in the circuit court of Macon County, defendant, Marcus D. Boykin, was convicted and sentenced for attempted first degree murder of a peace officer (720 ILCS 5/8-4(a), (c)(1)(A); 9-1(a)(1) (West 2020)); aggravated fleeing or attempting to elude a police officer at a speed of 21 or more miles per hour over the legal speed limit (aggravated fleeing or attempting to elude a police officer for speeding) (625 ILCS 5/11-204.1(a)(1) (West 2020)) and involving disobedience of two or more official traffic control devices (id. § 11-204.1(a)(4)); unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2020)); and armed violence (id. §§ 33A-2(a), 33A-3(a)). Defendant appeals, arguing that the State presented insufficient evidence to support his convictions for attempted first degree murder of a peace officer and aggravated fleeing or attempting to elude a police officer for speeding. Additionally, defendant argues that trial counsel provided ineffective assistance and requests that this court vacate his conviction for armed violence. For the following reasons, we affirm in part and vacate in part.
Defendant initially argued in his opening brief that the trial court subjected him to an unlawful double enhancement for a single act by sentencing defendant to simultaneous enhancement sentences for attempted first degree murder of a peace officer. Specifically, defendant argued that he was subject to a greater penalty under the attempt statute because the alleged victim was a peace officer, thus, the firearm enhancement was an impermissible double enhancement. In his reply brief, however, defendant, in light of our supreme court's recent decision in People v. Taylor, 2023 IL 128316, conceded that subsections (c)(1)(A) and (c)(1)(C) of the attempt statute must be read conjunctively. As such, defendant withdrew this argument on appeal. As such, we will not address this issue.
¶ 3 I. Background
¶ 4 We limit our recitation to those facts relevant to our disposition of this appeal. We will recite additional facts in the analysis section as needed to address defendant's specific arguments.
¶ 5 On June 23, 2021, the State charged defendant by information with attempted first degree murder of a peace officer (count I) (id. §§ 8-4(a), (c)(1)(A); 9-1(a)(1)), a Class X felony, alleging that defendant, on or about June 18, 2021, committed the offense of attempt, in that defendant, with the intent to commit the offense of first degree murder, performed a substantial step toward the commission of that offense, where defendant, without lawful justification and with intent to kill Officer C.B. Snyder, personally discharged a firearm at Officer Snyder, a peace officer engaged in the course of performing his official duties. The State also charged defendant with unlawful possession of a weapon by a felon (count II) (id. § 24-1.1(a)), a Class 2 felony; aggravated fleeing or attempting to elude a police officer involving disobedience of two or more official traffic control devices (count V) (625 ILCS 5/11-204.1(a)(4) (West 2020)) and for speeding (count VI) (id. § 11-204.1(a)(1)), both Class 4 felonies; aggravated discharge of a firearm (count VII) (720 ILCS 5/24-1.2(a)(4) (West 2020)), a Class X felony; and armed violence (counts VIII) (id. §§ 33A-2(a), 33A-3(a)), a Class X felony.
The State dismissed several counts against defendant, including aggravated driving with a breath or blood alcohol concentration of 0.08 or more (count III) and aggravated driving with any amount of drug, substance or compound in blood or urine (count IV).
¶ 6 On February 14, 2022, prior to the start of defendant's two-day jury trial, the State filed a motion for leave to file an amended information charging defendant with a second count of armed violence (count IX) (id. §§ 33A-2(a), 33A-3(a)), a Class X felony. Following a brief hearing, the trial court, without objection by trial counsel, granted the State leave to file the amended information. The court conducted voir dire and then the parties presented opening statements.
¶ 7 The State asserted that the testimony would show that Officer Snyder, an on-duty police officer dressed in full uniform, parked his squad car in a vacant lot in the 300 block of East Leafland, Decatur, Illinois, on the evening of June 18, 2021. The dashcam on Officer Snyder's squad car would demonstrate that a white Hyundai, driven by defendant, approached Officer Snyder's parked squad car. As the white Hyundai approached the righthand side of Officer Snyder's parked vehicle, defendant pulled a gun out and pointed it out his window in the direction of Officer Snyder. Officer Snyder "duck[ed] down," heard a gunshot, and then a chase ensued. Video and audio footage demonstrated that defendant continued to flee and elude multiple police officers, disobeyed several traffic control devices, and sped in excess of posted speed limits before a standoff between defendant and multiple officers took place. Police later recovered a shell casing in the parking lot that matched the shell casing recovered from inside defendant's vehicle.
