People v. Colon

Docket No. 102003.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

DANNY COLON, Appellee.

Opinion filed March 22, 2007.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Defendant, Danny Colon, pleaded guilty in the circuit court of

Cook County to one count of aggravated unlawful use of a weapon

(720 ILCS 5/24–1.6 (West 2002)) and was sentenced to 12 months’

probation (730 ILCS 5/5–6–2(b)(2) (West 2002)). Subsequently, the

State charged defendant with unlawful use of a weapon by a felon

(720 ILCS 5/24–1.1 (West 2002)) and filed a petition to revoke his

probation (730 ILCS 5/5–6–4 (West 2002)). At defense counsel’s

request, the trial court consolidated defendant’s bench trial on the

unlawful use of a weapon charge with his probation revocation

hearing. The court found defendant not guilty of unlawful use of a

weapon by a felon, but determined that he violated his probation. In

a posttrial motion, defense counsel argued that requesting

consolidation of the proceedings constituted ineffective assistance of

counsel. The trial court denied the motion and sentenced defendant

to 20 months’ imprisonment. Defendant appealed, and the appellate

court reversed and remanded with one justice dissenting. No.

1–04–2778 (unpublished order under Supreme Court Rule 23). For

the reasons that follow, we reverse the judgment of the appellate court

and affirm the judgment of the circuit court.

BACKGROUND

On February 19, 2004, defendant pleaded guilty to one count of

aggravated unlawful use of a weapon (720 ILCS 5/24–1.6 (West

2002)) and was sentenced to 12 months’ probation (730 ILCS

5/5–6–2(b)(2) (West 2002)). On April 19, 2004, defendant was

placed under arrest after a police officer allegedly saw him in

possession of a handgun. He was subsequently charged with unlawful

use of a weapon by a felon (720 ILCS 5/24–1.1 (West 2002)) and

with violating his probation (730 ILCS 5/5–6–4 (West 2002)).

When defendant appeared in court on July 8, 2004, defense

counsel informed the court that defendant was prepared to proceed

simultaneously with his bench trial on the unlawful use of a weapon

charge and his probation revocation hearing. The State consented to

consolidation, and the court allowed the parties to proceed.

The State called Sergeant Charles Glynn and Officer Scott Blasz

of the Chicago police department to testify. Sergeant Glynn stated

that he had been a Chicago police officer for 18 years. On April 19,

2004, at approximately 1:45 a.m., he was approaching a building at

2803 North Kedzie Avenue in Chicago to use its porch for

surveillance purposes. As Sergeant Glynn approached the building,

he saw defendant standing in the building’s archway with a black,

semiautomatic pistol in his right hand. Sergeant Glynn was

approximately 10 feet away from defendant when he made this

observation, and the surrounding area was well lit. While he could not

see the pistol’s handle, he could see its barrel.

According to Sergeant Glynn, when he saw the pistol, he drew his

weapon, announced that he was a police officer, and ordered

defendant to drop the pistol. Defendant turned and faced him and fled

out of the archway onto Kedzie Avenue. Sergeant Glynn chased

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defendant. While in pursuit, he described defendant and his direction

of flight over the police radio.

Defendant ran through a gangway and into an alley, at which

point he hopped over a waist-high fence and entered another

gangway. Sergeant Glynn was unable to pursue defendant over the

fence, but he watched defendant enter the gangway from a distance

of approximately 20 feet. Under the alley lighting, which extended

into the gangway, he saw defendant hold up the gun and depress the

magazine release. The magazine fell to the ground, and defendant

continued to flee.

Sergeant Glynn subsequently recovered the magazine and

determined that it contained nine-millimeter rounds. Shortly

thereafter, he was notified over the police radio that defendant had

been apprehended. The pistol was never recovered.

Officer Blasz testified that on April 19, 2004, he was in a squad

car with his partner Mark DuBose when they received the description

of defendant and his direction of flight over the police radio. After

driving a short distance, they passed an alley and saw a person fitting

the description they received over the radio. When the person,

defendant, began to run, they cut him off with their squad car and

placed him under arrest. At that point, Sergeant Glynn arrived on the

scene.

Following Officer Blasz’s testimony, the parties stipulated that

defendant was convicted of aggravated unlawful use of a weapon on

February 19, 2004. The State and the defense then rested.

After brief closing arguments, the trial court reviewed the

differing burdens of proof for the substantive charge and the

probation violation. The court determined that the State had failed to

prove beyond a reasonable doubt that defendant had committed the

offense of unlawful use of a weapon by a felon, but that the State had

met its burden of proving by a preponderance of the evidence that

defendant had possessed firearm ammunition in violation of the terms

of his probation. Accordingly, the court set a date to sentence

defendant for his probation violation.

On September 7, 2004, prior to sentencing, defense counsel

presented an oral posttrial motion arguing that his request to

consolidate the bench trial with the probation revocation hearing

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constituted ineffective assistance of counsel. Defense counsel asserted

that if he had not requested consolidation, the court’s probation

violation finding would have been barred by principles of collateral

estoppel and double jeopardy, because it would have been

impermissible to relitigate the same issue of fact decided in a bench

trial on the substantive charge at a subsequent probation revocation

hearing.

