Opinion
1-18-0494
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHANE EDOUARD, 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 Cook County. No. 14 CR 10307 Honorable Stanley J. Sacks, Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court. Presiding Justice Pierce and Justice Oden Johnson concurred in the judgment.
ORDER
MIKVA, JUSTICE
¶ 1 Held: Defendant's convictions are affirmed where (1) the trial court did not abuse its discretion in admitting other crimes evidence, and (2) trial counsel was not ineffective for entering a stipulation rather than calling a live witness and for not requesting a jury instruction.
¶ 2 Following a jury trial, defendant Stephane Edouard was found guilty of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(7) (West 2014)), criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2014)), and aggravated battery (720 ILCS 5/12-3.05(g)(1) (West 2014)). The trial court merged the criminal sexual assault count into the aggravated criminal sexual assault count and imposed a sentence of 27 years in prison. Mr. Edouard also received a consecutive 14- year prison term for the aggravated battery. On appeal, Mr. Edouard contends that the trial court abused its discretion by admitting other crimes evidence, and that he was denied effective assistance when trial counsel proceeded by stipulation rather than calling a live witness and did not request a certain jury instruction. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Following his arrest, Mr. Edouard was charged by indictment with the aggravated criminal sexual assault and criminal sexual assault of M.D., and the aggravated battery of Adam Poss.
¶ 5 The State filed a motion to admit proof of other crimes to show motive, method, plan, and absence of mistake. The motion alleged that Mr. Edouard would use a false name, lure intoxicated people to his vehicle, offer a substance that rendered them unresponsive, take their personal items, and in some cases, sexually assault them. In the instant case, according to the motion, M.D. and Mr. Poss were at a party, on May 15, 2014, when Mr. Edouard, who introduced himself as Vinnie, offered them cocaine. M.D. and Mr. Poss accompanied Mr. Edouard to his vehicle where they ingested a substance provided by Mr. Edouard and lost consciousness. At one point, M.D. awoke to find herself naked below the waist with Mr. Edouard on top of her and his penis in her vagina. M.D. later went to the hospital where she tested positive for opiates. Mr. Poss was found unresponsive in an alley, hospitalized for hypothermia and pneumonia, and tested positive for opiates.
¶ 6 In a prior incident, on September 18, 2009, C.R. and L.C. left a club and accepted a ride from Mr. Edouard, who introduced himself as Vic. Both women drank from a bottle of Gatorade provided by Mr. Edouard, passed out, and awoke in a parking lot. The women were hospitalized, diagnosed as intoxicated, and sent home. However, after discovering bruising and "blood like stains" in their underwear, they went to another hospital and police were contacted. C.R. and L.C. identified Mr. Edouard in a photo array. Footage from the parking lot showed Mr. Edouard's vehicle entering and exiting.
¶ 7 Thereafter, on September 23, 2009, detectives observed a vehicle matching the description given by C.R. and L.C., and watched Mr. Edouard remove a bottle of Gatorade from the trunk. Detectives arrested Mr. Edouard and interviewed S.L., a passenger. The bottle of Gatorade bore L.C.'s DNA. A search of Mr. Edouard's vehicle recovered a jacket containing narcotics, prescription drugs, and a stolen cellular phone. Police located the phone's owner, Peter Breitlander, who stated that he was at a club on September 18, 2009, and woke in a hospital without his personal items.
¶ 8 After hearing argument, the trial court ruled that C.R. and L.C. could testify to a "sanitized" version of events because the court did not want to try "the other cases together." Accordingly, C.R. and L.C. could testify that Mr. Edouard offered them a ride, gave them Gatorade, and that they woke in a parking lot for the purpose of establishing absence of mistake, modus operandi, and intent, but the court forbade them from testifying regarding "their speculation that they were sexually assaulted while they were unconscious." S.L. could testify as to Mr. Edouard's "method of operation," in that he wanted to give her something but was stopped by the police. The court reiterated that the testimony would not be admitted for propensity, but only for the limited purpose of showing a method for rendering the women into a "state" where they could not resist. The trial court denied the State's motion as to Mr. Breitlander.
¶ 9 On April 28, 2017, the State filed a supplemental motion to admit evidence of other crimes. The motion alleged that on June 23, 2016, Mr. Edouard, who was upset with his girlfriend H.F., made her a meal that he insisted she eat. After she vomited four times, he accused her of an affair. Mr. Edouard then strangled H.F., threatened to kill her, and forced her to perform oral sex and to engage in vaginal intercourse. The following day, Mr. Edouard forced H.F. to quit her job, cancel her gym membership, delete her social media accounts, and he refused to let her leave their home. H.F. later escaped, spoke to authorities, and was hospitalized. The State argued this evidence showed, inter alia, Mr. Edouard's modus operandi and propensity to commit sexual assaults. The court denied the motion.
