Opinion
1-21-0371
09-30-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KERRY SMITH, 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. 18 C 550285 Honorable Colleen Ann Hyland, Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justice Mitchell concurred in the judgment. Justice Oden Johnson dissented.
ORDER
MIKVA, PRESIDING JUSTICE
¶ 1 Held: Where defendant has not shown that his trial counsel was ineffective for failing to request a jury instruction on the affirmative defense of mistake of fact, his conviction for retail theft is affirmed.
¶ 2 Following a jury trial, defendant Kerry Smith was found guilty of retail theft and sentenced to 30 months in prison. Defense counsel argued at trial that the State could not prove Mr. Smith knowingly took the items he was accused of stealing without paying for them. Counsel's defense was that Mr. Smith mistakenly believed that a cashier had scanned the items and that he had paid for them with a store credit before leaving the store. Mr. Smith now contends that, in addition to arguing the State did not establish the requisite mental state for retail theft, his attorney should have requested a jury instruction on the affirmative defense of mistake of fact. Mr. Smith insists that counsel's failure to do so was objectively unreasonable and prejudiced him at trial. For the reasons that follow, we conclude that the record does not support a finding of ineffective assistance of counsel and affirm Mr. Smith's conviction.
¶ 3 I. BACKGROUND
¶ 4 Mr. Smith was charged with retail theft for exiting the Menards home improvement store in Crestwood, Illinois, on April 12, 2018, without paying for approximately $930 worth of backsplash and decorative wall tiles. At Mr. Smith's jury trial, held on February 18, 2020, the State called two witnesses: loss-prevention agent Darryl Kurdziel and cashier Danielle Meyers. The State also introduced documentary evidence establishing the value of the merchandise and three surveillance videos showing Mr. Smith inside the store. Mr. Smith presented no evidence.
¶ 5 A. The State's Motions In Limine
¶ 6 The State filed a pretrial motion asking the court, should Mr. Smith choose to testify at trial, to allow it to introduce evidence of his prior felony convictions for the distribution of marijuana in 2009 and for conspiracy to possess more than 5000 grams of cannabis in 2019. The court granted the motion, concluding that those prior convictions went to Mr. Smith's credibility as a witness.
¶ 7 The State also sought to introduce evidence, the introduction of which would not be tied to whether Mr. Smith testified, that, three months after the events alleged in this case, Mr. Smith was charged with taking items, including tiles, from another home improvement store, this time with the assistance of two accomplices. Evidence from that case was relevant, the State argued, to establish an absence of mistake. The court denied that request, concluding that the probative value of the evidence was outweighed by its prejudicial effect.
¶ 8 The State later supplemented its motion, seeking to introduce evidence that in the week preceding the alleged theft in this case, the same Menards loss-prevention agent who would testify against Mr. Smith at trial had observed him placing tiles on a cart, concealing them with bags of mulch, and taking them to the register. That time, the loss-prevention agent would explain, Mr. Smith had not continued through the checkout lane with the tiles but had turned around and put them back. The State also represented that another loss-prevention agent would testify that on the day after that incident occurred, Mr. Smith was seen with some items on his cart and some lumber stacked between those items and the cashier. Mr. Smith left to "inquire about a VIN tag within the store" and, when the cashier noticed and scanned the items on the cart, Mr. Smith "exited the store." It is unclear from the State's proffer whether the loss-prevention officer would testify that Mr. Smith purchased the items and left the store or simply left the store. In both instances, the State sought to elicit testimony regarding "the placement of these items and how they were placed."
¶ 9 The court again denied the State's motion. It noted, however, that it would revisit the issue if Mr. Smith testified at trial, explaining:
"Now should the defendant take the witness stand and testify, I believe the question as to whether or not any of those incidents would be relevant could be raised again after his testimony by the state, and I would entertain whether or not there was any relevant basis to introduce it in a cross or a rebuttal. But as to [the] state's case in chief, I do not find that it is probative. In fact, I find it is much more prejudicial than probative and the state's motion in limine is denied."
¶ 10 A. The State's Evidence at Trial
¶ 111. Loss-Prevention Agent Darryl Kurdziel
¶ 12 Darryl Kurdziel testified that he is a licensed loss-prevention agent and works as an independent contractor for a company providing loss-prevention services to the Crestwood Menards. From the store's security room, he uses two monitors to view footage from over 100 cameras placed throughout the store. In addition to stationary cameras, Mr. Kurdziel has access to "pan tilt zoom" cameras that he can manipulate in real time to follow customers and focus in on specific areas of the store.
