## 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 . Whit e , 2011 IL App (1st) 092852

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. AL AN J. W HI TE and DE MOND CARTER, Def endants-A

ppellants.

District & N o. First District, F ifth Division Docke t Nos. 1-09-2852, 1-10- 0094 cons.

Filed Dec ember 23, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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 endants’ convic t i o n s for first deg ree murder and attempted first deg ree murder arising from a g ang - and drug -re lated shooting wer e aff irmed over their arguments that the trial court abused its discretion in admitting cumulative prior inconsistent statements, that they wer e denied eff ective assistance of counsel by counsel’s failure to reque st instructions

on self-de fense and second degr ee m urder and their failure to move for

a mistrial when a witness testified that a detec tive claimed one defe ndant had “beat so many murders,” that the trial judge sug g ested the jury would need litt le t ime to rea ch a verdic t, and that t h ei r ri gh t to a jury trial was violated when their sentenc es wer e enhanc ed based on the possession of a fire arm.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 07-CR-5385 (02); the Hon. Stanley

J . Sacks, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and David T. Har ris, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant Alan J. W hite.

J ennife r L . Bla g g , of Chicag o, for a ppellant Demond Car

ter.

Anita M. Alvare z, State’s Attorney
, of Chic ago (Alan J

. Spellberg
, Michelle Katz, and Christine C o o k
, Assistant State’s Attorney s, of counsel), f

or the People.

Panel PRES I DI NG J USTI CE EPSTEI

N deliv ere d the judgme nt of the court, with opinion.
J ustices J . Gordon a

nd Howse c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Following a jury trial, defe ndants Alan Whit e and Demond Carter wer e convicted of first deg ree murder and attempted first deg ree murder. On appea l, Carter and Whit e argue that (1) the trial court abused its discretion by admitting cumulative prior inconsistent statements and by sending copies of these st atements back to the jury ; (2) they wer e denied eff ective assistance of counsel beca use their t ri al counsel failed to reque st jury instructions on selfdefe nse an d s econd deg ree murder; (3) they wer e denied eff ective assistance of counsel beca use t h ei r t ri al counsel failed to move to strike or move for a mistrial when a witness testified that one of

the detec tives claimed that Carter had “beat so many murders” ; (4) the trial judge committed reve rsible err or when, throug h his comments at trial, he sug g ested that the jury should need littl e time to rea ch a verdic t; and (5) the trial court violated defe ndants’ rig ht to a jury trial when it enhanc ed their sentenc es by 15 y ear s based on the possession of

a firea rm. Additionally
, Carter separ ately argues that he was denied his rig ht to conflict-f ree counsel beca

use his tria l c ounsel repr esente d a potential State witness. For the rea sons that follow, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 Def

endants Alan Whit e and Demond Carter we re char g ed with first deg ree murder of Chester Alexander and attempted first degree murder of Der rick Nelson in connec tion with

a shooting on J uly 6, 2006. Carter and Whit e wer e repr esente d by separ ate counsel and wer e tried jointly

befor e the same jury

.

¶ 4 I . Trial Te stimony of Oc curr ence Wit nesses ¶ 5 During the trial, t h e S t at e p re s en t ed t h e t est imony of eig ht occur renc e witnesses:

-2-L arma rius Br ooks, Der

rick Nelson, Davon Turner
, Ger emy J ohns, Charles Henderson, Ty rone Thomas, Michae l Pitchford, and Shukeyina Godfre y

. Although sever al of these witnesses provided prior statements identify ing Carter
, Whit e, or both as the shooters, at trial all the witnesses testified that they did not see who fir ed shots.

¶ 6 A. Eve nts Leading up to t he Shootings ¶ 7 L amar ius Br ooks, known as “B obo,” sold drug s on the eveni n g o f J uly 6, 2006, at the

corne r of Wil cox and Kee ler in Chicag o. Br ooks belong ed to the Trave ling Vice L ords g ang , though he was selling drug s on a corne r controlled by the Four Corner Hustlers. Carter and Whit e pulled up to the corne r in a car

. The jury hear d testimony that Carter and Whit e wer e members of the Gang ster Disciples and Four Corner Hustlers g ang s, althoug h the testimony did not specify who belong ed to which g ang

. Carter g ot out of the car and asked Br ooks for “roc ks,” or coca ine. Br ooks g ave Carter the coca ine, but Carter did not pay and instead told Br ooks to “g et the fuck on,” which meant g et off the corne r. Br ooks argued with Carter and Whit e and then walked toward the house at 4231 West Wil cox, wher e Br ooks’ g irlfriend, ReRe, lived with her mother . Carter followed B rooks, who told Carter to return the dr

ug s. ¶ 8 Carter then snapped his f inge rs and Whit e hit B rooks over the head with a heavy metal object. Br ooks ran into Re-Re’s house to g et a towel for his bleeding head. Carter and Whit e went to a por ch ac ross the stree t that was a f ew house s down from Re- Re’s house. ¶ 9 Whil e in the hous e, Brooks called a fello w m ember of t he Traveling Vice L ords g ang , Chester Alexander. Br ooks was ang ry beca use he had lost money and was injured. The jury hear d testimony that Br ooks was “running his mouth, steady talking, talking about wait until his man come pull up,” ref err ing to Alexander. Alexander arr ived in a Rang e Rover, picked
up Br ooks, and drove to a g as station at L ara

mie and J ackson. En route, Alexander made a phone ca ll and asked se vera l “ g uy s” to me et there . At the g as station they met six or seve n other men, including Charles Hende rson. Br ooks, Alexander, Hende rson, and fi v e or six other men then drove to Kee ler and Wil cox. As to the rea sons for the g roup’s return, Hende rson testified that it wa s Alexander who eventua lly decide d to g o over to Kee ler and Wil cox and “see what’s g oing on.” Hende rson elabor ated that the g roup went to back to the

are a t o “[ d ] u k e i t out” and “do whateve r,” but when asked if he was “g oing to fig ht it out somehow, one way or another
, fists, whateve r it was g oing to be,” Hende rson replied, “Just fists.” ¶ 10 When B rooks and Alexander returne d to the are a, Carter and Whit e wer e still there , on the porch acr oss the s t re et and a few houses down from Re-Re’s house. Der rick Nelson, Ger emy J ohns, Davon Turner
, and Ty rone Thomas wer e near Re-Re’s house when Br ooks and Alexander returne d. Michae l Pitchford was also in the are a. Br ooks an d Al ex ander testified that upon returning to Kee ler and Wil cox, they did not car ry or fire wea

pons, nor did
any one in their g roup.

¶ 11 B. The Shootings ¶ 12 Sometime afte r Alexander and Br ooks returne d to Kee ler and Wil cox, shots rang out. A s the shots beg an, a crow d of people rushed into Re-Re’s house. Nelson tried to enter with the

-3-crow d, but he was shot onc e in the back. Shukeyina Godfre y , who was also in the are a, ran

eastbound on Wil cox toward Kee ler and saw Alexander at the corne r. Godfre y saw a white

van d ri v i n g along W ilcox turn onto Kee ler, and as she continued running, she hear d more g unshots from the are a on Kee ler that she had just passed. Alexander was found wounded in the g rass at 142 S. Keeler and subseque ntly

died from his injuries. His autopsy reve aled four gunshot wounds. ¶ 13 All witnesses testified that they did not see who fired shots. For example, J ohns testified that he hear d “a lot of differ ent shots coming from differ ent place s” and that the shots wer e “coming from ever

y wher e *** from acr oss the street, down the street.” Turner testified that the shots were “comingfrom the opposite side of the stree t, but from g ang way s.”

¶ 14 I I . Prior I nconsistent Statements and Claims of Coercion a nd I ntox ication ¶ 15 After all eig ht occur renc e witnesses testified that they did not see the shooters, the State confr onted all witnesses, ex cept Godfrey
, with prior inconsist ent statements identify ing or otherwise implicating Whit e or Carter as the shooters. When the witnesses denied their prior inconsistent statements, the State introduced, throug h the testimony of several assistant State’s At t orney s, both a written statement and g rand jury testimony for six occur renc e witnesses and a written statement for Pitchford. The jury also hear d te s ti mo ny from Detec tive Dan Ga llag her a s to the identification of defe ndants in photo arra y s and lineups by

sever al witnesses. ¶ 16 As detailed below, sever al witnesses testified that they wer e coer ced to make statements

or identifications by Detec tive Gallag her. Gallag h er d en i ed all acc usations of threats and

co ercion and that he identified Carter and Whit e to the witnesses. All assistant Sta t e’ s Attorney s testif

i ed t h at the witnesses provided statements voluntarily
, never claimed they

wer e coer ced or threatened by police, and wer e not under the influence of drug s or alcohol.

¶ 17 A. Brooks ¶ 18 I n Br ooks’ prior written statement, he stated that he saw Carter g o to a porch acr oss the
street afte r he g ave Carter drug s, and he saw a d ar k -s k i nned black male in a white T-shirt shooting fr om the g round leve l near the porc h. Br ooks g ave similar testimony to the g rand jury

. Br ooks acknow ledg ed at trial that he previously gav e a statement and g rand jury testimony
, but denied saying that he saw a dark- skinned black man shooting toward him from ac ross the stree t.

¶ 19 B. Nelson ¶ 20 Nelson’s prior statements i ncluded that he saw Car ter a nd Whit e on a por ch across t he
street afte r the argument with Brooks. H e then sa w people shooting from that porch. I n his written statement, he identified “a black g uy” shooting from the porch, but when asked during his grand jury testimony if the shooter “mig ht ha ve been” Whit e, Nelson responde d “Ye s.” Nelson stated t hat he saw a wh i t e m i nivan driven by a black fema le s topped i n the street, Carter and Whit e jumped in the van, and the van then heade d toward Kee ler. Nelson

-4-identified Carter in a photo arr ay and in a lineup as someone he saw argue with Br ooks and

later enter a white minivan. He identified Whit e in a photo arr ay as the person who hit Br ooks, and he identified Whit e in a lineup as a person who enter ed a white minivan during the shooting. At trial, Nelson denied portions of his statement reg arding Carter ’s and Whit e’s
prese nce on the porch acr oss the street or in the van, and he denied telling the g rand jury that W h i t e was one of the shooters. Nelson also testified that Gallag her coer ced him into implicating the defe ndants in his prior statements and that when Nelson identified someone other than de fenda

nts in the phy sical lineups, Gallag her had him c hoose Carter and White.