During the course of the hearing on defendant’s posttrial motion,

the following colloquy occurred:

“COURT: Is it not the State’s election as to whether they

want to proceed–you make that argument as if you had the

benefit of choosing to go to the underlying case or to the

probation violation. And, in fact, you do not. It’s the State’s

choice.

DEFENSE COUNSEL: But in this case, the State choose

[sic] to go on the main case, and I said[,] your Honor, why

don’t we just try them together. We could get a transcript and

see that’s what happened. That’s what happened.

COURT: Did the State elect on the underlying case?

STATE: I think we had–let me check. The State had

elected on the case in chief.

COURT: I agree with you. And we don’t have the

transcript because nobody got it?

DEFENSE COUNSEL: As to that portion of it, nobody

got it.”

Ultimately, the court denied defendant’s posttrial motion and

sentenced him to 20 months’ imprisonment.

Defendant appealed, and the appellate court reversed the

judgment of the circuit court with one justice dissenting. No.

1–04–2778 (unpublished order under Supreme Court Rule 23).

Initially, the appellate court majority rejected defendant’s argument

that the evidence presented at trial was insufficient to prove that he

violated his probation by unlawfully possessing firearm ammunition

as a felon. The majority held that, based on the observations of

Sergeant Glynn, an 18-year veteran of the Chicago police department,

it was reasonable for the trial court to infer that the nine-millimeter

rounds ejected from the semiautomatic pistol defendant was carrying

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were “firearm ammunition” as defined by section 1.1 of the Firearm

Owners Identification Card Act (430 ILCS 65/1.1 (West 2002)).

Next, the majority rejected defendant’s argument that the trial

court’s finding that he violated his probation was barred by principles

of collateral estoppel and double jeopardy based on his acquittal of

the substantive charge. Citing this court’s decision in People v.

Grayson, 58 Ill. 2d 260, 265 (1974), the court noted that Grayson

prohibits the relitigation of an issue in a probation revocation hearing

that has been litigated in a previous trial, regardless of the differences

in the burdens of proof in the two proceedings. The court observed,

however, that where a defendant’s trial and probation revocation

hearing are consolidated, concerns of collateral estoppel and double

jeopardy do not arise, and the defendant may be acquitted of the

substantive charge but still be found to have violated the terms of his

probation. Accordingly, the court held that because defendant’s trial

and probation revocation hearing were consolidated, the trial court’s

finding that defendant violated his probation was not barred by

principles of collateral estoppel and double jeopardy.

Finally, the appellate court addressed defendant’s argument that

defense counsel provided ineffective assistance of counsel by

requesting consolidation of the bench trial and probation revocation

hearing. The court noted that if defendant had been acquitted of the

substantive charge in an earlier, separate proceeding, instead of in a

consolidated proceeding, Grayson would have barred the trial court’s

violation-of-probation finding. Accordingly, the court determined that

there was a reasonable probability that, but for defense counsel’s

request for consolidation, the outcome would have differed for

defendant. The court acknowledged that there was nothing in the

record to indicate that defense counsel was aware prior to his request

for consolidation that the State had elected to try defendant on the

substantive charge before proceeding with his probation revocation

hearing. However, the court found this fact immaterial to the

ineffectiveness inquiry, reasoning that the possibility the State would

have proceeded first on the substantive charge was sufficient to

support defendant’s ineffective assistance of counsel claim. In

addition, the court declined to characterize defense counsel’s decision

to consolidate the proceedings as a matter of trial strategy. In light of

these considerations, the court concluded that defense counsel’s

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request to consolidate the proceedings amounted to ineffective

assistance of counsel, because it fell below an objective standard of

reasonableness and was prejudicial to defendant. The court reversed

the judgment of the trial court and remanded the cause for a new

probation revocation hearing.

In dissent, Presiding Justice Quinn concluded that defense

counsel’s request for a consolidated proceeding was a matter of trial

strategy. No. 1–04–2778 (unpublished order under Supreme Court

Rule 23) (Quinn, P.J., dissenting). In addition, he criticized the

majority for relying on a poorly formulated rule of decision – i.e., that

“any defense attorney who requests a consolidated hearing will

receive a second bite at the apple upon appeal of any finding of

violation of probation as all such requests constitute per se ineffective

assistance of counsel.” (Emphasis in original.) Justice Quinn

characterized this rule as “clearly wrong.”

The State filed a petition for leave to appeal with this court, which

we allowed. 210 Ill. 2d R. 315.

ANALYSIS

The State challenges the appellate court’s determination that

defense counsel provided ineffective assistance by requesting the

consolidation of defendant’s bench trial with his probation revocation

hearing. Defendant maintains that the request for consolidation

constituted ineffective assistance and argues in the alternative that the

evidence presented to the trial court was insufficient to prove that he

violated his probation. We first address whether defendant was

denied the effective assistance of counsel.

I. Ineffective Assistance of Counsel

In determining whether a defendant was denied the effective

assistance of counsel, we apply the familiar two-prong test set forth

in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.

Ct. 2052 (1984), and adopted by this court in People v. Albanese, 104

Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of

counsel, a defendant must show both that counsel’s performance was

deficient and that the deficient performance prejudiced the defendant.