¶ 13 At approximately 11 a.m. on April 12, 2018, Mr. Kurdziel observed Mr. Smith, whom he identified in court, on a live feed over one of the two monitors. Mr. Smith was pushing a flatbed cart from the health and beauty section of the store toward the flooring section. He had four large bags of mulch on the cart: one draped over a small basket at the top of the cart and three staggered on the flat part of the cart, leaving an open space at the end.
¶ 14 Mr. Kurdziel observed that when Mr. Smith reached the store's decorative wall tile display, there were two Menards employees present at the end of the aisle. Mr. Smith looked at the various tiles and, when the employees had left the area, began placing self-sticking backsplash tiles and larger decorative tiles in the open space on the flatbed cart. Mr. Kurdziel then saw Mr. Smith pick up the bags of mulch on the cart and place them over the tiles, concealing them from view, before continuing on to the health and beauty and toy departments, where he selected approximately 20 additional items. He placed a large package of bottled water on top of the mulch and smaller items like soap and deodorant inside the small basket at the top of the cart.
¶ 15 Mr. Kurdziel further testified that when Mr. Smith arrived at the cash register, he put the items from the basket onto the conveyer belt and presented some of the bulkier items, like the bags of mulch, to the cashier to scan. He then proceeded to the end of the checkout lane where payments were made. According to Mr. Kurdziel, Mr. Smith did not present the tiles that were underneath the mulch to the cashier. He paid for the other items and left the store. When Mr. Kurdziel was sure that Mr. Smith did not intend to pay for the tiles, he approached Mr. Smith in the store's parking lot and asked him if he had a receipt for the items that were under the mulch. Mr. Kurdziel examined Mr. Smith's cart, recovered the tiles, and photographed them before they were restocked. They consisted of approximately 10-12 packages of self-sticking tiles that, when stacked, were only about six inches thick. Mr. Kurdziel had a cashier ring up these items to determine their value and identified for the jury a voided receipt showing that, before tax, they were worth $938.16. He also identified a transaction detail showing that the items Mr. Smith paid for with a store credit totaled $118.19.
¶ 16 On cross-examination, Mr. Kurdziel acknowledged that, in addition to the two Menards employees who were initially present in the flooring department, Mr. Smith walked past a third employee when he left the tile display area. Mr. Kurdziel also agreed that when Mr. Smith left the store, he was not running-though Mr. Kurdziel said he appeared "stiff when he was walking." Mr. Kurdziel also acknowledged that, when confronted, Mr. Smith agreed to return with Mr. Kurdziel to the store to wait for the police.
¶ 17 2. The Surveillance Videos
¶ 18 At the close of Mr. Kurdziel's direct testimony, the State played for the jury the three surveillance videos showing Mr. Smith's movements within the store. These videos are part of the record on appeal. Mr. Smith's actions in the first video, which is just over nine minutes in length, are consistent with Mr. Kurdziel's testimony. Mr. Smith is shown pulling a flatbed cart with bags of red mulch through the Menards health and beauty department. Three of the bags have been placed on their long edges and are leaning against each other toward the front of the cart and a fourth is draped over the cart's basket. Mr. Smith stops to open the drawers of a nearby display case and look at the items inside before moving on to the aisle with the decorative backsplashes and wall tiles. Two Menards employees, dressed in blue shirts, can be seen having a conversation at the end of the aisle near the display. Mr. Smith picks up some packages of tiles, inspects them, and puts them back. He can be seen looking down the aisle, in the direction he came from, and then back up the aisle again, toward the employees. He pulls his cart closer to the display and continues looking at the tiles for another minute or so.
¶ 19 At this point, the two employees part ways, one exiting through a nearby door and the other remaining in the store but leaving the tile display area. Mr. Smith puts down the tile brochure he has been looking at and begins stacking packages of tiles in the empty space at the end of his cart. He then begins lifting the perpendicular bags of mulch and laying them flat on top of the tiles. He places all four bags of mulch on the tiles and begins to leave the area. He stops, however, and goes back for several more of the smaller packages of tiles. Although these would now clearly fit in the basket at the front of his cart, Mr. Smith lifts the bags of mulch, places the tiles underneath, and readjusts the mulch to cover the tiles. He adjusts the bags several times, at one point stepping to the side to view the cart from that angle. He then wheels the cart back to the health and beauty section of the store. As the surveillance video follows Mr. Smith, his cart can be seen from several angles, including from overhead, and the tiles are not visible.