¶ 10 On May 18, 2017, the State filed a motion in limine, seeking, in pertinent part, to admit the testimony of Kristy Scheuer as other crimes evidence. Ms. Scheuer would testify that she sat next to Mr. Edouard at a comedy show on May 15, 2014, and that Mr. Edouard, who introduced himself as Vinnie, gave her an unopened beer. They exchanged phone numbers. After the show, Ms. Scheuer purchased beer and gave one to Mr. Edouard. Mr. Edouard tried to dance with her, made advances, and gave her an open beer. After drinking this beer, she felt "weird" and her eyesight blurred, so she went home and slept until the following afternoon. Ms. Scheuer was later contacted by the police and showed officers a text from Mr. Edouard. The trial court granted the motion.
¶ 11 Prior to opening statements, the trial court clarified that C.R.'s and L.C.'s testimony could be used for absence of mistake and intent only.
¶ 12 M.D. testified that she and Mr. Poss attended a play in Chicago on May 15, 2014. They then purchased alcohol and went to a party where M.D. drank three to four beers and a few sips of whisky over three to four hours. M.D. had used cocaine in the past, and at one point, she and Mr. Poss discussed getting some. During the party, Mr. Edouard tried to dance with her and "section" her off from her friends. When M.D. decided to leave around 12:30 a.m., she felt "good" but not drunk and could move her arms and speak. Mr. Poss went to the bathroom. Mr. Edouard then approached and asked if M.D. wanted to "party," i.e., "do some cocaine." When Mr. Poss returned, they asked directly if Mr. Edouard had cocaine. Mr. Edouard said it was in his vehicle. There was no discussion of heroin or any other opiate.
¶ 13 Mr. Poss entered the back seat of Mr. Edouard's vehicle, a black luxury sedan, and M.D. sat in the front passenger seat. Mr. Edouard put the drugs into a piece of paper. When M.D. previously used cocaine, she snorted a line. Mr. Edouard, however, left it in a "big chunk" which she thought was "weird." She also noticed that the drugs were "yellowish," but believed that she was ingesting cocaine. M.D. then passed the drugs to Mr. Poss. When she used cocaine in the past, she felt awake, peppy, and talkative. However, that night, she felt slow, had a hard time staying awake, and began to lose feeling in her limbs. As Mr. Edouard drove, M.D. was unable to stay awake. When M.D. woke, her jeans had been removed and Mr. Edouard, who was on top of her, was putting his penis into her vagina. M.D. could not move, was terrified, and did not consent to sexual intercourse. M.D. blacked out again and when she woke, Mr. Edouard was dressing her. Mr. Edouard drove her to Mr. Poss's building and she exited the vehicle. Mr. Poss was not present.
¶ 14 M.D. did not have her phone, so she walked to her friend Rachel Becker's door and buzzed. Ms. Becker carried M.D. upstairs and then took her to the hospital. At the hospital, M.D. could not explain what happened because she was "out of it." She spoke to the police later that day and consented to a sexual assault evidence collection kit. She later realized she was missing $300 from her wallet. On May 16, 2014, M.D. met with Chicago police detective Joan Burke and identified Mr. Edouard in a photographic array. She later identified Mr. Edouard in a lineup.
¶ 15 During cross-examination, M.D. acknowledged that she previously used cocaine, mushrooms, and acid. Although Mr. Edouard's drugs were presented differently, she believed it was cocaine. After ingesting the drugs, she felt weird and did not know what was happening.
¶ 16 Ms. Becker testified that she was woken by her buzzer around 4 a.m. on May 16, 2014, and saw M.D. on the stoop. M.D. was disheveled, her pants and belt were undone, and she was holding her shoes. M.D. said she needed help walking, so Ms. Becker assisted her upstairs. M.D. was crying, had trouble breathing, and did not know Mr. Poss's location. She said, "I woke up and he was inside me." Ms. Becker took M.D. to the hospital.
¶ 17 The State entered a stipulation that the nurse who collected M.D.'s criminal sexual assault evidence kit would testify that oral, vaginal, and anal swabs were obtained, as well as head and pubic hair combings and a blood standard. She would testify that M.D. stated that she drank alcohol, snorted cocaine, and woke in the front seat of a vehicle naked below the waist with a black male on top of her. M.D.'s blood was positive for opiates, negative for cocaine, and revealed a .018 blood alcohol content (BAC). The State further stipulated that a buccal swab was taken from Mr. Edouard on September 24, 2014, and that a forensic scientist would testify that there was not enough male DNA in the vaginal sample taken from M.D. to identify the DNA profile of the male donor.