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064

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(1984). More specifically, the defendant must demonstrate that

counsel’s performance was objectively unreasonable under prevailing

professional norms and that there is a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,

104 S. Ct. at 2068. A reasonable probability that the result would

have been different is a probability sufficient to undermine

confidence in the outcome of the proceeding. Strickland, 466 U.S. at

694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The failure to satisfy

either prong of the Strickland test precludes a finding of ineffective

assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at

699, 104 S. Ct. at 2069.

The State articulates two reasons why defendant was not denied

the effective assistance of counsel. Initially, the State claims that

defense counsel’s decision to request the consolidation of the bench

trial and the probation hearing was a valid strategic choice. The State

points out that, pursuant to Strickland, a defendant must overcome a

strong presumption that defense counsel’s actions were motivated by

strategic considerations. Here, argues the State, there were three

possible outcomes to the consolidated proceeding. First, defendant

could have been acquitted of the substantive charge and found not to

have violated his probation, in which case he would have suffered no

prejudice as a result of the consolidation and would have benefitted

from the quicker, and possibly less costly, disposition of the

proceedings. Second, defendant could have been convicted of the

substantive charge and found to have violated his probation, in which

case he also would have suffered no prejudice and would have

benefitted in the same manner described above. Third, as occurred in

the instant case, defendant could have been acquitted of the

substantive charge but found to have violated his probation. The State

argues that the latter scenario, “where the evidence falls into the

interstices between preponderance and beyond a reasonable doubt,”

is comparatively rare and difficult to reasonably anticipate. Thus, “in

terms of percentages ***, a defense counsel whose client is facing

both substantive and [violation-of-probation] charges has clear

strategic considerations in favor of consolidation.”

Next, the State contends that defendant cannot demonstrate that

he was prejudiced by the consolidation of the bench trial and the

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probation revocation hearing. According to the State, to show

prejudice, defendant must demonstrate that if he had objected to

consolidation, the trial court would likely have sustained his

objection. The State reasons that defendant cannot make such a

showing because there is nothing inherent in consolidation itself that

is prejudicial to a defendant, as principles of double jeopardy and

collateral estoppel have no application in the context of a

consolidated proceeding. Moreover, even if defense counsel had

objected to consolidation and the trial court had sustained his

objection, the State could still have elected to proceed with the

probation revocation hearing before the bench trial on the substantive

charge. In that case, the finding that defendant violated his probation

would not have been problematic.

In addition to arguing that defendant cannot meet either prong of

the Strickland test, the State asserts that the appellate court’s rationale

in this case invites defense counsel to seek out consolidation, either

by requesting it or by not objecting to it, and then argue their own

ineffectiveness if the defendant is acquitted of the substantive charge

but found to have committed a probation violation. The State suggests

that, under the approach taken by the appellate court, defense counsel

has a strong incentive to intentionally provide ineffective assistance

of counsel, which “perverts the salutary principles established in

Strickland.”

Alternatively, the State urges us to overrule People v. Grayson, 58

Ill. 2d 260, which makes it impermissible for the State to proceed

with a probation revocation hearing after a defendant has been

acquitted of the substantive charge in a separate trial. The State

argues that Grayson is out of step with more recent United States

Supreme Court decisions that clarify that an acquittal in a criminal

case does not preclude the government from relitigating an issue in

a subsequent action governed by a lower standard of proof. According

to the State, these decisions call into question the continuing viability

of Grayson.

In response, defendant, represented by the same counsel who

represented him at trial and before the appellate court, emphasizes

that if defense counsel had understood the applicable law, he would

not have requested consolidation of the bench trial with the probation

revocation hearing. Defendant’s brief candidly states that “[a]lthough

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counsel is very experienced and usually fully researches controlling

issues, here, he did not do sufficient research, and hence, he made an

error.” Specifically, defense counsel “did not realize that Grayson

only applied when the case-in-chief and the violation of probation

[are] tried separately and did not control where the cases are tried

together.” Defendant maintains that defense counsel knew the State

intended to proceed with its case in chief before proceeding with the

probation revocation hearing. In light of this fact, and considering that

defendant was ultimately acquitted of the substantive charge but

found to have violated his probation, defendant claims that defense

counsel acted ineffectively in requesting consolidation of the

proceedings.

Defendant further argues that the appellate court’s rationale does

not encourage the purposeful injection of error into a case by defense

counsel. According to defendant, it is well known that lawyers go to

great lengths to avoid accusations of ineffectiveness, and this in itself

is an adequate safeguard against the intentional ineffectiveness

posited by the State.

We first address the State’s invitation to overrule People v.

Grayson, as the rationale of Grayson lies at the root of defendant’s

ineffective assistance of counsel claim. In Grayson, the defendant

pleaded guilty to armed robbery and was sentenced to five years’

probation. Grayson, 58 Ill. 2d at 261. Subsequently, he was indicted

for another armed robbery and acquitted in a bench trial. Grayson, 58

Ill. 2d at 261. The State then filed a petition to revoke the defendant’s

probation, alleging the second armed robbery as the basis for the

revocation. Grayson, 58 Ill. 2d at 262. Based on evidence that was

substantially the same as the evidence presented at the bench trial, a

different trial court determined that the defendant violated his

probation and sentenced him to a term of three to eight years’

imprisonment on the original armed robbery conviction. Grayson, 58

Ill. 2d at 262. The appellate court affirmed. Grayson, 58 Ill. 2d at 262.