¶ 21 C. Turner ¶ 22 I n his prior statements, Turner stated that he saw Carter “on the porch walking down the stairs shoo t i n g a gun” toward “eve ry one outside of Re-Re’s.” Turner also saw Whit e “standing by a g ate on g round level near the porch” wher e Carter stood a nd shooting a g un in Turner ’s direc tion. Turner identified Carter in a photo arr ay as the shooter from the porch, and he ident i fi ed W h i t e in a photo arr ay as the shooter from the g ate. At trial, Turner acknow ledg ed his prior statements, but denied identify ing the shooters. Turner
, who was on home confine ment, testified that police took him from his home in handcuf fs and kept him until after his statement.

¶ 23 D. Johns ¶ 24 Acc ording to J ohns’ prior statements, Carter came down from the por ch shooting with

a gu n and Whit e fired a g un by a fenc e near the house wher e Carter was standing

. J ohns identified Carter in a photo array an d l i n eu p as the shooter from the porch, and J ohns identified W hite in a photo arr ay as t he person who hit Bobo. At trial, J ohns stated t hat he did not rec all his statements identifying Whit e and Carter as t h e s h ooters, but he acknow ledg ed speaking to the police and the g rand jury

. J ohns further testified that Detec tive Gallag her told him whom to identify in the photo arr ay s and that Gallag her hara ssed him and threatened to say

he violated his probation to induce to him si g n his written statement.

¶ 25 E. Hende rson ¶ 26 I n his prior statements, Hende rson stated that Carter shot towa rd Re-Re’s house from a porch acr oss the street. Hende rson identified Carter as the shooter from the porch in a photo

arr ay and lineup. At trial, Hende rson testified that he did not rec all viewing lineups or photo

arr ay s or making the written statement or testify ing before t h e grand jury
, though he later

rec alled a p ortion of his g rand jury testimony

. Hende rson explained that he is high “eve ry day” on various drugs and alcohol, and when asked if he remembere d meeting with an assist ant S tate’s Att o rney to g ive a written st atement, he responde d “I don’t reme mber. Ido a lot of drug s.”

¶ 27 F. Thomas ¶ 28 Thomas said in his prior statements that Carter shot toward Re-Re’s house from a porch

-5-acr oss the street. Thomas identified Carter as the shooter from the porch in a photo arr ay and

lineup. Thomas identified Whit e in a photo arr ay and lineup as the person who hit Bobo and

as the person who enter ed a white minivan dur ing the shooting. Thomas acknow ledg ed his prior statements, but did not rec all his statements about the shooters. He testi fi ed that Gallag her hara ssed him by coming to his house sever al times and bang ing on the doors and that Gallag her told him what to say in the written statement and whom to i dentify in the lineup.

¶ 29 G. Pitchford ¶ 30 I n his prior written stateme nt, Pit chfor d stated that he sa w “a Rang e R over pull up and
g uy s g et out,” and that Carter was on th e porch of a house “ar ound 4242 West Wil cox.” Pitchford further stated that he saw a van driven by a woman named Nesha
, whom Pitchford identified as Carter ’s g irlfriend. He saw “two other people in the seats behind the driver seat” that he did not see them clear ly . Pitchford testified at tria l that when he w as broug ht to the police station, he was in possession of heroin, and Detec tive Gallag her told him he could g o fre e if he signe d a stateme nt. Pit chfor d said that he sig ned the state ment without reading it and then lef

t without being c harg ed for the her oin.

¶ 31 I I I . Ex pert Te stimony ¶ 32 The S tate also called D etective J ohn Rawski as a g ang expert. He testified that around the time of the incident, the Br ick Yar d Four s, a subs ec t of the Four Corner Hustlers,

co n t ro lled drug sales around the 4200 block of West Wil cox. Rawski testified that if a member of a differ ent g ang tried to sell drug s there without approva l, he would be confr onted and tol d to leave

. Rawski testified t h at it is more li kely that a gang would use a y oung kid without a g un to sell in rival territory
, though he testified that it is not unusual for g ang members eng ag ed in drug sales to car ry wea pons. Rawski testified that if the seller
encounte red trouble, he would call his “influenc e,” and Rawski would expect that the people who come to a ssist would be armed.

¶ 33 I V. Fir ear ms Evidence ¶ 34 Fo re n s i c i n v est igators rec overe d a total of 23 fired car tridg e case s from the scene on West Wil cox, wher e Nelson was shot, and from the scene near 142 South Ke el er , where Alexander was found. Bullet fra g ments wer e also rec overe d fr o m t h e scene and from the body of C hester Alexander. Two State f irea rms experts testified that the incident invol ved the use of at least three g uns, and one testified that there could have been as many as seven g uns used. The jury al s o h ear d testimony reg arding the execution of a sear ch war rant on J anuar y 8, 2007 on an apar

tment at 4248 West L e Moy ne. The police encounte red Montrell Knig ht, a Gang ster Disciple. T hey rec overe d nine g uns, including a firea rm commonly known as a

n AK-47 a

nd an automatic ha

ndg un, both of which we re use d in the offe nse.

-6-¶ 35 V. Conviction and Sentencing

¶ 36 Def

endants wer e both found g uilty of the first deg ree murder of Chester Alexander a nd the att em pted first deg ree murder of Der rick Nelson. Whit e was sentenc ed to 50 y ear s for first deg ree murder, including a 15-y ear sentenc ing enhanc ement for possessing a fire arm, and a co n s ecutive 10-y ear sentenc e on the conviction for attempted first deg ree murder. Carter was sentenc ed to 55 y ear s for first degree murder, also including a 15-year sentenc ing enhanc ement for possessing a firea rm, and a consec utive 15-y ear sentenc e for attempted first deg ree murder.

¶ 37 ANALYSI S ¶ 38 I . Prior I nconsistent Statements ¶ 39 Def

endants first argue that the trial court abused its discr etion by admitting cumulative prior inconsistent statements of s i x witnesses beca use the repe titive prior statements wer e

more prejudicia l than probative. They next argue that when one prior inconsistent statement

was substantively admitted for eac h witness, the rule barr ing prior cons i s tent statements preve nted admission of any other inconsistent statements that wer e consistent with the first. Def endants additionally contend that the court committed reve rsible err or by sending copies of all prior inconsistent statements back to the jury during deliberations. We ad d ress eac h
argument in turn.

¶ 40 A. Evidenc e MorePrejudicial Than Probative ¶ 41 As to the admission of prior inconsistent statements as evidenc e, defe ndants conce de that they forf eited revie w of this issue, but challeng e these err ors under the plain-er ror rule, which “by passes normal forf

eiture principles and allows a revie wing court to consider unprese rved claims of err or in specific circ umstances.” People v. Thompson
, 238 I ll. 2d 598, 613 (2010). A re viewing court will only apply the plain-e rror

doctrine when
“ ‘(1) a clea

r or obvious err or occ urre d and the e vidence is so closely balanc ed that the err or alone threatened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousne ss of the er

ror, or (2) a clea r or obvious err or occ urre d and that er ror is so serious t h at i t aff

ecte d the fairness of the defendant’s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the closene ss of the evidenc e.’ ” Id. (quoting People v. Piatkowski , 225 I ll. 2d 551, 565 (2007)).
“In plain-er

ror r eview, the burden of

persua sion rests with the defe ndant.” Id. ¶ 42 The first step in applying t h e p l ai n -e rr o r d o ctrine is to deter mine whether any

err or

occur red at all. Id. The admission of evidenc e lies within the discretion of the trial court, and

we r eview the trial court’ s decision to admit evidence for a n abuse of

discretion. People v

. Bec ker
, 239 I ll. 2d 215, 234 (2010). “An abuse of discre tion occur s wher e the trial court’s decision is arbitra

ry , fanc iful or unrea sonable [citation] or wher e no rea sonable person would
ag ree with the position adopted by the trial cour

t [ citations].” Id. ¶ 43 At trial, sever al witnesses called by the State testified that they did not see the shooters. For six of these w itnesses, the State introduced the witnesses’ prior written statements and

-7-g rand jury testimony
, which g ener ally identified Carter and Whit e as the shooters. Carter and

Whit e concede that the prior written st atements and g rand jury testimony qualify as “prior inconsistent statements” and are otherwise admissible as substantive evidenc e under section 115-10.1 of the C ode of Criminal Procedur e of 1963 (725 I L CS 5/115-10.1 (West 2006)). Def endants contend, howeve r, that beca use the prior inconsistent s t at em en t s wer e mere ly
repe titive, their prejudicial e ffe ct substantially outweig hed their pr obative value

. ¶ 44 “Evidenc e is considere d cumulative when it adds nothing to what was alre ady befor e the jury .” See People v . Ortiz , 235 I ll. 2d 319, 335 (2009). At the outset, we a cknowledg e that all parties should ref

rain from “nee dless repe tition of a witness’s prior inconsistent statements.” People v. Fields
, 285 I ll. App. 3d 1020, 1028 (1996). I n the instant case , howeve r, pre sentation of the g rand jury testimony was not mere ly cumulative of what was alre ady befor e the jury

. Rather, wee ks or mon t h s af ter providing a written statement to assistant State’s Attorney s in the prese nce of Detec tive Gallag her, the witnesses provided
separ ate testimony
, under oath, to the g rand jury

