## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Sm ith , 2012 IL App (1st) 102354

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. SENECA SMI TH, De fenda nt-Appellant.

District & N o. First District, Six th Division Docke t No. 1-10-2354

Filed Rehea ringdenied September 28, 2012

October 25, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictions for two counts of attempted first degree murder of a peac e office r and two counts of ag gravated d i s ch ar ge of a firea rm

wer e upheld wher e office rs’ testimon y was cre dible, the State did not misstate or di stort the evidence in closing argument, defe ndant was n o t denied effe ctive assist ance of counsel, he was not coer ced into waiving his r ight to testify , the jury was prope rly

instructed about other offe nses and on the Zehr principles, and the 20-year s entence enhanc ement for
persona lly

firinga handgun was prope rly imposed.

Dec ision Under Review App ea l from the Circuit Court of Cook County
, No. 04-CR-18171; the Hon. J oseph G. Ka zmi erski, Jr., J udg e, pre siding.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and J ean Park, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Peter D. Fische r, Assistant State’s Attorney s, of counsel), for the People.

Panel PRES I DI NG J USTI CE LAMPKI

N delivere d the judgme nt of the court, with opinion.
J ustice Palmer c oncurr ed in the judg ment and opinion.
J ustice Gordon dissente d, with opinion.

OP INION

¶ 1 After

a jury trial, defe ndant Senec a Smith was found guilty of two counts of attempted first degree murder of a peac e office r and two counts of ag g ravated discharg e of a firea rm. He wa s sentence d to a total of 55 year s in prison. ¶ 2 On appeal, he contends that: (1) the State fa iled to prove his guilt beyond a reasonable d o ub t beca

use t he poli ce office rs’ testim ony was not cre dible and was contra dicted b y t h e phy sical evidenc e; (2) during closing argument, th e State misstated and distorted the evidenc e and ma de improper sug g estions; ( 3) defe ndant was denied eff ective assistance of trial and posttrial counsel; (4) d ef en s e counsel improperly coer ced defe ndant to waive his ri g ht to testify ; (5) the trial court errone ously instructed the jury about ot her of fe n s es o v er defe ndant’s objection; (6) the trial court failed to proper ly instruct the venire on fundame ntal principles of law; (7) the 20-y ear sentenc e enhanc ement imposed on defe ndant was improper under the statute; and (8) the number of defe nd an t ’s prese ntence custody day s should be

corr ecte d on his mit timus. ¶ 3 For the rea sons that follow, we aff irm defe ndant’s conviction and sentenc e and order the

corr ection of the mitti mus.

¶ 4 I . BA CKGROUND ¶ 5 The State arr ested an d ch ar ged d efe ndant Seneca Smit h with attempted first degree murder of Chicag o police office rs Calvin Chatman and Dway ne Colli er, ag g ravated discharg e of a firea

rm, ag g ravated unlawful use of a wea pon, and unlawful use of a wea pon by a fe lon, alleg ing that, on J une 27, 2004, def endant shot at the of

fice rs with a handgun. ¶ 6 At the trial in October 2007, the State prese nted the testimony of Offic ers Chatman and Colli er. Acc ording to the office rs’ testimony
, on J une 27, 2004, they wer e assig ned to g o to the 5300 block of West Congr ess Parkwa y and conduct surveillance on a red Chevy Caprice
,

-2-which was believed to contain guns and drug s that wer e associate d with a shooting that had

occur red on that block ear lier t hat day

. Offic ers Chatman and C ollier went to that location in a cover t van. Offic er Chatman was in the driver’ s seat, and Offic er Colli er was in the front
passeng er seat. They wer e in civilian dress and wore their pol ice badg es on chain s ar o u nd their necks. Offic er C h atm an was arme d with a Sig Sauer 9-millim eter semiautomatic handgun with Lug er hollow-point ammunition. Offic er Colli er was arme d with a Smit h and Wesson 9-mill imeter semiautomatic w eapon. ¶ 7 At ab o u t 10:30 p.m., the office rs arr ived on the block and parke d th ei r v an fa ci n g westbound in front of 5310 West Congr ess Parkwa y , on the north side of the street. They

wer e approximately five houses west of the intersec tion of Congr ess Parkwa y and L ockwood Avenue

. The 5300 block of Congr ess Parkwa y is a one-w ay street for westbound t raf fic. Meanwhile, east of Offic ers Chatman and Colli er’ s van, uniformed Chicag o police office rs L ace y Har

ris and Hy

mie Robertson wer e near the i n t er s ection of Congr ess Parkwa y and L ockwood Avenue

. Off

ic e r s H a r ris a nd Robertson’s marke d squad car was parke d and fac ing southbound. They wer e at that location on a differ ent assig nment; they had responde d to the shooting at 7:30 p.m. that d ay o n t he 5300 block of West Congr ess Parkwa y and wer e waitingfor a

tow truck to re move a ve hicle alleg edly involved in that shooting. ¶ 8 The red car under surveillance by Offic ers Chatman and Colli er was parke d on the south side of West Congr ess Parkwa y , approximately four or five houses west of the office rs’ van. The street lights wer e on, and other people wer e on the street, including a man water ing his lawn, another m an retrieving items from th e t ru n k o f h i s car , and a couple on the porch at 5310 West Congre ss Parkway . There was a g roup of 6 to 10 black males on the north side of the street about seven or eig ht houses to the west of the office rs. One teen broke awa y from that g roup, approa ched the office rs’ van, and stopped direc tly in front of 5310 West Congr ess Parkwa

y

. He folded his a

rms and stared at the van. He stood pa rallel to the van’s
passeng er- side door for 10 to 20 seconds and then wa lked bac k to the crow d and starte d to talk demonstratively and wave his hands. Then, he backe d awa y from that crow d and pointed direc tly at the off icer s’ van. ¶ 9 Wit hin se conds, defe ndant came out of that crow d and walked east on the sidewalk, on the north side of the st ree t, toward the van. Offic er Chatman could not see both of defe ndant’s hands as he walked toward the van. Def endant’ s rig ht hand was underne ath his jersey
, so Officer C h at man unholstered his gun and held it in his right hand. He war ned Offic er Colli er, who was using his cellphone, holding it about 10 inches in front of his chest while speaking into the speake r ph o n e. Of fi cer Chatman also pulled his badg e out from beneath his jersey

and dra ped it on his chest. ¶ 10 When defe ndant was approximately one house awa y from the van, his walk bec ame a slight jog toward the van’s passeng er- side door. His hand was still underne ath his jersey and he said,”What the fuck y ou nigg ers want, what you nigg ers on,” and “What you doing here .” Offic er Chatman responde d, “Relax, we’ re the police.” Def endant constantly turned his head
to look eastwa

rd to the interse ction of Cong ress Parkw ay and L ockwood Ave nue and then back to Offic ers Chatman and Colli er. Def endant looked eastwa

rd one more time, said, “F uck that,” and raised a black- colore d handgun in his rig ht hand to the rig ht side of Offic er Colli er’ s fac e. Offic er Chatman extended his rig ht hand, pl ac ed his knuckles into Offic er

-3-Colli er’ s chest ar ea, a nd fired his gun twice in the dire ction of def endant. ¶ 11 Def

endant went to the g round, and the office rs exit ed the van. Def endant g ot up and ra

n westbound on the north side of the street. Offic er Colli er y elled, “Police, stop,” and chase d him. Meanwhile, Offic er Chatman ran para llel to them in the middle of Congr ess Parkwa y

. Offic er Colli er continued to announce his office
, and defe ndant ran in a southwesterly

m anner onto the street. Def endant turned and pointed his gun in his rig ht hand in t h e direc tion of Offic ers Colli er and Chatman and fired. Offic er Colli er testified that defe ndant fired on ce o r t wi ce, and Offic er Chatman testified that he hear d two gunshots. Although defe ndant was fac ing south, his upper b o d y was twisted so that his arm was fac ing east. Offic ers Chatman and Colli er veer ed back to the north side of the street but kept running westbound, and O ffice r Collier fire d two gunshots at defe ndant. ¶ 12 Def

endant ran to a building at 5331 West Congr ess Parkwa y and tried to forc e the door
open with his rig ht shoulder. Offic er Colli er took cover behind a larg e tree on the south side of the street at that addre ss. Offic er Chatman also took cover near by behind a vehicle on the south side of the street. Offic ers Chatman and Colli er testified that there was not a g roup of
g irls or civilians in the doorwa y of 5331 West Congr ess Parkwa y

. Then, defe ndant pointed the gun in his rig ht hand in the direc tion of Offic er Colli er, who fired two more gunshots. At
t h at t i m e, the door opened and defe ndant fell or went inside the dark vestibule. Offic ers Chatman and Colli er never saw defe ndant throw or drop the gun during the entire incident. ¶ 13 Officer Colli er cautiously approa ched the door with his gun drawn and went int o t h e vestibule. He looked throug h an open doorwa y to a baseme nt apar

tment and saw defe ndant lying at the bottom of the steps. At that point, Offic er Colli er hear d women in the baseme nt
y elling and s cr eaming

. Offic er Chatman testified that he hear d people scre aming afte r defe ndant enter ed the ba sement door, but he w as not ce rtain about the a ddress fr om which the s cre ams had emanated. Of fi ce r C o llier went back out side and ran eastbound down the block t o g et assis tance

. He wa s met by Offic er Rober

tson, and they returne d to 5331 West Congr ess Parkwa

y and stood in the stree t as more police car s started to arr ive at the sce ne. Meanwhile, Offic er Chatman r eturne d to the van and drove around the corne r t o cover the back of 5331 West Congr ess Parkwa y to preve nt any o n e fr o m leaving

. Other office rs, howeve r, had arr ived at the scene , so Offic er Chatman direc ted them down the alley and then
returne d to the front of the building. When Offic ers Chatman and Colli er met at the front of the bui lding, they embra ced, inquired into each ot her’ s well-be ing, and cried. The officer s lear ned later that a by stander in the bui l ding, Chantel Davidson, had been hit by a bullet duringthis incident. ¶ 14 Fifty -six -y ear -old J err y Blakes testified that he lived on the 5300 block of West Congre ss Parkwa y

. At the time in question, he was clea ning g lass o u t o f h is car , which had been dama ged by the s hooting earlier that day

. He heard some noise and saw a poli cema n walk past with a badg e around his neck. A few seconds later, the office r hollered, “police, police.” Blakes did not see anyone else running on the street that evening an d d id not hear any gunfire. ¶ 15 Chicag o pol i ce o ff i ce r Paul Presnell was a fore nsic investigator. He and his partner

arr ived at the scene about 11:55 p.m. an d p ro ce s sed the scene

. They did not administer a

-4-gunshot residue test to defe n d ant beca use he had alre ady been taken to the hospital for medical treatment. At 5331 West Congr ess Parkwa y , there wer e two bullet holes in the g lass of the front door. Blood and a metal fra g ment wer e on the vestibule floor, and blood was on the basement floo r. Ou t side, they sear ched for evidence, starting on the eastern part of t he block and moving we s t. They found 15 piece s of firea rms evidenc e, place d numerica l marke rs by the evidenc e and photograp h ed t he evidenc e. That evidenc e included 10 fired

car tridg e case s, 2 fired bullets, and 3 metal fra g ments. Concerning the fired car tridg e case s, they rec overe d four Speer 9-millim eter Lug er car tridg e case s, two CBC 9-millim eter Lug er

car tridg e case s, and four R&P 45 auto car tridg e case s. For eac h piece of firea rms evidenc e, Presnell t estified co n cerning wher e it was recove red by ref ere nce to the nearby residential addre ss and whethe r it was found on the street, grass or side walk. ¶ 16 After the investigators left the scene , they wer e called back ab o u t 4 5 m inutes later to

rec over a Ruge r 9-millim eter semiautomatic pis t o l from under a bush in front of the residenc e at 5318 West Congr ess P arkw ay

. The scene was n o l o n ger t aped off or secur ed. The gun had 1 live round in the chambe r an d 1 1 l i v e rounds in the mag azine. They also

rec overe d from 5316 West Congr ess Parkwa y a f ire d S&B 9-millim eter Lug er car tridg e case

. At 5324 West Cong ress Parkw ay , they rec overe d a fired R&P auto car tridg e case

. At 5328 West Congr ess P ar kway , they rec overe d a fired Speer 9-millim eter Lug er car tridg e case

. Fr om a van located at 620 South L ockwood Avenue
, they rec overe d one fired car tridg e case and broke n g lass. They

looked for, but did not find, blood on other pa rts of the stre et. ¶ 17 Ton i a Brub ak er , o f the I llinois State Police fore nsic scienc e command, testified as a firea rms expert. She explained the proce ss of firea rms identification and had compar ed the

car tridg e case s and bullet fra g ments rec overe d in this case with the Ruge r handgun that was found under the bush, Offic er Colli er’ s Smit h and Wesson handgun, and Offic er Chatman’s Sig Sauer semiautomatic handgun. The Ruge r was loaded with 11 unfired 9-mi ll im e te r L u g er caliber car

tridg es and 1 in the chambe r. She conclude d that two 9-millim eter Lug er car tridg e

case s, a bullet jacke t fra g ment, and two other fra g ments wer e fired from the Ruge r firea rm. Moreove r, four Speer 9-millim eter Lug er car tridg e case s and one bullet fra g ment wer e fired from Offic er Colli er’ s Smit h and Wesson handgun. In addition, two Speer 9-m i l limeter Lug er c aliber f

ired c ases we re f

ired fr om Office r Chatman’s SigSauer f irea rm. ¶ 18 Br

ubaker had re ceive d other c artridg e ca ses, bullets and fr ag ments in this case that did
not match any of the three guns in this case

. Howeve r, the Ruge r also matched evidenc e from the shooting ear lier that day on the same block. There wer e a total of 6 car tridg es that wer e fired from the Ruge r, which holds up to 17 bullets, and Br ubaker had rec eived a total of 12 unfired c artridg es with the Rug er, which meant that the Rug er ha d been r eloade d. ¶ 19 Dave re J ackson was former ly employ ed by the I llinois State Police. She testified about her educa tion, qualifications and experience
, and the trial court, without any objection from the defense, found her qualified t o testify as a DN A analy sis expert. She briefly explained DNA and fore nsic DNA analy sis to the jury and stated that the testing methods used in this

case wer e g ener ally acc epted in the scientific community

. She testified from her repor t that she had g ener ated a DNA profile from defe ndant’s seale d bucca l sta ndard and compar ed it with two sets of swabs that wer e collecte d from the Ruge r firea rm. Concerning the first set of swabs, which wer e collecte d from the left-side handle, trig g er guard, mag azine rele ase and

-5-hammer spur of the Ruge r, J ackson identified a mix ture of human DNA profiles, which she

int er p rete d as having been contributed by at least two people. I t was a low level mix ture, which meant that there was not enough DNA to m ak e a full match with the s tandar d. Due to the low level of D NA, the sa mple could not be used to differ entiate betwee n one person and another ; it could only be used to exclude someone. J ackson stated that beca use there was

an inconclusive result, no conc lusion could be drawn as to whethe r or not def endant c ould have c ontributed to the mix ed prof ile from the f

irst set of swabs. ¶ 20 Concerning the seco n d set of swabs, which wer e collecte d from the rig ht-side handle, safe ty lever
, trig g er guard and butt of the Ruge r, J ackson identified a mix ture of human DNA profiles, which she interpre ted as having been contributed by two people. She compar ed that mix ture to defe ndant’s DNA profile and conclude d that he cou l d n o t b e excluded from having contributed to the mix ture. I t was a partial profile. J ackson looked at 10 are as on the DNA and was able to g ener at e 6 o f t he 10 are as from the second set of swabs but 4 wer e missing. In addition to looking at are as, she also looked at the amounts, which was how she

was able to do her interpre tation. She was able to conduct a calc ulation to estimate how

common or rar e the mix ture of D NA prof iles was in the g ener al population and conclude d that approximately 1 in 11 black unrelated indivi duals could not be ex clude d fr o m having contributed to that mix ture; 1 in 21 white unrelated individuals could not be excluded from having contributed to that mix ture; and 1 in 11 Hispanic unrelated individuals could not be excluded from having contributed t o t h at mix ture. Thus, of blacks, 9% of the population

wer e included a s contributors and 91% wer e excluded. De fenda nt was not excluded. ¶ 21 J ac k s o n ex p l ai n ed why fre quencie s among the populations can appea r to be low

. Four teen are as on the DNA are looked at to deter mine statistics throug h fre quencie s, but this

case involved a very low level of DNA and a mix ed sample. Consequently
, J ackson had to

use eve ry thing she saw in the mix ture, a nd she only saw thi ng s at s ix are as of the DNA. A calculation of fre quencie s of only six are as with sever al differ ent DNA alleles lowers the statistical value of the calc ulation. Although J ackson did not have an ex p er t o pinion as to whether or not defe ndant could have handled the Ruge r, J ackson testified that based on the results of her testing, it was possible that defe ndant could have handled the Ruge r. She testified that fac tors which aff ect the transfe r of DNA from skin to an object include whether the skin was broken, if there was a cut, how long the skin was in contac t with the surfa ce, if there was rough handling , and whe ther the subjec t’s hands we re c lean. ¶ 22 Assistant State’ s Attorney (ASA) Catherine Gre g orovic testified that on the eveningof J une 28, 2004, Katrina Robinson ag ree d to give a handwr itten statement. Acc ordingto the statement, Robinson was g oing to the store on J une 27, 2004 at about 3 p.m., but she stopped
at Van Bur en Street and Central Av en u e t o l isten to what her friend and defe ndant wer e saying. Def

endant lifted up his shirt and showed Robinson’s friend a gun. Fur thermore
, during the shooting at issue on appea l, Robinson was alre ady in the vestibule when defe ndant pushed his way into the hallway
, and Robinson could not se e what was happening beca use she was pushed ag ainst a wall. Robi n son g ave her statement voluntarily
, she had no complaints about her tr eatment, a nd her mother

was pre sent the entire time. ¶ 23 ASA Karin Swanson tes t i fi ed that she presented Robi nson to the gra nd jury on J uly

7, 2004, and Robinson’s testimony was completely consistent with the handwr itten statement

-6-she had g iven to ASA Gre g orovic.