This court reversed the judgments of the appellate court and the trial

court. Grayson, 58 Ill. 2d at 265.

In arguing that his probation revocation should be reversed, the

defendant relied on Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469,

90 S. Ct. 1189 (1970). There, the United States Supreme Court

determined that it was a violation of the principle of collateral

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estoppel embodied in the fifth amendment guarantee against double

jeopardy to try the defendant for the separate armed robberies of two

participants in a poker game. Grayson, 58 Ill. 2d at 262-63, citing

Ashe v. Swenson, 397 U.S. at 445-47, 25 L. Ed. 2d at 476-77, 90 S.

Ct. at 1195-96. The Court reasoned that, based on the evidence

presented, the jury’s verdict in the defendant’s first trial amounted to

a finding that the defendant was not one of the robbers. Grayson, 58

Ill. 2d at 262-63, citing Ashe v. Swenson, 397 U.S. at 445-47, 25 L.

Ed. 2d at 476-77, 90 S. Ct. at 1195-96.

This court accepted the defendant’s contention that, as in Ashe,

the defendant’s initial acquittal on the charge of armed robbery

amounted to a determination that he was not one of the robbers.

Grayson, 58 Ill. 2d at 265. The court acknowledged that, in a criminal

trial, the State must prove the defendant guilty beyond a reasonable

doubt, while in a probation revocation hearing, the State must only

prove the probation violation by a preponderance of the evidence.

Grayson, 58 Ill. 2d at 264. However, the court was “not persuaded

that the difference in the burden of proof between a criminal trial and

a probation revocation proceeding should dictate the result” of the

case (Grayson, 58 Ill. 2d at 264), as “those differences cannot fairly

serve to permit relitigation of the identical issue upon the same

evidence” (Grayson, 58 Ill. 2d at 265). The court noted its concern

that “[a]lthough proceedings may be civil in form, they may be

criminal in nature [citation], and the individual facing probation

revocation may lose his liberty just as swiftly and surely as a

defendant in a criminal case.” Grayson, 58 Ill. 2d at 265. Applying

the rationale of Ashe, the court concluded that “[o]nce the ultimate

and only disputed fact of identity had been determined by a final and

valid judgment, the State could not constitutionally hale defendant

before a new court in a criminal proceeding or a probation revocation

proceeding and litigate that issue again.” Grayson, 58 Ill. 2d at 265,

citing Ashe, 397 U.S. at 446, 25 L. Ed. 2d at 477, 90 S. Ct. at 1195.

After this court decided Grayson, the appellate court was

presented with the question of whether Grayson’s rationale was

applicable where the substantive charge against a defendant and the

defendant’s alleged probation violation were addressed in a single

proceeding. See In re N.R.L., 200 Ill. App. 3d 820 (1990); People v.

Motta, 223 Ill. App. 3d 182 (1991).

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In N.R.L., the appellate court held that principles of double

jeopardy and collateral estoppel did not bar the trial court from

determining in the same proceeding that the evidence was insufficient

to adjudicate the minor respondent delinquent for committing

aggravated battery but sufficient to find that the respondent violated

the terms of his probation by committing aggravated battery. N.R.L.,

200 Ill. App. 3d at 824-25. In distinguishing Grayson, the appellate

court noted that, in Grayson, “the State attempted to prove at a

second proceeding what it had failed to prove at the first proceeding,”

whereas, “[i]n the case at bar, there simply was no second attempt to

prove the facts.” N.R.L., 200 Ill. App. 3d at 826.

Motta, decided shortly after N.R.L., rejected the defendant’s

argument that once a jury determined he was entrapped, and was

therefore not guilty of possession of a controlled substance with the

intent to deliver, the doctrines of double jeopardy and collateral

estoppel barred the trial court from finding that he violated his

probation. Motta, 223 Ill. App. 3d at 184. Citing N.R.L., the appellate

court stated that “[w]here the criminal trial and the revocation hearing

are held simultaneously, double jeopardy and collateral estoppel

concerns do not arise and the defendant may be acquitted of the

criminal charge but still be found to have violated the terms of his

probation.” Motta, 223 Ill. App. 3d at 184. The court determined that

Grayson was inapplicable, because, there, the probation revocation

hearing took place after the jury had acquitted the defendant of the

substantive charge. Motta, 223 Ill. App. 3d at 184.

The appellate court’s interpretation of Grayson in N.R.L. and

Motta set the stage for the type of ineffective assistance of counsel

claim at issue in this case, which was first addressed in People v.

Porter, 241 Ill. App. 3d 116 (1993). In Porter, the defendant pleaded

guilty to unlawful possession of heroin with intent to deliver and was

sentenced to 30 months’ probation. Porter, 241 Ill. App. 3d at 116.

Subsequently, he was charged with committing the offense of

unlawful delivery of cocaine within 1,000 feet of school property, and

the State filed a petition to revoke his probation. Porter, 241 Ill. App.