. We are mindful that the jury had to assess not only witness cre dibilit y , b u t als o the witnesses’ claims of coer cion and intox ication. Ultimately
, in light of all the previous inconsistent statements and testimony at trial, the jury had to assess the claims of these witnesses as to what happene d at Kee ler a nd Wil cox. W e do not ag ree with defe ndants that prese ntation of the g rand jury testimony added nothing to what wa s alrea dy

befor e the jury

. ¶ 45 Even if we wer e to char acte rize the second inconsistent s t at em en t fo r eac h witness as

unnece ssarily repe titive, the defe ndants have not cited any case wher e a court has found that the prejudicial eff

ect of a s u b s tantively admitted prior inconsist ent s tatement subst antially outweig hed its probative value mere ly beca use it was repe titive of a previously admitted
p rior statement. I n fac t, this court has found that even when the State prese nted a p ri o r inconsistent statement that was “unnec essar ily repe titive” of another
, the repe tition did not rise to the leve l of prejudice . See Fields , 285 I ll. App. 3d at 1028. ¶ 46 Def

endants rely on People v. Bedoy a , 325 I ll. App. 3d 926 (2001), b u t t h e p rejudice found in that case –stemming from the admission of inflammatory other crimes evidenc e–is
prec isely what is lacking here

. I n Bedoy a , t h e court found that the trial court err ed in admitting evidenc e that the defe ndant fire d s h o t s at Cardinal Be rnadin’s residenc e, and
repe tition of the evidence simply enhanc ed the prejudicia l eff ect. Bedoy a , 325 I ll. App. 3d
at 938-41. The Bedoy a court did not find pre j u d i ce s imply by the repe tition of otherwise unobjectionable evidenc e. Where the only prejudice defe ndants identify from admitting the second prior inconsistent statement is the “pre judice of repe tition,” we find no err or in admitting the pr ior inconsistent statements in the prese nt case

. ¶ 47 We note that in an attempt to draw analogy t o B edo ya , defe ndants arg

ue in a sing le

s en tence that the “sig nificant portions of these prior statements focuse d on the uncharged crime of stealing narc otics from Bobo and pistol-w h ip p in g h im

. ” D e f

e n dants do not elabor ate

on how evidenc e of the narc otics sale and “pistol-whipping” constitutes inadmissible other crimes evidenc e. We ag ree with the State that the evide nce was part of the set of circ umstances as the char g ed murder and attemp t ed murder and is not proper ly viewed as other crimes evidenc e. See, e.g. , People v. Figueroa
, 341 I ll. App. 3d 665, 671 (2003) (“The

case s are uniform that althoug h other-c rimes evidenc e is inadmissable to establish a

-8-defe ndant’s propensity to c ommit cr imes, it may be admissible for other rea sons. H ere , the

testimony as to other crimes touches upon the fac ts leading up t o t h e co m mission of the crime f or which he was c harg ed as w ell as evide nce of his intent and motive.”).

¶ 48 B. Rule Against Prior Consistent Statements ¶ 49 Carter and Whit e next a r g u e th a t th e “ r e p e ti tive ” prior inconsistent statements also should have been barr ed as a prior consistent statement. Dra wing o n the g ener al rule prohibiting introduction of prior consistent statements, de f e n d a nts claim that once the court admitted one prior inconsistent statement, the court was prohibited from admitting a second inconsistent
statement that was consistent wi t h the first. As defe ndants acknow ledg e, this court has reje cted the same argument in prior case s. People v. Santiago
, 409 I ll. App. 3d 927 (2011); People v. Perry
, 2011 I L App (1st) 0812282; People v. Maldonado
, 398 I ll. App. 3d 401, 423 (2010); People v. John s o n , 385 I ll. App. 3d 585, 608 (2008). Whil e we ag ree with this court’s uniform re

j ec t i o n of the defe ndants’ argument, we write further to addre ss the defe ndants’ claim that the court’s decisions “denig rate the rea soning behind the rule ag ainst prior consistent stateme nts.” ¶ 50 Def

endants rely on the “long -established evidentiar y rule aga i n s t admission of a prior consistent statement, unless there has been a ch ar ge o f rec ent fabr ication or a motive to testify falsely .” Johnson , 385 I ll. App. 3d at 608 (citing People v. Emerson
, 97 I ll. 2d 487, 501 (1983))

. Whil e defe ndants acknow ledg e that courts g ener ally bar introduction of out-ofcourt statements that are consistent with trial testimony
, defe ndants claim that once an outof-c ourt statement is admitted as substantive evidenc e under section 115-10.1, i t i s no differ ent than in-court testimony

. Acc ording to defe ndants, it follows that we should cre ate

a brig ht-line rule prohibiting admission of any prior inconsistent statement under section 1 1 5 -1 0

. 1, wher e that statement is consistent with a witness’s previously admitted pri o r inconsistent statement. ¶ 51 We rec og nize that there is an inher ent tension betwee n the admission of multipl e prior inconsistent statements as substantive evidenc e under section 115-10.1 and the rule barr ing admission of prior statements that bolster trial testimony

. We do not ag ree with defe ndants, howeve r, that the rule barr ing prior consistent statements, or its “under ly ing rationale ,” can

so easily be gra fted onto the rules allowing for admission of prior inconsistent statements. Courts have long rec og nized a bar ag ainst prior consistent s tatements, with limit ed exceptions, beca

use these statements serve no purpose other than to bolster trial testimony

. See People v. McW

hite
, 399 I ll. App. 3d 637, 641 (2010) (“G ener ally
, statements made prior
to trial are inadmissible for the purpose of corr oborating trial testimony or rehabil i t ati ng a witness. [C itations.] This is beca use the trier of fac t is likely to unfairly enhanc e a witness’s

cre dibilit y s i m ply beca

use the statement has been repe ated.” ). Even under the limit ed except i o ns when prior consistent statements are admissible, they cannot be considere d as substantive evidenc e. See id. ; People v. W illiams
, 147 I ll. 2d 173, 227 (1991) (“[P] rior consistent statements are admissible to rebut a char g e or infere nce that the witness is motivated to te stify

falsely or that his te stimony is of rec ent fabr ication, and such evidenc e is admissible to show that he tol d the s ame story befor e the motive came into exis tence or

-9-befor e the time of the alleg ed fa brication.”). ¶ 52 P ri o r i n co n s i s t en t s t at em en t s s t an d on very differ ent evidentiar y g round. P ri o r inconsistent statements are a vital tool to challeng e witness cre dibilit y by contra dicting and discrediting trial testimony

. See, e.g. , People v. Smith
, 391 I ll. 172, 176 (1945) (“It is alway s competent to show that a witness, even though he be the defe ndant, has made a statement at another time inconsistent with his testimony on the witness stand.”). More important to this analy sis, if a prior inconsistent statement meets basic require ments of reliability under section 115-10.1, either party in a cr i m i n al case may introduce the prior inconsistent
statement as substantive evidenc e. See People v. Santiago
, 409 I ll. App. 3d 927, 932-33 (2011) (“We are cer

tain that if the defe ndant had available to him multipl e prior inconsistent
statements of a prosec ution witness, he would s ee k to introduce eac h and ever y one and would do so proper ly .”). Section 115-10.1 is m ea n t t o advanc e the leg islature’s g oal of “pre vent[ing] a ‘turncoat witness’ from mere ly denying an ea rlier statement when that
statement was made under circ umstances indicating it was l i k el y to be true.” People v. Thomas , 354 I ll. App. 3d 868, 882 (2004). ¶ 53 Thus, while courts have found littl e value in a prior consistent statement apar t from the impermissi b l e bolstering of trial testimony
, the leg islature has rec og nized that a prior i n consistent statement not only serve s to discredit trial testimony
, but may s er v e as substantive evidenc e if it meets the require ments of section 115-10.1

. Whil e a blanket prohibition (with limit ed exceptions) makes sense for prior consistent statements, applying that same g ener al bar to inconsistent stat em en t s t h at are consistent with eac h other would frustrate the leg islature’s g oal of d is c o u r a g in g rec anting witnesses. See Thomas
, 354 I ll. App. 3d at 882. A wit ness could be questioned as t o prior i n co n s istent statements, but afte r one is admitted as substantive evidenc e, the witness would be fre e to deny other prior statements without a risk that those statements would be admitted as substantive evidenc e. We conclude that the underlying rationale for the rule ag ainst prior consistent statements does not justify obstructing the operation of section 115-10.1. Cf. People v. Moss
, 275 I ll. App. 3d 748, 756 (1995) (“Sec tion 115-10 contains no limit ation on the number of witnesses who may testify

. We will not limit the corr oborating complaint testimony to one witness.”). We decline to

cre ate a new evidentiar

y rule limit ing the number of inconsistent statements admitted under section 115-10.1. ¶ 54 Finally
, we note that just beca use a j u ry ca n consider a witness’s prior inconsistent
statements as substantive evidenc e under section 115-10.1, this does not mean that the door is f lung open to admit prior inconsistent statements “without limit ,” as defe ndants sug g est. The trial judge may “exerc ise discretion to limit the number of such statements that may be introduced.” Santiago
, 409 I ll. App. 3d at 933 (noting that a party may fil e a m otion in limine
, asking the judge to limit the number of statements based on their potential prejudicia l value)

. No such motion wa s made here
, and while defe ndants have not shown that the trial
court abused i t s d i s cretion in admitting the prior inconsistent statements in this particula r

case , this does not mean that the number of prior inconsistent s t atements that may be admitted under section 115-10.1 is limit less. I n the case at bar, howeve r, we find no err or in the admission of the prior inconsistent statements. “Having found no err or, there can be no plain err or.” People v . Bannister , 232 I ll. 2d 52, 79 (2008).