¶ 24 Katrina

Robinson testi fied that she w as 15 year s old in 2004 and knew defe ndant from her ne i ghborhood. S he did not reme mber seeing him lift his shirt or whether he was alone

or with somebody else. Initially
, she said she did not reme mber speaking to an ASA on J une 28, 2004, but later admitted that she rea d over her statement and signe d it. She said she did
not reme mber telling the ASA the things that wer e in her statement, but even if she had said those things, she “ was trying to g et t hem up out of [ her] fac e.” When she was asked if she had said in her handwr itten statement that no threats or promises wer e made to her, she said, “I probably did, but that don’t mean it was true.” When she was asked specific questions about her g rand jury testimony
, she responde d either, “I don’t reme mber
, ” “I guess,” or “L ie.” ¶ 25 On cross-e x amination, Robinson said she was outside of 5331 West Congr ess Parkwa y wh en t h e police wer e out there and defe ndant was shot. After the shooting, she g ave a statement at the police st at i o n b u t she was very tired. She asser ted that, contra

ry to her written statement, she did s ee what was happening in the hallway at 5331 West Congr ess Parkwa y and def endant did not have a gun when the police wer e shootingat him. ¶ 26 The parties stipulated that Chantel Davidson was treated at the hospital on J une 27, 2004 for a gunshot wound, an d a bullet was remove d from her upper back. The parties also stipulated that defe ndant was tre ated “ for mult iple gunshot wounds to the chest, a gunshot wound to the arm, and a gunshot wound to th e l eg. ” Fur thermore
, a “lodg ed bullet was

remove d fr o m [ h is] left upper back.” Photogra phs of Davidson and defe ndant as they
appea red at the hospital were submitt ed into evidenc e. ¶ 27 For the defe nse, 19-y ear -old Shanice Wooden testified that her family lived at 5314 West Congr ess P arkw ay at t he ti me of the s hooting. On that day at about 7 p.m., she was sit ting with three people in a car acr oss the street from her house. They wer e listening to music, and the car windows wer e down. Shanice’ s brother Sean was sitti ng on their g randmother ’s van. Shanice’ s sisters wer e on the porch, and her mother, Dora Wooden, was on the upsta i rs balcony

. Then, Teddy and two other males came around the corne r of Congr ess Parkwa y and L ockwood Avenue

. One of the males called Sean over to them, but D ora Wooden told him
to run beca

use the men had guns. Teddy had two guns, and the two males both had a single
gun. Sean, who did not have a gun, ran, and the three males chase d hi m and fired their

wea pons. Sean was shot in the back by Teddy on the north side of th e s t re et a few houses

awa y from 5314 West Congr ess Parkwa y and fe ll paraly

zed onto the gr ass. ¶ 28 Shanice testified that Teddy dropped one of his guns, and he and the other two shooters ran into a crowd of people and blended in. Shanice picked up Teddy ’s gu n and chased the three men. When she g ot to the end of the block, a police office r order ed her to s top. She dropped the gun, and the police rec overe d it. She never fired the gun. Shanice was arr ested and qu es t i o n ed by the police at the station. She was rele ased the next morning and never char g ed. S he neve r saw defe ndant on the s tree t at t he ti me S ean was shot

. She had spoken
to defe ndant a couple of times, and Sean and her mother, whom defe ndant called Cookie, had also spoken to def

endant. Sea

n, who was de cea sed, wa s not in a street g ang

. ¶ 29 Dora Wooden, Shanice’ s mother, testified consistently with Shanice about the shooting

-7-o f Sean. Around 10:30 p.m., Dora Wooden, her husband, and her daughter returned hom e

from the hospital and police station. They had par ked their c ar a

round the c orner

and we re talking as they walked on the north side of the street, near 5310 West C o n g ress Parkwa y

. Def endant wa s standing ne ar D ora Wooden’s house and said, “Ma.” Dora Wooden looke d
up and saw that defe ndant had a g ree n, plastic soda bottle in his hand. He did not have a gun. People wer e sitti ng in a van parke d in front of Dora Wooden’ s h o u s e and drinking from Sty rofoa m cups. A person in the van yelled s o m ethi ng like, “motherf ucker
, you,” and the
person on the passeng er side of the van pointed a gun out of the van and fired. Def endant was shot in the chest, rolled over backw ards and then ran west. The people ex ited the van, and Dora Wooden notice d the police badg es dang ling from their necks. Dora Wooden r an onto her porch and lost sight of defe ndant. There was blood on the sidewalk near the soda bottle defe ndant had dropped. Dora Wooden told the police offic er s who wer e secur ing the are a about the soda bottle, a

nd one off

icer picked it up. ¶ 30 Dora Wooden testified that her son Sean was not in a street g ang but he would “ada pt to h is environment” and had called himself a Four Corner Hustler when he was a ch i l d

. Def endant and Sean wer e friends, and Sean had fi l ed complaints ag ainst the police in the past. Dora Wooden advised the Warfields to sue the police. She denied tell i n g t h e p olice afte r the shooting that defe ndant had the bottle in his left hand and she could not see his rig ht hand or the rig ht side of his body

. ¶ 31 Carrie Warfield testified that she was 24 year s old a nd lived in the baseme nt a partment at 5331 West Congr ess Parkwa y

. She rec eived income from Social Security and from doing hair in her home. At 10:30 p.m. on the date in question, she was coming home from the store with Chantel Davidson, Katrina Robinson and five other fema les. Warfield knew defe ndant, who was a cross the street, and g ree ted hi m as he walked east on Congr ess Parkwa y with a soda bottle in his hand. W h en W arfield hear d gunfire, she ran into her vestibule with the other fema les. The vestibule door did not have a lock, and defe ndant ran up behind them and

came in the door. Warfield hear d more gunfire, scre amed and beat on her apar tment door and her landlord’s door. The gunshots wer e g etting closer, and the fema les wer e scre aming and hollering

. Def

endant g rabbe d four women, none of wh o m wa s Chantel Davidson, and “g rabbe d them like to the back of him a nd he put his hands around them.” He did not have a gun. Gunshots came throug h the glass of the door. De fenda nt was hit by bullets and was lying on the floor. Warfield’s sist er inside the basement apar tment unlocked the d o or, and the fema les stepped on defe ndant as they ran down the baseme nt steps. Def endant could not
move, so Warfield put her hands u n d er h i s ar m s and they “flipped” down the stairs. The baseme nt door slammed shut and automatically locked. Def endant landed on his ba ck, and Warfield sawthat he had no gun. ¶ 32 Warfield telephoned the police, who ar ri v ed immediately

. When Warfield opened the door for the police, they put their guns in ever yone’s fac e, g rabbe d defe ndant, and handcuf fed him. War fi el d co nsented to the officers’ reque st to sear ch the apar tment. The poli ce made the fema les sit on t h e co u ch during the sear ch. Then, the office rs moved some items that blocked the back door of t he apartment and made t h e gi rl s go out the back door. W arf ield

never saw anyone in her g roup take a gun any wher e. Warfield and other members of her family wer e suingthe police de partment c oncer ning this shooting inc ident.

-8-¶ 33 When Warfield was asked specific questions about her deposition testimony in her civil

case , she denied stati n g t h at defe ndant pushed open the door to g et inside the vestibule. Warfield also denied telling the police that she did not know defe ndant at all. In ad d i t i on, Warfield had te stified at her deposition that she was suingbeca use Dora Wooden had said that she saw people sitti ng in the van and t o l d d ef en dant to find out who they wer e, but befor e defe ndant g ot to the van, two males jumped out of the van, fired their guns at defe ndant and c hased him. ¶ 34 In rebuttal, the State prese nted the stipulated testimony of Detec tive Schalk, who would testify that he interviewe d Dora Wooden afte r the shooting of defe ndant an d s h e said that defe ndant h ad a p l as t i c bottle in his left hand and she could not see his rig ht hand. The parties also stipulated that Carrie Warfield stated in her depositio n t h at she did not know wher e defe ndant was when she g ot throug h her front door and enter ed her vestibule. She also said that the vestibule door was closed when she was trying to put her key in her apar tment door and defe ndant pushed the vestibule door open to g et in. Fur thermore
, she said that she told the police she did not know defe ndant beca use she did not fee l safe and the police wer e hara ssing he r about a

gun. ¶ 35 The jury found defe ndant guilty of tw o co u n t s o f at t empted first degree murder of a police officer and two counts of aggravated di sch ar ge o f a firear m. The trial court merg ed the ag g ravated discharg e of a firea rm counts into the attempted murder counts, and sentenc ed defe ndant to 35 y ear s for eac h count, to run concur rently

. The trial court added 20 y ear s for the dischar g e of a

firea rm for a total of 55 y ear s in prison. Defe ndant appe aled.

¶ 36 I I . ANALYSI S ¶ 37 A. Sufficienc y of the Evidenc e ¶ 38 Def

endant a rgues the State failed to pr ove his guilt beyond a re asonable doubt beca use the testimony of Offic ers C h at m an and Colli er was unconvincing
, improbable, and
contra dicted by the phy sical evidenc e. Specifica lly
, d e f e n d a nt a s s e r ts it was unbelievable that Offic er Colli er rema ined o n his cell phone if defe ndant approa ched the van in a confr ontational manner , an d that defe ndant would have pointed a gun at Offic er Colli er’ s head when uniformed police office rs wer e in a squad car near the end of the block. Fur ther, defe ndant asser

ts it was unbelievable that the office rs did not see or hear the g roup of fema les in the vestibule and did not attempt to seize defe ndant or chec k whether the fema les wer e hurt. Moreove r, the Ruge r gun defe ndant alleg edly used was not found on him or at the scene when he was taken into custody
, and the partial DNA profile the State used to link defe ndant
to the Ruge r gun was questionable. In addition, the integ rity of the firea rms ev i d en ce was compromised bec ause it wa s intermingle d with evidence from the e arlier shooting of Sean Wooden, and the location of the rec overe d bullet jacke t fra g ments contra dicted the office rs’ testimony about wher e def

endant a lleg edly

fired gunshots at them. ¶ 39 Criminal convictions are not to be over t u rn ed o n re v i ew u n l ess the evidenc e is so improbable or unsatisfac tory that it cre ate s a rea sonable doubt of the defe ndant’s guilt. People v. Colli ns , 106 I ll. 2d 237, 261 (1985). The test to be employ ed on revie w is whether
, afte r vi ewing the evidence in the l ight most favor able to the prosecution, any rational trier

-9-of fac t c ould ha ve found the essential elements of the crime beyond a rea sonable doubt. Id. The jury is char g ed with the responsibili t y of weighing the cre dibilit y of witnesses and resolving any conflicts and inc onsistencies in the ir testimony
, and the jury ’s deter mination of a defe ndant’s guilt or innocenc e is entitled to g reat defe renc e. People v. Schott
, 145 I ll. 2d 188, 206 (1991); People v . Parker , 234 I ll. App. 3d 273, 274 (1992). ¶ 40 The same arguments defe ndant raises on appea l w ere made to the jury by trial counsel. The jury must resolve fa ctual disputes and make cre dibilit y deter minations, a

nd the re cord establishes th at t h e jury was fully awa re of all of the impeachme nt issues in this case by defe nse counsel’s cross-e x amination of the witnesses and arguments. T h e j u ry , howeve r,

nece ssarily reje cted defe n d an t’s arg uments beca

use the jury found him guilty

. After revie wing the evidenc e in the light most favor able to the State, we conclude that the evidenc e

was not so unrea sonable or unsatisfac t o ry t hat it raised a rea sonable doubt of defe ndant’s
guilt. ¶ 41 The testimony of Offic ers Chatman and Colli er was cre dible and consistent. Moreove r, t h ei r t estimony was corroborated by other evidence

. The fired casing found inside the van

corr oborate d the office rs’ testimony that Offic er Chatman, who was i n t he driver’ s seat,

rea ched acr oss Offic er Colli er’ s chest and fired the gun while inside the van when defe ndant

was just outside the van along side Offic er Colli er. That fired casing ref uted Dora Wooden’s
contra ry testimony that she saw someone’s hand point a gun outside t h e van and fire at defe ndant, who was sim ply standingby the sidewa lk. Furthe rmore, the rec overe d firea rms evidenc e supported the office rs’ version of the exchang e of gunfire as they chase d defe ndant down the street. The fired car tridg e case s found near 5316 and 5321 West Congr ess Parkwa y matched the Ruge r gun found afte r the shooting. In addit i o n , the testing of the low level DNA mix ture found on the Rug er indicated t hat defendant was not excluded fr o m t he 9% of the blac k population that could have c ontributed to that DNA mix ture. ¶ 42 Although the defe nse claimed that defe ndant was sh o t wh i l e h e was standing in the vestibule and pr o t ec t i n g t he women behind hi m when the office rs carele ssly fired into the building, the firea

rms evidenc ed supported the office rs’ acc ount that defe ndant was outside the vestibule and pointed his gun at Offic er Colli er, who fired two gunsho t s i n response. Specifica lly
, those two gunshots went thr o u gh t h e glass door near the doorknob, and one bullet was found on t h e v es t ibule floor and the other bullet was remove d from Chantel Davidson’s up p er back. Moreove r, g iven defe ndant’s heig ht, the gunshot wounds to his chest and lower left leg wer e not consistent with the heig ht of the two bullet holes in the g lass door at the leve l of the doorknob. ¶ 43 The trier of fac t is fre e to acc ept or reje ct as much or as littl e of a witness’s testimony as it please s (

People v. L ogan , 352 I ll. App. 3d 73, 81 (2004))
, and Katrina Robinson’s favor able trial testi m o n y fo r defe ndant was sever ely impeache d by her prior handwr itten
statemen t and g rand jury testimony

. Fur thermore
, a rational trier of fac t could have conclude d that the bullet fra g ments that wer e fired by the Ruge r gun and wer e not consistent with the office rs’ acc ounts wer e on the street as a result of t h e shooting of Sean Wooden

ea rl i er t hat same evening

. A rational trier of fac t also could have conclude d that it was possible to hide defe ndant’s Rug er gun or smugg le it out of 5331 West C ong ress Parkw ay beca use the building was left unguarde d by the police for a brief moment and it was possible

-10-to move any items that may

have bloc ked the ba ck exit of the basement a partment. ¶ 44 Taking all the evidenc e in the light most favor able to the prosec ution, we cannot say that

no rational trier of fac t could have found the testimony of Offic ers Chatman and Colli er

cre dible and consistent with the other incriminating evidenc e and conclude d that defe ndant

was proven guilty beyond a rea sonable doubt of attempted first degree murder of two police office rs.