3d at 116. When the State requested that the jury trial on the

substantive charge and the hearing on the petition to revoke probation

be heard at the same time, defense counsel did not object. Porter, 241

Ill. App. 3d at 116.

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Following the defendant’s trial, the jury retired to deliberate, and

the court indicated it would rule on the petition to revoke after the

jury delivered its verdict. Porter, 241 Ill. App. 3d at 116-17. The jury

returned a verdict of not guilty for the offense of unlawful delivery of

a controlled substance within 1,000 feet of school property. Porter,

241 Ill. App. 3d at 117. After the jury was excused, the trial court

found that the State had proved by a preponderance of the evidence

that the defendant violated the terms of his probation. Porter, 241 Ill.

App. 3d at 117.

On appeal, the defendant argued that his trial counsel was

ineffective for failing to object to the consolidation of the jury trial

with the probation revocation hearing. Porter, 241 Ill. App. 3d at 117.

The appellate court agreed and reversed the order of the trial court

revoking the defendant’s probation. Porter, 241 Ill. App. 3d at 119.

According to the appellate court, the jury must have determined

that the defendant did not deliver the cocaine, because that was the

only material issue of fact in dispute. Porter, 241 Ill. App. 3d at 118.

Thus, the trial court’s determination that the defendant did deliver the

cocaine amounted to a “differing determination on the same issue of

ultimate fact.” Porter, 241 Ill. App. 3d at 118. Applying Grayson, the

appellate court reasoned that “had the instant defendant been

acquitted of the underlying offense first, the proceeding concerning

the probation revocation would have been barred by the principle of

collateral estoppel.” In light of this consideration, if defense counsel

had objected to the consolidation of the two proceedings, there was

a reasonable probability that the result would have differed. Porter,

241 Ill. App. 3d at 118. The appellate court also rejected the State’s

argument that defense counsel’s decision not to object was a matter

of trial strategy. Porter, 241 Ill. App. 3d at 118. Accordingly, the

court concluded that defense counsel was ineffective. Porter, 241 Ill.

App. 3d at 118.

The appellate court was again presented with a Grayson-based

ineffective assistance of counsel claim in In re A.V., 285 Ill. App. 3d

470 (1996). There, under analogous circumstances, a divided

appellate panel held that defense counsel, consisting of two law

students and two supervising attorneys from a law school clinic,

provided ineffective assistance in failing to object to the State’s

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motion to consolidate the minor respondent’s delinquency and

probation revocation hearings. A.V., 285 Ill. App. 3d at 471.

In A.V., the respondent was adjudicated delinquent and sentenced

to two years’ probation for trespassing into and possessing a stolen

vehicle. A.V., 285 Ill. App. 3d at 471. Subsequently, he was charged

in a delinquency petition with five criminal offenses arising from a

shooting incident, and the State filed a petition to revoke his

probation. A.V., 285 Ill. App. 3d at 471. The trial court granted the

State’s motion to consolidate the hearings on the delinquency petition

and the probation violation without objection from defense counsel.

A.V., 285 Ill. App. 3d at 471. Subsequently, the court found the

respondent not guilty of the charges alleged in the delinquency

petition, but found that the State had proved by a preponderance of

the evidence that the respondent violated the terms of his probation.

A.V., 285 Ill. App. 3d at 471.

On appeal, the respondent argued that he received ineffective

assistance of counsel when defense counsel failed to object to the

consolidated hearing. A.V., 285 Ill. App. 3d at 472. The respondent

relied on Porter, which a majority of the appellate court found

persuasive. A.V., 285 Ill. App. 3d at 472-73. The majority concluded

that defense counsel’s failure to object to consolidation fell below an

objective standard of reasonableness. A.V., 285 Ill. App. 3d at 473. In

that regard, the majority emphasized that defense counsel (1)

admitted they were unaware of the “preponderance of the evidence”

burden of proof in a probation revocation proceeding, (2) conceded

they would have called additional alibi witnesses and called the

respondent to testify on his own behalf if they had been aware of the

burden of proof, and (3) failed to call additional witnesses to

corroborate the testimony of the respondent’s father. A.V., 285 Ill.

App. 3d at 473. In addition, the majority determined that there was a

reasonable probability that, but for defense counsel’s performance,

the result would have been different. A.V., 285 Ill. App. 3d at 475.

The majority explained that if defense counsel had objected to

consolidation, the State would have had to elect to proceed on either

the delinquency petition or the petition for revocation of probation.

A.V., 285 Ill. App. 3d at 475. If the State had elected to proceed on the

former and the respondent was acquitted, as he was in the

consolidated proceeding, then, pursuant to Grayson, the State would

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have been prevented from relitigating the same issues in a later

probation revocation proceeding. A.V., 285 Ill. App. 3d at 475. The

majority rejected the State’s argument that it could simply have

elected to proceed first on the petition to revoke the respondent’s

probation, in which case it would not have been precluded from

proceeding against the respondent on the delinquency petition. A.V.,

285 Ill. App. 3d at 475. According to the majority, the State’s

argument assumed in hindsight that it would have elected to proceed

first with the probation revocation hearing, and the majority was

unwilling to accept this assumption, given that “[o]ne could just as

easily argue to the contrary and reach an opposite conclusion.” A.V.,

285 Ill. App. 3d at 475. For these reasons, the majority concluded that

the respondent received ineffective assistance of counsel and

remanded the cause for a new hearing. A.V., 285 Ill. App. 3d at 475.