¶ 18 Illinois State Police (ISP) forensic scientist Rebecca McInerney received M.D.'s sexual assault kit and Mr. Edouard's buccal swab standard. Her examination of the vaginal and anal swabs indicated semen. However, a microscopic examination of the vaginal swab did not identify sperm. Ms. McInerney explained that men can produce semen that does not contain sperm due to an inability to produce sperm, low sperm count, or a vasectomy.
¶ 19 ISP forensic scientist Lisa Fallara testified that Y-STR DNA testing was performed in this case. She explained that "traditional" DNA testing could not be done because there was not enough male DNA to identify a profile. However, both the vaginal and anal samples were submitted for Y-STR testing, which tests for and compares the DNA on the Y-chromosome.
¶ 20 Tests on M.D.'s anal swabs identified results on 2 of the 23 locations tested. Analysis indicated that the profile matched Mr. Edouard and would be expected to occur in between 1 and 11 unrelated African-American males. Tests on the vaginal swabs identified a profile on all 23 locations tested, and the Y-Str DNA profile matched Mr. Edouard, which would be expected to occur in 1 in 2000 unrelated African-American males.
¶ 21 Mr. Poss testified that he and M.D. saw a play and then attended a "BYOB" after-party. There were about 60 people, and Mr. Poss assumed everyone had a connection to the play, but he did not know everyone. He had two beers and a few sips of whisky and had "a little buzz," but could still communicate. Mr. Poss and M.D. discussed getting cocaine, but the friend they asked did not have any. Mr. Poss had used cocaine previously and felt "chattier" and more awake after ingesting it.
¶ 22 When Mr. Poss returned from the bathroom, M.D. was speaking to Mr. Edouard, who Mr. Poss identified at trial but whom he had never seen before. Mr. Edouard said that he "heard [they] were looking to party." Although Mr. Poss and M.D. suggested "doing a line" in the bathroom, Mr. Edouard said the cocaine was in his vehicle, so they accompanied Mr. Edouard there. Mr. Poss entered the backseat and M.D. entered the front. Mr. Edouard produced a magazine or newspaper with a "big pile" of narcotics inside. Mr. Poss and M.D. each snorted several times. Mr. Poss did not actually see Mr. Edouard partake. After the first hit, Mr. Poss did not feel anything, but concluded the cocaine was not "very good." After the second hit, he was very tired. He looked out a window and next remembered waking in a hospital. While hospitalized, the police showed him photographs, but he could not identify anyone as he was really "out of it." Mr. Poss barely remembered speaking to the police. He later identified Mr. Edouard in a physical lineup.
¶ 23 During cross-examination, Mr. Poss acknowledged that while hospitalized he provided some details to the police, but asserted that details about Vinnie and the vehicle were from a later conversation at a police station. He was candid with the police that he might not be able to identify Vinnie because Vinnie's back was to him.
¶ 24 The State presented testimony from an emergency medical technician who responded to a call of a person unconscious in an alley at 5:16 a.m. on May 16, 2014. The man, later identified as Mr. Poss, was barely breathing and was transported to a hospital. Testimony from the physician who treated Mr. Poss established that he was hypothermic with shallow breathing and opioid toxicity, tested positive for opiates, and had a BAC of .0686.
¶ 25 Ms. Scheuer testified that on the evening of May 15, 2014, she arrived late at a "BYOB" comedy show and sat next to Mr. Edouard. Mr. Edouard, who introduced himself as Vinnie, offered her a sealed beer, which she accepted. After the show ended, a theater company hosted a party in the same space. Ms. Scheuer left to purchase a six-pack of beer. When she returned, she gave one to Mr. Edouard. Ms. Scheuer put the other beers on a chair. At one point, Mr. Edouard asked for her number, which she gave him. Mr. Edouard then texted her so that she had his number. While Ms. Scheuer was talking to friends, Mr. Edouard gave her an opened beer from the six-pack she had purchased and invited her to accompany him to another bar. She declined. After a few sips from the open beer, Ms. Scheuer began feeling "abnormal" and "blurry," so she went home. She slept until noon the next day. When Ms. Scheuer woke, she had a missed call and text from Andrew Swanson, another party attendee, asking about the person she spoke to at the party. She spoke to a detective on the phone and provided Vinnie's phone number.