¶ 20 The second surveillance video is just over six minutes long and shows Mr. Smith pulling his cart through another section of the store. The basket at the top of his cart is now filled with items. Mr. Smith approaches the store's checkout lanes and a cashier can be seen waving him into her lane and scanning his items. A partition dividing the checkout lanes almost entirely blocks Mr. Smith and the cashier from view.
¶ 21 The third video is four minutes long and provides an unobstructed overhead view of Mr. Smith and the cashier in the checkout lane. Mr. Smith pulls his cart up and unloads the smaller items onto the conveyor belt. The cashier scans them and places them on a second conveyor belt leading to the self-bagging area. Mr. Smith then picks up a container of laundry soap that is resting on the bags of mulch and holds it out for the cashier to scan with her scanner gun before replacing it on top of the mulch. The cashier approaches the cart, scans one of the bags of mulch, and turns to enter information into her register. Mr. Smith presents the case of bottled water to be scanned, places it back on top of the mulch, and then pulls a slip of paper from his wallet and presents it to the cashier. She scans it, writes something on it, and gives it back to him with his receipt. Mr. Smith pulls his cart to the end of the checkout lane, bags his items, and leaves the store. The cashier does not scan the tiles that are underneath the mulch.
¶ 22 3. Cashier Danielle Anderson Meyer
¶ 23 Danielle Anderson Meyer testified that she is a cashier at the Crestwood Menards and was working there on April 12, 2018. Ms. Meyer identified herself as the cashier in the surveillance videos previously shown to the jury. She explained that a customer at Menards will generally place items on a conveyor belt and, while she rings them up, the customer will walk behind her to the self-bagging area at the end of the checkout lane. Menards offers its customers several different types of carts. One is a flatbed cart, designed for larger items to be placed on the flat bottom and smaller items in a little basket on top of the cart. When items are too large to be lifted onto the conveyor belt, the customer wheels the cart up to the register and presents those items to Ms. Meyer to scan with a scanner gun. For bulk items, she scans one unit, and the register prompts her to enter a quantity.
¶ 24 Ms. Meyer testified that, as depicted in the video, she first rang up the smaller items that Mr. Smith took from the basket of his flatbed cart and placed on the conveyor belt. He then picked up and presented a case of bottled water to her that was resting on top of the mulch. She scanned it and then scanned one bag of the mulch and entered the number of bags in her computer. The cart was right in front of her at this point, and she could see that there were four bags of mulch. Mr. Smith next presented a container of laundry detergent to her to scan and then proceeded to pay for his items using a merchandise credit slip-a store credit toward future purchases that one would receive after returning merchandise to the store. Ms. Meyer gave Mr. Smith a receipt for the scanned items and his credit slip back, with her handwritten note indicating how much credit remained. He took the receipt from her without stopping to look at it and left the store. At no time did Mr. Smith tell her that there were any additional items underneath the bags of mulch.
¶ 25 Ms. Meyer was not asked and did not testify about the amount of store credit Mr. Smith initially had or how much remained after his purchases.
¶ 26 The State rested. The court denied defense counsel's motion for a directed verdict and confirmed with Mr. Smith that he did not wish to testify on his own behalf. The jury was excused for the evening, and closing arguments were presented the next day.
¶ 27 4. Closing Arguments and Verdict
¶ 28 The State argued in its closing that Mr. Smith never intended to pay for the tiles he took from Menards. The assistant state's attorney (ASA) presenting the State's case told the jury, "[t]his was not a mistake. This was not something where the Defendant left those tiles underneath the mulch and forgot to pay for them. This was a plan." She played the surveillance video again for the jurors and asked them to consider all of the circumstantial evidence regarding Mr. Smith's behavior in the store and find that he did not fail to pay for the tiles as the result of any mistake.