The dissent disagreed with the majority’s reliance on Porter,

opining that the Porter court did not intend “to set the stage for

purposeful stratagems that would degrade the salutary principles

established in Strickland.” A.V., 285 Ill. App. 3d at 476 (Wolfson, J.,

dissenting). Reviewing the transcript of defense counsel’s closing

arguments, the dissent concluded that counsel’s comments did not

reflect a lack of understanding about the standards of proof that

applied to the consolidated charges. A.V., 285 Ill. App. 3d at 477

(Wolfson, J., dissenting). Rather, it appeared that defense counsel’s

strategy was to succeed on all the charges in a single proceeding.

A.V., 285 Ill. App. 3d at 477 (Wolfson, J., dissenting). The dissent

reasoned that, by following Porter in the instant case, the majority

was “saying that defense counsel has an affirmative duty to object to

consolidation in all instances or face a successful claim of

ineffectiveness,” in which case “[a] purposeful failure to object would

plant reversible error in any consolidated hearing.” A.V., 285 Ill. App.

3d at 477 (Wolfson, J., dissenting). The dissent cautioned that “a

defense lawyer would not be motivated to object to consolidation if

assured his or her silence meant that no conviction could stand.” A.V.,

285 Ill. App. 3d at 477 (Wolfson, J., dissenting).

This brings us to the present case, wherein the majority relied on

Porter and A.V. in holding that defense counsel’s request to

consolidate defendant’s bench trial with his probation revocation

hearing fell below an objective standard of reasonableness and

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prejudiced defendant. No. 1–04–2778 (unpublished order under

Supreme Court Rule 23). Obviously, if Grayson is overruled, then the

basis for defendant’s ineffective assistance of counsel claim no longer

exists, because without Grayson, defendant has no support for the

position that the State would have been precluded from proceeding

against him on the probation revocation petition if the revocation

hearing had not been consolidated with the bench trial on the

substantive charge. Whether Grayson should be overruled is a

question that implicates the doctrine of stare decisis.

The doctrine of stare decisis “ ‘expresses the policy of the courts

to stand by precedents and not to disturb settled points.’ ” People v.

Caballes, 221 Ill. 2d 282, 313 (2006), quoting Neff v. George, 364 Ill.

306, 308-09 (1936), overruled on other grounds by Tuthill v.

Rendelman, 387 Ill. 321 (1944). In other words, “ ‘a question once

deliberately examined and decided should be considered as settled

and closed to further argument’ ” (Wakulich v. Mraz, 203 Ill. 2d 223,

230 (2003), quoting Prall v. Burckhartt, 299 Ill. 19, 41 (1921)), so

that the law will not change erratically, but will develop in a

principled, intelligible fashion (People v. Mitchell, 189 Ill. 2d 312,

338 (2000)).

Stare decisis, however, is not an “inexorable command.” People

v. Jones, 207 Ill. 2d 122, 134 (2003), quoting Payne v. Tennessee,

501 U.S. 808, 828, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609-10

(1991). If it is clear a court has made a mistake, it will not decline to

correct it, even if the mistake has been reasserted and acquiesced in

for many years. People v. Boreman, 401 Ill. 566, 571 (1948). That

said, this court will not depart from precedent merely because it might

have decided otherwise if the question were a new one. People v.

Lopez, 207 Ill. 2d 449, 459 (2003). As we recently reiterated, any

departure from stare decisis must be “ ‘specially justified.’ ” People

v. Suarez, No. 100499, slip op. at 10 (January 19, 2007), quoting

People v. Sharpe, 216 Ill. 2d 481, 520 (2005). Thus, prior decisions

should not be overruled absent “good cause” or “compelling reasons.”

Suarez, slip op. at 10, quoting Sharpe, 216 Ill. 2d at 520. In general,

a settled rule of law that does not contravene a statute or

constitutional principle should be followed unless doing so is likely

to result in serious detriment prejudicial to public interests. Suarez,

slip op. at 10, quoting Sharpe, 216 Ill. 2d at 520. Good cause to

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depart from stare decisis also exists when governing decisions are

unworkable or badly reasoned. Sharpe, 216 Ill. 2d at 520.

At the outset, we observe that we do not consider the continuing

viability of Grayson on a blank slate. This court explicitly called

Grayson into question in In re Nau, 153 Ill. 2d 406 (1992).

In Nau, this court affirmed an order involuntarily committing the

respondent to a mental-health facility and an order continuing the

respondent’s involuntary commitment. Nau, 153 Ill. 2d at 431. On

cross-appeal, the respondent, who was acquitted of the murder of his

stepbrother at a discharge hearing prior to the commitment hearings,

argued that the trial court erred in allowing evidence and argument

regarding the respondent’s stepbrother’s death at the commitment

hearings. Nau, 153 Ill. 2d at 423. Specifically, the respondent argued

that his acquittal on the murder charge collaterally estopped the State

from presenting evidence or arguing at the commitment hearings that

the respondent killed his stepbrother. Nau, 153 Ill. 2d at 424.