¶ 26 Mr. Swanson testified that he knew M.D., Mr. Poss, and Ms. Scheuer. He did not know Mr. Edouard, whom he saw speaking with Ms. Scheuer. He later saw Mr. Edouard, M.D., and Mr. Poss leave together. The following day, after hearing that M.D. and Mr. Poss were hospitalized, he contacted the event photographer, reviewed the photographs, and located a photograph of Mr. Edouard. He also gave police Ms. Scheuer's phone number. During cross-examination, Mr. Swanson acknowledged that in 2014, he did not tell a detective that he saw M.D. and Mr. Poss leaving with Mr. Edouard.
¶ 27 Chicago police officer Robert Mizones testified that shortly after midnight on May 20, 2014, he and his partner observed Mr. Edouard driving a black Mercedes, curbed the vehicle, and arrested him.
¶ 28 Before L.C. testified, the trial court instructed the jury as follows:
"The evidence you're about to be receive, the Defendant has been involved in conduct other than charged in the indictment.
This evidence will be received on the issues of Defendant's absence of mistake and intent, and may be considered by you only for that limited purpose. (Undiscernible) determine whether the witness-defendant was involved in that conduct and if so, what weight should be given to the evidence on the issue of intent and absence of mistake."
¶ 29 L.C. testified that in September 2009, she and C.R. were roommates. On September 17, 2009, L.C. worked at a bar in Wrigleyville promoting Guinness. She did not drink alcohol while working. Around 11:30 p.m., C.R. arrived, and L.C. drank "[n]o more than two" beers. They then walked to another bar where L.C. had one beer and water. L.C. drove them to another location, Rino, where she had no more than two cocktails and water. They left Rino at 3:45 a.m., and planned to get water and Gatorade on the way home. L.C. was "buzzed," but could walk and use her limbs. As they walked, Mr. Edouard approached and asked if they wanted to party. L.C. said no, but Mr. Edouard followed them and offered a ride. L.C. again said no. Mr. Edouard continued to offer and pointed to his nearby vehicle, an old taxi.
¶ 30 Eventually, they agreed to a ride, but asked to stop for Gatorade. Mr. Edouard said he had Gatorade in the trunk, exited the vehicle, returned, and handed L.C. a bottle. She was "suspicious" since the bottle looked open, but sniffed and sipped it. L.C. handed the bottle to C.R., who "chugged" it. After passing two stop signs, L.C. "just blacked out." She woke on gravel by the river without her purse or phone, and could not move her legs. C.R. was nearby and "barely" breathing, so L.C. got on top of her to keep her warm. Although she was in and out of consciousness, L.C. found help for them. She was taken to a hospital where she was unable to communicate or move her legs. After discharge, L. C. went home and slept for a day. She later remembered things which caused her to go to a different hospital. Although she spoke to police and identified Mr. Edouard in a lineup, he faced no criminal charges stemming from the evening.
¶ 31 Prior to C.R.'s testimony, the trial court repeated the limiting instruction including that the evidence should be considered for the limited purpose of absence of mistake and intent, and that it was for the jury to determine whether Mr. Edouard was involved in that conduct, and "if so, what weight should be given to this evidence on the issue of intent and absence of mistake."
¶ 32 C.R. testified that on September 17, 2009, she met L.C. and had two cocktails. They went to another bar where she had two to three cocktails, and to Rino, where she had another two to three drinks. When C.R. left Rino, she was "tipsy," but could walk and talk. As they walked toward their vehicle, Mr. Edouard approached and offered a ride. After initially refusing, C.R. accepted because her feet hurt. When they asked to stop at Walgreen's, Mr. Edouard stated he had Gatorade and retrieved a bottle from the trunk. He passed the opened bottle to L.C. who drank and then passed it to C.R. After drinking the Gatorade, C.R. remembered passing a stop sign, and then nothing until she was at a hospital. She could barely speak or move her limbs and did not have her purse or phone. After sleeping for almost a day, C.R. began to remember what happened, spoke to L.C, and went to another hospital. Although C.R. spoke to police and identified Mr. Edouard in a lineup, he was not charged with any offenses as a result of that evening.