¶ 29 In rebuttal, defense counsel acknowledged that the State had proven beyond a reasonable doubt every element of retail theft except that Mr. Smith knowingly and intentionally deprived Menards of the tiles without paying for them. Counsel pointed out that there were still store employees nearby when Mr. Smith loaded the tiles onto his cart and posited that it made sense to place the heavy bags of mulch on top of the tiles to prevent them from slipping off of the cart. Counsel stated that the cashier "never even bothered to make an effort to see if there was anything else there" on the cart to ring up and emphasized that Mr. Smith did not run away when he was confronted by Mr. Kurdziel, but calmly returned to the store.
¶ 30 During deliberations, the jury asked to view the surveillance videos again and also asked for the date and total amount of the store credit that Mr. Smith used to pay for his items. The trial court allowed the videos to go back to the jury and responded to the inquiry about the store credit by telling the jurors that they had already received all of the evidence and the law in the case and should continue to deliberate.
¶ 31 The jury subsequently returned a verdict of guilty on the charge of retail theft. Mr. Smith's motion for a new trial was denied, and the trial court sentenced him to 30 months in prison. This appeal followed.
¶ 32 II. JURISDICTION
¶ 33 Mr. Smith was sentenced on January 20, 2021, and he timely filed his notice of appeal on February 18, 2021. We allowed Mr. Smith to file a corrected notice of appeal on October 5, 2021. This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013) and 606 (eff. March 12, 2021), governing appeals from final judgments of conviction in criminal cases.
¶ 34 III. ANALYSIS
¶ 35 On appeal, Mr. Smith contends that his trial counsel was ineffective for failing to request a jury instruction on mistake of fact when that was his entire defense. The State's primary response to this argument is that it would have been improper for the trial court to have allowed the instruction where Mr. Smith never formerly asserted the affirmative defense of mistake of fact. The State points out that Mr. Smith's discovery responses in this case indicated that there were "[n]o Affirmative Defenses Filed." The State is correct that an affirmative defense must be specifically raised for the State to have the burden of rebutting that defense at trial. See People v. Bardsley, 2017 IL App (2d) 150209, ¶ 23 (concluding that "the mere presence in the State's evidence of facts sufficient to permit a defendant to raise a defense is not by itself sufficient to trigger the requirement that the State disprove the defense"). The State insists that, by failing to specifically argue on appeal that his trial counsel was ineffective for failing to formally assert the affirmative defense of mistake, Mr. Smith has forfeited that argument. See Ill. S.Ct. R. 341(h)(7) (West 2020) (providing that "[p]oints not argued [in a party's opening brief] are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing").
¶ 36 We find no forfeiture here. Implicit in Mr. Smith's argument on appeal that his counsel should have requested a jury instruction on mistake of fact is the argument that his counsel should also have done all that was necessary to ensure that such a request was proper and would be granted, including formally asserting the affirmative defense of mistake of fact at an earlier time. The question at the heart of this appeal is whether Mr. Smith's counsel was ineffective for choosing to hold the State to its burden on the elements of retail theft rather than pursue mistake of fact as an affirmative defense and, in so doing, ensure that the jury was properly instructed on that defense.
¶ 37 A criminal defendant has a constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. art. I, § 8. In determining whether this right has been denied, we apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-8, 694 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill.2d 504, 525-27 (1984). "To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient, and that the deficient performance prejudiced the defendant," such that "he was deprived of a fair trial." People v. Falco, 2014 IL App (1st) 111797, ¶ 14. To demonstrate deficient performance, a defendant most show that his counsel's representation was "objectively unreasonable under prevailing professional norms." People v. Domagala, 2013 IL 113688, ¶ 36. To establish prejudice, "the defendant must show a reasonable probability that, absent counsel's alleged error, the trial's outcome would have been different." Falco, 2014 IL App (1st) 111797, ¶ 14. If a defendant fails to prove either prong of this test, his ineffective assistance claim fails. Id. Where, as here, the relevant facts are not disputed, our review is de novo. Id.
¶ 38 Here, Mr. Smith was convicted of felony retail theft. A person commits the offense of retail theft when he or she "knowingly" takes possession of retail merchandise "with the intention of retaining such merchandise or *** depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value." 720 ILCS 5/16-25(a) (West 2018). If the value of the property exceeds $300, the offense is a class 3 felony. Id. § 16-25(f)(3).