¶ 45 B. Improper ClosingArguments ¶ 46 Def

endant contends he was denied his ri gh t t o a fa i r trial based on the prosec utor’s

err oneous and pr ejudicial comments duringclosingargument. ¶ 47 A prosecutor i s allowed wide latitude duringclosingarguments. People v . Nieves
, 193 I ll. 2d 513, 532-33 (2000). A prosec utor may comment on the evidenc e prese nted at trial, as well as any fair, rea sonable infere nces there from, even if such infere nces ref lect neg atively

on the defe ndant. People v. Nicholas
, 218 I ll. 2d 104, 121 (2005)

. Remarks made during closingarguments must be e x amined in the context of those made by both the defe nse and
t h e prosec ution, and must alway s be based upon the evidenc e prese nted or rea son ab l e infere nces drawn there from. People v. Coleman
, 201 I ll. App. 3d 803, 807 (1 9 9 0 ). The char acte r and scope of closing arguments are left larg ely to the discretion of the trial court, and we will not disturb its decision absent an abuse of discretion. People v. Aleman
, 313 I ll. App. 3d 51, 66-67 (2000). We will reve rse a conviction on the ground of improper argument only if the challeng ed co m m en t s constituted a materia l fac tor in the conviction, without which the jury

might have rea ched a

differ ent ver dict. Id. at 67. ¶ 48 Fi rs t , d efendant asser ts the State claimed, without any supporting evidenc e, t h at t h e

rec overe d Ruge r gun belong ed to defe ndant and that somebody g ot ri d o f i t

. Contrary to defe ndant’s argument, howeve r, the rec ord est ab l i s hes a clea r evidentiar

y basis for the
prosec utor’s comments. Specifica lly
, the office rs testified that defe ndant had a gun, fired it
at them during the chase
, and pointed it at t h em b ef ore he went inside the vestibule. Moreove r, there was evidenc e that the Ruge r found on the street the next day had been fired

on the night of the shooting. There wer e sever al people in that baseme nt apar tment and it was full of “junk,” so it wa s a re asonable infere nce that someone in that baseme nt took control of that gun until it was found later the next morning under a bush on the stree t. See People

v. Shum
, 117 I ll. 2d 317, 347-48 (1987) (althoug h there was no eyewitness testimony that the defe ndant had conce aled the gun in question, it was a leg itimate infere nce based up on the fac t that a gun was used in the a ssault and not rec overe d). ¶ 49 Next, defe ndant asser ts the prosec ution stated, with o u t an y supporting evidenc e, that defe ndant’s partial DNA was found on the Ruge r gun. Def endant has forf

eited revie w of this issue beca use counsel did not timely object during the prosec ution’s closing argument to the
comments about defe ndant’s partial DNA being found on the gun. See People v. Enoch
, 122 I ll. 2d 176, 186 (1988) (in order t o prese rve an issue for revie w, the defe ndant must both timely object at tria l and include the issue in his posttrial motion). ¶ 50 A court may , howeve r, consider a forf eited issue as plain err or. The plain err or doctrine allows err ors not previously challeng ed to be considere d on appea l if either: (1) the evidenc e

-11-is closely balanc ed and the jury ’s guilty verdic t may have resulted from the err or; or (2) the

err or was so fundame ntal and of such mag nitude that the defe ndant was denied a fair trial and the err or must be reme died to prese rve the integ rity of the judicial proce ss. People v. Hudson
, 228 I ll. 2d 181, 191 (2008); People v. He r r o n , 2 1 5 I l l. 2d 167, 177 (2005). “In plain err or revie w, the burden of persua sion rests with the defe ndant.” People v. Thompson
, 238 I ll. 2d 598, 613 (2010). The first step of plain err or ana l y sis is deciding whether any err or has

occur red. Id. ; People v . Durr , 215 I ll. 2d 283, 299 (2005). ¶ 51 Al t h o u gh the dissent conclude s that the prosec utor’s rema rks that defe ndant’s pa rt i al DNA was found on the Ruge r wer e “fa ctually wrong and horribly misleading ” ( infra ¶ 123) the complained- of rema

rks must be revie wed in the context of the closing arguments made by both t h e d ef

en s e and the prosecution. Coleman
, 201 I ll. App. 3d at 807. In context, the complained- of statements a bout the DNA e vidence wer e neither wrongnor misleading

. ¶ 52 Acc ording to the rec ord, the State initially stated that the Ruge r was tested a month a fter it was rec overe d, nobody knew that it would be connec ted to the firea rms evidenc e collecte d in the street in this case , and it supported the office rs’ acc ounts of the shooting. Concerning the DNA e vidence , the prosec utor said: “The gun i n t h i s ca s e d i d not have a full profile. We know that from the expert. It did have a partial prof

ile that was c ompare d to the defe ndant’s DNA

. What did the expert tell you? Well, whe n she compar ed it to the de fenda nt’s DNA, he could not be e x cluded a s havingtouched that g un. I t was a partial profile. 91 perc ent of the population could be excluded, but not him. Another c oincidence ? No. When y ou combine that with ever y thing else you have in t h i s ca s e, it points to defe ndant’s guilt.” ¶ 53 There afte r, the defe nse argued, inter alia
, that if defe ndant was holding a gun instead of

a soda bottle, then a gun would have been found with him in t h e b asement apar tment. Acc ording to the defe nse, the rec overe d Ruge r was simply one of the two guns Teddy used when he fired at Sean W ooden on the s tree t ear lier t hat evening. The defense stressed t hat

no witness testified that defe ndant had the reco v er ed Ru ger at the time of the shooting. Moreove r, no phy sical evidence established that defe ndant had the recover ed R u ger at t he time of the shooting or that the Ruge r was even fired during the shooting involving Offic ers Chatman and Colli er. Fur

thermore
, the firea

rms evidenc e rec overe d from the street could not be “diffe rentiate [d] ” betwee n the 7:30 p.m. and 10:30 p.m. shootings. The police lied about
not se eing the women outside the building defe ndant ran into, a nd there was no fing erpr int evidenc e or gunshot residue evidenc e to show that defe ndant had the Ruge r. Concerning the DNA e vidence , the def

ense a rgued:
“Y ou can’ t just put aside the fac t that it’s a partial profile, which means it cannot b e matched to a

ny individual. What the technicia

n said was people cannot be excluded, but she also said there are approximately 600 milli on other people who could not be excluded. That’s a big g roup of people that you can’ t say couldn’t have contributed to some of that DNA.

-12-And you know what? I t doesn’t mean any of those 600 million people actua lly had
to have touched that gun. I t means when they are looking at the profile of the DNA, it’s somewhat c onsistent with what they found.” ¶ 54 The defe nse then made an analogy b et we en t h e DN A evidence and the first three telephone number s–869–for all the telephone numbers in the criminal court building. Wit hout the other four numbers, a person would not be able t o ex cl ude any of the other telephone numbe rs in the building. Ac cording ly : “You can’ t just say that beca use [defendant’ s] partial profile is like 6 0 0 milli on other people, that there fore he had this gun. So y ou have no phy sical evidenc e, and you have

rea lly no testimonial evidenc e to say that he was ever in possession o f t h i s p ar t i cular

wea pon.” ¶ 55 In response , the prosecutor argued that it does not m ak e an y s en s e to presume that the

rec overe d Ruge r was one of Teddy ’s guns, beca use it was used to shoot S ea n , y et “[h] is buddy ’s[– i.e.
, defe ndant’s–]partial DNA is on the gun.” Then, the prosec utor discussed how the “math d o es n ’t work” for Teddy to have used the Rug er beca use i t holds 17 rounds but 12 rounds wer e found in it, 4 casing s wer e rec overe d on the street from the ear lier shooting incident involving Sean, and Offic er Colli er testified that the Ruge r was fired twice. The
prosec utor argued that in or der to a ccount f or that total of 18 rounds, someone would have had to put one more bullet into the Ruge r befor e tossing it under the bush, but that does not make a ny sense be cause : “I f this is a gun being used to shoot at [S ean] Wooden, his buddy
, why is his partial DNA on it? ” Then, conce rning defe nse counsel’s analogy about the DNA ev i d en ce and telephone numbers
, t h e p rosec utor argued that someone dialing 869 might not rea ch his telephone extension:
“B u t gu ess what? 869 g ets you in the [bui lding]. I t doesn’t put you down the block. I t doesn’t put you in the other c ounty

. That’s why we prese nted that evidenc e to you. I t’s circ umstantial e vidence

. We a re not saying that in of itself makes it his gun.
We a re telling y

ou it’s c ircumstantial evidenc e. It’s another piece in the puzz le that
y ou will consider, and you will ge t instructed on that ty pe of e vidence by

the J udg e. But like my partne r told you, when that gun’s rec overe d, they don’t know it’s g oing
t o come back with a partial DNA on Seneca Smit h. They don’t know that its go i n g t o match fire arm e vidence that runs the tra il that [ Offic ers Collier and Chatman] t old you he ra n. That fire arms doesn’ t ge t worked up f or months. Somebody g ot that gun out of there

. They either dumped it under the bush that night and it wa sn’t found in the dark, or it was rec overe d in the morning

. That might acc ount for why it’s a partial DNA and no fing erprints. There ’s dew on the g rass, other people’ s handwr iting on it.” ¶ 56 Our revie w o f t h e re co rd es t abli shes that no err or occur red here

. When revie wed in context, the prosecutor’ s remar ks were fair c omments on the evidenc e, which showed that

-13-a partial profile was g ener ated from the DNA mix ture coll ecte d from the Ruge r and

defe ndant could not be excluded from the 9% of the population that could have contributed
to that DNA mix ture. Specifica lly
, the prosec ution initially argued to the jury that the DNA expert rec overe d a partial DNA profile from the Ruge r, compar ed it to defe ndant’s DNA, and conclude d that althoug h 91% of the population could be excluded from touching the Ruge r, defe ndant could not be excluded. There afte r, the prosec ution talked about defe ndant’s partial DNA as a shorth an d re fe rence to the expert’s testimony

. The jury hear d the prosec ution’s
argument in that context and there is no indication that the jury
, which hear d the DNA expert testify
, was misled by the prosec utor’s arguments. Fur thermore
, the trial court instructed the jury that closing arguments are not evidenc e, and any argument made by the attorney s which is not based on the evidenc e should be disreg arde d. People v. Gonzalez
, 388 I ll. App. 3d 566, 598 (2008). ¶ 57 Next, defe ndant asser ts the State insinuated, wi t h o u t an y s upporting evidenc e, that defe ndant was a street g ang member and this shooting was street- g ang -re lated. Contrary to defe ndant’s argument, howeve r, o u r review of the record establishes that the S tate did not improperly insinuate that defe ndant was a member of a street g ang simply beca use Sean was

a street g ang member and defe ndant was his friend. The prosec utor’s statement that Sean was in a stree t ga

ngwas a fair c omment on the evidenc e. Althoug h Dora Wooden asserte d that her son S ea n wa s n o t a street g ang member, she admitted that he would “ada pt to his environment” and had called himself a Four Corner Hustler when he was young e r

. M oreove r, Sean and defe ndant wer e friends, and the State arg ued the rea sonable infere nce t h at defe ndant was ang ry and agitate d on the evening that his friend had been shot in the street by three y oungmales. ¶ 58 Def

end an t al s o co m p l ai n s that the State improperly insinuated that defe ndant was

secur ity for a s t reet g ang

. Our revie w of the rec ord, howeve r, establishes that defe ndant’s char acte rization of the State’s argument is not acc urate

. Acc ording to the rec ord, the defe nse argued during the course of the trial and in closing argument that: the rec overe d Ruge r was actua lly one of the two guns Teddy had dropped in the street afte r he shot Sean; the phy sical evidenc e showed that defe ndant never had a gu n and the police fired at him without any provocation; and Offic ers C h at m an and Colli er wer e liars, wer e the subjects of prior complaints by other civilians, and callously and car elessly shot defe ndant when he was inside the vestibule trying to pr otect the sc rea ming wome n. ¶ 59 In rebuttal, the prosec utor responde d that the Ruge r should have been found on defe ndant in the baseme nt, but the people on the 5300 block of West Congr ess Parkwa y “play a g ame

* * * called hide the gun.” The prosec utor asser ted that Shanice Wooden’s and Do ra W o o d en ’s testimony

– i.e.
, that Teddy showed up on the block of a Four Corner Hustler, simult aneously fired the two guns he was car rying like a char acte r in a Western movie, and
t h en left one gun at the scene so Sean’s sister could pick it up, chase him, and s ee k

reve ng e–wa s not believable. ¶ 60 Fur

ther, the prosec utor argu ed that somebody must have g otten the Ruge r out of 5331 West Congres s P arkway undetec ted when the office rs left the building unattended momentarily

. The prosec utor said the Ruge r could not have been the gun Teddy used to shoot Sean becaus e S ea n ’s friend, defe ndant, was linked to that gun by DNA testing and the

-14-firea rms evidenc e linked to the Ruge r indicated that, if Teddy had used that gun, somebody would have ha d to reload it with one more bullet before it was tossed under the bush. ¶ 61 In response to the defen s e’ s claims that defe ndant was known by the residents of the 5300 block as a nice guy

who did construction wor k in tha t a rea and had tried to shie ld the fema les in the vestibule fr o m the gunfire, the prosec utor said it was more likely that defe ndant was “sec urity” for the block based on Katrina Robinson’s handwr itten statement and g rand jury testimony that defe ndant lifted his shirt to show off the gun he was car rying and let eve ryone know that wa s “controllingthe block.” T he prose cutor c ontinued:
“The re was trouble brew ing back on that day
, and it came to be. I t ended in the shooting and para ly

zation of [S ean] Wooden, h is friend, not the police office r’s friend. They didn’t know [S ea n ] W o o d en. They don’t know him. Who’s g ot a rea son to be ag itated and
ang ry and ag g ressive on that night? This guy , (Indicating ) beca use his buddy is para ly

zed in a shooting. He’ s g ot his gun. When the office rs are on the block in their cover t vehicle, he thinks there is more trouble, and he is g oing t o g o take car e of it for 5300 West Congr ess. That’s why

he we nt down there . But he bit off more tha n he ca n chew .”
We conclude that these comments by the prosec utor wer e re s p o n s es to defe ndant’s
arguments and re asonable infere nces ba sed on the e vidence

. ¶ 62 Next, defe ndant asser ts the Stat e i mp ro p er l y i n s i n u at ed
, wi t h out any basis in the evidenc e, that Katrina Robinson was afr aid of defe ndant. Acc ording to the re co rd
, t he
prosec utor argued that Robinson “deve loped a sudden case of amnesia,” “wa s not willing to be as forthcoming as she was when the defendant was not seate d in a room with her,” and th at “sometimes people become less cooper ative as time g oes by .” We conclude that the
prosec utor argued that Robinson was putting on an act and g oi n g t o great leng ths to help defe ndant, and those wer e rea sonable comments based on the discrepa ncies betwee n her trial testimony and her prior handwritten statement and grand jury testimony

. ¶ 63 Moreove r, if any of the prose cutor’s complained-of comments wer e improper , it could
not rea sonably have aff

ecte d the result of the trial or contributed to defe ndant’s conviction. Any improper rema

rk by the prosec utor was not a substantial err or, was subject to the

co rr ec t i ve action of t he trial court’s instruction to the j ury , and could not have sway ed t h e j u ry in light of the overwhelming evidenc e of defe ndant’s guilt. Specifica lly
, Offic ers Chatman and Colli er testified consistently and cre dibly that defe ndant confr onted them with

a gun, fired at them when they chase d him down the block, and then pointed the gun at them
ag ain befor e he went into the vestibule. Fur thermore
, defe ndant’s wounds and the firea rms evidenc e rec overe d at the scene supported the office rs’ acc ounts of the shooting and chase

. Although the DNA evidenc e did not establish that defe ndant handled the rec overe d Ruge r, that evidenc e did link him to that gu n wh er e h e could not be ex cluded from the 9% of t he population that could have co n t ributed to the partial DNA profile found on the gun. In addition, Katrina Robinson saw defe ndant display a gun ear lier on the da

y of the shooting
, and defe nse witnesses Shanice and Do ra Wooden and Carrie Warfield wer e sever ely i mpeac hed by either their prior sworn statements, prior inconsistent statements, or p ri o r deposition testimony

.

