The opinion
NOTICE 2025 IL App (4th) 241046-U
This Order was filed under
FILED
August 5, 2025
Supreme Court Rule 23 and is NO. 4-24-1046
Carla Bender
not precedent except in the th
4 District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Carroll County
JEFFREY L. SCHMIDT, ) No. 20CF121
Defendant-Appellant. )
) Honorable
) John J. Kane,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices Lannerd and Grischow concurred in the judgment.
ORDER
¶1 Held: (1) The issue of impeachment by unsubstantiated insinuation has been
procedurally forfeited, and the doctrine of plain error does not avert the forfeiture.
(2) Whether to object is a matter of trial strategy, and because defense counsel
subjected the State’s case to meaningful adversarial testing, his choice not to
object to certain asserted trial errors cannot support a claim of ineffective
assistance of counsel.
¶2 In the Carroll County circuit court, a jury found defendant, Jeffrey L. Schmidt,
guilty of unlawful possession of methamphetamine (less than five grams) (see 720 ILCS
646/60(b)(1) (West 2020)), and the court sentenced him to probation and jail time.
¶3 Defendant appeals on two grounds.
¶4 First, defendant contends he is entitled to a new trial because the prosecutor
attempted to impeach a defense witness, Andrea Preston, by insinuating that, in claiming
ownership of the methamphetamine at issue, she had knowledge that she was protected by an
expired statute of limitations. After Preston denied having such knowledge, the prosecutor did
not follow up with rebuttal evidence that she in fact had such knowledge. Consequently, on
appeal, defendant complains of unsubstantiated impeachment or, in other words, unfair
impeachment by insinuation. We conclude, however, that this contention has been procedurally
forfeited and that the doctrine of plain error, invoked by defendant, does not avert the forfeiture.
¶5 Second, defendant contends he is entitled to a new trial because defense counsel’s
allegedly substandard performance resulted in the jury’s being exposed to the unsubstantiated
impeachment and to evidence implicating defendant in other controlled substance crimes—i.e.,
possession of three pills—with which he had not been charged in the present case. The allegedly
substandard performance was essentially the failure to object. Whether to object is a matter of
trial strategy, and mistakes in trial strategy cannot support a claim of ineffective assistance unless
defense counsel entirely failed to conduct any meaningful adversarial testing. Defense counsel
subjected the State’s case to meaningful adversarial testing, most notably by calling Preston and
eliciting from her the admission that the methamphetamine that defendant was charged with
possessing belonged to her rather than to him. It follows, from case law, that the purported
mistakes in trial strategy are immune to a claim of ineffective assistance.
¶6 Therefore, we affirm the circuit court’s judgment.
¶7 I. BACKGROUND
¶8 The jury trial was held on April 30, 2024. The evidence at trial was essentially as
follows.
¶9 On October 14, 2020, Matthew Herpstreith, a deputy sheriff with the Carroll
County Sheriff’s Office, was called to defendant’s residence in response to a report of a domestic
disturbance. Upon arrival, Herpstreith spoke with Preston, who, by his understanding, lived at
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the residence occasionally. Other police officers spoke with defendant outside the residence.
¶ 10 While speaking with Preston, Herpstreith noticed, on the kitchen counter, a white
powdery substance. Suspecting that the substance was methamphetamine, he performed a field
test on it. Although Herpstreith implied, in his testimony, that the result of the field test was
positive, it does not appear that, at the jury trial, any explicit proof was presented of its positivity.
Preston told Herpstreith that defendant had smoked methamphetamine in a bong and that
defendant afterward took the bong outside and hid it.
¶ 11 Without making any arrest yet, Herpstreith returned to the Carroll County
Sheriff’s Office and prepared a request for a search warrant. He obtained the search warrant, and
early the next morning, the police executed it. During the search, defendant was the only person
present at the residence. The police found a glass bong on the kitchen counter and a glass pipe in
a toolbox in a locked shed outside the residence. Because both the bong and the pipe contained a
white powdery residue, the police seized both items. No chemical testing was performed on the
residue in the bong, but chemical testing revealed that the residue in the pipe contained
methamphetamine.