-10-¶ 55 Def endants also argue that they wer e denied eff ective assistance of counsel beca use their trial attorney s failed to object to the admission of the prior inconsistent statements. The rig ht
to counsel g uara

nteed by both the United States and I llinois Constit utions includes the rig ht
to eff ective assistance of counsel. U.S. Const., amends. VI
, XI V; I ll. Const. 1970, art. I
, § 8; Strickland v. W

ashington
, 466 U.S. 668 (1984). To preva il on a claim of inef fec tive assistance of counsel, “[a] defe ndant must show that counsel’s perf ormance fe l l below an objective standa

rd of rea sonablene ss and that there is a rea sonable proba bility that, but for counsel’s unprofe ssional err ors, the resu l t o f the proce eding would have been differ ent.” People v. Manning , 241 I ll. 2d 319, 326 (2011) (citing Strickland
, 466 U.S. at 688)

. Under the first prong of the familiar Strickland test, a defe ndant must show that his trial counsel’s perf ormanc e wa s deficie nt: “ ‘[A] defe ndant must show that h i s counsel’s perf ormanc e was so inadequate that counsel was not functioning as the “counse l” g uara nteed by the six th amendment. Counsel’s perf

ormanc e is m ea s u re d by an objective standard of competenc e under
preva iling prof

essional norms. Fur

ther, in orde r to establish defic ient perf ormanc e, the defe ndant must overc ome the strong presumption that the challeng ed action or inaction
may have b een the product of sound trial strateg y

. [C itations.] Matters of trial strateg y

are g ener ally immune from claims of ineffe ctive assistance of counsel. [C itation.] ’ ” Id. at 326-27 (quoting People v . Smith , 195 I ll. 2d 179, 188 (2000)). Under the second “ prejudice ” prong , “a de fenda nt must show a rea sonable probability that the re sult of the proce eding would have be en diffe rent.” Id. at 327. ¶ 56 As we find no err or in the admissio n o f t h e gra n d j u ry t es timony for eac h of the wi tnesses, we thus conclude that counsel was not defic ient for failing to object to i t s admission. See People v. Evans
, 209 I ll. 2d 194, 222 (2004) (fin d i n g that wher e the admission of testimony was not err or, “counse l was not defic ient for failing to object”)

. We there fore conclude that defe ndants’ inef fec tive assistance claim fa ils.

¶ 57 C. Sending Prior Statements Back to the Jury ¶ 58 As to the court sending the statements back to the jury
, Whit e prese nts a challeng e under
t h e closely balanc ed prong of the plain-er ror doctrine and argues that his counsel wa s ineffe ctive for failing to object

. Carter
, whose attorney objected to sending the statements back to the jury and raised the issue in a posttrial motion, argues that sending the statements back to the jur

y was a n abuse of

discretion and c onstitut es re versible e rror

. ¶ 59 “The decision wh et h er to allow jurors to take exhibi ts into the jury room is left to the sound discretion of the trial court.” People v. McD onald
, 329 I ll. App. 3d 938, 947 (2002). The court “will not reve rse that decision unless there is an ab u s e o f d i scre tion to the prejudice of the defe ndant.” Id. at 948; see al s o P eo ple v. W illiams
, 97 I ll. 2d 252, 292 (1983). The sole complaint raised by both defe ndants is that the trial court favor ed the State’s theory of the case by including copies of the handwr itten statements and g rand jury testimony
among the exhibit s sent back to the jur y . We disag ree

. ¶ 60 Contrary to defe ndants’ claims, the trial court did not send selec ted piece s of the evidenc e to the jury that fa v o red the State’s case

. Rather, the trial court conclude d that the written

-11-statements an d gra n d jury testimony admitted as substantive evidenc e wer e helpful to the

jury ’s deliberations, wher e the jury was asked to assess the cre dibilit y of the witnesses, along with all of the evidenc e reg arding identification of the shooters. As the trial court explained in ruling on Carte r’ s m o t i o n for a new trial, “it’s pretty hard for the jurors to fig ure out without a statement back th er e wh at he saw and what he didn’t see and when he saw and when he didn’t see.” ¶ 61 This court has rec og nized that “[i] n view of th e co n t ra d ictions betwee n [a witness’s]
statement and his trial tes t i m o n y , i t is understanda ble that a jury would find it valuable to revie w the same.” Peo

p l e v. Lee
, 243 I ll. App. 3d 1038, 1044 (1993). I n Lee
, wher e defe ndant argued that sending a witness’s written statement to the jury “over emphasized the statement and encoura g ed the jury to reje ct hi s self-de fense arg ument,” the a

ppellate c ourt found that “[t] he jury was instructed to weig h all of the evidenc e” and the trial court did not abuse its discr etion in a llowing the jur y to reviewthe written statement. Id. Simi larly
, here

we find no abuse of discretion wher e the trial court made the substantively admitted written statements and g rand jury transcr ipts available for

revie w. ¶ 62 We also do not ag ree that the mere act of sending the written statements and tra nscripts back to the jury “plac ed a judicial stamp of approva l” on the statements’ content, to the detriment of the witnesses’ live testimo n y

. W h i le the jury was able to observe the trial testimony of the witnesses, the jury did not observe the g rand jury testimony or examine the handwr itten statements. See People v. Modrowski
, 296 I ll. App. 3d 735, 748 (1998) (finding

no err or in the trial court’s ruling allowing the jury to revie w a reda cted copy of a witness’s
g rand jury testimony that was rec eived as substantive evidenc e, wher e the tria l c o u r t r e a soned that “bec ause the jurors had lacke d the opportunity to observe [t he witness] befor e the g rand jury , the jurors ha d no rec ollection of that testimony upon which to re ly ”). We note that as to ever y prior inconsist en t s t at ement, the jury was specific ally instructed to “dete rmine whether the wit ness m ade the ear lier st atement, and, if so, what weight should be given to that statement *** consider[ing ] all of the circ umstances under which it was made.” We find no abuse of

discretion in allowingthe jury to reviewthese stateme nts. ¶ 63 Having found no err or, we find no support for Ca rt er ’s cl ai m fo r a new trial or for Whit e’s plain-er

ror claim. As to Whit e’s ineffe ctive assistance claim, the trial court did not

err by sending the statements back to the jury
, and Whit e’s counsel was there fore not defic ient for failing to object. S ee Evans
, 209 I ll. 2d at 222. Whit e’s ineffec tive assistance claim fa ils.

¶ 64 I I . Fa ilure to Request Self-D efe nse and Sec ond Deg ree Murder I nstructions ¶ 65 Def

endants nex t argue that their attorney s at t rial were deficient because t h ey failed to
reque st jury instructions on self-de fense and second deg ree murder. While def endants fac e

a strong presumption that their attorney s’ decision may have been the product of sound trial strateg y ( Manning
, 241 I ll. 2d at 328), defe ndants claim that the decision not to reque st the instruction on self-de fense or second deg ree murder cannot be deeme d trial strategy beca use t h ei r attorney s actua lly argued self-de fense to the jury

. This court has held that “[w ] h er e defe nse counsel argues a theory of defe nse but then fails to offe r an instruction on that theory

-12-of defe nse, the failure cannot be called trial strategy and is evidenc e of ineffe ctive assistance

of counsel.” People v. Serrano
, 286 I ll. App. 3d 485, 492 (1997) (citing People v. Lewis
, 240 I ll. App. 3d 463, 467 (1992)) ; see also People v. Chandler
, 129 I ll. 2d 233, 248 (1989). The initial question befor e us, then, is whether defe nse counse l argued self- defe nse to the j ury

. We find no support in the rec ord for defe ndants’ cla im. ¶ 66 I n the case at bar, the theory of defe nse was that the State had failed to pr esent c redible evidenc e that the defendants were the shooters and thus had failed to prove guilt bey ond a

rea sonable doubt. I n support of this theory
, counsel for Whit e argued that the jury could not rely on the incre dible testimony of “c onvicted fe lons” the State put on the stand:
“The State is asking y ou to base a conviction, y ou are g oing t o have to find him g uilty
say s the State’s Attorney
, that’s the only verdic t y ou have. The State is asking y ou to base

a conviction on people who they say lied to you, on people who use g uns, use drug s, sell
g uns, sell drug s, are totally unreliable ***.” Counsel fo r C ar t er als o rema rked to the jury
, “You saw these g uy s on the stand, okay

. They ’re a bunch of

criminals, thug s, drugaddicts.” ¶ 67 Def

endants conce de that defe nse counsel argued in closing that the State failed to me et its burden of proof, but they p o i n t to a single statement by eac h attorney that purportedly shows that the attorne y s also argued that Carte r and White ac ted in self-de fense

. We ag ree with defe ndants that in closing
, both their attorney s “sug g ested that it is ludicrous to believe the claim made by sever al witnesses those in the posse assembled by Alexander were

unarme d.” We do not agree , howeve r, that defe ndants’ trial attorney s made these arguments to advanc e the theory that C ar t er an d Whit e acte d in self-de fense in shooting at the g roup

acr oss the street. As Whit e’s counsel made clea r in his closing
, the argument that the State’s witnesses lied about having g uns was part of a larg er eff ort to show that they wer e unreliable : “The witnesses betwee n them, count them up, y ou hear d their testimony
, betwee n them had 20 convictions for felonies. The witnesses who the State told y ou lied to them under oath, lied to y ou under oath, the witnesses who sw o re up an d d o wn they never had

wea pons o n the street, althoug h some of them wer e convicted of shooting at car s, the witnesses who swore to y ou they didn’t have wea pons on the street, and only two people did althoug h the State’s evidenc e tells you that there we re at least three g uns and probably closer to se ven, that’s the State’ s case ***.”
Counsel for Whit e further argued that the State wanted the jury to “[b] ase its decision on liars.” Ultimately
, counsel for both defe ndants urg ed the jury to conclude that, in light of the State’s failure to prese nt any reliable evidenc e, the State had not “come close to proof bey ond

a re asonable doubt.” ¶ 68 On appea l, de fenda nts ha ve only identified statements from their trial attorney s that, in isolation, are possibly cons i s t ent with a theory of self-defe nse or second deg ree murder. I t is clea r from a rea ding of these statements in context that trial counsel for Carter and Whit e

wer e attacking the cre dibilit y of the witnesses who testified for the State. We thus find this

case distinguishable from the case s relied upon by defe ndants, wher e counsel prese nted the jury with a theory of defe nse, but then failed to reque st jury instructions on that defe nse. See,
e.g. , People v. Serrano
, 286 I ll. App. 3d 485, 492 (1997) (conc luding that wher e “def endant

-13-did not dis p u t e t h at he was prese nt during [an arme d robber y ], but contende d that he was compelled throug h fea

r to do it,” defe nse counsel was constitutionally ineffe ctive for failing
to reque st the compuls ion instruction); People v. Gonzalez
, 385 I ll. App. 3d 15, 21 (2008) (finding counsel ineffe ctive wher e theory of defe nse to ag g ravated criminal sexual abuse was defe ndant’s rea sonable belief that victim was 17 y ear s or ag e or older, but counsel “fa il[ ed]
to ensure that jury [was] proper ly instructed” as to the definition of rea sonable belief and the State’s burde n of proof