¶ 39 Illinois Pattern Jury Instructions (IPI), Criminal, No. 24-25.24 (4th ed. 2000), which is based on the affirmative defense of ignorance or mistake codified at section 4-8 of the Criminal Code of 2012 (720 ILCS 5/4-8 (West 2018)), provides that "[a] defendant's mistake of fact as to a matter of fact is a defense if the mistake shows that the defendant did not have the [(intent) (knowledge) (recklessness)] necessary for the offense charged." (Emphasis in original.)
¶ 40 As Mr. Smith argues, "[t]he purpose of jury instructions is to provide jurors with correct principles of law that apply to the evidence that has been submitted to them." People v. Bauer, 393 Ill.App.3d 414, 423 (2009). "The threshold for giving an instruction is low." People v. Jackson, 2016 IL App (1st) 133823, ¶ 38. There need only be "some evidence, however slight, in the record to support that defense." People v. Washington, 2012 IL 110283, ¶ 43.
¶ 41 We agree with Mr. Smith that at least some evidence was presented at trial from which the jury could have inferred that he mistakenly believed Ms. Meyer scanned the tiles on his cart and he paid for them before leaving the Crestwood Menards. It is plausible, for example, that a person would place large bags of mulch on top of other items to prevent them from slipping off of a flatbed cart. The prices of the tiles were not on the tiles themselves, and, because Mr. Smith paid for his items using a store merchandise credit, it may not have been immediately apparent to him how much the items he had selected actually cost. Mr. Smith did not examine his receipt before leaving the store, he exited the store calmly, he did not attempt to flee when confronted by Mr. Kurdziel, and he agreed to return to the store with Mr. Kurdziel. Based on these facts, and the very low threshold for giving a jury instruction, we agree with Mr. Smith that if his counsel had raised mistake of fact as an affirmative defense and asked for the jury to be instructed pursuant to IPI 24-25.24, the trial court would have granted that request. See People v. Jones, 175 Ill.2d 126, 131-32 (holding that the trial court abused its discretion by failing to give an instruction that was supported by at least some evidence at trial).
¶ 42 We also agree with Mr. Smith that the failure to tender a jury instruction alerting jurors to the existence of an affirmative defense or mitigating circumstance can certainly constitute ineffective assistance of counsel in some cases. See, e.g., People v. Parker, 260 Ill.App.3d 942, 948 (1994) (counsel failed to seek an instruction informing the jury that sudden and intense passion caused by provocation during a struggle is a mitigating circumstance reducing first degree murder to second degree murder) and People v. Jaffe, 145 Ill.App.3d 840, 853 (1986) (counsel failed to tender a self-defense instruction on a charge of attempted murder where there was evidence supporting such an instruction). We are not convinced, however, that defense counsel's decision in this case to hold the State to its burden of proof regarding Mr. Smith's state of mind and not additionally assert mistake of fact as an affirmative defense was either objectively unreasonable or prejudicial.
¶ 43 It is well-settled that "counsel's choice of jury instructions, and the decision to rely on one theory of defense to the exclusion of others, is a matter of trial strategy." Falco, 2014 IL App (1st) 111797, ¶ 16. "Such decisions enjoy a strong presumption that they reflect sound trial strategy rather than incompetence" and-except where an instruction was so critical to the defense that its omission can be said to have denied the defendant a fair trial-"are generally immune from claims of ineffective assistance of counsel." Id. Here, Mr. Smith's counsel may well have been concerned that an instruction on mistake of fact would highlight for the jurors that Mr. Smith did not testify. The trial court in this case had already ruled that if Mr. Smith did choose to testify, the State would be allowed to present evidence of his two prior drug convictions as impeachment. The trial judge had also indicated that if Mr. Smith took the stand she would reconsider the State's motion to present evidence of his other videorecorded visits to the Crestwood Menards, which the State hoped would demonstrate a pattern of concealing merchandise on flatbed carts. Putting Mr. Smith on the stand in this case was clearly not an attractive option. And absent any testimony from him, defense counsel was left with the same circumstantial evidence relied on by the State. To the extent that that evidence supported a mistake of fact defense, it also supported a finding that the State had failed to meet its burden on the element of intent. Given these circumstances, we cannot say that Mr. Smith has overcome the strong presumption that defense counsel's decision to hold the State to its burden on the elements of the offense rather than formally asserting the affirmative defense of mistake of fact was not within the broad range of reasonable professional assistance.