¶ 33 The defense presented Dr. Karl Reich, who had a doctorate in molecular biology and worked at a forensic DNA laboratory. His laboratory received the ISP Center's report of the DNA testing, and he was present when part of the ISP Center's analysis was performed. According to the report, semen was indicated on the vaginal and anal swabs of M.D., but no spermatozoa was identified, and a DNA profile was obtained from the Y-chromosome. The lab was therefore able to find a lineage Y-chromosome that was the same as Mr. Edouard. Therefore, the report concluded that the vaginal sample matched Mr. Edouard. Dr. Reich noted that while the ISP report determined the sample "matched" Mr. Edouard, he preferred the phrasing that Mr. Edouard was not excluded. He also opined that the ISP Center's determination that semen was indicated in the anal and vaginal swabs was inaccurate.
¶ 34 Dr. Reich explained that the ISP Center used two methods to identify semen, and that the first test was positive but the second was negative. In his opinion, because one test was negative, the ultimate result should have been semen "indicated" rather than identified. Additionally, in his opinion, the ISP Center used a less-reliable commercial kit when conducting the first test. Based on the results available, Dr. Reich was unable to find, to a reasonable degree of scientific certainty, that the fluid on the vaginal and anal swabs contained semen. During cross-examination, Dr. Reich testified that he was paid approximately $8000 in this case.
¶ 35 The defense stipulated that Dr. Mark Supeno would testify that when he treated C.R. and L.C. in the emergency room on September 18, 2009, they smelled of alcohol, had an unsteady gait and slurred speech, and showed "no obvious trauma." Dr. Supeno diagnosed alcohol intoxication, and discharged them with a recommendation to stop drinking.
¶ 36 The defense further stipulated that if called to testify, Detective Burke would testify that when she visited Mr. Poss in the hospital on May 16, 2014, he stated that he and M.D. were at a party, she talked about getting some cocaine, and he went to the bathroom when they could not obtain any. When he returned, M.D. was speaking to a man who introduced himself as Vinnie. Vinnie offered to party with them and took them to his vehicle where he offered them cocaine. Mr. Poss ingested the cocaine, which smelled different and made him tired, and the last thing he remembered was M.D. speaking to Mr. Edouard. Detective Burke would further testify that she showed Mr. Poss a photographic array containing Mr. Edouard's picture, but that Mr. Poss did not identify anyone as Vinnie.
¶ 37 In closing argument, the State noted that testimony from C.R., L.C., and Ms. Scheuer indicated that Mr. Edouard was involved in conduct other than what was charged in the indictment and could be considered for Mr. Edouard's absence of mistake and intent. The State argued that Mr. Edouard "made no mistake" when he gave M.D. and Mr. Poss an opioid that incapacitated them because he did the same to C.R. and L.C., and tried to do it to Ms. Scheuer. The State concluded that the similarities-including Mr. Edouard using a nickname, taking or attempting to take people in vulnerable states to his vehicle where they were given "something" which rendered them incoherent, and the people waking somewhere else-were "uncanny." In response, the defense argued that Mr. Edouard faced no criminal charges related to L.C. and C.R. Additionally, M.D. and Mr. Poss were intoxicated and snorted "whatever" made them incoherent, which affected their credibility and created reasonable doubt.
¶ 38 The trial court then instructed the jury, relevant here, that it was the judge of "the believability of the witnesses and of the weight to be given to [their] testimony." The court stated that when considering a witness's testimony, the jury may "take into account" the witness's ability and opportunity to observe, memory, manner while testifying, any interest, bias, or prejudice the witness may have, and the reasonableness of the witness's testimony considered in light of all the evidence. The jury was further instructed:
"Evidence has been received that the defendant has been involved in conduct other than those charged in the indictment.
This evidence has been received on the issues of the defendant's absence of mistake and intent and may be considered by you only for that limited purpose.
It is for you to determine whether the defendant was involved in that conduct, and, if so, what weight should be given to this evidence on the issues of absence of mistake and intent."
¶ 39 The jury found Mr. Edouard guilty of criminal sexual assault, aggravated criminal sexual assault, and aggravated battery. Mr. Edouard filed a motion for a new trial alleging, relevant here, that the trial court erred when it admitted proof of other crimes. The trial court denied the motion. After a hearing, the court merged the criminal sexual assault count into the aggravated criminal sexual assault count, and imposed a sentence of 27 years in prison. The court also sentenced Mr. Edouard to a consecutive 14-year prison term for the aggravated battery. Mr. Edouard filed a motion to reconsider his sentence, which the trial court denied.
¶ 40 II. JURISDICTION
¶ 41 Mr. Edouard was sentenced on February 1, 2018, and timely filed his notice of appeal that same day. We have jurisdiction over this appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing appeals from final judgments in criminal cases.