). ¶ 69 W e al so cannot ag ree with defe ndants that the jury “had no choice ” b u t t o fi n d t h e defe ndants g uilty of murder. Where defe nse counsel argues that a defe ndant was justified in killing–and thus admits that the defendant wa s t h e killer–but then offers no instruction on self-de fense
, the jury is left “with no choice but to find defe ndant g uilty of murder.” People

v. Lewis
, 240 I ll. App. 3d 463, 469-70 (1992) (finding that wher e trial counsel told the jury i n closing
, “ ‘You g ot an easy job on Nimrod. I f it was justified, y ou turn him loose, if i t wasn’t, y ou convict him,’ ” trial counsel was ineffe ctive for failing to submit an instruction

on justification or voluntary manslaughter); see also People v. Chandler
, 129 I ll. 2d 233, 248 (1989). Her e, the jury was not left with no choice but to find defe ndants g uilty ; the jury could have conclude d, based on defe nse counsel’s arguments, that the State had failed to prove that the def endants we re the shooters, had guns, or wer e eve n involved. ¶ 70 Having found that trial counsel for the defe ndants did not argue self-de fense to the jury
, we conclude that defe ndants have not overc ome the presumption that the challeng ed action by their attorney s might be considere d sound trial strateg y

. Even if we assume that there was enoug h evidenc e to support a self-de fense instruction, defe nse counsel may have conclude d that a self-de fense theory would have been incompatible with the theory prese nted, since it would require defe ndants to admit to the shootings. See People v. Gallardo
, 112 I ll. App. 3d 764, 771 (1983) (“[A] defe nse based on self-de fense would have been incompatible with this theory [t hat State failed to prove t h at d ef en dant killed victim]
, since it would require that defe ndant admit to the killing.”) ; People v. Jones
, 234 I ll. App. 3d 1082, 1098 (1992) (“H ad defe ndant’s counsel req u es t ed those jury instructions, defe ndant’s cre dibilit y would have been g reatly damag ed since the theory of self-de fense is inconsistent with the theory put forth
at t rial t hat defendant was not involved in the s hooting an d his confe ssion was coerc ed.”) ; cf. People v. Gill
, 3 5 5 I ll. App. 3d 805, 811 (2005) (“To seek an instruction saying that [defendant’ s] resistanc e was in self-de fense would be contra ry to her counsel’s trial strateg y and is not err or.”)

. The same is true for the decision to fore g o the second degr ee murder instruction. “[T] he decision of whether to submit an instruction on a lesser included offe nse is ty pically considere d to be one of t rial s t rate g y that has no bear ing on the competency of counsel bec au s e counsel could have rea sonably believed that the instruction would have

conver ted a likely acquittal in to a li kely conviction of the l esser crime.” People v. Cathey
, 406 I ll. App. 3d 503, 512 (2010). Def ense counsel made the strateg ic decision to argue that the State failed to prove its case

. That defe ndants’ trial attorney s wer e ulti m ately

unsucce ssful in their arguments “does not mean [t hey ] perf ormed unrea sonably and rende red ineffe ctive assistanc e.” People v . W alton , 378 I ll. App. 3d 580, 589 (2007). ¶ 71 We conclude that the “re cord here establi s h es t h at d ef en s e co u n s el t h o ro u gh ly investigated and prepa

red defe ndant’s case and rea sonably chose to argu e d efendant’s

-14-complete innocenc e in the shooting, rather than a justification for it.” People v

. Jones
, 234 I ll. App. 3d 1082, 1098 (1992). De fenda nts’ ineffe ctive assistanc e cla im fails. ¶ 72 I I I . Fa ilure to Move to Strike or Move f or Mistrial Ba sed on Witness Testimony ¶ 73 Carter and Whit e contend that their attorney s wer e ineffe ctiv e fo r fa i l i n g t o move to strike the testimony or move for a mist ri al af ter Ty rone Thomas g ave “inflammatory” testimony implicating Carter in “seve ral past murders.” On direc t examination by the State, Ty rone Thomas testified that he only identified the defe ndants in a lineup beca use Detec tive Gallag her ha d coer ced him. Carte r’s c ounsel then cr oss-examined Thomas: “Q. Mr. Thomas, y ou mentioned a few minutes ag o that when y ou wer e viewing the line-up the homicide ma

n had you point–pointed out Mr. Carter to y ou?
A. Yes. Q. Can y ou tell the jury

a little bit more about that please ?
A. He said–he had me point him out beca use he is talking about how he then beat so many murders a

nd how they

want him off the stre et. What Ig ot to do with that for? Q. So the homicide man pointed out who you should pick out of the line-up?
A. Yes.” ¶ 74 At t h e o u t s et , we note that, contra ry to defe ndants’ claims, defe nse counsel d i d n o t “elicit” Thomas’s t estimony reg arding the detective’s st atement that Carter “b eat so many murders.” The witness testified unexpectedly to a g ener al question calling for “a littl e bit more” information, and counsel did not continue questioning Thom as or highlight the testimony later at trial or in closing argument. The case befor e us is t h er efor e in sharp
contra st to the primary case relied upon by defe ndants, People v. Bailey
, 374 I ll. App. 3d 608 (2007), wher e the court could not “find a valid trial strateg y in defe nse counsel’s *** line of questioning” afte r defe nse counsel elicited “inculpator y evid ence on cross-e x amination” and continued questioning, “dig g ing the hole deepe r, eliciting damag ing testimony not prese nted
as par t of the State’s c ase.” Bailey , 374 I ll. App. 3d at 609, 614. ¶ 75 As to the decision to fore g o a motion to strike the testimony
, we cannot s ay t h at t h at decision constitutes defic ient repr esentation. Our supreme co u rt has rec og nized that an attorney may fore g o an objection or a motion to strike for strateg ic rea sons. People v. Evans
, 209 I ll. 2d 194, 221 (2004) (“It is highly possible that defe nse counsel allowed the statement [reg arding other crimes] to pas s wi thout objecting to diffuse its importance
, rathe r than object and draw further attention to the statement.”) ; see al s o People v. Leger
, 149 I ll. 2d 355, 396-97 (1992); People v. Owens
, 372 I ll. App. 3d 616, 625 (2 0 0 7 ). As defe ndants acknow ledg e on appea l, defe nse counsel may h av e co n cluded that the statement was ultimately harmful but decide d aga i n s t moving to strike Thomas’s testimony to avoid draw ing attention to G allag her’ s vague claim about “other murders.” Def ense counsel also

m ay h ave viewed Thomas’s testimony as more helpful than harmful, concluding th at Gallag her’ s statement supported defe nse counsel’s argument in clo s i n g t hat Detec tive Gallag her w as a “ biased c op” who “ rea lly didn’t car e who was cha

rg ed.” D efe ndants have
not overc ome the strong presumption that the failure to object was a sound strateg ic decision by trial counsel.

-15-¶ 76 Def endants additionally argue that defe nse counsel wer e defic ient by failing to move for

a mistrial after the witness was excused. “Ge nera lly
, a mistrial should be g rante d wher e an

err or of such gra

vity has occurre d that it has i n fe ct ed the fundame ntal fairne ss of t he trial, such that continuation of the proce eding would defe at the ends of justice.” People v. Bishop
, 218 I ll. 2d 232, 251 (2006); People v . Jack son , 223 I ll. App. 3d 1045, 1051 (1991). I n this

case , there was no such occur renc e. Thomas’s testimony corr oborate d defe ndants’ claim that Detec tive Gallag her pr essure d Thomas to identify the def endants a nd that Gallag her was a “biase d cop.” The ref

ere nce to “other crimes” was actua lly a muddled ref ere nce to an out-ofcourt claim made by the alleg edly biased detec tive. In the context of the full trial and in view of all the evidenc e, the flee ting ref ere nce to Gallagher’ s claim that Carter had “beat so many murders” did not deprive the defe ndant of a fair trial. People v. Evans
, 209 I ll. 2d 194, 219 (2004) (re asoning that ad m ission of an “isolated and cry ptic statement [of other crimes

ev i d en ce ] d i d not deny defe ndant a fair trial” and that “[t] he statement was brief and nonspecific
, and cer

tainly oversha dowed by extensive evidenc e of defen d an t ’s g uilt”); People v. Leger
, 149 I ll. 2d 355, 396 (1992) (f i n ding that a witness’s response reg arding other crimes “should have been stricken,” but concl u d i n g t h at “we do not believe [t he witness’s] statement alone, take n in the context of the full trial, in vie w of a ll the evidence
ag ainst defe ndant, amounted to harmful err or”)

. There fore
, if defe nse counsel had moved for

a mistrial, we cannot conclude that there was a “re asonable probability that the motion would have been g rante d,” and thus “ defe ndant cannot establish a rea sonable probability that, but for defe nse counsel’s alleg ed unprofe ssional e rror , the result of the proce eding would have been differ ent.” People v. Holmes
, 397 I ll. App. 3d 737, 744 (2010); see also People v. W illiams , 262 I ll. App. 3d 808, 826 (1994). ¶ 77 Even assuming that defe ndants’ trial attorney s perf ormed defic iently for failing to move to strike or for

a mistrial, defe ndants’ inef fec tive assistance claim fails beca use defe ndants have failed to show that “the result of the proce eding s would have been differ ent.” Manning
, 241 I ll. 2d at 326. While defenda nts sugg est that the admission of “other crimes” evidenc e is per se prejudicia l, the I llinois Supreme Court, by its own assessment, “re peate dly has held that the improper introduction of other-c rimes evidenc e is harmless err or when a defe ndant is neither prejudice d nor denied a fair trial based upon its admission.” People v. Nieves
, 193 I ll. 2d 513, 530 (2000) (c ollecting case s). ¶ 78 We also do n o t agr ee wi t h defe ndants that prejudice is espec ially likely in this case beca use evidenc e identifying Whit e and Carter as the shooters came in throug h prior inconsistent statements admitted as substantive evidenc e or beca use some of the witnesses claimed that Detec tive Ga l l agher coer ced them into making the prior statements. The jury hear d testimony from sever al witnesses that Whit e and Carter wer e the shooters. The issue of whether defe ndants wer e the shooters “turne d upon the weight o f the evidenc e and the

cre dibilit y of the witnesses,” and it was “the jury ’s responsibility to resolve fac tual disputes,

assess the cre dibilit y of the witnesses, and deter mine t h e weight and sufficie ncy of the evidenc e.” (I

nterna l quotation marks omitted.) People v. Illgen
, 145 I ll. 2d 353, 378 (1991). ¶ 79 I n view of all the evidenc e, we conclude that defe ndants have failed to show a rea sonable probability that the result of the proce eding would have been differ ent without T h o m as’s flee ting ref

ere nce to Gallagher’ s claim that Carter “bea t so many murders.” See Nieves
, 193