¶ 44 We also find that Mr. Smith has failed to demonstrate prejudice because there was not a reasonable probability that an instruction on mistake of fact would have changed the outcome of his trial. Mr. Smith's counsel stressed to the jury Mr. Smith's lack of knowledge that the tiles were taken from the store without being paid for. He argued in his opening statement that Mr. Smith put the bags of mulch on top of the tiles to prevent them from slipping off and pointed out that Mr. Smith walked "calmly and normally" out of the store after paying for his items and "happily" walked back into the store when confronted by Mr. Kurdziel. The focus of counsel's closing argument was likewise that the State had "not proven beyond a reasonable doubt that [Mr. Smith] knowingly and intentionally *** deprived Menards of those back splashes and tiles." Counsel argued that store employees were still nearby when Mr. Smith loaded the tiles onto his cart; that the prices of the tiles were not on the tiles themselves, but on the store shelves; and that in the surveillance video it was clear that Mr. Smith was "not looking at the front of the shelves for the pricing of those things"-he was "look[ing] at placing them in his cart." Nor did Mr. Smith look at his receipt to see "[i]f he was shortchanged, to see if he paid too much, if he paid too little." Counsel posited that Mr. Smith "wasn't paying attention as most of us don't do while we're at the cashiers checkout" and asked the jurors, "how easy would it be *** for someone not to pay attention and walk out with those unintentionally." The jury clearly rejected these arguments, concluding instead that the State had proved beyond a reasonable doubt that Mr. Smith knowingly took the tiles without paying for them. Mr. Smith does not explain how the jury, after having rejected this defense, could have acquitted on the basis that Mr. Smith made a mistake of fact. In this case, the argument that Mr. Smith lacked the requisite knowledge and the argument that he made a mistake were so similar that an additional jury instruction on mistake was unlikely to have changed the jury's calculus.
¶ 45 Mr. Smith relies on People v. Crane, 145 Ill.2d 520 (1992), to support his argument that reversal is warranted here because the jury was "never informed of the validity of his defense" and, absent an instruction on mistake of fact, "could not even consider [that] defense." The defendant in Crane, whom the evidence showed beat a man until he was unconscious and then burned the man's body, was charged with first degree murder based, alternatively, on (1) an intent to kill or do great bodily harm and (2) knowledge that his acts created a strong probability of death or great bodily harm. Id. at 526. The defendant asserted two affirmative defenses, arguing that he beat the victim only in self-defense and, at the time of the burning, mistakenly believed that the victim was already dead. Id. The trial court refused to instruct the jury on mistake of fact, on the basis that the standard jury instructions already adequately covered the required mental state. Id. at 527. Our supreme court held that the instruction should have been given and that the failure to give it was not harmless error. Id. at 527-28. Although another instruction "sufficiently inform[ed] the jury of the mental state requirements," it "[did] not expressly draw to the jury's attention the concept of mistake of fact." Id. at 527.
¶ 46 The facts in Crane are unusual and quite different from this case. In Crane, our supreme court recognized that a jury might well fail to realize that a mistaken belief that someone was already dead could negate the defendant's knowledge that the act of burning was likely to cause great bodily harm. Here, the connection between the State's burden to show that the defendant acted knowingly and the defense of mistake is completely straightforward. Common sense dictates that a person who mistakenly takes something without paying for it cannot be said to have knowingly taken that item without paying for it. A reasonable juror would have understood, even without a specific instruction on mistake of fact, that these two situations were mutually exclusive. And the jury was clearly instructed that the State had the burden of proving beyond a reasonable doubt that Mr. Smith "knowingly" took possession of retail merchandise "with the intention of depriving the merchant permanently of the possession, use, or benefit of the merchandise" and "without paying the full retail value of such merchandise." Mr. Smith has failed to establish a reasonable probability that, absent his counsel's alleged error, the outcome of his trial would have been different.
¶ 47 In short, Mr. Smith fails to satisfy either prong of Strickland. He cannot show either that counsel's performance was deficient or that the alleged deficiency prejudiced him. It was a reasonable trial strategy not to assert the affirmative defense of mistake and if counsel had asserted that defense it is not reasonably probable that the outcome would have changed.
¶ 48 VI. CONCLUSION
¶ 49 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 50 Affirmed.