¶ 8 Next, trial counsel asserted that "everything [the State] indicated is correct." Counsel proceeded to state that defendant was in fact guilty of all charges against him, except attempted first degree murder. Counsel did not dispute that defendant approached Officer Snyder's car, pulled out and fired a firearm. Counsel disputed, however, that defendant had specific intent to kill Officer Snyder. Instead, counsel stated that "every single officer is going to testify *** that when they encountered [defendant], he had a firearm pointed at his chin, or he had a firearm pointed at his mouth, or he had a firearm pointed at his head." Defendant "wanted to kill himself." In addition, counsel admitted that defendant, a convicted felon, "[absolutely" took police on a high-speed chase, that he had a firearm and shot it, but that defendant "didn't try to kill anyone." Contrary to the State's argument, counsel argued that defendant wanted police to kill him.
¶ 9 The following evidence was adduced at trial. The State first called Officer Snyder, a K9 officer of the Decatur Police Department, who testified to the following. On June 18, 2021, Officer Snyder parked his squad car in the church parking lot on East Leafland Avenue. While sitting in his squad car with his driver's side window down, a small white vehicle, also with the driver's side window down, quickly approached his squad car from Leafland Avenue. "As the vehicle approached [Officer Snyder's] front left tire or fender area of [his] squad car, [Officer Snyder] could see the male begin to lean out of *** his driver's side window and raise his hands up as he was leaning out towards my direction." As soon as defendant raised his hands above the frame of his driver's side window, Officer Snyder saw a small pistol in defendant's hand. Snyder proceeded to testify: "And as soon as I saw the pistol come up [above the door frame], he was in my immediate threat zone. I believe I was taking fire at that point in time, and I leaned as far across my center console as I could to try and take cover." Officer Snyder heard a single gunshot. Defendant then drove around Officer Snyder's squad car and proceeded to the northeast side of the parking lot before he exited onto Leafland Avenue. Officer Snyder called in the incident over the radio and initiated a pursuit of defendant's vehicle. The State then played Officer Snyder's dashcam and body camera footage for the jury, which corroborated his testimony.
¶ 10 On cross-examination, Officer Snyder acknowledged that he did not see defendant aim his firearm at him. Officer Snyder also testified that he did not know where the bullet went, admitting that the bullet did not hit his squad car.
¶ 11 Next, the State called Officer Kimberly Chaney of the Decatur Police Department, who testified to the following. Officer Chaney deployed "stop sticks" in an attempt to stop defendant's vehicle during the pursuit. The following colloquy took place regarding the speed of defendant's vehicle as he drove over the stop sticks:
"Q. [The State]: You observed the vehicle drive right over the stop sticks; is that correct?
A. Yes.
Q. Were you able to estimate a speed of the vehicle as it came by you?
A. It was pretty quick. I wouldn't be able to give you a speed on that.
Q. But it was definitely faster than the speed limit?
A. Yes."
The State then played Officer Chaney's body camera footage for the jury, which corroborated her testimony that defendant drove over the stop sticks. On cross-examination, Officer Chaney testified that after the chase ended, defendant stood outside his vehicle holding his firearm towards himself. Defendant did not point his firearm at the officers while police attempted to contain and arrest defendant.
¶ 12 Next, the State called Officer Jacquelyn Danner of the Decatur Police Department, who testified to the following. On June 18, 2021, Officer Danner responded to Officer Snyder's radio call. As defendant's vehicle approached her location, defendant significantly slowed down his vehicle, "turned to face [her] and was dancing in the car and pointing his gun out the window *** towards [her] squad car." As defendant drove past her, Officer Danner pursued defendant until police arrested him. On cross-examination, Officer Danner testified that she "slouched down in [her] seat" in case defendant shot at her. She acknowledged that she saw defendant on several occasions, prior to police arresting him, put the firearm in his mouth and under his chin as police attempted to contain and arrest defendant.
¶ 13 Next, the State called Officer Clayton Zilz of the Decatur Police Department, who testified to the following. After police stopped defendant's vehicle at the 1300 block of North Martin Luther King Jr. Drive, Decatur, Illinois, Sergeant Brandon Rolfs of the Decatur Police Department began negotiations. Shortly thereafter, defendant's family members assisted police in negotiating with defendant. Officer Zilz stated:
"[Defendant] sat down at the rear of his vehicle on the ground about 10, 15 feet behind the vehicle. He would set the gun down. And he would get agitated again, pick the gun back up, put it up to his head. And at one point, between Sergeant Rolfs and his family members' persuasion, he slid the gun away from himself towards his vehicle, and it left my sight. So[,] I believe that the gun had slid underneath the car out of his reach."
Officer Zilz then moved towards defendant, who "started crawling towards the gun again." Officer Zilz employed a taser to defendant's left side, prying the gun out of his right hand. The State then played Officer Zilz's body camera footage for the jury, which corroborated his testimony.