-16-I ll. 2d at 530-31; People v. Daniels
, 331 I ll. App. 3d 380, 390 (2002) (isolated ref ere nces to defe ndant’s lack of a g un permit fo u n d t o b e harmless in view of the evidenc e of the defe ndant’s g uilt); People v. Bryant
, 212 I ll. App. 3d 452, 456-57 (1991 ) (“[W] e find it highly unlikely the jury focuse d on this particula r piece of testimony in convicting defe ndant,
espec ially in light of all the other evidenc e befor e it. I n all probability the result would have been the same ***.”). Defenda nts’ trial attorney s wer e not ineffe ctiv e for their decision t o fore g o motions t o strike and f or a mistrial.

¶ 80 I V. Trial Court’s Comments to J ury ¶ 81 Def

endants next contend that throug h his comments to the jury
, the trial judge committed

reve rsible err or beca

use he expressed an opinion that the jury should need littl e time to rea ch a verdict. Def

endants c oncede that they forf eited re view of the i ssue by failing to object at trial, but arg

ue that this court should not apply the plain-er ror rule in this instance. Whil e the I llinois Supreme Court has previously “re laxed the waiver rule when the asser ted err or involves the conduct of the circ uit court” ( People v. Emerson
, 189 I ll. 2d 436, 485 (2000))
, the S tate arg ues t h at t his relax ation of t he waiver rule is not applicable here in light of the I llinois Supreme Court’s decision in People v. McLaurin
, 235 I ll. 2d 478 (2009), and subsequent case s. S ee P eo p le v. Thompson
, 238 I ll. 2d 598, 612 (2010) (“We rec ently explained that under the Sprinkle doctrine, the forf eiture ru le may be rela x ed when a trial judge oversteps his or her authority in the prese nce of the jury or when counsel has been eff ectively preve nted from obj ecting beca use it would have ‘ “fa llen on deaf ear s.” ’ [C itation.] The failure to prese rve an err or will be excused under the Sprinkle doctrine only in extraordinary circ umstances, howeve r, such as when a judge makes inappropriate rema rks
to a jury or relies on social commentary instead of evidence i n imposing a death sentence

. [C itation s

. ] ”)

. The State there fore contends that we revie w for plain err or. We need not resolve this issue, howeve r, because even if w e follow Emerson and relax the waiver rule,

we still must first deter

mine if there was an err or. W e fi n d no err or in the trial court’s
comments. ¶ 82 Def

endants’ claim of err or rests on the trial court’s comments on the fourth and fifth day s of trial. At the e nd of the four th day of trial, the tria l court commente d:
“L adies a nd g entlemen, it’s been a l ong day . I t’s 6:25, so that’s long e noug h for today

. As I said befor e, the case will be over tomorrow. There may be witnesses left to h ea r tomorrow, but we will finish t h e en t ire case tomorrow with evidenc e, arguments, instructions by

me, deliber ations by

y ou and that should do it.” On the followingday , the final da y of trial, the tria l court told the jury befor e lunch: “All rig ht. That is all the evidenc e you are g oing to he ar r eg ardingMr. Demond Car ter and Mr. Alan Whit e, but the trial is not finished obviously . At this point, we know y ou

wer e back there for a long time, and we want y ou to have, in a manner of speaking
, y our last meal on the county

. I say that in jest, but it is y our last meal, and we will let y ou g o to lunch. We will make it 1:40. When you come back, all we have to do is arg uments by the lawy ers, instructions by me, deliber ations by

you. Du ri n g the lunch hour, don’t talk about the case among y ourselves, with any body

-17-else, don’t talk about the case in your prese nce. We w ill g ive you one last meal and see y ou back he re at 1:40 for closing arguments. Thank you very much.” The jury beg an deliber ating at 4:35 p.m. and re ache d a ver dict at 7:35 p.m. ¶ 83 The circ uit court has a “g reat influence on jurors” at all stag es of trial and there fore “must ‘exercise restra int over [ i t s ] u t tera nces and ref

rain from unnece ssary disparag ement of issues.’ ” Emerson
, 189 I ll. 2d at 485 (quoting People v. Terrell
, 185 I ll. 2d 467, 487 (1998))

. The I llinois Supreme Court has specif i ca l l y instructed that “stateme nts sug g esting that a quick verdic t be rea ched at the expense of a thoughtf ul verdic t [citation] or which ref lect the judge ’s assessment that the fac ts bear relatively easy resolution are to be avoided [citation]
, and that it is the eff

ect of the court’s statements and not the co u rt ’s i n t en t that must be examined [citation] .” People v. Shum
, 117 I ll. 2d 317, 345 (1987). “To constitute reve rsible

err or, defe ndant must demonstrate th at t h e comm ents constituted a materia l fac tor in the conviction or wer e such that an effec t on the j ury verdi ct wa s the probable result.” People v. Brown , 388 I ll. App. 3d 104, 111 (2009); see also Emerson , 189 I ll. 2d at 485. ¶ 84 At the outset, we find inapposite a number of case s cited by defe ndants involving claims that the trial judge hastene d the verdic t by communicatingto the jury during deliberations,
most often when the jury was deadloc ked. See, e.g. , People v. Robertson
, 92 I ll. App. 3d 806, 808 (1981) (finding that judge proper ly instructed deadloc ked jury to continue deliberating pursuant to People v. Prim
, 53 I ll. 2d 62 (1972), but finding reve rsible err or wher e the judge exerted pressure on the minority juro rs b y s t ati ng “ ‘[y ]ou can’ t be deadloc ked’ ”). These

case s involve a particul ar conce rn, not prese nt in the case befor e us, that the judge ’s
comments pressure d or coe rce d minority jurors to confor

m to the m ajority view. S ee, e.g. , People v . W

ilcox , 407 I ll. App. 3d 151, 163 (2010). ¶ 85 De fendants’ claim of err or here is differ ent. Def endants point to comm en t s fr o m t h e judge prior to deliberations and argue that the judge hastene d the verdi ct b y co n v ey ing a belief that the jury should ne ed very littl e time to resolve the issues. On this c laim of err or,

we find the I llinois Supreme Court’s opinion in People v. Emerson instructive. I n Emerson
, during voir dire for the sentenc ing hear ing of a death-pena lty -elig ible defe ndant, the judg e told the jury
, “ ‘We have spoken with the attorney s, ever y body anticipates that this case will be over next Monday .’ ” Emerson
, 189 I ll. 2d at 484. After the first day of the elig ibilit y hear ing, the judge repe ated his assumption that the ca se would be f inished on Monday

. Id. ¶ 86 The defe ndant in Emerson complained that the judge ’s statements conveyed to the jury that the court, and the attorney s, believed the defe ndant would be found elig ible for the death
p e n a lt y a n d that an ag g ravation-miti g ation hear ing would be nece ssary , but the supreme c o u r t fo u n d n o error in the judge ’s comments. Id. at 484-85. The court conclude d that t h e comments from the judge wer e “pro p er i n light of the circ uit court’s administrative responsibilities,” and stated that it could not “conc lude that the circ uit court’s estimate of the leng th of the sentenc ing hear ing had any eff ect o n the elig ibilit y verdic t.” Id. at 486-87 (noting that the circ uit court also told jurors that “if they did not unanimously find defe ndant elig ible for the death penalty” there would be no second phase, and that the circ uit court also instructed the jury that “ ‘[n]either by these instructions nor by any ruling or rema

rk which I have made do I mean to indicate any o p inion as to the fac ts or as to what y our verdic t

-18-should be’ ”) ; see a lso Shum , 117 I ll. 2d at 345-46.

¶ 87 L i k e t h e court in Emerson
, we find that that the judge was s i m p l y fu l fi l l i n g h i s administrative responsibil ities of i nforming the j ury about s cheduling

. Her e the judge told the jury about the scheduling of testimony and the rema ini n g ev en t s o f trial. We do not believe that the jury would infer from the judge ’s comments that he believed the jury should need little time to r esolve the issues. First, the court’s comments on the penultimate day of trial are ambiguous. We cannot conclude that the jury would inte rpre t these comments to

mean that the jury ’s delibera tions must finish the next day

. Nor do we rea d his comments to sug g est that the jury should be able to c ome to a quick resolution. At this point, neither the judge nor the jury knew when deliberations would even beg in on the following day

. Second,

as to the judge’ s comments befor e the lunch brea k, which the judge said wer e “in jest,” defe ndants do not contend that the j ury believed it had to finis h deliberating before dinner (the rec ord is silent on whether t h e j u ry at e dinner provided by the county ), and the judge

never indicated that the jury would need to finish deliberations that day

. Whil e we must judge the t rial court’s comments by their effec t on the j ury , defe ndants rea d too much into the court’s comments. Finally
, the trial judge here instructed the jury that “ ‘[n] either by these instructions nor by any ruling or rema rk which I have made do I mean to indicate any opinion

as t o t h e fa ct s or as to what y our verdict should be.’ ” See Emerson
, 189 I ll. 2d at 484; cf

. Brown
, 388 I ll. App. 3d at 111. We conclude th at d ef en d an t s have failed to show that the trial judge ’s comments had a probable eff ect on the jury ’s verdic t, and we there fore find no

err or.