-15-¶ 64 C. Ineff ective A ssistance of Counsel ¶ 65 Def

endant claims that he rec eived ineffe cti v e as s i stance from both trial and posttrial counsel. In order to obtain relief on his claims of ineffe ctive assistance of counsel, defe ndant
must satisfy the two-prong ed test set forth in Strickland v. W ashington
, 466 U.S. 668 (1984). Specifica lly
, defe ndant mu s t s h o w n ot only that his lawyer’ s perf ormanc e fell below an objective standard of rea sonablene ss, but also that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. Strickla n d
, 466 U.S. at 687-89; People v. Albanese
, 104 I ll. 2d 504, 525-27 (1984). The competenc e of counsel is assessed in light of counsel’s total perf ormanc e ( People v. Ayala
, 142 I ll. App. 3d 93, 99-100 (1986))
, and there is a strong presumption t hat the conduct of counsel fa l l s wi thin the wide rang e of rea sonable profe ssional assistance ( Strickland
, 466 U.S. at 689). The prejudice prong of t h e Strickland test may be satisfied if defe ndant can

s h o w t h at counsel’s deficient perfor mance rende red the result of the t rial unreliable or t h e proce eding fundame ntally unfair. People v. Ev ans , 209 I ll. 2d 194, 220 (2004). The failure
to satisfy either Strickland prong will prec lude a finding of ineffe ctive assistance of counsel. People v . Johnson , 368 I ll. App. 3d 1146, 1161 (2006). ¶ 66 De fe n d an t ar gu es t h at his trial counsel was ineffe ctive for failing to impe ac h t h e testimony of Offic ers Chatman and Colli er with deposition testimony from the civi l case ag ainst them. Acc ording to defe ndant, the deposition testimony contained prior inconsistent statements, which would have damag ed the office rs’ cre dibilit y and indicated that the police had immediately

secur ed the e x its of 5331 West Congr ess P arkw ay and ther eby

preve nted
anyone from removing or conce aling the Ruge r gun. Def endant also argues that counsel should have introduced int o evidenc e a Chicag o police department repor t that would have shown that very littl e time had elapse d from the time gunshots wer e fired to the time police units arrived at the scene

. ¶ 67 T hese arguments lack merit. The repor t at issue co n t ai n s h ea rs ay s t at em en t s b y unidentified people and would not have been admissible. See 725 I L CS 5/115-5(c) (2) (West 2010) (p o l i ce repor

ts are not business rec ords). Fur thermore
, defe ndant’s counsel had
transcr ipts of the civil case depositions, so there is no issue that they wer e ignor ant of some potential evidenc e. Moreover, counsel di d use t he depositi on testimony to impeach one of the offic ers on a

differ ent issue. Under the Strickland presumption, the rec ord supports the conclusion that counsel chose not to use the civil case dep o s i t i ons for purported i m p eac hment on minor discrepa ncies beca

use it would not have helped defe ndant’s case

. Specifica lly
, the evidenc e indicated that there was still time and opportunity for someone to g et the Ruge r out of the building or conce al it. Moreover , counsel’s de cision not to use the deposition s in the manner urg ed by defe ndant on appea l avoided the risk of reha bilitation with information conce rningthe offic ers’ prior consistent stateme nts. ¶ 68 Next, defe ndant argues that trial counsel failed to object to the introduction of irre levant firea rms evidenc e unrelated to this case , failed to prese nt the jumble of firea rms evidenc e to the jury in an org anized manner , and failed to eff ectively cross-e x amine fore nsic investigator Presnell and fore nsic scientist Br ubaker to show that the firea rms evidenc e co u l d not be

connec ted to defe ndant. We disag ree

. The rec ord supports counsel’s strateg ic choice to use the evidence of the ea

rlier shooti ng of S ean Wooden at t he same location t o argue that the

-16-police conduc ted a sloppy investigation in that case a nd that the shell ca sings linked to the Ruge r ac tually

came from the e arlier

shooting involvingSean. ¶ 69 Next, defe ndant complains that trial coun s el ’s failure to object at any point duringthe DNA expert’s testimony and failure to subject her conclusions to a d e q u a te c r o s s

- e xa

mi n a tion

re s u l ted in the jury ’s inability to proper ly weigh her conclusions and enable d the State t o distort her testimony in rebuttal argument. Specifica lly
, defe ndant argu es t he DNA expert testified about her conclusions but did not testify about m atters that would h ave shown an adequate foundation for her conclusions. Acc ording to defe ndant, the expert’s testimony was flawe d beca

use she did not state an adequate basis for her statistical calc ulat i o n s , d id not explain how she conducte d the DNA testing, did not state what testing method she used, did
not explain what steps she took, did not descr ibe which loci she analy zed, and did not explain how she arr ived at her conclusion that defe ndant could not be excluded from the population that handled the Rug er. D efe ndant’s ar gument, howeve r, lac ks merit. ¶ 70 An expert may base her opinion on informa t i o n n o t ad m i t t ed i n t o evidenc e if that information is reliable and is of a ty pe rea sonably relied upon by experts in that field. W ilson

v. Clark
, 84 I ll. 2d 186, 193-96 (1981). “To lay an adequa te foundation for expert testimony
, it must be shown that the fac ts or data relied upon by the expert are of a ty pe rea sonably relied upon by [ex perts] in that particula r field in forming o p i n ions or i nfer ence s.” People

v. Contreras
, 246 I ll. App. 3d 502, 510 (1993). Where the issue is admission of an expert’s entire opinion, the trial c ourt should liberally allow the expert t o deter

mine what mater ials

are rea sonably relied upon by those in his field. People v. Lipscomb
, 215 I ll. App. 3d 41 3
, 435 (1991). ¶ 71 Trial counsel’s decision to object to testimony is g ener ally a matter of trial strategy that is entitled to g reat defe renc e and does not amount to ineffe ctive assistance

. People v. Fende r , 325 I ll. App. 3d 168, 177 (2001). Acc ording to t h e rec ord, the State g ave the defe nse the expert’s repor

t during discovery
, the ex pert testified fr o m t hat report at t he trial, and there has been no asser

tion in this case , either below or here on appea l, that the expert’s repor t fails
to establish a foundation for her conclusions. Fur thermore
, contra

ry to defe ndant’s asser

tion

on appea l, t ri al co unsel did object during the expert’s testimony to her statement that althoug h there was not enoug h DNA to make a match to defe ndant and she did not have an expert opinion a s to whether defe ndant could have handled the Rug er, based on the results of her testing, it wa s possible that de fenda nt c ould ha

ve handled the Ruge r. The trial court, howeve r, over

ruled that objec tion. ¶ 72 Her e, it wa s made clea r that the jury

was not beingasked to acc ept an opinion that was short on supporting details–the DNA expert testified that she could not opine as to whether

or not defe ndant could have handled the Ruge r. In addition, counsel’s decision to minimi ze the expert’s conclusion i n s t ea d of attacking her testing method or statistical calc ulations supported the defe nse strategy to argue that a larg e number of people–600 milli on–could have le ft the par

tial DNA sample f

ound on the Rug er. D efe ndant does not ar gue on appe al that the expert would not have been able to support her conclu s i o ns; acc ording ly
, counsel

rea sonably may have decide d not to highlight or streng then the expert’s testimony befor e the jury by g oing into more detail about her testing method and analy sis of the loci. Counsel chose instead t o at t ac k t he signific ance of the DNA evidenc e on cross-e x amination and

-17-duringclosingargument.

¶ 73 The rec ord establishes that counsel conducte d a clea r and eff ective cross-e x amination of the DNA expert. Specifica lly
, couns el q uestioned her about her inability to identify all 14 marke rs from the partial DNA profiles obtained from the swabs. Counsel also questioned her ability to conclude that defe ndant could not be excluded from the second set of swabs even though that sample had only one more identifiable marke r than the inconclusive sample from the first set and swabs. Fur thermore
, counsel’s cross-e x amination stressed that 600 milli on people could not be excluded as possible contributors from the sample, that this case did not involve a DNA match, that a case involving a DNA match is descr ibed very differ ently from this ty pe of c ase, a

nd the expert could not say to a re asonable degree of scientific cer tainty that only defe ndant handled the Rug er on the date in question. Moreove r, counsel’s crossexamination established that the databa se used by the expert did not include Asians and the expert’s testing technique would not establ i sh what rac e that DNA came from. Finally
, as discuss ed i n d etail above, the State did not misrepre sent or distort the DNA expert’s testimony duringclosingarg

ument ( supra ¶¶ 49- 56), and the evidenc e in this case was not closely balanc ed (supra ¶ 63). ¶ 74 Def

endant cit es People v. Safford
, 392 I ll. App. 3d 212, 226-27 (2009), to support the proposition that reve rsal of a defe ndant’s conviction is proper wher e the State fails to lay an adequate foundation for its expert’s testimony and did not establish the specific proce ss the expert undertook. Def

endant’ s relianc e on Safford is mispla ce d. In Safford
, the court addre ssed whether the trial court committe d reve rsible err or when it allowed a fing erpr int expert to te stify to his c onclusion that the defe ndant’s fing erpr int wa s on the windshield of

a police car despite defe nse counsel’s objection, prior t o t h e ex pert’s testimony
, to any testimony by the ex pert on the basis that the ex pert’s reports rece ived i n discovery did not list any points of comparison from which the ex pert could have drawn his co n cl u sion of a
mat ch

. Id. at 216-17. The issue in Safford does not match the issue befor e us. In Safford
, defe ndant challeng ed the admissibili ty of the expert’s opinion of a fing erprint matc h to the defe ndant wher e the ex p er t never disclosed in discovery a foundation for his conclusions. Her e, defe ndant does not fault his trial counsel for any failure to challeng e the admissibili ty of the DNA expert’s testimony based on a lack of foundation to support her conclusions; rathe r, defe ndant complains th at counsel’s choice not to put befor e the jury cer tain details

conce rning the expert’s testing of the DNA and statistical analy sis resulted in the jury being confuse d about how much we ight to g ive the expert’s testimony

. ¶ 75 Fur

thermore
, the Safford court was conce rned that the lack of any foundati o n fo r t h e expert’s conc lusion in either his report or his testimony left the de fenda

nt without any

rea l opportunity

to challeng e duringcross-e x amination how t he ex pert reac hed his conclusion. Id. at 223. Her e, defe ndant does not alleg e that trial counsel was unable to cross-e x amine the

ex pert due to the absence of any foundation i n the ex pert’s report. Moreover, as discussed above, counsel’s cross-e x amination did challeng e the signific ance and reliability of the expert’s conclusions conce rning the partial DNA profile. Counsel made clea r to the jury that the DNA evidenc e did not make a match to defe ndant but mere ly indicated, based on a world populat i o n of 6 billion, that defe ndant could not be excluded from a g roup of 600 milli on people as possible contributors to the DNA mix ture. The cross-e x amina ti o n o n that point was

-18-prec ise, clea r and thorough. The weight to g ive the expert’s testimony was a matter for

the jury to decide a

nd that is what it did. ¶ 76 Def

endant also cites People v. Schulz
, 154 I ll. App. 3d 358, 363 (1987), wher e there was

no person who could identify the def endant a s the murdere r and the prosecution prese nted expert testimony that the defe ndant could not be excluded as a donor of seminal fluid found

on the rec tal swab taken from the victim. The court conclude d that the evidenc e should have been excluded as irrele vant beca use it had no tendenc y to prove the defe ndant committed the crime wher e the blood and fluid test results failed to exclude the defe ndant from 20% of the population’s possible enzy me sec retingdonors. Id. at 366. ¶ 77 Schulz
, howeve r, is distinguishable. In Schulz
, the test results wer e a major portion of the evidenc e ag ainst the defe ndant and there wer e no eyewitnesses. Consequ en t l y , the court found that the absenc e of other corr o b o rating evidenc e that would have narr owed the possible g roup of offe nders rende red the test results inadmissible

. Id

. at 365-66. Her e, defe ndant’s identity was not in q u es t ion, the DNA evidenc e was a minor portion of the evidenc e ag ainst him, and the police office rs’ testimony that defe ndant pointed a gun and fired at them was corr oborate d by the firea rms evidenc e collecte d from the street. The DNA evide n ce was rele vant beca use it tended to rende r more probable the disputed fac t that defe ndant might have used the rec overe d Ruge r to shoot at the office rs, and tended to rende r less probable the asser

tion that the Ruge r was simply Teddy ’s discarde d gun from the ear lier shooting incident. See id. at 366 (“Evide nce will be considere d rele vant wher e the circ umstance or fac t of

fer ed tends to prove or disprove a disputed fa ct or rende r the matter in issue more or less probable .”). Fur thermore
, defe ndant’s asser tion that the DNA evidenc e

was more prejudicia l than probative lacks merit. The fac t that 600 milli on people could have contributed to the mix ed DNA sample found on the Ruge r was not detrimental to defe ndant’s position t hat he did not handle the Ruge r. ¶ 78 Th e dissent would have this court reve rse defe ndant’s conviction based upon g rounds not raised by defe ndant on appea l. Speci fica lly
, the dissent conclude s that counsel’s
repr esentation was defic ient for failing to move t o exclude the DNA evidenc e. De fenda nt, howeve r, did not arg

ue that t h e DN A evidenc e was inadmissible or should have been excluded, and the State, acc ording ly
, did not b ri ef that issue. To the contra ry , defe ndant
argued that the jury was unable to proper ly weigh the expert’s conclusions beca use counsel neither objected to the DNA exp er t ’s testimony
, which–ac cording to defe ndant–did not elabor ate on the foundation for her conclusions, nor subjected her conclusions to an adequate

cross-e x am ination. As discussed above, trial counsel did raise an obj ection to the ex pert’s conclusion and did adequa tely cross-e x amine h er

. M o reover, the rec ord indicates that the State g ave the defe nse the e x pert’s r eport duringdiscovery , and no evidenc e indi cate s that the expert could not have further explained the basis of her testimony

. In addition, without the expert’s repor

t, the appellate rec ord is insufficient for us to revie w any claim conce rning the admissibili ty of the expert’s testimony

. See People v. W right
, 2012 I L App (1st) 073106, ¶ 1 0 7 (a revie wing court may decline to adjudicate a claim of ineffe ctive assistance of counsel ra ised on direc t appea l if it invol ves matters be yond the re cord on dire ct appe al). ¶ 79 Fi n al l y , t h e d i s s ent’s citation to W right
, 2012 I L App (1st) 073106, is misguided. Wherea s the DNA evidenc e in W right purported to show that a match had been made to the