¶ 42 III. ANALYSIS
¶ 43 On appeal, Mr. Edouard first contends that the trial court erred when it permitted other crimes evidence as to intent and absence of mistake when neither concept was at issue and the evidence was really offered to show his propensity to offend.
¶ 44 Evidence that a defendant has committed crimes other than those for which he is on trial may not be admitted to show that the defendant had the propensity to commit crimes. People v. Adkins, 239 Ill.2d 1, 22-23 (2010). Such evidence threatens to overpersuade the jury, which might convict the defendant based on its belief that he is a bad person deserving of punishment. People v. Lindgren, 79 Ill.2d 129, 137 (1980).
¶ 45 Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) provides that evidence of other crimes may be admissible to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See also People v. McKibbins, 96 Ill.2d 176, 182 (1983). "Other-crimes evidence may also be permissibly used to show, by similar acts or incidents, that the act in question was not performed *** involuntarily, or without guilty knowledge." People v. Wilson, 214 Ill.2d 127, 136 (2005). "Where such other-crimes evidence is offered, it is admissible so long as it bears some threshold similarity to the crime charged." Id. Even when other crimes evidence is offered for a permissible purpose, however, it should not be admitted when its prejudicial impact substantially outweighs its probative value. People v. Chapman, 2012 IL 111896, ¶ 19.
¶ 46 The admissibility of evidence is generally entrusted to the trial court, and its decision will not be reversed absent an abuse of that discretion. Pikes, 2013 IL 115171, ¶ 12. A trial court abuses its discretion only when its ruling was arbitrary, fanciful, unreasonable, or no reasonable person would have taken the trial court's view. People v. Cerda, 2021 IL App (1st) 171433, ¶ 98.
¶ 47 Here, we cannot find that the trial court abused its discretion when it permitted evidence of other crimes through the testimony of L.C., C.R., and Ms. Scheuer. It is clear that this other crimes evidence met the threshold requirement of similarity to the charged conduct. The testimony of L.C. and C.R. echoed that of M.D. and Mr. Poss in significant ways. In both cases, Mr. Edouard approached people who were intoxicated and induced them to come to his vehicle. Thereafter, he gave them a substance which, when ingested, rendered them unconscious. In both cases, the substance was purported to be something the victims agreed to ingest-Gatorade in the case of L.C. and C.R., and cocaine in the case of M.D. and Mr. Poss. Each victim awoke missing certain personal affects.
¶ 48 In the case of Ms. Scheuer, Mr. Edouard attempted to separate her from her friends on the dance floor and invited her to another location. After Mr. Edouard was unable to induce Ms. Scheuer to leave the party, he gave her an open beer and soon after Ms. Scheuer felt unwell and went home.
¶ 49 Mr. Edouard argues that because, for the charged offenses, the state alleged that he acted "knowingly," and the defense theory was that the witnesses were not credible, the evidence of other crimes was not relevant to any disputed issue nor was it necessary to prove his mental state. However, even where, as here, the defense is based on a general denial, we have allowed the State to put on other crimes evidence to meet its burden of proving the defendant's "overall state of mind." See People v. Davis, 2019 IL App (1st) 160408, ¶¶ 61-63 (citing People v. Heard, 187 Ill.2d 36, 50-51 (1999) (noting that our supreme court "zeroed in on motive or general mental state as opposed to legal intent")). The State could use this evidence of other crimes to prove that Mr. Edouard acted with knowledge when he gave M.D. and Mr. Poss substances that rendered them unconscious.
¶ 50 Mr. Edouard argues that the trial court failed to adequately consider the potential prejudice of the complained-of evidence. Here, the trial court conducted the required balancing test and determined that L.C. and C.R. could not testify as to the alleged sexual assaults and could present only a "sanitized" version of events in order to avoid trying those cases alongside the current case. Moreover, the trial court gave a specific limiting instruction. See People v. Illgen, 145 Ill.2d 353, 376 (1991) (when the trial court specifically instructed the jury as to how other crimes evidence could be considered, the instruction "limited and substantially reduced any prejudicial effect created by [its] admission").
¶ 51 As noted, it is within the sound discretion of the trial court to determine the admissibility of evidence and its determination will not be reversed absent an abuse of that discretion. Pikes, 2013 IL 115171, ¶ 12. For the reasons discussed above, we find that the trial court did not abuse its discretion in the admission of the other crimes evidence.
¶ 52 Mr. Edouard next contends that he was denied effective assistance when trial counsel entered a stipulation as to Detective Burke's testimony and did not request that the jury be instructed concerning prior inconsistent statements.