¶ 14 The State then called Officer Nicholas Errett of the Decatur Police Department, who testified to the following. Officer Errett collected defendant's firearm after police arrested him. On cross-examination, Officer Errett acknowledged that defendant pointed the gun to his own head.
¶ 15 On February 15, 2022, the trial court held the second day of defendant's jury trial. The State called Officer Alex Amaya of the Decatur Police Department, who testified to the following. On June 18, 2021, Officer Amaya drove a lead car in pursuit of defendant's vehicle in response to Officer Snyder's radio call. Once the pursuit ended and prior to defendant's arrest, defendant stated," 'Put the gun down. I already shot him. I'm going to shoot you,' or 'shoot all of you too.'" The State proceeded to ask Officer Amaya if defendant "specifically *** said something to the effect of 'I shot him, and now I'm going to shoot you.'" Officer Amaya responded in the affirmative. The State then played a portion of the video from Officer Amaya's body camera for the jury. On the video, defendant stated, "I said I was going to shoot him, now I'm gonna [ sic ] shoot you. Put your *** gun down." On cross-examination, Officer Amaya testified that defendant, while driving his vehicle, waved his firearm at him to follow.
¶ 16 Next, the State called Officer Brian Oros of the Decatur Police Department. Officer Oros, an officer with extensive training in crash investigation and crash data recorder analysis, testified that he had specialized knowledge with respect to automobiles, speed and radar, and estimating speeds by observing vehicles. On June 18, 2021, Officer Oros responded to Officer Snyder's radio call and pursued defendant's vehicle. Despite activating the emergency lights and siren to signal defendant to stop his vehicle, defendant failed to stop. Although the pursuit was slow paced at times, defendant drove in excess of the posted speed limit, at speeds more than 21 miles per hour over the posted speed limit. The following colloquy took place:
"Q. [State]: Were there times, however, that the speeds and the chase were in excess of the posted speed limit?
A. Yes.
Q. And were there any times at which point the chase was, in your estimation, more than 21 miles an hour over the posted limit?
A. Yes.
Q. And can you recall where that would have been?
A. Once the suspect vehicle turned southbound on Jasper from Grand, there was rapid acceleration between Grand and Condit. And then once they continued southbound towards Marietta is when I believe it was significantly more than 21 miles an hour over the posted speed limit.
Q. And, in fact, that-during that pursuit is when the suspect vehicle went over Officer Chaney's stop sticks; is that correct?
A. Yes. South of Marietta but just north of the railroad tracks that go over *** the 600 block of North Jasper."
The State subsequently played a portion of the video obtained from Officer Oros's squad car. The video showed defendant drive over stop sticks positioned under an underpass near railroad tracks. It was at this point in the pursuit that Officer Oros believed defendant, who had already rapidly accelerated his vehicle once he turned off of Grand Avenue and onto Jasper Street driving towards Condit Street, drove significantly more than 21 miles per hour.
¶ 17 Next, the State called Officer Michael Lawary of the Decatur Police Department, who testified to the following. On June 18, 2021, Officer Lawary responded to Officer Snyder's radio call and pursued defendant's vehicle. Officer Lawary, driving a lead squad car in pursuit of defendant's vehicle, saw defendant "stop[ ] his vehicle, turn[ ] around in his seat, and point[ ] the gun directly in [Officer Lawary's] direction." In response, Officer Lawary fired his gun 8 to 10 times in the direction of defendant's vehicle before defendant drove away. The State played the video footage captured from Officer Lawary's squad car, which corroborated Officer Lawary's testimony.
¶ 18 Next, the State called Sergeant Rolfs of the Decatur Police Department, who testified to the following. On June 18, 2021, Officer Lawary responded to Officer Snyder's radio call and drove a squad car in pursuit of defendant's vehicle. Once the pursuit ended and officers apprehended defendant, video from Sergeant Rolfs's body camera captured defendant state," 'I'm going to get you.'" The State played this video for the jury, which corroborated Sergeant Rolfs's testimony.
¶ 19 Next, the State called Officer Curtis Kirk of the Decatur Police Department, who testified to the following. After officers apprehended defendant, Officer Kirk collected a shell casing from the 300 block of East Leafland, where defendant allegedly shot at Snyder.
¶ 20 Next, the State called Detective Jason Derbort, a veteran police officer with the Decatur Police Department, who testified to the following. Detective Derbort had specialized training processing crime scenes for evidence. With information that a suspect shot at Officer Snyder, Detective Derbort recovered a cartridge casing on the ground of a parking lot at the 300 block of East Leafland. The next day, Detective Derbort recovered a cartridge casing in the backseat of the driver's side of defendant's vehicle. The State then rested.