-19-defe ndant, here, i n contra st, the S tate, the DNA ex pert, and defen s e counsel made clear to

t he jury that no match to defe ndant was made beca use the tested sample was a lo w l ev el amount mix ture of D NA. ¶ 80 In W

right
, the DNA evidenc e constituted essentially the s ole evidence used to identify the defe ndant from a felony databa se as the perpe trator of a sexual assault wher e the victim could not identify her attacke r. W right addre ssed t he trial court’s error in failingto order a pretria l DNA databa se sear ch wher e the p ri m ar y evidenc e to identify the defe ndant as the offe nder was a nine-loci analy sis betwee n his D NA and a male DNA profile obtained from the victim’s r ecta l sw abs. The databa se sear ch reque st w as made pursuant to se ction 116-5 of the Code of Criminal Procedur e of 1963 (725 I L CS 5/11 6 -5 (a ) (W es t 2006)), which require s a defe ndant to show only that “DNA evidenc e may be materia l to the defe nse investigation or releva

nt at trial.” Id. ¶ 81 In W

right
, the majority acknow ledg ed the fac t that they wer e not asked t o d et er mine whether the expert’s conclusion o f a “match” based on only nine-loci was corr ect but, instead, they had been asked to deter mine whether the trial court abused its discretion in denying the defe nse the ability to investigate and impeach that conclusion. W right
, 2012 I L App (1st) 073106, ¶ 86. In addition, the court addre ssed the defe ndant’s claim that his tria l counsel was ineffe ctive in his handling of the pretria l DNA motion and for failing to hire an independe nt DNA expert. Id. ¶ 103. Specifica lly
, the W right majority conclude d that counsel rende red ine ffe ctive assistanc e by askingthe t rial court to order a database searc h that had alre ady been done and, moreove r, had been done at the reque st of the same counsel. Id. ¶¶ 108, 113. ¶ 82 The fa ct s an d an al y s i s i n W right are not pertinent to the instant case , which did not involve any testimony claiming a DNA match had been made and did not rely on the DNA evidenc e to identify an otherwise unknown offe nder. Her e, the DNA evidenc e was a minor part of the S tat e’ s ca s e, an d the S tate did not argue that the DNA evidenc e in and of itself established that the Ruge r was d efendant’s gun. Rather, the State argued that it was circ umstantial evidenc e and simply another piece of the puzz le for the jury to con s i d er in whether there was a link betwee n defe ndant and a gun that might have been involved in this

case

. Moreover, trial counsel cross-e x amined the DNA expert conce rning the statistical meaning of the partia l DN A profile compar ison and argued befor e the jury that the DNA evidenc e should be g iven littl e weight. Cf. People v. W atson , 2012 I L App (2d) 091328, ¶ 25 (holding defe nse counsel’s perf ormanc e fell below an objective standard of rea sonablene ss when counsel failed to probe the statistical meaning of a seven- loci match admitted ag ainst the defe ndant). In this case , trial counsel made clea r to the jury that the DNA evidenc e was not a match and no conclusion could be made that defe ndant contributed to the DNA mix ture found on the Rug er. A t best, all the State’s expert could state was that defe ndant could not be excluded fr o m t h e 600 milli on people who could have contributed to that mix ture and there was a

possibili ty

that he handle d the Rug er. ¶ 83 Next, defe ndant arg ues trial counsel failed to prec lude Katrina Robinson’s p re judicial testimony and failed to impeach the reli ab i l ity of her prior inconsistent statements. Trial counsel filed a written motion in limine on thi s i s s ue, orally arg ued the motion, and then asked the judge to rec onsider the ruling denying the motion. Def endant complains, howeve r,

-20-that trial counsel merely argued that Robinson’s testimony about s eeing defe ndant display

a gun in the afte rnoon was highly prejudicia l beca use it was too remote in time and irrele vant to the incident at 10:30 p.m. later that day

. Def endant asser

ts counsel should have argued that Robinson’s prior statements wer e inconsistent with e ach other and unreliable based on he r ag e and the conditions under which she was que stioned. ¶ 84 De fenda

nt’s argument lacks merit. I f a p ri o r i n co n s i s t en t s t at em en t m ee t s t h e require ments of section 115-10.1 of the Code of Criminal P roce dure of 1963 (725 I L CS 5/115-10.1 (West 2010)), it may be admitted as substantive evidenc e without an independe nt deter mination of its reliability or voluntariness. People v. Barker
, 298 I ll. App. 3d 751, 761 (1998); People v. Pursley
, 284 I ll. App. 3d 597, 609 (1996); People v. Carlos
, 275 I ll. App. 3d 80, 84 (1995). Our revie w of the rec ord indicates no meritorious basis for counsel to move the cour t to preclude Robinson’s prior inconsistent statements on the basis of re liability

. ¶ 85 Next, d ef

en d an t argues that trial counsel failed to prese nt exculpatory witnesses who would have testified that defe ndant did not have a gun. Acc ording to defe ndant, trial counsel knew that seven potential witnesses would have testified that defe ndant did not have a gun when they saw him either at the van or in the vestibule and three potential witnesses would have contra dicted or contested Katrina Robinson’s testimony that she saw defe ndant display

a gun that afte rnoon. Trial counsel claimed that he interviewe d those witnesses but decide d
to call only Shanice and Do ra W o o d en , and Carrie Warfield beca use the other potential witnesses would have either provided cumulative testimony
, or contra dicted one another
, or been subject to impeachme nt. On appea l, defe ndant asser ts that the missing testimony would
not have been cumulative and trial counsel lied beca use sever al of the p o t enti al witnesses stated that he ne ver c ontacted the m. ¶ 86 Dec isions involving what evidenc e to prese nt and which witnesses to call fall within the broad cate g ory of trial strategy and are not subject to a claim of ineffe ctive assistance unless they deprive a defe ndant of a meaning ful adver sary proce eding

. People v. Hamilton
, 361 I ll. App. 3d 836, 847 (2005). “Ne ither mistakes in strategy nor the fac t that another attorney with the benef it of hindsight would have handled the case differ ently indicates the trial lawyer was incompetent.” People v . Negron , 297 I ll. App. 3d 519, 538 (1998). ¶ 87 Def

endant has not met his burden to overc ome the presumption that counsel’s decision
not to call cer

tain witnesses was a matter of trial strategy

. During the hearing on the motion for a new trial, trial counsel, who had been prac ticing law for 31 y ear s, testified that he spoke with defe ndant numerous times while this case was pending for 31⁄2 y ear s, went to the scene

numerous times, took still photos and a video, had numerous conver sations with defe ndant about the wit nesses, had the deposit ion transcr ipts of t he many witnesses i n the civil cas e, and had interviewe d sever al proposed witnesses. Counsel chose Carrie Warfield and Shanice and Do ra Wooden as the strong est witnesses beca use using the other potential witnesses would have be en har

mful to defenda

nt’s case wher e they

contra dicted one another or wer e inconsistent w ith their deposition transcr ipts or provided mere ly cumulative testimony and

were subject to impeachme nt. The trial judge hear d counsel’s testimony conce rning his investigation of the potential witnesses and conclude d that counsel’s decision conce rning which witnesses w ould be believa ble did not fall below the Strickland standard.

-21-¶ 88 Def endant also argues that he was denied eff ective assistance of posttrial counsel, who failed to eff

ectively prese nt defe ndant’ s cl ai m s i n the motion for a new trial. Specifica lly
, defe ndant contests posttrial counsel’s failure to eff ectively : contest the trial court’s decision
to g ive the jury a limit ing instruction about other offe nses despite trial counsel’s objections;
argue that trial counsel failed to prese nt evidenc e that showed the police immediately secur ed the building afte r the shooting and failed to imp ea ch the police office rs with deposition testimony from the civil case ; and rebut trial counsel’s testimony that he met ever y potential witness provided by defe ndant. Defenda nt’s complaints lack merit. The recor d establishes that posttrial counsel filed a compre hensive 17-pag e motion for a new trial that raised 7 main issues with numerous s ub parts. Moreove r, posttrial counsel later filed a supplemental posttrial motion that raised seven more issues and incl u d ed dozens of subissues. Fur thermore
, that supplemental motion incorporated by ref ere nce points “O” throug h “Z ” of d ef en dant’s own pro se supplemental posttrial motion and the voluminous attachme nts to that motion. Postt rial counsel’s strateg ic choice s conce rning which issues war rante d
argument wer e re asonable and did not result in any prejudice to defe ndant. ¶ 89 Defendant has failed to meet his burden under Strickland

. The rec ord establis h es t h at defe ndant’s experience d and privately reta ined trial counsel succe ssfully moved in limine to prec lude the State from prese nting cer tain damag ing testimony ag ainst defe ndant, prese nted

a full and coher ent defe nse, vigor ously cross-e x amined the State’s witnesses, and prese nted witnesses on defe ndant’s behalf

. L ikewise, posttrial c ounsel filed a compr ehensive motion for a new trial and sel ec ted its best issues for oral argument befor e the trial court. Fu rt h er m ore, in light of the substantial evidenc e of defe ndant’s guilt, as discussed above, defe ndant cannot establish a re as o n ab le probability that the result of the trial would have been differ ent if counsel had acte d in acc ordanc e with the tactics proposed by defe ndant on appea l.

¶ 90 D. Def endant’ s Right to Testify ¶ 91 Def

endant argues t h e t ri al co u rt erred in denying his motion for a new trial bec ause,

acc ording to defe ndant, he prese nted unrebutted evidenc e that one o f his trial attorney s improperly co er ce d him to waive his rig ht to testify

. Specifica lly
, at the hear ing on defe ndant’s motion for a new trial, he testified that cocounse l told him not to take the stand, said that defe ndant would corr upt his case if he testified, and threa tened not to help him with his civil case beca

use he would show, by testifying, that he did not know how to cooper ate. ¶ 92 The re cord refute s defe ndant’s claim of coercion. The dec ision to t estify on one’s own behal f belong s to the defe ndant but should be made with the advice of counsel. People v. Y o u n gblood
, 389 I ll. App. 3d 209, 217 (2009). Acc ording to the rec ord, the trial co u rt advised defe ndant of his r ight to te stify and that it was his decision to make, and defe ndant then aff irmed that he had decide d not to testify

. Moreove r, defe ndant’s alleg ations on appea l that cocounse l whispere d to him and touched his hand during his waiver of his right to testify hardly constit u t e a showing of coer cion by cocounse l. See id. (“A dvice not to testify is a matter of trial strategy and does not constitute ineffe ctive assistance of counsel unless evidenc e sug g ests that counsel ref used to allow the d ef

en d an t to testify .”). Fur

thermore
,

-22-when defe ndant testified at his motion for a new trial, he admitted that when his trial attorney

advised him not to testify based on his “big mouth,” trial counsel never theless told defe ndant that it was ultimately defe ndant’s decision to waive h i s rig ht to testify

. L ikewise, lead counsel testified at the posttrial hearing that he discussed t h e i s s u e numerous times with defe ndant and alway s told him that the waiver of his rig ht to testify was defe ndant’s decision. The trial court had the opportunity at the posttrial hear ing to see and hear the witnesses when deter mining their cre dibilit y , and we find no err or in the trial court’s decision that defe ndant fre ely and voluntarily

waived his right to testify

.

¶ 93 E. J ury Instruction Reg ardingOther O ffe nses ¶ 94 De fe ndant argues the trial court abused its discretion by g iving the jury
, over d ef en s e counsel’s objection and afte r the parties had prese nted their evidenc e, a limit ing instruction
reg arding proof of other offe nses based on Katrina Robins o n ’s testimony that she saw defe ndant with a gun ear lier in the day

. Acc ording to defe ndant, the instruction serve d only
to highlig ht Robinson’s flawe d and prejudicia l testimony
, portray defe ndant as a bad person and insinuate that he must be guilty of the char g ed offe nse. Def endant also complains that, beca use the instruction did not specify the other offe nse, the jury was left to speculate about the offe nse and defe ndant’s intent, desig n and knowledg e. Postt rial counsel did not include this issue in the motion for a new trial, and defe ndant acknow ledg es the forf eiture but a sks this court to revie w the issue for pl ai n err or. We conclude
, howeve r, that defe ndant’s forf eiture notwithstanding , this claim lacks merit. ¶ 95 J ury instructions g ive the jurors the corr ect p ri nciples of law applicable to the fac ts so they can rea ch a corr ect conclusion acc ording to the law and the evidenc e. People v. Fuller
, 205 I ll. 2d 308, 343 (2002). In a criminal case , the applicable I llinois Pattern J ury Instruction “shall be used, unl ess t he court deter mines that it does not acc urate ly state t he law.” I ll. S. C t

. R

. 451(a) (ef

f. J uly 1, 2006). In deter

mining the adequa cy of instructions, a revie wi n g court will consider all the instructions as a whole to asce rtain i f they fully and fairly cover the law. People v. Housby
, 84 I ll. 2 d 415, 433-34 (1981). An err or in g iving or ref using instructions will not war

rant reve rsal wher e the evidenc e of the defe ndant’s guilt is so clea r and convincing that the jury could no t reasonably have found the defe ndant not guilty

. People v . Jones , 81 I ll. 2d 1, 9 (1979). ¶ 96 Her e, t h e t ri al co u rt gav e t h e j u ry the following version of I llinois J ury Pattern Instructions, Criminal, No. 3.14 (4th ed. 2000) (he reina fter, IPICriminal 4th No. 3.14):
“Evidenc e has been rec eived that the defe ndant has been involved in an offe nse other than t hose charg ed in the i ndictment. This evidence has been rec eived on the i ssues of the defe ndant’s intent, desig n and knowledg e and may be considere d by you only for that limit ed purpose. I t is for y o u t o d et er mine whether the defe ndant was involved in that

o ffense, and if so what weight should be g iven to this offe nse on the issue s o f i n t en t , desig n, and knowledg e.” The committee note for this jury instruction rec ommends that “[a]t the time t h e ev i dence which is the subject of this instruction is first prese nted to the jury *** an oral instruction should be g iven to explain to the jury the limit ed purpose of this evidence, unless the

-23-defe ndant objects to that instruction.” I PICriminal 4th No. 3.14, Com mittee Note, at 104.

¶ 97 Acc ordingto the rec ord, the trial c ourt offe red to g ive a lim iting ins truction to the j ury when Katrina Robinson testified, but the defe nse objected. Acc ording ly
, th e co u rt d id not g ive the limit ing instruction at that time but informed the defe nse that the instruction would be included in the jury instructions. When the issue arose ag ain at the jury instruction confe renc e, the defe nse ag ain objected but the court g ave the instruction over that objection. ¶ 98 Gene rally
, other crimes evidenc e is admissible if it is rele vant for any purpose other than
to s h o w t h e propensity to commit crime. People v. Novak
, 163 I ll. 2d 93, 117 (1994). The version of I PI Criminal No. 3.14 at issue here fairly ref lects the applicable law in this case , and we fi n d n o error in g iving this instruction. Robinson testified that she saw defe ndant

car rying a conce aled firea

rm on the street. The complained- of instruction helped ensure that the jury proper ly considere d the evidenc e only on the issues of intent, desig n and knowledg e

an d n o t as evidenc e of defe ndant’s criminal propensity

. People v. Foster
, 195 I ll. App. 3 d 926, 950 (1990); People v . Chrisos , 151 I ll. App. 3d 142, 155 (1986). ¶ 99 Moreove r, defe ndant’s asser t i o n t h at t h e t ri al co u rt ca n n ot overr ide the def ense’ s objection misstates the rec ommendation in the above- quoted committee note, which applies
to the optional oral instruction at the time the evidenc e is prese nted, not to the final written instructions g iven to the jury at the end of the trial. Fur thermore
, defe ndant’s claim that the jury was left to speculate about the unspecifie d offe nse lacks merit; the defe nse strateg ically chose this result when it asked the trial court not to g ive the instruction at the time Robinson testified. We conclude that the trial court appropr iately exercised its supervisory power over the trial and g ave the instruction a fter deter mining that it would best protec t de fenda nt a nd

ensure the fa irness of the trial. Chrisos , 151 I ll. App. 3d at 155.