¶ 12 Additionally, in the shed, the police found three pills that appeared to be
prescription medication. One of the pills was inside cellophane from a cigarette pack, and the
other two pills, along with several fragments of pills, were inside a Ziploc bag. One of the pills
was tramadol hydrochloride, and the remaining two full pills and pill fragments were alprazolam.
¶ 13 The police arrested defendant for narcotics offenses and took him to jail, where he
signed a Miranda waiver form (see Miranda v. Arizona, 384 U.S. 436 (1966)) and made a
statement to Herpstreith and a police lieutenant for Savanna, Illinois, Dan Nevills. Defendant
declined to consent to the interview’s being recorded. Herpstreith and Nevills testified that
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defendant told them, in the interview, that he was a user of methamphetamine and that the bong
belonged to him but that the pills were not his. On the other hand, according to defendant’s
testimony at trial, he told the police he did not use methamphetamine, “the stuff” and the pipe
were not his, Preston “had a problem” with methamphetamine, and the bong belonged to her.
¶ 14 In the present case, the State charged defendant with unlawful possession of
methamphetamine (less than five grams) (see 720 ILCS 646/60(b)(1) (West 2020)). In two
separate criminal cases, Carroll County case Nos. 20-CF-122 and 20-CF-123, the State charged
defendant with unlawful possession of a controlled substance in the form of pills, but the State
later dismissed those pill cases. Even so, at the jury trial in the present case, the pills were
referred to repeatedly.
¶ 15 Preston testified for the defense. She acknowledged that, since about 2018, she
had been a methamphetamine addict and that, having pleaded guilty in 2021 to unlawful
possession of methamphetamine, she was “residing in the Carroll County Jail downstairs” for
that offense. She recounted that she had been living with defendant, in his residence, for about
two and a half years when, on October 14, 2020, they got into an argument that became so
heated that she moved out that same night. When defense counsel presented her with a
photograph of the pipe the police had seized from the shed, the following colloquy occurred:
“Q. I show you a document that’s been marked State’s Exhibit 2. There’s
a glass pipe in there; you can kind of see it. Would you examine that and see if—
you’re familiar with that pipe?
A. Yes, sir, I am.
Q. Is that your pipe?
A. Yes, sir, it was.
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Q. Did you bring that into the residence where you were living with
[defendant]?
A. Yes, sir.
Q. Did you regularly take meth when you were living at that residence?
A. Not all the time, no. But, on occasion, I had.
***
Q. Any meth on the property would have been yours?
A. To my knowledge, yes, sir.
Q. Just to the best of your knowledge?
A. Yes.”
¶ 16 On cross-examination, the prosecutor and Preston had the following exchange
regarding what she told the police when they responded to the report of the domestic
disturbance:
“Q. When you spoke with Deputy Herpstreith, in fact, you told Deputy
Herpstreith that [defendant] was the one doing methamphetamine earlier in that
day, correct?
A. Yes.
***
Q. And, in fact, you told Deputy Herpstreith as well that [defendant] had
hid a bong prior to Deputy Herpstreith’s arrival, correct?
A. Yes.
***
Q. And is it also true that you told Deputy Herpstreith that you would
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contact him when [defendant] got back into town that night?
A. I don’t recall saying that either.
Q. But you were talking with Deputy Herpstreith—
A. I had just been a victim of domestic violence at that point, so I was
confused, I was upset. I don’t recall what was said.”
¶ 17 The prosecutor further asked Preston, on cross-examination, if she was aware of
the expiration of the statute of limitations. The following reflects that exchange:
“Q. You were never arrested on October 14th of 2020, correct?
A. No, sir.
Q. Ms. Preston, it’s true that you know the statute of limitations in Illinois
is three years, correct?
A. I do not know the statute of limitations.
Q. And so in saying that the pipe belonged to you, you believe you can’t
be prosecuted for having possession of the pipe and saying it’s yours?