In rejecting the respondent’s argument, this court relied on

Dowling v. United States, 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct.

668 (1990), and People v. Jackson, 149 Ill. 2d 540 (1992). In

Dowling, during the defendant’s trial on robbery charges, the

government introduced the testimony of a witness who identified the

defendant as the perpetrator of an unrelated robbery. Dowling, 493

U.S. at 344-45, 107 L. Ed. 2d at 715, 110 S. Ct. at 670. The defendant

had previously been acquitted of that robbery charge. Dowling, 493

U.S. at 345, 107 L. Ed. 2d at 715, 110 S. Ct. at 670. He argued that

his acquittal collaterally estopped the prosecution from introducing

the disputed testimony. Dowling, 493 U.S. at 348, 107 L. Ed. 2d at

717, 110 S. Ct. at 672. The Supreme Court held that collateral

estoppel was inapplicable, reasoning that because the admissibility of

the witness’ testimony was governed by a lower standard of proof

than beyond a reasonable doubt, the government was not precluded

from relitigating the issue of the defendant’s involvement in the other

robbery. Dowling, 493 U.S. at 348-49, 107 L. Ed. 2d at 717-18, 110

S. Ct. at 672.

This court applied the reasoning of Dowling in Jackson. There,

the defendant argued that he was entitled to a new sentencing hearing

because he was denied due process at his original sentencing hearing

when the trial court considered charges of which the defendant was

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later acquitted. Jackson, 149 Ill. 2d at 547. This court held that the

subsequent acquittal did not preclude the State from introducing

evidence at the defendant’s sentencing hearing that the defendant

committed the offense of which he was acquitted, as the sentencing

hearing involved a lower burden of proof. Jackson, 149 Ill. 2d at 547-

51. In so holding, the court discussed Dowling with approval, noting

that the Supreme Court had decided that evidence that resulted in a

prior acquittal could be used for limited purposes in the guilt phase

of trial for another offense, since the government is not precluded

from “ ‘relitigating an issue when it is presented in a subsequent

action governed by a lower standard of proof.’ ” Jackson, 149 Ill. 2d

at 550, quoting Dowling, 493 U.S. at 349, 107 L. Ed. 2d at 718, 110

S. Ct. at 672. Ultimately, the court found it immaterial that the

defendant’s acquittal came after his sentencing hearing, because even

though the trial court could not have known at the time of sentencing

that the respondent would be acquitted, the court did know that he

had not yet been convicted. Jackson, 149 Ill. 2d at 550-51.

In Nau, this court concluded that Jackson and Dowling were

dispositive of the issue raised by the respondent. Nau, 153 Ill. 2d at

426. The court noted that the burden of proof at the discharge hearing

where the respondent was acquitted of his stepbrother’s murder was

beyond a reasonable doubt. Nau, 153 Ill. 2d at 426. Thus, his acquittal

established only that the State was unable to prove his commission of

the crime beyond a reasonable doubt. Nau, 153 Ill. 2d at 426. At the

respondent’s civil commitment hearings, the State merely sought to

use the testimony regarding the respondent’s participation in his

stepbrother’s murder as evidence of the respondent’s eligibility for

involuntary admission. Nau, 153 Ill. 2d at 426. The State’s only

burden at the commitment hearings was to establish by clear and

convincing evidence that the respondent was a person subject to

involuntary admission. Nau, 153 Ill. 2d at 426. Because the trial court

did not have to find beyond a reasonable doubt–or, for that matter, by

any standard of proof–that the respondent murdered his stepbrother

in order to find him subject to involuntary admission, this court

concluded that it was proper for the trial court to consider evidence

regarding the respondent’s possible commission of his stepbrother’s

murder as evidence of his eligibility for commitment. Nau, 153 Ill. 2d

at 426-27.

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After upholding the trial court’s consideration of the murder-

related evidence, this court went on to reject the respondent’s reliance

on Grayson as support for his claim that the evidence was improperly

considered. Nau, 153 Ill. 2d at 427. The court summarized Grayson

(Nau, 153 Ill. 2d at 427), and then commented as follows:

“In the instant case, we are concerned only with whether

an acquittal on a criminal charge precludes the use of

evidence of that crime at a subsequent civil commitment

hearing. We have determined that, under Jackson and

Dowling, this subsequent use of the evidence was proper.

While we question the viability of Grayson in light of

Jackson, we are not now presented with the specific question

addressed in Grayson: whether a crime of which a defendant

has been acquitted may nonetheless constitute the basis for a

probation revocation. Thus, we will not herein decide whether

Grayson remains valid today. However, we do determine that

Jackson, and not Grayson, controls the instant case.” Nau,

153 Ill. 2d at 427-28.

Accordingly, the court held that the respondent’s acquittal of his

stepbrother’s murder did not collaterally estop the State from

introducing evidence of the murder at the respondent’s civil

commitment hearings. Nau, 153 Ill. 2d at 428.