¶ 51 JUSTICE JOHNSON, dissenting:
¶ 52 This case involves a defendant who was tracked by security while shopping in Menards home improvement store. The State presented evidence that defendant placed several tiles under mulch at the end of a flatbed cart and proceeded to exit the store after paying for other purchases but not the tile. The State also presented evidence that the store clerk rang up the mulch without removing it or shifting it in the cart, so she never looked to see if there was anything under the mulch. Additionally, the clerk testified that defendant paid with a merchandise credit voucher on which she handwrote the remaining balance after defendant paid for his items. However, this credit voucher was not presented in the case as evidence, so it is unknown whether defendant had enough store credit to pay for the tile or not. During deliberations, the jury requested to view the surveillance video and also asked for the date and total amount of the voucher that defendant used to pay for his items. The trial court allowed the jury to access the video but did not answer the inquiry regarding the voucher: the trial court responded that the jury received all of the evidence and the law in the case and that they were to continue to deliberate. The jury subsequently returned a verdict of guilty for retail theft.
¶ 53 Defendant now argues on appeal that his counsel was ineffective by neglecting to request a jury instruction for mistake of fact when that was his entire defense. He argues that he was entitled to an instruction on his theory of the case if there was some foundation in evidence for the instruction, and further that mistake of fact is a valid affirmative defense if it negates the mental state required for the commission of a crime. Defendant maintains that the State was required to prove that he knowingly took possession of the tiles with the intent to permanently deprive Menards of them without paying full retail value. Because the mistake of fact defense negates the mens rea of knowingly and intentionally, it was a valid affirmative defense, and he was entitled to the instruction. As such, his trial counsel was ineffective for failing to request the jury instruction.
¶ 54 As noted by the majority, in determining whether a defendant was denied the effective assistance of counsel, we apply the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese, 104 Ill.2d 504 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient, and that the deficient performance prejudiced the defendant such that he was deprived of a fair trial. People v. Falco, 2014 IL App (1st) 111797, ¶ 14. To establish prejudice, the defendant must show a reasonable probability that, but for counsel's alleged error, the trial's outcome would have been different. Id. "A reasonable probability of a different result is not merely a possibility of a different result." Id. If the defendant fails to prove either prong, his ineffective assistance claim fails. Id. Where the facts relevant to an ineffective assistance of counsel claim are not disputed, our review is de novo. Id.
¶ 55 The purpose of jury instructions is to provide jurors with correct principles of law that apply to the evidence that has been submitted to them. People v. Bauer, 393 Ill.App.3d 414, 423 (2009). A defendant is entitled to an instruction on his theory of the case if there is some foundation for the instruction in the evidence, and if there is such evidence, it is an abuse of discretion for the trial court to refuse to so instruct the jury. Id. Where instructions are not supported by either the evidence or the law, the instructions should not be given to the jury. Id. Moreover, a defendant's belief in a mistake of fact must be reasonable. Id.
¶ 56 As the majority points out, it is well settled in Illinois that counsel's choice of jury instructions, and the decision to rely on one theory of defense to the exclusion of others, is a matter of trial strategy. Falco, 2014 IL App (1st) 111797, ¶16. Such decisions are within the strong presumption that they reflect sound trial strategy rather than incompetence and are generally immune from claims of ineffective assistance of counsel. Id. However, the exception to the rule is when the particular jury instruction was so critical to the defense that its omission denied the accused a fair trial: this may be grounds for finding ineffective assistance of counsel Id.
¶ 57 Here, defendant was convicted of felony retail theft. Section 16-25 of the Criminal Code of 1961 (720 ILCS 5/16-25 (West 2018)) provides that:
"A person commits the offense of retail theft when he or she knowingly: (a) Takes possession of, carries away, transfers[,] or causes to be carried away or transferred, any merchandise displayed, held, stored[,] or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise." 720 ILCS 5/16A-25(a) (West 2018).
If the full retail value of the property exceeds $300, it is a class 3 felony. 720 ILCS 5/16-25(f)(3) (West 2018).
¶ 58 The affirmative defense of mistake of fact is codified as follows: "A person's ignorance or mistake as to a matter of either law or fact * * * is a defense if it negat[es] the existence of the mental state which the statute prescribes with respect to an element of the offense." 720 ILCS 5/4-8(a) (West 2018). Consistent with this statute, Illinois Pattern Jury Instructions (IPI) Criminal 4th No. 24-25.24 defines mistake of fact as follows: "A defendant's mistake of fact as to a matter of fact is a defense if the mistake shows that the defendant did not have the [(intent} (knowledge) (recklessness)] necessary for the offense charged."