Prior to the State resting its case, the parties entered three stipulations by agreement before the trial court. The parties stipulated that (1) defendant had been convicted of forcible felony on June 26, 2015; (2) Zeth Giles, evidence officer for the Decatur Police Department, would testify to the chain of custody of the evidence collected, including defendant's firearm and shell casings; and (3) Vicki Reels, a certified forensic scientist with the Illinois State Police Crime Lab, would testify that the shell casings collected were fired from defendant's firearm.
¶ 21 Trial counsel then informed the trial court that defendant would not present evidence. Following deliberations, the jury found defendant guilty on all charges against him.
¶ 22 On March 3, 2022, defendant filed a pro se motion titled, "Ineffective Assistance of Counsel[,] Insufficiency of Evidence." Defendant claimed that trial counsel prejudiced him during opening statements by stating," 'I[,] the defendant did shot [sic] at officer C.B. Snyder.'" Defendant claimed that the State failed to provide evidence that defendant performed a substantial step towards the commission of attempted first degree murder with a firearm.
¶ 23 On March 29, 2022, the trial court held a hearing on defendant's pro se motion concerning his claim of ineffective assistance of trial counsel. In denying defendant's motion the court stated the following:
"THE COURT: The evidence was that a gun was discharged. And [trial counsel's] position was that the gun was discharged. You were apprehended with the gun in your hand.
***
THE COURT: And the shell casings found in the parking lot and in your car came from the gun that was in your hand. [Trial counsel] argued that you may have-you discharged the firearm and fled from the police officers, but you did not shoot at Officer Snyder. And he made a point, the fact that there were no bullet holes or injury to the car and that Snyder was not, in fact, shot and that you were in close proximity to him and very close to him. And his argument was that the gun may have been discharged, but you certainly did not shoot him or try to shoot him.
***
THE COURT: So[,] on that basis, I'm going to find that you have not been denied effective assistance of counsel. Basically, my recollection of [trial counsel's] argument was *** these things happened, but you weren't guilty of the aggravated discharge at a police officer or the attempt murder of a police officer. That was the thrust of [trial counsel's] defense. That was [trial counsel's] strategy. And I think it was the only strategy that was available, quite honestly."
The court concluded that defendant's claim of ineffective assistance of counsel was "totally without merit and, in fact, contain[ed] false statements [of] the lawyer."
¶ 24 On April 8, 2022, the trial court held defendant's sentencing hearing. Prior to sentencing, the court held a hearing on defendant's pro se motion concerning his claim that the State failed to prove defendant guilty beyond a reasonable doubt on the attempted first degree murder conviction. Defendant, represented by trial counsel, argued that no evidence demonstrated that defendant fired the gun, let alone at Officer Snyder. In response, the State argued "circumstantial evidence is certainly admissible." The State proceeded to argue:
"When we're talking about the defendant having fired a gun, you had Officer Snyder hear the sound of a gunshot after seeing the defendant produce a gun in close proximity to him; you have the fact that the gun *** was in the defendant's possession; there was a shell casing at the scene of the location where Officer Snyder was shot at was found. That is clearly circumstantial evidence, but clear evidence that the defendant fired a weapon at that time. ***
One of the most damning pieces of evidence for the defendant was his own words, which were pointed out to the jury as heard on Officer Amaya's body cam audio and video and which the jury asked to hear again and then shortly after hearing that, within ten minutes or so of hearing that evidence again on replay, returned with a verdict of guilty. So, clearly, that evidence is convincing and clear and sustainable of a conviction for the defendant for the attempt first degree murder as well as all other charges."
The court subsequently denied defendant's motion, stating:
"What his intent was, was a question of fact for the trier of fact. I think the evidence at the trial was that the car was driving down the street, stopped, backed up a little bit, pulled into the parking lot, pulled up to the police car. The officer heard what appeared to be-what he thought was a shot fired. There was a shell casing found in proximity of the area. And later, I think the crime lab said that the shell casing came from the gun that he had when he was apprehended. That was the evidence, and the trier of fact listened to it and concluded that the [S]tate had proved the case ***."
¶ 25 Trial court then proceeded to hold defendant's sentencing hearing. The court determined that aggravated discharge of a firearm merged with attempted first degree murder of a peace officer. The court sentenced defendant to 50 years in prison, which included a 20-year firearm enhancement, on the offense of attempted first degree murder of a peace officer, with 18 months' mandatory supervised release (MSR); 10 years on the offense of unlawful possession of a weapon by a felon, with 1 year MSR; 3 years in prison on the offenses of aggravated fleeing or attempting to elude a police officer involving disobedience of two or more official traffic control devices and for speeding; and 20 years in prison with 18 months' MSR on the offense of armed violence. All sentences ran concurrently with the sentence imposed on the offense of attempted first degree murder of a peace officer.