A. I did not even know that.”
¶ 18 On redirect examination, Preston explained that when speaking with Herpstreith
on October 14, 2020, she was “very mad at” defendant and that she “might have said things to
the police to get him in trouble”—things she now “regret[ted] having said.” She claimed that her
testimony at trial was the truth and that “some of what [she had] said to the detective in a fit of
anger may not have been accurate.”
¶ 19 In rebuttal, the State called Herpstreith, who testified that, on October 14, 2020,
Preston told him that (1) defendant “was using the bong prior to the domestic situation” and “had
taken it outside and hit it” before the police arrived, (2) defendant “would be going to Clinton,
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Iowa, that night to pick up more methamphetamine,” and (3) Preston “agreed to get in contact
with [Herpstreith] to let [the police] know he was back with it.” According to Herpstreith’s
rebuttal testimony, Preston never told him, on October 14, 2020, that any of the
methamphetamine belonged to her.
¶ 20 Also, in its case in rebuttal, the State called Nevills, who testified that, after
Herpstreith arrested defendant, he heard Herpstreith ask defendant about the methamphetamine
that had been found in the residence and that defendant answered he was a user of
methamphetamine and that the bong was his.
¶ 21 In his rebuttal closing argument, the prosecutor implied that Preston’s taking
responsibility for the methamphetamine was a falsehood motivated by the expiration of the
statute of limitations: “She wanted to take responsibility for it today. *** [O]ver three years after
the incident occurred, beyond the statute of limitations. How convenient.”
¶ 22 The jury found defendant guilty of the charged offense of unlawful possession of
methamphetamine (less than five grams).
¶ 23 Defendant’s posttrial motion raised only two issues: (1) the asserted error of
allowing defendant to be impeached with a prior felony conviction and (2) a Brady claim (see
Brady v. Maryland, 373 U.S. 83 (1963)) arising from a midtrial revelation that one of the
evidence managers at the Carroll County Sheriff’s Office was a volunteer instead of a paid
employee.
¶ 24 On July 15, 2024, the circuit court held a hearing on the posttrial motion. The
volunteer evidence manager testified at the hearing, and the court denied the posttrial motion.
¶ 25 The circuit court then convened a sentencing hearing, at the conclusion of which
the court sentenced defendant to probation for 24 months, incarceration in the Carroll County jail
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for 60 days, and various financial assessments.
¶ 26 On August 1, 2024, defendant filed his notice of appeal.
¶ 27 II. ANALYSIS
¶ 28 A. Unsubstantiated Impeachment
¶ 29 It appears to be undisputed that a prosecution for unlawful possession of
methamphetamine (see 720 ILCS 646/60(b)(1) (West 2020)) “must be commenced within 3
years after the commission of the offense” (720 ILCS 5/3-5(b) (West 2020)). In his
cross-examination of Preston and in his rebuttal closing argument, the prosecutor suggested that
the expiration of this three-year statute of limitations enabled Preston, without fear of being
prosecuted herself for unlawful possession of methamphetamine, to testify falsely that it was she,
rather than defendant, who possessed the methamphetamine that the police found at defendant’s
residence. By that line of attack, the prosecutor impeached Preston or “call[ed] in question [her]
veracity.” (Internal quotation marks omitted.) McWethy v. Lee, 1 Ill. App. 3d 80, 84 (1971).
¶ 30 Defendant argues he is entitled to a new trial because the prosecutor “insinuat[ed]
that [Preston] had knowledge of the statute of limitations but failed to perfect impeachment by
presenting evidence that she had any such knowledge.” It does not appear, however, that defense
counsel made this objection at trial. Nor did defense counsel raise this impeachment issue in his
posttrial motion. Generally, to preserve an issue for appeal, a defendant must object at trial and
raise the issue in a posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)), and a
failure to take both of those preservative measures results in a procedural forfeiture of the issue
(see People v. Bannister, 232 Ill. 2d 52, 65 (2008)).