¶ 59 The retail theft statute requires that the defendant act both knowingly and intentionally. Here, the State's evidence established essentially that defendant entered Menards, loaded items onto a flatbed cart and the basket attached to the cart, and paid for some of the items while not paying for others. The State argued essentially that defendant's act of placing the tiles underneath the mulch evidenced his intent to steal the tiles. In contrast, defendant argued that it was simply a mistake that he did not pay for the tiles, given that the clerk, not him, rang up the items on the cart; he paid for all of the other items on the cart; and that the evidence showed no intent to steal, which negates the requisite mental state of knowledge.
¶ 60 I would find that defense counsel was deficient in failing to request that the jury be instructed on mistake of fact. There was evidence presented upon which the jury could have found that defendant mistakenly did not pay for the tiles. Specifically, there was testimony presented by Meyer, the Menards cashier, that when the items from the basket were placed on the conveyor belt, defendant moved to the end of the register where he had to self-bag those items. She also stated that she used a hand scanner to ring the bags of mulch by scanning only one and entering the quantity into the register. She did not look for other items on the cart nor did she ask defendant whether there were any other items on the cart before providing him with a total for payment. Meyer also testified that defendant paid for his items with a merchandise credit and that there was a balance remaining on the credit slip. There was no testimony as to the amount of credit remaining, making it difficult to conclusively determine whether or not defendant had the means to pay or should have known that he was not charged for the tile, which goes directly to determination of the required mental states of knowingly and intentionally. This is further supported by the jury's question during deliberations as to the amount of the store credit and balance remaining after defendant paid for some of the items. Further, the surveillance video and Kurdziel's testimony indicated that defendant took his receipt and walked out of the store. He did not look at the receipt nor did he behave in a furtive or rushed manner; he simply walked calmly out of the store after paying for his merchandise.
¶ 61 A defendant need only present some evidence of an affirmative defense in order to raise the defense and justify an instruction. People v. Pegram, 124 Ill.2d 166, 173 (1988). I believe that this equates to "some evidence" in the record to support the affirmative defense of mistake of fact. Because there was some evidence in the record to support the affirmative defense of mistake of fact, the question becomes whether counsel's decision not to request that the jury be instructed on mistake of fact was objectively unreasonable. I would find that it was: counsel's entire theory of the case rested on defendant's mistake in failing to pay for the tiles. The mistake of fact defense would have given the jury a basis on which to acquit defendant of the charged offense. Because there was evidence supporting the affirmative defense, which was defendant's entire theory of the case, and because requesting that the jury receive the instruction would have provided a basis upon which to find defendant not guilty of the charged offense consistent with his theory of the case, I would conclude that defense counsel's performance fell below an objective standard of reasonableness when counsel failed to have the jury instructed on mistake of fact.
¶ 62 I would also find that defendant has shown that he was prejudiced by counsel's deficient performance. Where there was evidence supporting his affirmative defense, the trial court would have been required to grant defense counsel's request to have the jury instructed on mistake of fact. See Pegram, 124 Ill.2d at 173. Therefore, had defense counsel requested the instruction, the jury would also have been specifically instructed that the final proposition the State had to prove beyond a reasonable doubt was that defendant was not mistaken as to a matter of fact that would show that he did not have the knowledge necessary for the offense charged. See IPI Criminal 4th No. 24-25.24A (required by the Committee Note for IPI No. 24-25.24 to be added as the final proposition to the charged offense to which the affirmative defense applies). If the jury believed that defendant was acting under the mistaken belief that he paid for all of the items on the cart, there would have been a basis on which to find defendant not guilty. However, because defense counsel did not ask for the instruction, the jury was deprived of the opportunity to find that, due to a mistake regarding the payment of all items on the cart, defendant lacked the requisite mental state for the charged offense. Specifically, the jury was never given the opportunity or the instructions by which to consider the evidence and determine if the State disproved the affirmative defense, beyond a reasonable doubt. Plainly put, the jury was not given the opportunity to determine whether defendant intended to avoid paying for the tiles. I would thus find that defendant has met his burden and shown that there is a reasonable probability that, but for counsel's failure to have the jury instructed on mistake of fact, the result of defendant's trial would have been different. Therefore, I respectfully dissent.