The trial court did not sentence defendant on the additional count of armed violence (count IX).
¶ 26 Defendant filed a timely notice of appeal.
¶ 27 II. Analysis
¶ 28 A. Sufficiency of the Evidence
¶ 29 Defendant first argues that the State presented insufficient evidence to convict him of attempted first degree murder of a peace officer. Defendant asserts that the State's evidence did not establish that defendant had specific intent to kill Officer Snyder. For support, defendant claims that, although he fired a gunshot while driving past and around the back of Officer Snyder's parked squad car, the evidence demonstrated that defendant intended to commit suicide by law enforcement. We disagree that the State's evidence was insufficient.
¶ 30 "When considering a challenge to the sufficiency of the evidence, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the required elements of the crime beyond a reasonable doubt." People v. Sauls, 2022 IL 127732, ¶ 52. This court will not reverse a conviction on sufficiency grounds unless the evidence was so "unreasonable, improbable, or unsatisfactory" that, even when viewed in the light most favorable to the State, no rational trier of fact could accept it as proof beyond a reasonable doubt. People v. Ross, 229 Ill.2d 255, 272 (2008); see Jackson v. Virginia, 443 U.S. 307 (1979). The findings made by the trier of fact regarding the credibility of witnesses, the inferences to be drawn from the evidence, and the resolution of conflicts in the evidence are all entitled to significant deference. Ross, 229 Ill.2d at 272.
¶ 31 To support a conviction for attempted first degree murder of a peace officer, the State must establish beyond a reasonable doubt that (1) the defendant performed an act constituting a "substantial step" toward the commission of the murder, (2) the defendant possessed the criminal intent to kill the victim, and (3) the defendant knew or reasonably should have known that the victim was a peace officer in the course of performing his official duties. "Intent is a state of mind which, if not admitted, can be established by proof of surrounding circumstances, including the character of the assault, the use of a deadly weapon, and other matters from which an intent to kill may be inferred. [Citations.] Such intent may be inferred when it has been demonstrated that the defendant voluntarily and willingly committed an act, the natural tendency of which is to destroy another's life." People v. Winters, 151 Ill.App.3d 402, 405 (1986). "It is the function of the trier of fact to determine the existence of the requisite intent, and that determination will not be disturbed on review unless it clearly appears there exists a reasonable doubt as to the defendant's guilt." Id. at 406.
¶ 32 We turn to the question of whether the State presented sufficient evidence to prove defendant had the requisite specific intent to kill Officer Snyder, and we find that the State did. We find defendant's argument unpersuasive that the State failed to establish the requisite specific intent because the State failed to establish motive and the evidence showed defendant fired the gun after he passed Officer Snyder's vehicle. Additionally, defendant argues that the State failed to prove specific intent because the evidence demonstrated that defendant never threatened Officer Snyder, caused him injuries, or struck the inside or outside of Officer Snyder's vehicle with a bullet.
¶ 33 Evidence presented at trial showed that defendant quickly approached Officer Snyder's squad car in a vacant parking lot. According to Officer Snyder, defendant drove down Leafland Avenue before defendant turned into the church parking lot. As the defendant's white car approached, defendant did not slow down his vehicle. Officer Snyder testified that, as defendant's car approached the left tire of Officer Snyder's squad car, defendant "raise[d] his hands up as [defendant] was leaning out [of the driver's side window] towards [Officer Snyder's] direction." As defendant raised his hands above the frame of the driver's side window, Officer Snyder saw a small pistol in defendant's hand, causing Snyder to take cover across his center console. Officer Snyder then heard one gunshot before defendant drove around the back of Officer Snyder's vehicle and drove towards Leafland Avenue.