¶ 100 F. Compliance Wit h Supreme Court Rule 431(b) ¶ 101 Def

endant a rgues he should rece ive a new trial bec ause the trial court f ailed to comply with I llinois Supreme Court Rule 431(b) (ef f. May 1
, 2007). Specifica lly defe ndant complains that the trial court failed to (1) en s u re that the potential jurors understood and

acc epted the principle that a defe ndant’s decision not to testify cannot be held ag ainst him, and (2) prese nt its questions to the venire about the other fundame ntal principles in separ ate questions. Def

endant conce des that he has forf eited these issues by failing to both object at trial and include the issues in his posttrial motion. See Enoch
, 122 I ll. 2d at 186. He argues, howeve r, that these issues are revie wable under the first prong of the plain err or rule ( supra ¶ 50) beca

use the evi d ence was closely balanc ed wher e the State and defe nse witnesses
prese nted conf

licting testimony

. ¶ 102 We revie w the trial court’s compliance with a s up re m e co urt rule de novo

. People v

. Suarez
, 224 I ll. 2d 37, 41-42 (2007). Rule 4 31(b) codified our supreme court’s holding in People v. Z

eh r , 103 I ll. 2d 472, 477 (1984), that four inquiries must be made of potential jurors i n a cr iminal case to de termine whe ther a particula r bias or pr ejudice would deprive the defe ndant of his right to a fair and impartial trial. Rule 431(b) require s the trial court to issue the Zehr admo n i t i o n s and inquiries sua sponte

. Specifica lly
, the trial court must ask

eac h potential juror, individually or in a group, whether

that juror under stands and ac cepts

-24-the following principles: (1) that the defe ndant is presumed innocent; (2) that the State must

prove him guilty beyond a rea sonable doubt; ( 3) that he is not require d to pr esent e vidence

on his own behalf

; and (4) that his decision not to testify may not be held ag ainst him. Howeve r, no inquiry of a prospec tive juror is made into the d ef en d an t ’s failure to testify wh en t h e defenda

nt objects. I ll. S. Ct. R. 431 (ef f. May 1, 2007). Alt houg h Rule 431(b) i s desig ned to help ensure t h at d efe ndants are tried befor e a fair jury
, the Zehr questioning under that rule is not indispensable to a fa ir trial. Thompson , 238 I ll. 2d at 613-14. ¶ 103 The trial judge
, in his opening rema rks, stated the firs t t h re e Z eh r p ri n ci p l es , i.e.
, defe ndant’s presumption of innocenc e, the State’s burden of proof, and t h e p ri nciple that defe ndant is not require d to prove his innocenc e or prese nt any evidenc e on his behalf

. Then, the judge separ ated the venire into g roups of 12 for questioning. Th e judge asked the first
g roup to sh ak e t h ei r heads or g ive a verba l response if anyone would have a problem following the law. The judge noted that no one ra i s ed a hand and then asked if they understood and acc epted t he first three Zehr principles. After listi ng those principles, the judge ag ain aske d:
“Do y ou all understand those p ri nciples apply to that case ? Any body have any problems with any

of those princ iples, let me know plea se.”
T h en , the judge asked the g roup if they would be able to sign the appropr iate fo rm i f t h e State met or failed to meet its burden of proof. The judge noted that no one raised a hand and allowed the attorney s to question the g roup. The judge followed the same proce dure for the
next g roups, who g ave verba l answe rs to the judge ’s questions. After the parti es had
prese nted their evidenc e, the trial judge informed the jury of all four Zehr principles as part of the jury

instructions. ¶ 104 Def

endant did not testify in this case , and err or occur red here beca

use the trial judge did
not mention the fourth Zehr principle– i.e.
, that the defen d ant’s failure to testify cannot be held ag ainst him–when the judge questioned the venire about the three other Zehr principles. Def endant, howeve r, is not entitled to a new trial beca use he cannot meet his burden to show that “the evidenc e was so closely balanc ed that the err or alone sever ely threa tened to tip the scale s of justice ag ainst him.” Herron
, 215 I ll. 2d at 187; see also People v. Magallanes
, 409 I ll. App. 3d 72 0
, 7 4 7 (2 0 1 1 ) (whe re the trial court failed to question the venire about the fourth Zehr principle, the de fenda nt failed to show plain err or that would trig g er a reve rsal of his conviction beca

use the evidenc e was not closely balanc ed). As discussed above ( supra ¶ 63), the evidenc e in this case was not closely balanc ed. Offic ers Chatman and Colli er testified cre dibly and consistently that defe ndant confr onted them whi le they wer e in the

cover t van, pulled out a gun and held it to Offic er Colli er’ s head, fired at them as they chase d him down the street, and pointed the gun at them ag ain befor e he went inside the vestibule. The firea rms evidenc e collecte d at the scene an d t h e location of defe ndant’s wounds supported the office rs’ acc ount of the incident and ref uted the defe nse asser

tion that defe ndant was shot while he was in the vestibule protec ting the scre aming women. Although the DNA e vidence did not establish that defenda nt handled the r ecove red Rug er, the DNA evidenc e did link him to that gun. In addition, the defe nse witnesses wer e impeache d by the State.

-25-¶ 105 Fur thermore
, we reje ct defe ndant’s asser tion that the trial ju d ge failed to comply with Rule 431(b) by collapsing his que stioning conce rning the three other Zehr principles into a single question. There is no specia l mag ic languag e that must be used to deter mine whether the potential jurors understand and acc ept the Zehr principles. People v. W are , 407 I ll. App. 3d 315, 356 (2011). I d ea l l y , i t may be appropr iate to question the venire about eac h Zehr
p ri n ci p l e in a piece -mea l fashion, but separ ate questions are not mandated. Her e, the trial
court admonished t h e v enire reg arding those three Zehr principles and g ave the venire an opportunity to disag ree with them. The court’s questioning was sufficie ntly broad so that if
any potential juror had made a statement, raised a hand, or shaken his head in response to the question, it would have shown that he failed to unders t and or acc ept one of the Zehr principles and there by

prompted the trial court to inquire further. S ee Magallanes
, 409 I ll. App. 3d at 729-30 (althoug h the judge err ed by failing to question the venire about the fourth Zehr principle, the j u d ge s atisfied Rule 431(b) conce rning the three other principles by asking if anyone disag ree d with those principles and, if so, to raise his hand); W are , 407 I ll. App. 3d at 356 (cour

t’s inquiry as to whether venire members had “any difficulty” with the Zehr principles was sufficie nt compliance with Rule 431(b)) ; People v. Davis
, 405 I ll. App. 3d 585, 589-90 (2010) (trial judge ’s inquiry as to whether venire members had “a problem” with the Zehr principles was sufficie nt compliance with Rule 431(b))

. We find that the trial court’s questioning of the venire conce rning the three other Zehr prin ci p les sufficie ntly complied with Rule 431(b). In any event, de fenda

nt cannot mee t his burden under the first
prongof plain er

ror a naly sis to establish that he is entitl ed to a ne w trial.

¶ 106 G. Sentencing ¶ 107 The trial court sentenc ed defe ndant to concur rent 35-year prison terms for his attempted first degree murder of a peac e office r convictions and added a s en t ence of 20 y ear s for
persona lly discharg ing a firea rm for a total of 55 y ear s’ imprisonment. Def endant argues the trial court i mproperly imposed the 20-year sentenc ing enhanc ement for persona lly discharg ing a firea

rm contra ry to the plain languag e of section 8-4(c ) of the Criminal Code of 1961 (Criminal Code) (720 I L CS 5/8-4(c) (W es t 2004)). Specifically
, defe ndant, citi ng People v. Douglas
, 371 I ll. App. 3d 21, 26 (2007), asserts t hat s ection 8-4 of t he C ri m inal Code cre ates five independe nt crimes or offe n s es, eac h with its own sentenc ing scheme

. Acc ording to defe n d ant, attempt to commit first degree murder is sentenc ed as a Class X felony and, thus, subject to a term of 6 t o 3 0 y ears’ imprisonment, unless one of the four exceptions the leg islature car ved out in subsections (A), (B ), (C) and (D) of section 8-4(c )(1) applies. Def

endant asser

ts that those four ex ce p t i o n s are contained in separ ate, equally demar cate d subsections of the attempt statute, and the plain, unambiguous languag e of the statute indicates that those f our exceptions do not overlap. ¶ 108 An issue of statutory construction is revie wed de novo

. People v. Taylor
, 221 I ll. 2d 157, 162 (2006). “Courts should consider the statute in its entirety , keepingin mind the s ubject it a ddresse s and the leg islature’s appar ent objective in e nacting it.” Id. The languag e of the
statute is the surest and most reliable indicator of the leg islature’s intent; when the languag e is clea r, it must be applied as written without resor t to further aids or tools of interpre tation. Id. Criminal statutes are to be strictly construed in favor of the acc used, and nothing should

-26-be taken by intendment or implication beyond the obvious or literal meaning of the statute.

Id. The court cannot reme dy an appar ent leg islative oversight by rewriting a statute in a way that is inconsistent with its clea r and unambiguous languag e. Id. at 162-63. Howeve r, if the languag e of a s t at u te is ambiguous, we may look to tools of interpre tation, like in pari materia , to asce rtain the mea ning of a provision. Id. at 163. ¶ 109 The rele vant portions of the statute at the time defe ndant was char g ed and sentenc ed ar e as follows: “§ 8-4. A ttempt. (a) Elements of the O ffe nse. A person commits an attempt when, with intent to commit a specific offe nse, he does
any act that c onstitut es a substantial step towa rd the c ommissi on of that off ense. * * * (c) Sentence

. A person convicted of an attempt may be fined or imprisoned or both not to exceed the m aximum provided for the offense attempted but, ex cept f or an attempt to commit the offe nse [of armed violenc e] defined in Section 33A- 2 of this Act, (1) the sentenc e for attempt to commit first degree murder is the s entenc e for a Class X felony , except that (A) an attempt to commit first degree murd er when at least one of the
ag g ravating fac tors specifie d in para g raphs (1), (2), and (12) of subsection (b) of Section 9-1 is pr esent is a Class X felony for which the sentenc e shall be a term of imprisonment of not less than 20 y ear s and not more than 80 year s; (B ) an attempt to commit first degree murder while arme d with a fire arm is

a Class X felony for which 15 y ear s shall be added to the term of imprisonment imposed by

the cour t; (C) an attempt to commit first degree murder during which the person p ersonally discharg ed a firea rm is a C lass X felony for which 20 y ear s shall b e added to the te rm of imprisonment imposed by the cour t; (D) an attempt to commit first degree murder during wh i ch the person persona lly discharg ed a firea rm that proxi mately cau s ed great bodily harm,
perma nent di sability
, perma

nent disfigureme nt, or death to another person, is a Class X felony for which 25 y ear s or up to a term of natural life shall be added
to the term of imprisonment imposed by the court.” 720 I L CS 5/8-4 (West 2004). ¶ 110 First, we do not acc ept defe ndant’s asser tion–and, by implication, the court’s statement in Douglas –that section 8-4(c )(1) cre ates five differ ent crimes or offe nses. Acc ording to the plain, unambiguous languag e of the statute, section 8-4(a ) sets fort h t h e elements of the attempt offe nse; section 8-4(c )(1)
, under the heading “Sentenc e,” states that the sentenc e for the offe nse of attempted first degree murder is the same as the sentenc e rang e for a Class X felony ; subse ction 8-4(c )(1) (A) prese nts ag g ravating fac tors that will incr ease the sentenc e rang e for that offe nse; and subsections (B ), (C) and (D) of section 8-4(c )(1) simply set forth

s en t ence enhanc ements that are added to whicheve r sentenc e rang e is applicable

. I f t h e

-27-victim of the attempted first degree murder was a police office r, co rrectional ag ency

employ ee, or medical assistance personne l, the Class X felony sentenc e rang e of 6 to 30 y ear s is incre ased to 20 to 80 y ear s. 720 I L CS 5/8-4(c) (1)( A) (West 2004). Then, if the defe ndant committed attempted first deg ree murder either while arme d with a firea rm, or by persona lly discharg ing a firea

rm, or by persona lly discharg ing a firea rm that proxi mately cause d g reat bodily harm, the court must add to defe ndant’s sentenc e either 15 y ear s, 20 y ear s, or 25 y ear s

or up to a term of natura l life, respe ctively

. 720 I L CS 5/8-4(c) (1)( B)
, (C), (D) (West 2004). ¶ 111 T h e court in Douglas considere d the s ame issue befor e thi s court. The defe ndant fi re d
gunshots at police office rs and was convicted of two counts of attempted first degree murder of a peac e office r. At the 2004 sentenc ing hear ing, the State informed the trial court that the firea rm sentenc ing enhanc ement provisions did not apply
, and the cou r t a gr e e d a n d s e ntence d the defe ndant to 2 concur

rent 35-year terms. Douglas
, 371 I ll. App. 3d at 23. On appea l, the defe ndant aske d the cour

t to reduc e his conviction, and the S tate argued, for the first time, that the 35-y ear sentenc es wer e void b ec au s e the mandatory 20-year enhanc ement for d i s charg ing a firea

rm was not imposed. Id. Specifica lly
, the State argued that the I l l i n o i s Supreme Court, in People v. Sharpe
, 216 I ll. 2d 481 (2005), overr uled the line of case s that had utiliz ed the cross-c omparison analy sis a nd invalidated penalties based on finding s that the penalties violated the proportion ate penalties clause of the I llinois Constitution (I ll. Cons t

. 1970, art. I
, § 11). Douglas
, 371 I ll. App. 3d at 24. The State asked the court to

rema nd the ca use for a re sentenc ing he aringto apply the mandator

y 20-year enhanc ement. ¶ 112 The Douglas court rejecte d the S tate’s argument o n t wo grounds. First, Douglas ruled that Sharpe did not apply retroa ctively beca use it did not announce a new constitutional rule
to crimi n al cases pending on direc t revie w. Id. at 24-25. That ruling i n Douglas
, howeve r, has been invalidated by the supreme court’s subsequent holding “that the rule announce d in Sharpe is of constitutional dimension.” People v. Hauschild
, 226 I ll. 2d 63, 78 (2007). See also People v. Lee
, 376 I ll. App. 3d 951, 960-64 (2007) (g ener al discussion of the application of Sharpe to penalty

enhanc ement cha lleng es under the proportionate penalties c lause). ¶ 113 Douglas ’s second basis for reje cting the State’s voidness argument was its c onstruction of section 8 -4 (c )(1) of the Criminal Code. The court stated that the plain, unambiguous languag e of the statute established that the off ense of attempted first degree murder of a peac e office r i s contained in section 8-4(c )(1) (A), which has no sentenc ing enhanc ement; instead, the sentenc ing enhanc ements for attempted murder conce rning a firearm are contained in subsections (B ), (C), and (D). Douglas
, 371 I ll. App. 3d at 26. The court summarily conclude d that the firea rm sentenc ing provisions did not apply to the offe nse of attempted murder of a peac e office r and the “leg islature well might have believed” that the

sever e sentence available for t hat offense indi cate d that it wa s al re ad y enhanc ed and there was no “ need f

or fur ther provision.” Id. ¶ 114 Douglas is not persua sive. Douglas ’s construction might be plausible if subsection (A)

was remove d from section (c) (1) and instead desig nated as section (c) (2), and if the firea rm sentenc ing enhanc ements in subsections (B ), (C) a nd (D) immediate ly

followed pa

ragraph (c) (1). That, howeve r, is not how the leg islature draf ted this statute. There is no punctuation
sep ar at i n g para g raph (c) (1) from para g raph (c) (1)( A), but a semicolon follows para g raph (c) (1 )( A). The plain and ordinary meaning of that text is that the sentenc ing rang e for the

-28-attempted murder offe nse is 6 to 30 y ear s unless an ag g ravating fa ct o r, l i k e the defe ndant

trying to kill a police office r, is prese nt and then the sentenc ing rang e is highe r, i.e.
, 20 to 80
y ear s. J ust as the firea

rm sentenc ing enhanc ements in subsections (c) (1)( B)
, (C), and (D)
must be added to the 6- to 30-year sentenc ing rang e, so t o o m u s t those enhanc ements be added to the highe r 20- to 80-year sentenc ing rang e. Fur thermore
, a defe ndant may attempt to murder a police office r b y many means other than a firea rm, and wher e subsection (c) (1)( A) makes no ref

ere nce to firea

rms, the court s hould not speculate that any conce rns about the use of firea

rms in perpe trating this offe nse have alre ady been considered by the leg islature and ar e acc ounted for by the 20- to 80-year sentenc ing rang e. See People v. Tolentino , 409 I ll. App. 3d 598, 606 (2011). ¶ 115 After Douglas
, this court conclude d in Tolentino
, 409 I ll. App. 3d at 606, that the firea rm sentenc ing enhanc ements applied to the sentenc e for the offe nse of at t empted first degree murder of a peace office r. Tolentino declined to f ollow Douglas and st ated that the s tatute did not expressly prohibit the use of the fi re ar m en hance ments when sentenc ing under subsection (A). Id. Tolentino also noted that the p o l i cy co ncer ns underly

ing subsection (A)– i.e.
, deter

ring the intentional killing of police office rs, who take heightened risks in perf orming their duties–differ ed fr om the policy conce rns underly ing subsections (B ), (C), and (D)– i.e.
, deter

ring the us e of firea

rms in the commi ssion of felonies due to the gre ater risk their use pose s to society at larg e. Id. at 605-06. ¶ 116 L ike the court in Tolentino
, we conclude that the trial court did not err i n ap p l y i n g the firea rm sentenc ing e nhance ment to defe ndant’s sente nce. ¶ 117 Ne x t, defe ndant argues the mitti mus should be amend ed t o re fl ec t 2
, 2 0 1 d ay s i n prese ntence custody . The State made no response to this argument. ¶ 118 Acc ording to the rec ord, defe ndant was arr ested on J une 27, 2004, and sentenc ed on J uly 7, 2010, and rec eived 2,196 day s of prese ntence custody cre dit. Def endant, howeve r, should have rec eived 2,201 day s of prese ntence custody cre dit, whic h does not inc lude the date of
sentenc ing. See People v. W illiams
, 239 I ll. 2d 503, 510 (2011). Acc ording ly
, we direc t the circ uit court to corr ect the mitti mus to ref lect 5 more day s of prese ntence custody cre dit, for a total of 2,201 da

y s.