¶ 31 Defendant seeks to avert a procedural forfeiture, however, by invoking the
doctrine of plain error. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under that doctrine, “we
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review unpreserved plain errors affecting substantial rights in two limited circumstances:
(1) when the evidence is closely balanced or (2) when the error was so serious that it denied the
defendant a fair and impartial trial.” People v. Hutt, 2023 IL 128170, ¶ 28. Defendant relies on
the first prong of the plain error doctrine: he claims that “a clear or obvious error occurred and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error.” (Internal quotation marks
omitted.) People v. Sebby, 2017 IL 119445, ¶ 48.
¶ 32 The first step in applying the plain error doctrine is to determine whether an error
was made (Hutt, 2023 IL 128170, ¶ 29), and then, if we determine that an error was made, we
can proceed to the further question of whether the error is “clear or obvious” (internal quotation
marks omitted) (Sebby, 2017 IL 119445, ¶ 48). The error, according to defendant, was the
prosecutor’s failure to substantiate a factual representation that the prosecutor impliedly made in
his impeachment of Preston. Defendant quotes People v. Enis, 139 Ill. 2d 264, 297 (1990),
arguing: “[T]he state must not ask a defense witness any ‘questions presuming facts not in
evidence as a precursor to impeachment of that witness’ in the absence of ‘admissible evidence
to substantiate the inquiry.’ ”
¶ 33 In Enis, the defendant was charged with the first degree murder of Melinda
Entrata, the complainant in a criminal sexual assault case pending against him. Id. at 270-71. The
State’s theory in the murder case was that the defendant had murdered Entrata because of her
accusations against him in the criminal sexual assault case. Id. at 290-91. The defendant took the
stand in the murder case and testified, on direct examination, that his relationship with Entrata
had been good and that the sexual encounter that she had characterized as a criminal sexual
assault had in fact been consensual. Id. at 290. On cross-examination in the murder case, the
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prosecutor asked the defendant questions that, in the way they were phrased, assumed certain
facts regarding the alleged criminal sexual assault even though, in the murder case, the
prosecutor had offered no evidence to substantiate those assumed facts. Id. at 296. For example,
the prosecutor asked the defendant why, if the sexual encounter was consensual, Entrata had told
a friend of hers that she had been raped by a man wearing a mask and gloves. Id. at 292. Also,
the prosecutor asked the defendant why, if the defendant’s relationship with Entrata had been
good, she was “crying when she called her friend.” Id. at 293.
¶ 34 In the present case, by contrast, the assumed facts were uncontroversial then and
are uncontroversial now. There were the following questions and answers in the prosecutor’s
cross-examination of Preston:
“Q. Ms. Preston, it’s true that you know the statute of limitations in
Illinois is three years, correct?
A. I do not know the statute of limitations.
Q. And so in saying that the pipe belonged to you, you believe you can’t
be prosecuted for having possession of the pipe and saying it’s yours?
A. I did not even know that.”
The prosecutor’s questions in that exchange contained only two assumed facts: (1) the statute of
limitations in Illinois was three years, and (2) Preston said the pipe belonged to her. On appeal,
defendant does not contend that either of those two facts needed substantiation. That Preston
knew that the statute of limitations in Illinois was three years was not the assumed fact but,
rather, was the question—to which Preston was free to answer yes or no. That the statute of
limitations was, in fact, three years was the precursor to the question of whether she knew that
the statute of limitations was three years. Likewise, that she believed that she could not be
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prosecuted for possessing the pipe was not the assumed fact but, rather, was the question—to
which, again, she was free to answer yes or no. The assumed fact, which was the precursor to
that question, was that she said, on direct examination, that the pipe belonged to her. Defendant
does not contend that either of those assumed facts—(1) and (2) above—needed substantiation.
Instead, he contends that Preston’s knowledge of the statute of limitations needed substantiation.
But her knowledge was not the assumed fact (as, in Enis, the things that Entrata had supposedly
told her friend were assumed facts). Instead, Preston’s knowledge was the question. The question
the prosecutor put to Preston was whether it was correct (or incorrect) that she had such
knowledge. Enis, therefore, is inapposite.