¶ 53 A defendant's claim of ineffective assistance of counsel is analyzed pursuant to the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017 IL 120649, ¶ 29. A defendant must show both that counsel's performance was deficient, and that this deficient performance prejudiced him. Id. ¶ 31 Counsel's performance is deficient when it falls below an objective standard of reasonableness. People v. Valdez, 2016 IL 119860, ¶ 14. A defendant is prejudiced when there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. People v. Evans, 209 Ill.2d 194, 219-20 (2004); see also Strickland, 466 U.S. at 694 ("A reasonable probability is a probability sufficient to undermine confidence in the outcome."). "Satisfying the prejudice prong necessitates a showing of actual prejudice, not simply speculation that [the] defendant may have been prejudiced." People v. Patterson, 2014 IL 115102, ¶ 81.
¶ 54 A defendant's failure to satisfy either Strickland prong precludes a finding of ineffective assistance. People v. Clendenin, 238 Ill.2d 302, 317-18 (2010). "We review a defendant's claim of ineffective assistance of counsel in a bifurcated fashion, deferring to the trial court's findings of fact unless they are contrary to the manifest weight of the evidence, but assessing de novo the ultimate legal question of whether counsel was ineffective." People v. Manoharan, 394 Ill.App.3d 762, 769 (2009).
¶ 55 "The mere use of stipulations does not establish ineffective assistance of counsel." People v. Smith, 326 Ill.App.3d 831, 851 (2001). While an incorrect or erroneous stipulation may constitute deficient performance, in order to establish that counsel was ineffective for entering into a stipulation, a defendant must also establish prejudice and overcome the strong presumption that counsel's actions were trial strategy. People v. Morris, 2014 IL App (1st) 130512, ¶ 40. When reviewing trial counsel's actions, we make every effort to evaluate counsel's performance from his or her perspective at the time, rather than in hindsight. See People v. Madej, 177 Ill.2d 116, 157 (1997).
¶ 56 Here, trial counsel stipulated that Detective Burke would testify that when she visited Mr. Poss in the hospital on May 16, 2014, Mr. Poss detailed how he and M.D. met Vinnie, went to Vinnie's vehicle to ingest cocaine, and how the substance made him feel. Counsel also stipulated that Mr. Poss did not identify Vinnie in a photographic array which contained Mr. Edouard's picture. Mr. Edouard does not argue this information was inaccurate or incorrect, but posits that it was objectively unreasonable to proceed by stipulation because impeachment by stipulation is a "pale imitation" of impeachment through a "living, breathing witness."
¶ 57 Although stipulated impeachment evidence is sometimes "no substitute for live, in-court impeachment" testimony (People v. Mejia, 247 Ill.App.3d 55, 65-66 (1993)), "decisions concerning whether to call certain witnesses on a defendant's behalf are matters of trial strategy, reserved to the discretion of trial counsel," and as such, they "enjoy a strong presumption that they reflect sound trial strategy, rather than incompetence" (People v. Enis, 194 Ill.2d 361, 378 (2000)).
¶ 58 As Mr. Edouard correctly observes, the stipulation contained details that contradicted Mr. Poss's testimony. Specifically, Detective Burke would testify that when she visited Mr. Poss at the hospital, he stated that he and M.D. were at a party when she talked about getting some cocaine, but he went to the bathroom when they were unsuccessful. Detective Burke would also testify that Mr. Poss further stated that when he returned from the bathroom, M.D. was speaking to a man who introduced himself as Vinnie, offered to party, and took them to his vehicle where he offered them cocaine. During cross-examination, Mr. Poss testified that he provided some details to the police while hospitalized but asserted that the details about Vinnie and the vehicle were related during a conversation at a police station. The stipulation was consistent with Mr. Poss's testimony that when shown a photographic array at the hospital he did not identify anyone. However, the stipulation did not address Mr. Poss's physical or mental state during the initial meeting at the hospital, that is, his testimony that he was "out of it" and barely remembered speaking to the police.
¶ 59 Although Mr. Edouard concludes that live impeachment testimony would have been more "meaningful," he fails to explain what additional details Detective Burke could have provided. See People v. Eggleston, 363 Ill.App.3d 220, 227-28 (2006) (rejecting the defendant's claim that his attorney was ineffective for stipulating to testimony rather than calling a witness when the "live testimony would not have added any more than the stipulation already covered" and cross-examination may have "discredited" the witness due to her "involvement in the case"). Moreover, he assumes that any additional details would have benefitted the defense when it is entirely possible that cross-examination of Detective Burke as to Mr. Poss's physical and mental condition while hospitalized would have also elicited details that were harmful to the defense.