¶ 119 I I I . CONCLUSI ON ¶ 120 For the rea sons stated above, we aff irm th e j u d gm en t of the trial court and order the

corr ection of the mitti mus.

¶ 121 Affir

med; mitti mus corre cted.

¶ 122 J USTI CE GORDON, dissenting

. ¶ 123 In the case at bar, the State stated repe atedly during its closing argument that defe ndant’s “par tial D NA” w as on a gun rec overe d near the cr ime scene . For

the re asons stated be low, Ifind this statement both factua lly wrongand horr ibly

misleading

. ¶ 124 In addition to chall en gi n g t h e p ro s ec u t or’s rema rks, defe ndant also claims that his

-29-counsel was ineffe ctive for failing to object to the introduction of the DNA evidenc e, as more

prejudicia l than probative. I cannot understand what probative value this evidenc e had, since the State’s DNA expert testified that she had no opinion at all about whether defe ndant had handled the gun in question and that hundreds of milli ons of people could have been the one to handle it. Howeve r, its potential for prejudice was aptly demonstrated by the prosec utor’s
repe ated a

nd incorre ct re marks. As a result, I would reve rse a

nd rema nd for a new tria l. ¶ 125 Thus, Imust respec tfully dissent.

¶ 126 BA CKGROUND ¶ 127 There is no di s p u t e t h at , o n J une 27, 2004, at approximately 10:30 p.m., two police office rs shot defe ndant three t i mes and shot a passer by once. Def

endant was shot three
separ ate times, in his chest, arm and leg ; and a bullet was later remove d from his upper back. Another b u l l et was also later remove d from the upper back of the passer by
, 13-year -old Chantel Davidson. The office rs acknow ledg ed at trial that their actions had been the subject of a police investigation and wer e also the subjec t of a pe nding c ivil suit. In addition, after defe ndant moved to suppress his statement a s involuntary , the State agree d not to use it. ¶ 128 Earlier that same evening
, at approximately 7 p.m., there had been a shooting on the 5300 block of West Congre ss Parkway , and Of fice rs Calvin Chatman and Dway ne C ollier wer e dispatched to the are a to conduct surveillance on a particula r vehicle. Other police personne l and anothe r police ve hicle we re a lso present on the same block. ¶ 129 At trial, the office rs testified that defe ndant walked over to the underc over van in which they wer e sitti ng and that, afte r they identified themselves as police office rs, he pulled a gun out from und er his jersey and held it to Offic er Colli er’ s head throug h the vehicle’ s open window. The o ff

i ce rs testified that Offic er Chatman then shot toward defe ndant’s chest; defe ndant fell but ro s e and ran; and the office rs chased defendant, who was shot a tot al of three times. ¶ 130 In stark contra st to the office rs’ testimony
, defe nse witnesses testified that defe ndant was walking down the street at night with a bottle of 7 -U p , when the office rs chase d and shot him. ¶ 131 The testimony at trial was a cre dibilit y contest betwee n the office rs on one side and the residents of the neighborhood on the ot her side. There wer e no fing erpr i n t s o b tained from

a gun rec overe d in the are a, an d t h er e was no gunshot residue testing perf ormed on defe ndant’s hands to establish whet h er h e h ad fired a gun. The only fore nsic evidenc e prese nted at trial wa s the DNA te stimony that is at issue on this appeal. ¶ 132 At trial, Dave re J ackson, a DNA analy st, testified t hat s he r ec ei v ed a bucca l swab that had been swabbe d inside of defe ndant’s mouth, as well as swabs that had been swabbe d on differ ent ar eas of

a gun rec overe d near

the cr ime scene . J ackson te stified that she wa s able
to “g ener ate” a DNA profile for defe ndant using the bucca l swab. J ackson testified that, ty pically
, she looks at “14 are as on the DNA” and that she did that in g ener ating defe ndant’s profile. ¶ 133 J ackson testified that she rec eived two sets of swabs for the gun. One set of swabs, which

-30-was labeled ex h ibit 37A, was collecte d from the left-side handle, the trig g er guard, the

m agazi ne release and the hammer spur. A s econd set of swabs, which was labeled ex h i b i t 38A, was collecte d from the rig ht-side handle, the safe ty lever
, the trig g er guard and the butt of the mag azine. ¶ 134 J ackson testified that, from exhibi t 37A, she was able to identify a m i x t u re o f h uman DNA profiles, which wer e contributed by at least two people. J ackson testified that, since it

was a low-leve l mix ture and since she was not able to differ entiate betwee n one person and another
, this mix ture could not be used to identify a person and could only be used to exclude

a person. S h e testified that she could draw no conclusion about whether or not defe ndant could have contributed to the mix ed prof ile found on exhibit37A. ¶ 135 J ackson testified that, from ex h i b i t 38A, she was able to identify another mix ture of human DNA profiles, which wer e contributed by two people. As a result, we know that at least two people handled this gun. ¶ 136 In addition, it is possible that there wer e other people who handled the gun but who left

no DNA materia l on it. The expert explained that there wer e a lot of fac tors that would aff ect whether a person’ s DNA was transfe rre d from his or her skin to an object, such as whether his or her skin was clea

n or had lotion or dirt, whether t h e skin had cuts or abra sions, and whether the skin was in contac t with the object for a short or long time. Thus, there wer e two people a nd possibly

more who ha

ndled this gun. ¶ 137 Of the people who left DNA materia l on the gun, t heir material h ad b ecome mix ed up with others who had a lso left materia l on the gun, there by cre atingmix tures of D NA. ¶ 138 Fr om one of the two mix tures found on the gun, the DNA analy st was able to extract part of a profile of one of the indi v iduals who handled the gun. Specifica lly
, J ackson testified that, from exhibit 38A, she was able to identify six “ar eas” or loci fr om one profile. ¶ 139 Although J ackson testified that ty pically she looks at 14 are as, she testified that she was only looking for 10 are as from the DNA on ex h i b it 38A. J ackson did not explain why she

wa s looking for only 10 are as with respe ct to the gun, when she had looked fo r an d h ad alre ady found all 14 ar eas in the D NA mater ial provided by defe ndant. ¶ 140 Although J ackson testified that the testing methods used by the I llinois State Police wer e gen erally acc epted in the scientific community
, she was not asked whether the met h o d s empl oy ed in this case wer e g ener ally acc epted. Specifica lly
, she did not state wh et h er h er “testingtechnique,” as she c alled it, for lookingat only 10 are as wa s g ener ally

acc epted. ¶ 141 Fr om exhi bit 38A, J ackson te stified that, of the 10 are as that she looked for , she found only 6. When J ackson considere d this 6-loci profile and defe ndant’s 14-loci profile, J ackson could conc lude only

that defe ndant could not be e x cluded a s a possible contributor. ¶ 142 J ackson then used the six -loci profile to make statistical calc ulations. She testified that: 1 in 11 unrelated blacks could also not be excluded; 1 in 21 unrelated whites could also not b e ex cluded; and 1 in 11 unrelated Hispanic individuals could not be excluded. In o t h er words, one in 11 blacks would share this same profile at 6 loci. I f more loci wer e added, then

more people would be exc l u d ed

. P eo p le v. W right
, 2012 I L App (1st) 073106, ¶ 54 (see
gener ally the explanation by the direc tor of I llinois DNA databa se of how DNA an al y s i s works).

-31-¶ 143 J ackson’ s calc ulations c oncer ned only unrelated individuals. He r testimony means that there is a 1 in 11 chanc e that a black individual–or one of his aunts, uncles, niece s, nephew s, siblings or cousins who may share these same six DNA are as–left the partial profile on the
gun. ¶ 144 No ev i d en ce wa s submitt ed at trial about whether any of defe ndant’s aunts, uncles or cousins lived on the same bloc k. ¶ 145 The expert testified that there was the same chanc e that the contributor was Hispanic a s there was that he was black: the same 1 in 11 chanc e. Also, the expert found a 1 in 21 chanc e that the contributor c ould have be en white. ¶ 146 In addition, the expert g ave her statistical conclusions in terms of “blac k[s] ,” “white[s] ” and “Hispanic s” without defining these terms. Where someone is of both Afric an Americ an and Cauca sian desce nt, the expert did n o t explain whether this person would be counted
t wi ce , o r not at all, or place d in one cate g ory ; and which cate g ory this person would be place d in, if place d in a categ ory . She did not ex plain whether a blac k from L atin Americ a

wou l d b e place d in the “blac k” or the “Hispanic ” cate g ory

. She offe red no statistical calc ulations for people of birac ial or multiracial he ritag e or f or Asian Ame rica

ns. ¶ 147 When asked whether the 1 in 11 statistic ref err ed to males, the expert stated that she “did
not say male” and that she could say only “one in eleve n.” She also testified that “our testing technique” could not differ entiate among Afric an Americ an, Cauca sian, Asian or Hispanic. As a result, she could no t t es t ify whether the contributor of t he partial profile was male or fema le; or whe ther he or she wa s black, white, H ispanic or Asia n. ¶ 148 Realizing all the problems with the DNA evidenc e, the expert conclude d that she could
not rea ch a scientifica lly valid opinion as to whether defe ndant handled the gun. J ackson explained that, since she wa s d oing calc ulations with “only six are as,” “this lowers the statistical value” of her conclusions

. As a result, J ackson testified–unequivoca lly –that she had no opinion at all as to whe ther de fenda nt could have ha

ndled this gun:
“ASSI STANT STATE’S ATTORNEY [AS A] PAPA: Do you have an opinion as to whether or not [defenda

nt] could have handled this gun?
J ACKSON: No, I

don’t have an opinion.
ASA: L et me ask y ou this: Ba sed on the results of your testing, is it possible that the defe ndant could have handled this gun?
MR. W AGNER: Objec tion.
THE COURT: Over

ruled.
J ACKSON: It’s possible.”
When the prosec utor asked if it was “possible,” the expert did say that it was “possible.” But
prac tically any

thing is possible. People v. Morquec ho
, 347 I ll. App. 3d 382, 388-89 (2004) (“Any thing is ‘possible,’ but not ever y thing is ‘proba

ble.’ ”). The defe nse a

tt o r n e y later asked her whether it was possible that a juror could also not be excluded as a potential contributor based on the limit ed six -loci profile. But t h e trial court barr ed her from answe ring that question. I f she had been allowed to answe r, the jury may have understood the absurdity of asking a scientist whether something is “possible.” On cross-e x amination
, s h e wa s asked

-32-“[w]hen the [S ]t ate’ s [A] ttorney asked you if something was possible, you’re a scientist, y ou

don’t dea l in those ty

pes of ter ms, do y ou? ” She agree d. ¶ 149 J ackson testified that 1 in 11 is about 9 %. T h u s , 9 % o f u n re l ated blacks could have possibly contributed to the DNA found on t he gun. On cross-e x amination, J ackson also
ag ree d that, if one assumed a wo rl d population of 6 billion people, then she could not exclude 600 milli on people a s beingpossible contributors. ¶ 150 Des p i t e the expert’s testimony
, the State asked the jury
, at least three differ ent times during its rebuttal closing
, to think about why defe ndant’s “par tial DNA” was found on the
gun. The fir st refe renc e to “[h]i s *** partial DNA ” ca me in the followingpara g raphs: “Oka y

. This gun, they are g oing to say this gun was used in the first shooting, and it was just one incident whe re the guy shot? Well, let’s think about that for a second. Shawn Wooden [ sic ], a Four Corner Hustler,
g ets shot. His b u d

d y’ s p a r tial DNA is on the gun

. That doesn’t make any sense. I f someone shot him with his gun, they would have ha d to reload it.” ( Emphasis added.) ¶ 151 The prose cutor then r eiterated:

“I f this is a gun being used to shoot at Shawn Wooden [ sic ]
, h i s buddy
, why is his partial DNA on i t? ” (Empha sis added.) ¶ 152 Then, for

a third time, the prose cutor obser ved:
“B ut, like my partne r told you, when that gun’s rec overe d, they don’t know it’s g oing to come bac k with a part ial DNA on Seneca Sm ith .” (Empha sis added.) The re buttal closing w as the last ar gument the jury hear d befor e re tiring to de liberate

.

¶ 153 ANALYSI S ¶ 154 On this appea l, defe ndant makes two c laims with respec t to the DNA evide nce. ¶ 155 De fe n d an t cl aim s, first, that his counsel was ineffe ctive for failing to object t o t h e introduction of the DNA evidenc e. Specifica lly
, defe ndant claims that his counsel should have objected on the g rounds that the DNA expert failed to la y a proper foundation for her conclusions and that he r t estimony was more prejudicia l than probative. In the ca se at ba r, the expert’s conclusions wer e that she had no opinion at all about whether defe ndant handled the gun and that hundreds of milli ons of people could have possibly been the one to handle it. For the re as o n s explained below, I find that counsel was ineffe ctive for failing to move to object to the DNA evidenc e on the g round that its probative value–whic h even the State’s expert admitted was l o w–was outweig hed by its potential for prejudice and confusion, as demonstrated by

how it was used, or

misused, duringthe State’s closing

. ¶ 156 Second, defe ndant claims that the State committed misconduct when it stated re peate dly
, and incorre ctly
, during its closing argument that defe ndant’s “par tial DNA” had been found
on a gun rec overe d near

the cr ime scene

. ¶ 157 For the rea sons stated below, I would find, first, that counsel was ineffe ctive for failing
to object to the DNA evidenc e on t h e gro u n d that its very low probative value was outweig hed by its very high potential for confusion and prejudice and, second, that the State

-33-committed misconduct when it repe atedly misstated the expert’s conclusion, or lack there of.

For these re asons, I

would reve rse a

nd g rant a new tria l.

¶ 158 I . DNA I ssues Raised ¶ 159 As a preliminary matter, I must address the fac t that the majority acc uses the dissent of raising a claim not r aised by defe ndant: namely
, that his c ounsel was ineffe ctive for failing
to object to the expert’s testimony once the expert failed to lay an adequate foundation. Supra ¶ 78. Specifica lly
, the majority asser ts that “def

endant does not fault his trial counsel for any fa i l u re t o challenge the admissibili ty of the DNA expert’s testimony based on a lack o f fo u n d ation.” Supra ¶ 74. Simi larly
, the m ajority asser ts that defe ndant does not argue t h at “counse l’s repr esentation was defic ient for failing to move to e x clude the DNA evidenc e.” Supra ¶ 78. ¶ 160 Def

endant’ s claims ar e cl ea rl y l aid out in the heading s of his appellate brief and ar e furth er develope d in the text

. In his heading s, he states that he “wa s denied eff ective assistance of counsel when his counsel *** allowed the introduction of misleading and irrele vant evidenc e.” In a subheading
, defe ndant stated that his counsel “fa iled to object [t o] *** the testimony of the expert DNA analy st when she failed to lay an adequa te foundation for he r conc lusions.” D eveloping these heading s in the body of the brief, defe ndant argued that his counsel should have objected to the expert’s testimony once she stated that “she had

a very low level of DNA” and thus was able to look at only six are as. Def endant argued that “only having six loci is too few to make any useful conclusions.” Def endant asser

ted that counsel “ failed by

not objectingto J ackson’ s testimony
, which resulted in the jury hear ing her unsuppor

ted and pr ejudicial conc lusions.” ¶ 161 In addition to attacking the lack of a foundation, defe ndant’s appellate brief also argued
repe atedly that “Jackson’s testimony was lacking in probative value,” that “Jackson’s testimony was far more prejudicia l than probative” and that her testimony was “objec tively

unrea sonable a

nd prejudice d” def

endant. ¶ 162 Def

endant ended this section of his brief by arguing that: “Given that the evidenc e in this

case was closely balanc ed
, J ac k s o n ’s t estimony could have been what t ipped t he scales of justice in favor of the jury finding Smit h guilty beyond a reas o n ab l e d oubt, and there fore
, S m i t h wa s denied a fair trial when his counsel failed t o object to J ackson’ s testimony .” I n response , the State observe d in its brief that “the issue is admission of an expert’s opinion,” and that the “trial court’s decision conce rning whether evidenc e is rele vant and admissible” is within t he trial c ourt’s discre tion. ¶ 163 Simi lar to his appellate brief, d ef en d an t ’s p o s t trial motion, which was filed by new counsel, had a heading entitled: “Ineff ective Assistance of Counsel–Failure to Object to DNA Evidence .” In this sec tion, de fenda nt a rgued that “the DNA evidenc e introduced was not rele vant, was prejudicia l, was distorted and should have been objected to befor e trial. The failure to do so constitutes the ineffe ctive assistanc e of c ounsel.” ¶ 164 Def

endant’ s briefs to the trial co u rt and on appea l leave littl e question that defe ndant raised the issue that his counsel was ineffe ctive for failing to object to the expert’s testimony

.