¶ 35 A case that arguably provides more support for defendant’s position—that the
impeached witness’s knowledge, which is the subject of the question, must be substantiated—is
an appellate court case that he cites, People v. Williams, 333 Ill. App. 3d 204 (2002). In
Williams, a jury found the defendant guilty of attempt (first degree murder) and aggravated
battery (id. at 208) in that, on April 22, 1996, he shot Sheila Robinson (id. at 206). Several years
before the shooting, the defendant and Robinson had a brief sexual relationship. Id. at 205-06. A
child was born, and Robinson filed suit against the defendant to establish paternity and obtain
child support. Id. at 206. In the criminal case, the State’s theory was that the defendant had shot
Robinson to avoid having to pay child support. See id. at 210. The defendant testified on his own
behalf in the criminal case, recounting his activities on the day of the shooting. See id. at 206.
Then, on cross-examination, the prosecutor asked him if, at the time of the shooting, he knew
that (1) paternity testing had established that he was the father and (2) a hearing was set for May
15, 1996, “ ‘to establish paternity and set up child support.’ ” Id. at 210. The defendant denied
knowing (1) and (2). See id. In the State’s case in rebuttal, in which the only witness the State
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called was a detective, Andrew Abbott (see id. at 208), the State failed to offer any evidence that
the defendant had known (1) and (2). See id. at 211.
¶ 36 The appellate court observed in Williams:
“The State admits that it failed to place the results of the blood tests into
evidence but argues that it properly substantiated its cross-examination of
defendant through the rebuttal testimony of Detective Abbott. Detective Abbott’s
rebuttal testimony, however, did not establish that defendant knew that there was a
hearing scheduled for May 15, 1996, to establish paternity and order defendant to
pay child support. Nor did the rebuttal testimony establish that a paternity test
declaring defendant ‘99 point 9 percent’ likely to be [the child’s] father even
existed, let alone whether defendant knew of such test results.” (Emphases in
original.) Id. at 210.
¶ 37 To an extent, Williams is distinguishable from the present case. Whereas it was
unproven, in Williams, that the positive results of the paternity tested “even existed” and that a
hearing to present the positive results had been set (id.), there is no doubt, in the present case,
that the statute of limitations existed (and was expired) and that, on direct examination, Preston
claimed ownership of the pipe. The existence of an Illinois criminal statute and what a witness
just got done saying on direct examination are not things that would have to be proven as the
results of a paternity test would have to be proven. Everyone is presumed to know the law (Jones
v. Board of Education of City of Chicago, 2013 IL App (1st) 122437, ¶ 22), and the jury
presumably heard what a witness said on direct examination—but not everyone is presumed to
know the results of a paternity test.
¶ 38 Even so, that difference would not altogether prevent a colorable comparison of
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the present case to Williams, for the appellate court in Williams criticized the State not only for
failing to prove the existence of the paternity test and the scheduling of the paternity hearing but
also for failing to prove the defendant’s knowledge of those presumed facts. See Williams, 333
Ill. App. 3d at 210. So, in the present case, defendant is in colorable territory when he argues
that, correspondingly, the State was obligated to follow through with its impeachment of Preston
by presenting evidence that she knew of the statute of limitations.
¶ 39 For two reasons, though, that argument is unpersuasive or at least debatable: first,
because of the difference in accessibility between a statute of limitations and the results of a
paternity test and, second, because defendant would have had more of an occasion and
opportunity to become aware of the publicly accessible statute of limitations than the defendant
in Williams would have had to become aware of the results of a paternity test that were in the
possession of the adverse party.