¶ 34 Contrary to defendant's argument, countless cases have determined that a fact finder can reasonably infer an intent to kill from evidence that a defendant fired a gun in the direction of a person. See People v. Thorns, 62 Ill.App.3d 1028, 1031 (1978) ("The very fact of firing a gun at a person supports the conclusion that the person doing so acted with an intent to kill."); People v. Garcia, 407 Ill.App.3d 195, 201-02 (2011) (a fact finder could reasonably infer an intent to kill "from the act of firing two bullets in the direction of an occupied car and a crowded street"); People v. Green, 339 Ill.App.3d 443, 451-52 (2003) (a jury could reasonably infer an intent to kill based on evidence that the defendant fired a pistol multiple times in close range in the direction of officers occupying a vehicle, even though the defendant missed the officers); see also People v. Bailey, 265 Ill.App.3d 262, 273 (1994) (sufficient evidence to prove a specific intent to kill existed when defendant fired a gun down a breezeway while people ran away). Here, the testimony demonstrated that defendant leaned outside his driver's side window with a gun visibly in his hand. Defendant's behavior, and Officer Snyder's knowledge that defendant was armed, caused Officer Snyder to "take cover" to protect himself. Immediately after Officer Snyder took cover, he heard a gunshot. Even though Officer Snyder did not see defendant aim the gun at him, a reasonable jury could have inferred that defendant knowingly shot in the direction of Officer Snyder, not in the air as defendant agues, while Officer Snyder sat in his squad car with his driver's side window down. See People v. Jackson, 2020 IL 124112, ¶ 70 ("Trier of fact is not required to disregard inferences that flow normally from the evidence before it, nor need it search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.").
¶ 35 Moreover, intent can be inferred or proven by circumstances surrounding the conduct of a defendant. People v. Lewis, 84 Ill.App.3d 556, 562 (1980). Officer Amaya testified that prior to defendant's arrest, defendant stated:" 'Put the gun down. I already shot him. I'm going to shoot you,' or 'shoot all of you too.'" Officer Amaya then confirmed that defendant stated," 'I shot him, and now I'm going to shoot you.'" Following this testimony, the State played Officer Amaya's body camera footage for the jury. The jury heard defendant state:" 'I said I was going to shoot him, now I'm going to shoot you.'" A reasonable juror could have inferred that defendant was referring to Officer Snyder when he made this statement, while also indicating his intent to shoot another officer. Again, a reasonable juror could have inferred that defendant shot at Officer Snyder without killing him, while rejecting a possible explanation consistent with defendant's innocence that defendant shot his gun in the air and not in the direction of Officer Snyder. See Jackson, 2020 IL 124112, ¶ 70 ("Trier of fact is not required to disregard inferences that flow normally from the evidence before it, nor need it search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt."). Even if police recovered the shell casing six feet behind Officer Snyder's vehicle, as defendant claims, and the bullet fired from defendant's gun did not strike Officer Snyder or his squad car, "[p]oor marksmanship is not a defense to attempt (murder)." People v. Green, 322 Ill.App.3d 747, 755 (2001).
¶ 36 The facts, when viewed in the light most favorable to the prosecution, are adequate to sustain a conviction for attempted first degree murder of Officer Snyder. A reasonable juror who considered the evidence presented could find beyond a reasonable doubt that defendant specifically intended to fire a dangerous weapon in close proximity, and in the direction, of Officer Snyder. The evidence taken together supports the jury's verdict. People v. Evans, 209 Ill.2d 194, 209 (2004) ("[T]he trier of fact must find only that the evidence taken together supports a finding of the defendant's guilt beyond a reasonable doubt.").
¶ 37 Next, defendant argues in his opening brief that the State presented insufficient evidence to convict him of aggravated fleeing or attempting to elude a police officer for speeding. The State, however, asserts, and defendant agrees in his reply brief, that this court should vacate this conviction, where it served as a predicate offense to defendant's armed violence conviction (count VIII). We thus vacate defendant's conviction for aggravated fleeing or attempting to elude a police officer for speeding. See People v. Donaldson, 91 Ill.2d 164, 170 (1982) (single act may support a single conviction and the predicate felony is an included offense of armed violence). The State argues that this court should not vacate defendant's conviction for armed violence based on aggravated fleeing or attempting to elude a police officer for speeding, where sufficient evidence supported the jury's verdict. We agree.
Defendant argued in this opening brief that this court should vacate his conviction for aggravated fleeing or attempting to elude a police officer by disobeying two or more official traffic control devices, where this offense was predicated on defendant's armed violence conviction (count VIII). In his reply brief, however, defendant agreed with the State that aggravated fleeing or attempting to elude a police officer for speeding was the predicate offense for his conviction of armed violence (count VIII).
¶ 38 Defendant argues that this court should vacate his conviction and sentence for armed violence (count VIII), where the State failed to prove defendant guilty beyond a reasonable doubt of the offense of aggravated fleeing or attempting to elude a peace officer for speeding. Defendant disputes only whether the State proved beyond a reasonable doubt that defendant traveled at least 21 miles per hour over the legal speed limit, and we believe the State did.
¶ 39 Section 11-204.1(a)(1) of the Illinois Vehicle Code provides:
"(a) The offense of aggravated fleeing or attempting to elude a peace officer is committed by any driver or operator of a motor vehicle who flees or attempts to elude a police officer, after being given a visual or audible signal by a police officer ***, and such flight or attempt to elude:
(1) is at a rate of speed at least 21 miles per hour over the legal speed limit[.]" 625 ILCS 5/11-204.1(a)(4) (West 2020).