-34-¶ 165 I I . Ineff ective A ssistance of Counsel ¶ 166 As the majority observe s, to establish a cla i m o f i n ef fe cti ve assistance of counsel, a defe ndant must prove both (1) defic ient perf ormanc e by counsel and (2) prejudice to defe ndant. People v. Smith
, 195 I ll. 2d at 187-88 (citing Strickland v. W ashington
, 466 U.S. 668, 686-87 (1984) ). ¶ 167 To satisfy the first prong of the Strickland test, a defe ndant must show that his counsel’s perf ormanc e fell below an objective standard of rea sonablene ss, as measure d by preva iling

norms. Smith
, 195 I ll. 2d at 188. In considering wh e th e r c ounsel’s perf ormanc e was defic ient,

a court must indulge a strong presumption that the challeng ed actio n , o r inaction, was the result of sound trial strateg y

. Smith , 195 I ll. 2d at 188. ¶ 168 To satisfy the second prong , a defe ndant must establish a rea sonable probability that, but for counsel’ s d ef

icient perf

ormanc e, the outcome of the proce eding would have been differ ent. Smith
, 195 I ll. 2d at 188 (citing Strickland
, 466 U.S. at 694). A probability rises to the level of

a “r easona

ble proba bility ” whe n it is sufficient to undermine c onfidenc e in the
outcome or the proce eding

. Smith
, 195 I ll. 2d at 188. Counsel’s defic ient perf ormanc e must have rende red either the outcome unreliable ; or the proce eding fundame ntally unfair. Smith
, 195 I ll. 2d at 188.

¶ 169 A. Def icient Perfor

mance ¶ 170 First, defe ndant has shown that counsel’s failure to object to the admission of the DNA evidenc e fell below an objective standard of rea sonabl en ess, as measure d by preva iling

norms. Smith , 195 I ll. 2d at 188. ¶ 171 Our supreme court has held that, even when a particula r ty pe of scientific evidenc e such

as DNA testing has been g ener ally acc epted in the scientific community
, its admissibili ty “in

an individual case will depend on the State’s ability to lay a prope r fo u n d at i on and to demonstrate the qualifications of its witness, subject to the balanc ing of probative value with the risk of unfa ir prejudice .” People v . McKown , 236 I ll. 2d 278, 314 (2010). ¶ 172 Prevailing norms require d counsel to consider whether the State had satisfied its burden
to lay a prope r foundation and whether the probative value of the evidence outweighe d its risk of unfair prejudice

. People v. W atson , 2012 I L App (2d) 091328, ¶ 25 (def ense counsel

was ineffe ctive for failing to probe the statistical meaning of an alleg ed seven- loci “match” ). Cf. People v. W

right
, 2012 I L App (1st) 073106, ¶ 101 (trial court commit t ed p l ai n er ror when it barr ed defe nse counsel from developing evidenc e to contest a claimed nine-loci “match” ). ¶ 173 The need for defe nse counsel to consider the propriety of the foundation and the risk for potential prejudice is particula rly acute when the State is seeking to admit evidenc e of a partial profile. As this court observe d ear lier this y ear , “[t] he dang ers of partial matches have been known for over a deca de.” W right
, 2012 I L App (1st) 073106, ¶ 83. For example, like the ca se at ba

r, the highly publicized Eng lish c ase of Raymond Easton also involved a sixl o ci p ar t i al profile. W

right
, 2012 I L App (1st) 073106, ¶ 83. In 1999, Easton was char g ed with bur g lary afte r his DNA “matched” the DNA f ound at the cr ime scene at only six loci. W right
, 2012 I L App (1st) 073106, ¶ 83. Howeve r, when the police rea liz ed that Easton had

-35-both advanc ed Parkinson’s disease and an alibi, they ran a test at further loci and discovere d

that his DNA did not match at a ll. W right , 2012 I LApp (1st) 073106, ¶ 83. ¶ 174 The overwhelming public confide nce i n DN A evidenc e nece ssitates a cor responding vigilanc e by the defe nse bar. As we previously observe d, DNA evi d en ce is “a ty pe of evidenc e that juries and courts alike find highly persua sive.” W ri ght
, 2012 I L App (1st) 073106, ¶ 9 6

. S ee also In re T.W

. , 402 I ll. App. 3d 981, 992-93 (2010) (finding that DNA evidenc e alone constituted “over whelming ” evidenc e, even when defe ndant looked nothing like the victim’s de scription of the assailant); People v. Johnson
, 389 I ll. App. 3d 618, 619 (2009) (finding that an expert’s t es t imony about a DNA match was “over whelming ” evidenc e). DNA evidenc e has an almost “ ‘my stical aura .’ ” W right
, 2012 I L Ap p (1st) 073106, ¶ 96 (quoting J oel D. L ieber man, et al.
, Gold Versus Platinum: Do Jurors Rec ognize the Superiority and Limitat ions of DNA Evidenc e Compared to Other Type s of Ev idence ?
, 1 4 Psy ch. Pub. Pol. & L

. 27, 33 (2008) (this article was published by the Americ an Psy cholog ical Association and it summarized conclusions from three differ ent studies

conce rning the impact of DNA evidenc e on a jury )). “ ‘Public jurors, on aver ag e, rate d DNA evidenc e as 95% acc urate , and it was rate d as 94% persua sive of a suspect’s guilt.’ ” W right
, 2012 I LApp (1st) 073106, ¶ 96 ( quoting L ieber man, supra , at 52-53). ¶ 175 I n t h e ca s e at b ar, there was simply no strateg ic rea son for failing to object t o t h e admission of this testimony

. The particula r DNA evidenc e at hand had almost no probative 1 value as an identification tool. The State’s expert testified to that fac t when she stated, based

on this evidenc e, she herse lf could offe r no opinion as to whether this defe ndant handled this
gun. ¶ 176 This was not a case wher e there was evidenc e that two individuals had handled a gun and the State’s purpose was to exclude one. H ere , the prosec utor was using t he DNA evidenc e not to exclude but rathe r as a means of identifying defe ndant from the population of the rest of the nei ghborhood. I t was to this attempt that, based on her analy sis of the statistics, the expert found no scientifica lly valid opinion was possible. ¶ 177 L ike J ustice Fr eema n did in People v. Schulz
, 154 I ll. App. 3d 358 (1987), I would find that the expert’s testimony is totally lacking in probative value. In Schulz
, an expert testified that the sem en at i s sue came from a “nonsec retor,” or someone whose blood ty pe is not

T o sup port i t s c o n c l u s ion tha t the fa il ure to obj ect was a m at te r of tr ia l st ra te gy , the 1

m aj ori ty ass er ts tha t, “[ a] cco rdi ng to the re cor d, the Sta te gav e the def ens e the exp er t’ s re por t dur ing dis covery.” Supr a ¶¶ 71, 78. However, the re is not hin g in the re cor d tha t spe ci fi cal ly con fi rms tha t the Sta te pro vided the exp er t’ s re por t dur ing dis covery. On J une 2, 2005
, the pro sec uto r st at ed ora ll y and in ope n cou rt tha t the I ll ino is Sta te Pol ic e had not yet for war ded the DNA re por t to him. T her e is no st at ement on a fur the r cou rt dat e con fi rming tha t the pro sec uti on spe ci fi cal ly pro vided the DNA

re port; and
, as the m aj ori ty obs er ves, the exp er t’ s re por t doe s not app ear in the a ppe ll at e re cor d. Supr a ¶ 78. I n add it i o n , t h e e x p e r t had si nce m oved to Ari zona and ini ti al ly re fus ed to app ear in Chic ago. T he Sta te had to m ove the tr ia l cou rt for a sub poe na as a m at er ia l wit nes s in ord er to sec ure her app ear anc e at tr ia l. T hus
, con tr ary to the m aj ori ty’s ass er ti on, it is not cl ear fr om the re cor d when

or if the DNA exp er t’ s re por t was pro vided to the def ens e. However, the la ck of a re port d oes not barus fr om

dec idi ng the is sue s on app eal , si nce th e e xpe rtte st if ie d f rom herre por t a t t ri al

.
-36-evident in his bodily secr etions. Schulz
, 154 I ll. App. 3d at 363. The expert further testified

that only 20 % o f the g ener al population are nonsecr etors and that defe ndant was a

nonsecr etor. Schulz
, 154 I ll. App. 3d at 363. J ustice Fr eema n held that, since this testimony “demonstrated not h i ng more than that defe ndant could not be excluded,” it “ser ved no rele vant purpose, was totally lacking in probative value, and there by prejudice d defe ndant’s

case .” Schulz
, 154 I ll. App. 3d at 366 (cited with approva l in W right
, 20 1 2 I L App (1st) 073106, ¶ 81). Since a

pproxi mately

half the population is male, the semen in Schulz could have come from only 10% of the g ener al population. This 10% figure–which the Schulz court found to be “totally lacking in probative value”–is almost the same as the 9% figure used in the case at bar. L ike we did in Schulz
, I would find that this testimony lacke d any probative value. ¶ 178 The majority attempts to distinguish the reve rsal in Schulz by arguing that the re maining evidenc e in Schulz was much weaker than the rema ining evidenc e in our case , an d that is what led J ustice Fr eema

n to reve rse. Supra ¶ 77. Actually
, the rema ining evidenc e in Schulz

was much stron ger. In Schulz
, the State’s evidenc e established that, on the night of the murder, defe ndant was hear d and seen arguing and fig hting with the victim, the victim was last seen with defe ndant near the time of her death, and defe ndant admitted to the killing on

sever al occ asions. Schulz , 154 I ll. App. 3d at 373. Also, in Schulz , there was no doubt that a murde r had oc curr ed. Schulz , 154 I ll. App. 3d at 374 (the victim’s body was found). The Schulz court found this evidenc e sufficie nt to prove defe ndant guilty of mur der beyond a

rea sonable doubt, for double jeopar dy purposes. Schulz
, 154 I ll. App. 3d at 362. By contra st, in our ca s e, there was no evidenc e of a motive for defe ndant’s alleg ed, almost suicidal d ecision to open fire on police office rs, and there wer e no admissions by defe ndant to alleg edly shooting at the office rs. In addition, there was a question about whether a crime had

even occur

red. Thus, the rema ining evidenc e in Schulz was much strong er than in our case , and so our c ase pr esents an e ven more compellingcase for r ever sal. ¶ 179 Although the DNA evidenc e had almost no p ro b at i v e v al u e, it had g rea t potential for prejudice and for confusing the jury

. That potential came to actua l fruiti on when the
prosec utor repe atedly

asked the jurors why

“his partial DN A was on it [the gun].” ¶ 180 Thus, I find that defe ndant satisfied the first prong of the Strickland test, namely
, to show that counsel’s pe rfor

mance was de ficient. Smith , 195 I ll. 2d at 188.

¶ 181 B. Pre judice ¶ 182 Second, I find that defe ndant has established a rea sonable p ro b ab i l i t y t h at , but for counsel’s defic ient perf

ormanc e, the outcome of the proce eding would have been differ ent. Smith
, 195 I ll. 2d at 188 (citing Strickland
, 466 U.S. at 694). As stated above, a probability rises to the level of a “re asonable probability” when it is sufficie nt to undermine confide nce in the out come or the proceeding

. Smith
, 195 I ll. 2d at 188. I find that the pre judice in t his

case undermines confide nce in the verdic t. Schulz
, 154 I ll. App. 3d at 366 (a serolog ist’s testimony that defe ndant mere ly “could not be excluded” prejudice d defe ndant’s case and require d reve rsal of his murde r convic tion). ¶ 183 In the case at bar, the trial was essent i al l y a cr ed ibilit y contest between the office rs on

-37-one side and the residents of the neig hborhood on the other. The office rs testified that

defe ndant approa ched their underco v er van, when there wer e other office rs and police vehicles also prese nt on the same block; and then, afte r they identified themselves as police office rs, defe ndant held a gun to an office r’s head. That is pr actica lly suicide, and it almost was. De fenda

nt was shot three times, including in the c hest. ¶ 184 By contra st, the residents testified t h at defe ndant was walking down t he st ree t at nig ht

car rying a dark g ree n soda bottle when t h e o ff i cers chase d him and started shooting. The infere nce is that the office rs wer e nervous afte r the shooting and that they mistook the bottle for a gun. This is a rea sonable infe renc e to dra w. ¶ 185 In light of the other evidenc e, the misuse of the DN A ev i d en ce could have been what tipped the scale s of

justice ag ainst defe ndant. Cf. People v. Safford
, 392 I ll. App. 3d 212, 225 (2009) (“F inge rpr i n t ev i d ence is extremely persua sive. A jury may be so swayed by such evidenc e that strong alibi witnesses have littl e chanc e of being found cre dible ***.”) I ts repe ated misuse duringthe State’s closingis discussed in the section below.

¶ 186 I I I . Prosecutor’ s Closi ng ¶ 187 As stated above, I find that the prosec utor repe atedly misused the DNA evidenc e during the State’s rebuttal closing and that this err or may have tipped the scale s in this closely balanc ed ca se. ¶ 188 I agr ee with the majority that a prosec utor is allowed wide latitu d e du ri n g cl o s i n g argument, and that he or she may draw any fair and rea sonable infere nces that the evidenc e permits. Supra ¶ 47. Where we differ is that the majority finds that the prosec utor’s repe ated

asser tions that t h i s d efe ndant’s partial DNA was found on the gun wer e a rea sonable infere nce ( supra ¶ 51), while I find that these repe ated asser tions wer e inacc urate and completely

misleading

. ¶ 189 As I alre ady discussed above, the expert conclude d that she had no opinion at all about whether defe ndant handled the gun and that hundreds of milli ons of other people could have possibly been the one to handle it. Despite the expert’s u n equivoca l testimony
, the prosec utor misstated the DNA evidenc e not onc e but at least three times. F irst, the prosec utor told the jury : “His *** partial DNA is on the gun.” Then he demande d of the jury : “why is his partial DNA on it? ” Next, he stated ag ain that the gun “c[a]me back with a partial DNA on” defe ndant. ¶ 190 Since, as I explained in the prior sect ion, I find that the evidence was closely balanc ed and that the misuse of the DNA evidenc e could have been the deciding fac tor, I would g rant

a new trial and I

must diss ent. ¶ 191 Deter

renc e is a g oal of our criminal justice sy stem. Howeve r, only acc urate convictions lead to deter

renc e. I f, hy

pothetically
, an entire neig hborhood knows that an innocent man has been convicted, that leads not t o deter renc e but to a what-the -hec k attitude toward committing cr i m e. Due proce ss protec ts not only the defe ndant and the criminal justice
sy stem but it also protects our stree ts. ¶ 192 As a re s u l t , I will keep writing about the dang ers of prosec utors attempting to use, or

-38-m isuse, partial DNA profiles as an identification tool. W right
, 2012 I L App (1st) 0 7 3 1 0 6
, ¶ 83.

-39-