¶ 88 V. SentencingEnhanc ement ¶ 89 Def

endants next argue that the trial court err oneously added fiftee n y ear s to their murder
sentenc es. The State char g ed both Carter and Whit e with murder while in possession of, and while persona lly discharg ing, a firea rm. During t h e i n s t ruction confe renc e, the State withdrew the jury

instruction reg ardingpersona l discharg e of a firea rm: “THE COURT: There are some other things here
, [Assi s t an t S tate’s Attorney ] O’Ga rek, about the personal disch ar ge, etce tera , are y ou g oing to g et i nvolved i n this? That could tend to confuse the jurors. You don’t have to worry about any enhanc ement. MS. OGAREK: Could I have a moment, J udg e?
THE COURT: Sure. (Whereupon the re w as a shor t pause in the proc eeding s.)
M S

. OG AR EK: That’s fine, J udg e. J udg e, I withdraw the additional sentenc ing fac tors.
THE COURT: There ’s no instruction on enhanc ement, persona lly discharg ing a firea rm. That’s it for the State, then.” After the jury returne d a verdic t of g uilty on the char g e of murder, without any instructions ref err ing to the possession of and persona l discharg e of a firea rm, the court imposed the 15-
y ea r enhanc ement on Whit e and Carter for possession of a firea rm. See 730 I L CS 5 / 5 -8

- 1(a) (1)( d)(i) (West 2006) (“if the person committed the offe nse while arme d with a firea rm,

-19-15 y ear s shall be added to the term of imprisonment imposed by the court” ). Def endants did not obje ct at the sentenc ing hear ing or in a posttrial motion and now seek to va cate the 15-
y ear sentenc ing e nhance ment. ¶ 90 The State a

nd defe ndants initially

dispute the nature of the err or and whe ther that e rror is a structura l err or that require s automatic reve rsal of the 15-y ear sentenc e enhanc ement. See Thompson
, 238 I ll. 2d at 613 (“[A]utom atic reve rsal is onl y require d wher e an err or is d ee m ed s t ru ctura l, i.e.
, a sy stemic err or which serve s to erode the integ rity of the judicial
proce ss an d u ndermine the fairne ss of the defe ndant’s trial.” (Interna l quotation marks omitted.) (quoting P eople v. Glasper
, 234 I ll. 2d 173, 197-98 (2009)) ). Def endants char acte rize the t rial court’s actions as “re moving from the j ury ’s consider ati on a fact t hat
must be deter

mined by a jury befor e a court can impose an enhanc ed sentenc e.” Def endants
argue that the trial court eff ectively “dire cted a verdic t as to the sentenc e enhanc ement” and that such an err or is a structura l err or. The defe ndants cite sever al statements by the United States Supreme Court to support the contention that a trial court’s g rant of a direc ted verdic t in a criminal jury trial is structura l err or. For example, in Rose v. Clark
, the United States Supreme Court explained: “[H]armless-err or analy sis pr esumably would not a pply if a court direc ted a verdic t f or the prosec ution in a criminal trial by jury

. We have stated that ‘a trial judge is prohibited from enter ing a judgme nt of conviction or direc ting the jury to come forwa rd with such

a verdic t

. . . reg ardle ss of how overwhelmingly the evidenc e may point in that direc tion.’ United States v. Mart i n L i n en Supply Co.
, 430 U.S. 564, 572-573 (1977) (citations omitted). Acc ord, Carpenters v. United States
, 330 U.S. 395, 408 (1947). This rule stems from the Six th Amendment’s clea r command t o af

fo rd j ury trials in serious criminal

case s. See Duncan v. Louisi ana , 391 U.S. 145 (1968).” Rose v. Clark
, 478 U.S. 570, 578 (1986).
See also Sullivan v. Louisi ana , 508 U.S. 275, 277 (1993) (explaining that a judge “may not direc t a ver dict for the State, no matter how ove rwhe lming the e vidence ”). ¶ 91 As to the claim of err or, the State ref er en ce s Apprendi v. New Jerse y , 530 U.S. 466 (2000), wh er e t h e Un ited States Supreme Court held that “[o] ther than the fac t of a prior conviction, any fa ct t h at incre ases the penalty for a crime beyond the presc ribed statutory maxi mum must be submitt ed to a jury
, and proved beyond a rea sonable doubt.” 530 U.S. at 490. An Apprendi err or is not a structura l err or and does not war ran t au t o m at i c reve rsal under the second prong of the plain-er ror doctrine. People v. Nitz
, 219 I ll. 2d 400, 412 (2006) (re jecting “def

endant’ s contention that the Apprendi err or in this case is structura l”); People

v. Crespo
, 203 I ll. 2d 335 (2001); W ashington v. Rec uenco , 548 U.S. 212, 222 (2006) (“F ailure to submit a sentenc ing fac tor to the jury
, l ike failure to submit an element to the jury
, is not structura l err or.”)

. Def endants must there fore prove, under the first prong of the plain-er ror test, that the Apprendi err or was “pre judicial” by showing that i t “a ff ec t ed the outcome in a c losely

balanc ed ca se.” See Nitz , 219 I ll. 2d at 415. ¶ 92 We ag ree with the State that any possible err or arising from the trial cou rt ’s actions is
proper ly viewed throug h t h e l en s of Apprendi
, not as an impermissible “dire cted verdict.” Def endants ask us to draw a distinction betwee n “a mistake or a failure to instruct the jury ”

-20-on a sentencing fac tor (an Appr en d i er ro r) and the trial court’s “conscious finding of g uilt

befor e submitt ing the case to the jury ” on the sentenc ing fac tor (which the defe ndants equate to a “dire cted ve rdict”) . We disag ree with defe ndants’ cha rac terization of the er

ror. ¶ 93 Def

endants would of course acknow ledg e that the judge did not “orde r the ent ry o f a verdic t” as to the underlying criminal char g es. See Bla ck’s L aw Dictionary 459 (6th ed. 1990) (def

inition of “dire cted verdic t”). The case s defe ndants cite reg ar d ing “a direc ted verdic t” ref

er to a direc ted verdic t on the char g e or a “judg ment o f conviction,” not a sentenc ing enhanc ement that can only b e applied when the jury returns a verdic t on the underlying char g e. S ee Rose
, 478 U.S. at 578 (quoti ng Martin Linen Supply Co. , 430 U.S.
at 572-73). Additionally
, the Supreme Court has explained that it “empha siz ed in Rose that ‘while there are some err ors to which [harmless-err or analy sis] does not a pply
, they are the exception and not the rule. [C itation.] And Neder makes c lear

that harmless-e rror analy sis applies to instructional err ors so long as the err or at issue does not cate g orica lly ‘vitiat[e] all the jury ’s finding s.’ [C itation.] “ (Interna l quotation marks omitted.) (Emphasis omitted.) Hedgpe th v. Pulido
, 555 U.S. 57, 61 (2008) ( per curiam ) (citing Neder v. United States
, 527 U.S. 1, 11 (1999)). ¶ 94 We a lso disagree with de fenda nts’ char acte rization of the err or beca use we do not rea d the rec o rd to indicate that the judge made a “consc ious finding of g uilt” as to the firea rm enhanc ement. We note our d i s ap p ro v al of the trial court’s colloquy with the State as to offe ring a jury instruction on th e s e ntencing enhanc ement, which g ives rise to the defe ndants’ claims on appea l. T h i s d i scussion should not have occur red. The trial court must be
espec ially car eful to avoid any state me nts o r actions that could possibly sug g est collaboration with a party

. Howeve r, we do not find evidenc e in the re co rd t h at t h e trial court had any ag ree ment with the S tate reg arding the enhanceme nt or that trial cour t’s ultimate plan was
to impose it at sentenc ing. Whil e the judge commented that “You don’t have to worry about
any enhanc ement,” we take the j udg e’s comment to mean that the prosecutor di d not have to submit the enha

nceme nt beca

use it was not essential to the murde r or attempted murder char g es. The rec ord shows that befor e the jury the trial court asked if the prosec utor wanted
to w ithdraw the instruction, which the trial court believed might confuse the jurors. This is not a “dire cted ve rdict” a s to the sentencingenhanc ement. ¶ 95 Whil e def

e n dants argue that courts have drawn a distinction based on whether the judg e’s actions can be describe d as a failure to instruct the j ury or an aff irmative ruling t o remove

some fac t from the jury ’s consideration, we find no case law supporting their claim. I n Neder v. United State s , fo r example, wher e the United S tates S upreme Court found no structura l

err or when the judge m ad e a fa ct u al finding as to an element of the crime but failed to instruct the jury as to that element, the trial court instructed the jury that “it need not consider the materia lity of any false statements even though that languag e is used in the indictment” and that the materia lity question “is not a question for the jury to decide .” (Interna l quotation marks omitted.) Neder v. United States
, 527 U. S

. 1, 6 (1999). The Court’s ruling as to whet h er an er ro r is structura l in this context did not hinge on whether the trial court mistakenly failed to instruct the jury or whether the court made an aff irmative ruling that the instruction should not be give n. ¶ 96 We also reje ct defe ndants’ cl ai m t h at t h e t ri al j u d ge committed err or beca use he

-21-“infring ed upo n tr a d it io n a l p r o secutoria l discretion.” Whil e “the State’s Attorney is endowe d

with the exclusive discretion to decide which of sever al char g es shall be broug ht, or whether to prosecute at all” (

People v . Jamison
, 197 I ll. 2d 135, 161 (2001))
, here the judg e simply asked the State if it wanted to submit the firearm enhance ment instruction to the jury

. The defe ndants claim that the prose cutor’s de cision not to submi t the firea rm instruction to the jury was akin to a decision to completely abandon pro s ec u t i o n of the sentenc ing enhanc ement. We disag ree

. Whil e there may be a claim of err or under Apprendi
, i.e.
, that the trial court err ed by imposing the sentenc ing enhanc ement without submitt ing the issue to the jury
, the trial cour t did not impinge on the State’s Attorney ’s discretion to initiate and
manag e its prosec ution of this case. ¶ 97 We there fore consider the alleg ed err or under Appendi