¶ 60 Based upon the record, Mr. Edouard has not established that trial counsel's decision to proceed by way of stipulation, rather than present Detective Burke's live testimony, was unreasonable or prejudicial. Importantly, the stipulated testimony was clear and concise, and Mr. Edouard does not argue that the content was incorrect or erroneous. Cf. People v. Williams, 329 Ill.App.3d 846, 856 (2002) (finding that counsel was ineffective for proceeding by way of stipulation rather than live testimony where the stipulation "lack[ed] clarity" and was thus an "inadequate substitute for [live] impeachment testimony").
¶ 61 Mr. Edouard finally contends that he was denied effective assistance when trial counsel did not request that the jury be instructed as to prior inconsistent statements even though the purported strategy was to impeach Mr. Poss with a prior inconsistent statement.
¶ 62 The State responds that any inconsistencies were minor, noting that the issue at trial was not whether Mr. Poss related the details of his interactions with Mr. Edouard to the police, but when he did so. Moreover, the State notes that the trial court's restatement of Illinois Pattern Jury Instruction 1.02 (Illinois Pattern Jury Instructions, Criminal, No. 1.02 (approved July 18, 2014)) (IPI Criminal No. 1.02) when instructing the jury fairly and accurately stated the law for evaluating witness credibility.
¶ 63 Illinois Pattern Jury Instruction 3.11 (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (approved Oct. 17, 2014)) (IPI Criminal No. 3.11) states that "[e]vidence that on some former occasion" a witness made a statement "that was not consistent with his testimony in this case *** may be considered by you only for the limited purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom."
¶ 64 The purpose of jury instructions is to provide the jury with correct legal rules that can be applied to the evidence to guide the jury toward a proper verdict. People v. Lovejoy, 235 Ill.2d 97, 150 (2009). IPI 3.11 is appropriately given when two statements are inconsistent on a material matter. People v. Eggert, 324 Ill.App.3d 79, 82 (2001). Minor discrepancies and inconsistencies in testimony do not render the testimony unworthy of belief, but go only to its weight. People v. Larry, 218 Ill.App.3d 658, 666 (1991).
¶ 65 While the parties dispute the materiality of the alleged inconsistencies between Mr. Poss's statement at the hospital and his trial testimony, there is no dispute that they were brought to the jury's attention. Trial counsel cross-examined Mr. Poss about when he related certain details to officers, and presented a stipulation which clarified when certain details were first shared. Thus, although the substance of Mr. Poss's statement that Vinnie offered M.D. and Mr. Poss cocaine and took them to his vehicle was consistent, trial counsel established that Mr. Poss's testimony was inconsistent as to when he told the police about Vinnie and the vehicle, and that he did not remember giving Detective Burke a detailed statement.
¶ 66 We need not determine whether counsel's performance was deficient because Mr. Edouard cannot demonstrate he was prejudiced by counsel's failure to request IPI Criminal No. 3.11. See People v. Graham, 206 Ill.2d 465, 476 (2003) (when an ineffective assistance of counsel claim can be disposed of on the grounds that the defendant was not prejudiced, a court need not determine whether counsel's performance was deficient).
¶ 67 Here, although the jury was not instructed with IPI Criminal No. 3.11, it was instructed how to evaluate a witness's testimony, including IPI Criminal No. 1.02, which states:
"Only you are the judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you
may take into account his ability and opportunity to observe, [his age, ] his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in light of all of the evidence in the case." Illinois Pattern Jury Instructions, Criminal, No. 1.02 (approved July 18, 2014).
¶ 68 This court has previously found that a failure to instruct the jury in accordance with IPI Criminal No. 3.11 is not cause for reversal where the jury is instructed in accordance with IPI Criminal No. 1.02. See, e.g., Larry, 218 Ill.App.3d at 666-67; see also People v. Miller, 2017 IL App (1st) 143779, ¶ 45 (citing People v. Luckett, 273 Ill.App.3d 1023, 1035 (1995)).
¶ 69 Accordingly, as the jury was informed of the differences between Mr. Poss's recollection of his conversation with Detective Burke and the actual details of that conversation, and instructed on how to evaluate the testimony of the trial witnesses in accordance with IPI Criminal No. 1.02, Mr. Edouard has failed to establish he was prejudiced by counsel's failure to request IPI Criminal No. 3.11. Therefore, his ineffective assistance of counsel claim fails.
¶ 70 IV. CONCLUSION
¶ 71 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 72 Affirmed.