¶ 40 We find defendant's reliance on People v. Lipscomb, 2013 IL App (1st) 120530, misplaced. In Lipscomb (id. ¶ 8), our colleagues in the First District determined police testimony insufficient to establish that the defendant traveled at least 21 miles per hour over the legal speed limit. The court noted that the only evidence relating to the speed of any vehicle included a police officer's testimony regarding his own vehicle traveling 55 miles per hour. Id. The court indicated that the evidence failed to demonstrate the period of time the officer drove this speed, or whether this was a constant speed or a speed the officer accelerated to catch up to defendant's car. Id. Further, the court determined that no evidence demonstrated the relationship between the officer's and defendant's vehicles during the pursuit, that is, "whether defendant was pulling away from [the officer] or whether [the officer] was gaining on defendant." Id. The court determined that no competent evidence would reasonably tend to indicate the speed of the defendant's vehicle. Id.
¶ 41 Here, unlike Lipscomb, sufficient evidence in the record, including both police testimony and video evidence, existed from which the jury could have reasonably inferred or concluded that defendant traveled at least 21 miles per hour over the legal speed limit during the pursuit. Officer Oros testified that he had extensive training in crash investigation and crash data recorder analysis, including specialized knowledge with respect to automobiles, speed and radar, and estimating speeds by observing vehicles. Officer Oros specifically testified that defendant turned from Grand Avenue onto North Jasper Street, at which time defendant rapidly accelerated his vehicle until he reached Condit Street. As defendant continued southbound in the direction of Officer Chaney's stop sticks on North Jasper Street towards Marietta Street, Officer Oros estimated that defendant drove significantly more than 21 miles per hour over the posted speed limit as defendant approached the underpass near railroad tracks. The State played this portion of the pursuit for the jury. The video showed a road sign that signaled drivers that the road curved beyond the underpass, indicating a designated legal speed limit of 20 miles per hour. The State also played Officer Chaney's bodycam video footage, showing defendant drive over the stop sticks and continue on past the railroad tracks. Although Officer Chaney did not testify to defendant's precise speed, she stated that defendant drove "pretty quick." Consistent with Officer Oros, Officer Chaney also believed that defendant "definitely" traveled faster than the posted speed limit.
¶ 42 Moreover, video evidence demonstrated a posted speed limit of 25 miles per hour through downtown Decatur, where the pursuit took place. A review of the video shows that when Officer Oros drove behind defendant's vehicle with one squad car in between them, Officer Oros reported on the radio, "picking up speeds here, doing about 60." The video then showed defendant, with a squad car very close behind him, disobey a red traffic light. The closest squad car to defendant slightly slowed down as it entered the intersection before proceeding through the red light in pursuit of defendant. The video then showed Officer Oros slow down before proceeding through the red light, following the squad car in front of him. Next, Officer Oros immediately passed a sign that demonstrated a posted speed limit of 25 miles per hour. At this point, there is distance between defendant's car and the first squad car. The video shows the first squad car and Officer Oros's vehicles speed up to catch up to defendant's vehicle. Once the first squad car and Officer Oros's vehicle were in close distance behind defendant's vehicle, a voice over the radio requests "the actual speeds" of the vehicles. As all three vehicles crossed through an intersection and ascended a bridge one after another, Officer Oros responds, "speeds are steady at 50."
¶ 43 Although no testimony provided the exact speed on defendant's speedometer during the pursuit, video evidence demonstrated that the speed limit in downtown Decatur was 25 miles per hour and that police, according to Officer Oros, traveled a steady speed of 50 miles per hour at a point in the pursuit when all three vehicles were in close distance. We cannot conclude that this evidence would not reasonably tend to indicate that defendant was traveling in excess of 21 miles over the posted speed limit of 25 miles per hour. Accordingly, when viewed in the light most favorable to the prosecution, we conclude the facts are adequate to sustain a conviction for aggravated fleeing or attempting to elude a police officer for speeding. Defendant's conviction for the offense of armed violence must stand.