¶ 40 To avoid judging the prosecutor too harshly in this case and unduly restricting
cross-examination, we should keep in mind that another person’s awareness is never susceptible
to direct empirical observation. We do not have direct access to anyone else’s mental processes,
and another person’s awareness of a fact or set of circumstances is inferable only from
circumstantial evidence. Such an inference need not be infallible or indisputable to be
reasonable. The prosecutor’s cross-examination of Preston was—even without follow-up
substantiation—within the range of reasonableness. It was only natural to raise the question of
what change of circumstances had brought about the change in Preston’s story. Years earlier, she
told the police that defendant was the user of methamphetamine, whereas now, at trial, she
testified that the methamphetamine and pipe were solely hers. It seems to us understandable and
defensible for the prosecutor to attribute Preston’s about-face to the expiration of the statute of
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limitations—even though, by the very nature of the undertaking, it is impossible to make that
causal connection with 100% certainty. “How convenient” seems apt, a fair comment. Maybe
Preston told the truth when professing ignorance of the statute of limitations. However, she
already was in jail for unlawful possession of methamphetamine, and it would have been
foolhardy for her to state, under oath, that the methamphetamine found in defendant’s residence
was hers unless she had first assessed her legal exposure from such a confession. Surely, the
prosecutor had cause to be skeptical of her supposed disregard of the risk. A criminal statute,
including a statute of limitations, is public information that is widely accessible (as criminal
statutes must be to serve their purpose). Because criminal statutes are expected to be publicly
viewed, Preston’s knowing exploitation of the expired statute of limitations was reasonably
inferable from the circumstances, without substantiation—or so it could be argued.
¶ 41 The rejoinder might be made that court records likewise are expected to be
publicly viewed and that, generally, the scheduling of a hearing in a paternity case is noted in the
court records. From the opinion in Williams, though, we do not know what the court records in
the paternity case said.
¶ 42 In sum, as the State argues, “any permissible matter which affects the witness’s
credibility may be developed on cross-examination” (internal quotation marks omitted) (People
v. Stevens, 2014 IL 116300, ¶ 16), and the expiration of the statute of limitations arguably had
relevance to Preston’s credibility. The impeachment of Preston, under the circumstances of this
case, does not have the odor of sharp dealing or dishonesty that emanates from cases of unfair
impeachment by insinuation. We find no error of the type condemned in Preston and Williams—
and, alternatively, if there was such an error, the error is far from clear or obvious. See Sebby,
2017 IL 119445, ¶ 48. Therefore, the doctrine of plain error does not avert the procedural
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forfeiture of the impeachment issue, and we give effect to the forfeiture. See People v. Lovejoy,
235 Ill. 2d 97, 148 (2009).
¶ 43 B. The Claim of Ineffective Assistance
¶ 44 Defendant claims that defense counsel rendered ineffective assistance by failing
to object to (1) the lack of substantiation that Preston knew of the expired statute of limitations
and (2) evidence of uncharged bad conduct, namely, defendant’s possession of the pills.
¶ 45 “[D]ecisions regarding what matters to object to and when to object are matters of
trial strategy.” (Internal quotation marks omitted.) People v. Perry, 224 Ill. 2d 312, 344 (2007).
The supreme court has held that “[e]rrors in trial strategy do not constitute ineffective assistance
unless counsel entirely fails to conduct any meaningful adversarial testing.” (Internal quotation
marks omitted.) People v. Custer, 2019 IL 123339, ¶ 39. It would be an exaggeration to claim
that, in this case, defense counsel entirely failed to conduct any meaningful adversarial testing.
Calling Preston and eliciting testimony from her that the methamphetamine and pipe belonged to
her rather than to defendant subjected the State’s case to meaningful adversarial testing. The
State’s impeachment of Preston did not make her testimony meaningless or clearly unworthy of
serious consideration. The jury had a choice of believing her or disbelieving her when she
testified she was unaware of the statute of limitations—and the jury might well have believed her
in that respect but disbelieved her that the methamphetamine belonged to her. Because there was
meaningful adversarial testing, defendant’s disagreements with defense counsel’s trial strategy
cannot support a claim of ineffective assistance. See People v. Segoviano, 189 Ill. 2d 228, 248
(2000).
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, we affirm the circuit court’s judgment.
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¶ 48 Affirmed.
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