. We must decide whether the trial
court in fac t violated Apprendi by imposing th e 15-y ear sentenc ing enhanc ement and consider whether
, under the first prong of p l ain-e rror analy sis, the err or “af fec ted the
outcome in a closely balanc ed case .” Nitz
, 219 I ll. 2d at 415. The State by passes the question of whether the court committed an err or and argues that defe ndants cannot preva il under the closely balanc ed prong of the plain-er ror doctrine. See People v. W hite
, 2011 I L 109689, ¶ 134 (“[W] e need no t re s o l v e wh ether there was err or here beca use, under a closely balanc ed analy sis, defe ndant cannot establish prejudice .”). The S tate contends that even if the defe ndants are corr ect that the trial court “re mov[ ed] from the jury ’s consideration a fac t that must be deter

mined by a jury befor e a court can impose an enhanc ed sentenc e,” the trial
court decision should stand beca use defe ndants cannot prove they we re prejudice d by the

err or. We ag ree

. ¶ 98 Even assuming the co u rt v i o l at ed A p p r endi by imposing the fiftee n-y ear sentenc e enhanc ement, defe ndants cannot show that the failure to instruct the jury on the sentenc ing enhanc ement “af

fec ted the outcome in a closely balanc ed case .” See Nitz
, 219 I ll. 2d at 415. Alexander was shot multipl e times, and Nelson was shot in the back. Severa l witnesses around Nelson identified W hite and C arte r as shooting at them from across t he st ree t , and witnesses also identified Whit e and Carte r as shooting from the white van near wher e Alexander was found. Her e, the evidenc e clea rly establishes that defe ndants wer e arme d wh en they committed the char g ed offe nses, as require d by the sentenc ing statute. We conclude that a jury
, prese nted with these fac ts, would have found that the defe ndants wer e

arme d with firea

rms when committing the offe nses. See Crespo
, 203 I ll. 2d at 348-49; Nitz
, 219 I ll. 2d at 415. Assuming the tria l court er red by imposing the sente ncing enhanc ement without submitt ing an instruction to the jury
, the defe ndants cannot show that t h ey wer e prejudice d by

the er ror.

¶ 99 VI . Carter ’s Right to Conflict-F ree Trial Counsel ¶ 100 The final ineffe ctive assistance claim we addre ss is raised by Carter alone. Carter argues that he was denied h i s s ix th amendment rig ht to conflict-f ree counsel beca

use his trial

c ounsel repr esente d a potential State witness, Montrell Knig ht. “A criminal defe nda nt’ s s ixt h amendment rig ht to eff

ective assistance of counsel includes the rig h t to conflict-f ree repr esentation.” People v. Morales
, 209 I ll. 2d 340, 345 (2004). “Such repr esentation means

-22-assistance by an attorney whose loy alty to his or her client is n o t d iluted by conflicting

interests or inconsistent oblig ations.” People v . Taylor , 237 I ll. 2d 356, 374 (2010). ¶ 101 Carter ’s trial counsel repr esente d Knig ht on wea pons-re lated ch ar ges stemming fr om

rec overy of wea

pons at Kn i gh t ’s apar

tment. Among the wea

pons found in Knig ht’s
apar tment wer e two g uns used in the shooting. Knig ht pleade d g uilty to the wea pons char g es befor e trial in the prese nt case

. Also befor e t ri al
, t h e State informed the trial judge of the potential conflict beca

use Knig ht was a potential witness for th e S t at e. The prosec utor explained that u p on her revie w of the file she did not believe Knig ht would be called, but
upon a second look she rea liz ed it was possible Knig ht would testify . The judg e instructed the parties to interview Knig ht and deter m i n e i f he would testify or implicate defe ndant Carter

. The c ourt then aske d counsel for Carter about this situation, and c ounsel for Carter stated that he stated he “didn’t see an issue” and that “[m] y information from him is that he can’ t name who he g ot the g un from beca use he said he didn’t know. I would not anticipate
any names.” Be fore jury selec tion, the prosec utor told the trial court she did not expect Knig ht to testify

followingher c onversation with him . Knig ht did not testi fy

. ¶ 102 Carter raises three arg uments in support of his ineffe ctive assist an ce cl ai m s

. W e find none of the se ar g uments persua sive. First, we find no constitutional viol ation based on the trial court’s inquiry into the potential conflict of interest. Carter argues the trial court failed
to adequa tely inquire into the poten t i al conflict befor e trial, in violation of Holloway v. Arkansas
, 435 U.S. 475 (1978). I n Holloway
, counsel for three codef endants timely moved for the appointment of separ ate counsel based on a conflict of interest, and the United States Supreme Court “held that under those circ umstances the trial judge must either appoint
separ ate counsel or take adequate steps to asce rtain that the risk of conflict is too remote to

war rant doing so.” Morales
, 209 I ll. 2d at 348 (citing Holloway
, 435 U.S. at 484). I n contra st, the I llinois Supreme Court in Morales p l ai n l y rejected application of the Holloway rule wher e the prosec utor, not defe nse counsel, informed the court about a possible conflict in the

ear ly stag es of a case

. Id. Morales controls here

. The trial judge was not require d to conduct

a Hollowayinquiry

wher e it was c ounsel for the State who ra ised the potential conf lict. ¶ 103 Second, we do not agree that there was a per se conflict of interest. The I llinois Supreme Court has rec og nized two cate g ories of conflicts o f i n t er est : per se and actua l. “A per se conflict of interest exis ts w here cer tain fac ts about a defe nse attorney ’s status e ng ender
, by themselves, a disabling conflict,” and thus a per se conflict is g rounds for reve rsal unless the defe ndant waived his rig ht to conflict-f ree coun s el

. Taylor
, 237 I ll. 2d at 374-75. Our
supreme co u rt has identified three specific situations wher e a per se conflict exis ts: “(1) wher e defe nse counsel has a prior or contempora neous association wi t h t h e v i cti m, the
prosec ution, or an enti t y as s i s ting the prosec ution; (2) wher e defe nse counsel contempora

neously repr esents a pr osecution witness; and (3) wher e defe nse counsel was a former prosec utor who had been personally invol v ed i n t h e prosecution of defendant.” Id. “I f a per se conflict is found, there is no need to show that the conflict aff ecte d the attorney ’s

a c tu al perf

ormanc e. Unless a defe ndant waives his or her rig ht to conflict-f ree repr esentatio n , a p er se conflict of interest is g rounds for automatic reve rsal.” Id. at 374-75. Whil e t h e I llino i s S u preme Court has found a per se conflict wher e “def ense counsel contempora

neously repr esents a prosec ution witness,” the supreme cour t r e fused to apply the

-23-per se rule wher e defe nse counsel repr esents a potential witness. Morales
, 209 I ll. 2d at 346.

Ag ain, we are bound by Morales
, wher e the I llinois Supreme Court found no per se conflict when de fense counsel re prese nts a potential prosec ution witness. ¶ 104 Finally
, we conclude that counsel for Carter was not laboring under an actua l conflict of interest. I f no per se co n fl i ct ex ists, a defe ndant “may establish a violation of his rig ht to eff ective as s i stance of counsel by showing an actua l conflict of interest that adver sely aff ecte d his counsel’s perf

ormanc e.” Morales
, 209 I ll. 2d at 348 -49. To prove an actua l conflict, defe ndant must point to “ ‘some specific defe ct in his counsel’s strateg y , tactics, or decision m aking attributable to [a] conflict.’ ” Id. at 349 (quoting People v. Spreitzer
, 123 I ll. 2d 1, 1 8 (1 9 8 8 )). “Speculative alleg ations and conclusory statements are not sufficie nt to establish that an ac tual conflict of inter est aff ecte d counsel’s pe rfor

mance .” Id. ¶ 105 On ap p ea l
, C ar ter argues that his trial counsel’s conflicting interests resulted in him “totally abandoning any theory of defe nse that involved Knig ht,” while counsel for Whit e made Kni gh t “t h e cente rpiec e of his defe nse.” The rec ord belies this claim. Whil e Carter
argues that counsel for Whit e ref err ed to Knig ht as the “ele phant k i l l er ” i n the case (supposedly a take on “the elepha nt in the room”) during closing argument, Whit e’s counsel in fac t stated that “those g uns, that elepha nt killer, was in Montrell Kn i gh t ’s p ossession, nobody else.” Whit e’s counsel was not po i n t i n g t h e fing er at Knig ht; he was arguing that there was “not a shred of evidenc e” to connec t Knig ht

– an d t h e guns found in his
apar tment–to Whit e or Carter

. Moreove r, althoug h Carter ’s ap p el l ate counsel argues that Carter ’s trial counsel “made no mention of Knig ht at all” in closing
, Carter ’s counsel in fac t raised arguments simil ar to tho s e ra ised by Whit e’s counsel, arguing that “[t] here ’s no

connec tion betwee n Montr ell Knig ht and these two g entlemen who are on trial.” Finally
, while Carter argues that his counsel failed to question witnesses about Knig ht, while Whit e’s defe nse counsel “re peate dly questioned ” witnesses about Knight’s “potential involvement in the case ,” counsel for Whit e simply established that the guns wer e found at Knig ht’s house and that Detec tive Gallag her never asked any witnesses if they had seen Knig ht at the scene , but did not use this t estimony to show that Knig ht had committed the cr ime. ¶ 106 Carter ’s claims are wholly conclusory and are insufficient to establish an actua l conflict of interest. Morales
, 209 I ll. 2d at 349. On appea l, Carter prese nts an alternative strateg y that counsel for both Whit e and Carter chose not to pursue, either beca use there was inadequate fac tual support or beca

use they made a decision that their chosen strategy was the better one. Carter has not shown, howeve r, that his trial counsel was laboringunder a n actua l conflict of interest that aff

ecte d his perf

ormanc e. We find no violation of Carter ’s six th amendment rig ht to conflict-fr ee c ounsel.

¶ 107 CONCL USI ON ¶ 108 For the rea sons set forth above, we aff irm the defe ndants’ convictions for first d egr ee murder a nd for a ttempted first deg ree murder.

¶ 109 Affir

med.

-24-