¶ 44 B. Ineffective Assistance of Counsel
¶ 45 Next, defendant argues that trial counsel provided ineffective assistance of counsel by failing to (1) cross-examine witnesses regarding the location of the recovered shell casing in the vacant lot in relation to Officer Snyder's vehicle and (2) correct the State when it claimed that defendant boasted about intentionally shooting at Officer Snyder. We cannot agree with defendant. ¶ 46 A defendant alleging ineffective assistance of counsel must satisfy the two-part test set forth in Stricklandv. Washington, 466 U.S. 668 (1984). The right to effective assistance of counsel entails "reasonable, not perfect, representation." People v. Fuller, 205 Ill.2d 308, 331 (2002). To prevail on a claim of ineffectiveness, the defendant must establish that his attorney's performance fell below an objective standard of reasonableness and this deficient performance prejudiced him. Strickland, 466 U.S. at 688. To establish prejudice, a defendant must prove a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 684. A reasonable probability is one that sufficiently undermines confidence in the outcome of the proceeding. Id. The defendant's failure to satisfy either prong of Strickland defeats an ineffective assistance claim. People v. Edwards, 195 Ill.2d 142, 163 (2001). Thus, a reviewing court may resolve an ineffective assistance claim based upon only the prejudice component because a lack of prejudice renders irrelevant the issue of counsel's performance. People v. Coleman, 183 Ill.2d 366, 397-98 (1998).
¶ 47 Courts give substantial deference to an attorney's decision as there is a strong presumption that an attorney acted adequately. Strickland, 466 U.S. at 689. A defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy. People v. Evans, 186 Ill.2d 83, 93 (1999). Every effort must be made to eliminate the effects of hindsight, to reconstruct the circumstances of challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Because effective assistance refers to competent, not perfect, representation, "[m]istakes in trial strategy or tactics or in judgment do not of themselves render the representation incompetent." (Internal quotation marks omitted.) People v. Hillenbrand, 121 Ill.2d 537, 548 (1988). The only exception to this rule is when counsel's chosen trial strategy is so unsound that "counsel entirely fails to conduct any meaningful adversarial testing." People v. Guest, 166 Ill.2d 381, 394 (1995).
¶ 48 Defendant first argues that trial counsel rendered ineffective assistance of counsel by failing to correct the State and the State's witness that defendant boasted about intentionally shooting Officer Snyder. Specifically, defendant asserts that trial counsel allowed, on three separate occasions, unchallenged statements that ran counter to trial counsel's trial strategy to deny defendant's guilt to attempt first degree murder. Specifically, defendant argues that trial counsel should have objected to and also cross-examined Officer Amaya's testimony that defendant stated," 'I already shot him. I'm going to shoot you,' or 'shoot all of you too.'" Defendant asserts that the audio from Officer Amaya's bodycam footage demonstrates that defendant "actually said, 'I said I was going to shoot him, now I'm going to shoot you.'" According to defendant, this "subtle difference" between defendant's words and Officer Amaya's testimony required trial counsel to clarify defendant's intent for the jury.
¶ 49 Even if we were to assume a deficiency on the part of trial counsel, defendant failed to show the requisite prejudice. The prejudice prong of the Strickland test requires the defendant to show "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. Although we note a subtle difference exists between Officer Amaya's testimony and defendant's own words captured by Officer Amaya's bodycam, we cannot conclude that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Instead, the record reveals that shortly after Officer Amaya testified that defendant "specifically *** said something to the effect of 'I shot him, and now I'm going to shoot you,'" the State played the audio of defendant's exact words captured by Officer Amaya's body cam. The jury heard defendant's words at that time and again during jury deliberations when the jury asked: "Could we see the video again of 'I shot him' and 'I will shoot you.'" Given the jury heard defendant's own words several times, we cannot say that there is a reasonable probability that the jury would have determined defendant lacked specific intent had trial counsel objected to and cross-examined Officer Amaya.
¶ 50 Next, defendant argues that trial counsel failed to spotlight the location of the recovered shell casing to show that defendant fired his gun from his moving vehicle at least six feet behind the rear of Officer Snyder's vehicle. As discussed in detail above, a fact finder can reasonably infer an intent to kill from evidence that a defendant fired a gun in the direction of a person. Even if we were to assume a deficiency on the part of trial counsel, defendant failed to show the requisite prejudice. Contrary to defendant's argument that clear evidence existed that defendant did not intend to fire his gun at Officer Snyder, the evidence against defendant was strong, as stated in great detail above, that defendant committed the offense of attempted first degree murder. As such, defendant failed to prove a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Accordingly, we find defendant was not deprived of his constitutional right to effective assistance of counsel in this instance.
¶51 III. Conclusion
¶ 52 For the reasons stated, we affirm defendant's Macon County convictions and sentences for attempt first degree murder and armed violence; vacate defendant's conviction and sentence for the lesser included offense of aggravated fleeing or attempting to elude a police officer for speeding that served as a predicate offense for defendant's conviction of armed violence; and find trial counsel did not render ineffective assistance of counsel.
¶ 53 Affirmed in part and vacated in part.