Unlike Nau, this case does present us with the specific question

addressed in Grayson, albeit in the context of an ineffective

assistance of counsel claim. Here, defendant was acquitted of the

offense of unlawful use of a weapon by a felon but found to have

violated his probation on the basis of committing that offense. Thus,

the reservations this court expressed in Nau over addressing the

viability of Grayson are not present here.

Nau provides a useful point of departure for our discussion of

whether to overrule Grayson because it brings to light the problematic

nature of Grayson’s doctrinal underpinnings. In relying on Dowling

and Jackson, Nau holds to the principle that an acquittal in a criminal

trial does not preclude the government from relitigating an issue in a

subsequent action governed by a lower standard of proof. See Nau,

153 Ill. 2d at 426-27. This principle emerged from the Supreme

Court’s decision in Dowling as a limitation on its holding in Ashe v.

Swenson that the double jeopardy clause of the fifth amendment

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incorporates the doctrine of collateral estoppel. See Dowling, 493

U.S. at 347-49, 107 L. Ed. 2d at 717-18, 110 S. Ct. at 671-72. As the

Court explained in Dowling:

“[U]nlike the situation in Ashe v. Swenson, the [defendant’s]

prior acquittal did not determine an ultimate issue in the

present case. This much [defendant] concedes, and we decline

to extend Ashe v. Swenson and the collateral-estoppel

component of the Double Jeopardy Clause to exclude in all

circumstances, as [defendant] would have it, relevant and

probative evidence that is otherwise admissible under the

Rules of Evidence simply because it relates to alleged

criminal conduct for which a defendant has been acquitted.”

Dowling, 493 U.S. at 348, 107 L. Ed. 2d at 717, 110 S. Ct. at

672.

As further support for not extending Ashe, the Court in Dowling

discussed two cases decided after Ashe that involved civil forfeiture

proceedings initiated after criminal acquittals. Dowling, 493 U.S. at

349, 107 L. Ed. 2d at 718, 110 S. Ct. at 672-73. In United States v.

One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 79 L. Ed. 2d

361, 368, 104 S. Ct. 1099, 1104 (1984), the Court held that a gun

owner’s acquittal on a charge of dealing firearms without a license

did not preclude a subsequent in rem forfeiture proceeding against

those firearms, because even though forfeiture was only appropriate

if the jury in the forfeiture proceeding concluded that the defendant

had committed the underlying offense, the government only had to

prove its forfeiture case by a preponderance of the evidence.

Likewise, in One Lot Emerald Cut Stones v. United States, 409 U.S.

232, 234-35, 34 L. Ed. 2d 438, 441-42, 93 S. Ct. 489, 491-92 (1972),

the Court held that the double jeopardy clause did not bar a forfeiture

action subsequent to acquittal on the underlying offense because the

difference between the burden of proof in a criminal case and the

burden of proof in the forfeiture proceeding precluded application of

the doctrine of collateral estoppel.

After Dowling was decided, the Court applied Dowling’s rationale

in United States v. Watts, 519 U.S. 148, 136 L. Ed. 2d 554, 117 S. Ct.

633 (1997). In Watts, two sentencing courts considered conduct of

which the defendants had been acquitted in enhancing the defendants’

sentences. Watts, 519 U.S. at 149-51, 136 L. Ed. 2d at 560-61, 117 S.

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Ct. at 634-35. After concluding that the Federal Sentencing

Guidelines permitted consideration of this conduct (Watts, 519 U.S.

at 151-54, 136 L. Ed. 2d at 561-63, 117 S. Ct. at 635-36), the Court

determined that the acquittals had no preclusive effect, because, under

the Guidelines, facts relevant to sentencing only had to be proved by

a preponderance of the evidence (Watts, 519 U.S. at 155-57, 136 L.

Ed. 2d at 563-65, 117 S. Ct. at 637-38).

We discern from the cases discussed above that the principle of

collateral estoppel embodied in the double jeopardy clause of the

United States Constitution does not preclude the relitigation of an

issue after an acquittal in a criminal trial when the subsequent

disposition of the issue is governed by a lower standard of proof. This

is because an acquittal on a criminal charge does not prove that the

defendant is innocent, but merely that a reasonable doubt exists as to

his guilt. Watts, 519 U.S. at 155, 136 L. Ed. 2d at 564, 117 S. Ct. at

637, quoting 89 Firearms, 465 U.S. at 361, 79 L. Ed. 2d at 368, 104

S. Ct. at 1104. This court’s decision in Grayson, however, extended

Ashe v. Swenson’s application of the doctrine of collateral estoppel in

the manner subsequently rejected by these cases. As discussed,

Grayson relied heavily on Ashe v. Swenson in holding that the State

was precluded from proceeding with the defendant’s probation

revocation hearing after the defendant was acquitted of the

substantive charge, despite the fact that the probation revocation

hearing involved a lower standard of proof. See Grayson, 58 Ill. 2d

at 263-65.

This court did not expressly state in Grayson whether it was

conducting its analysis solely under the United States Constitution

(U.S. Const., amend. V). Assuming it was, then Grayson clearly goes

beyond what is required by the double jeopardy clause of the fifth

amendment in precluding the relitigation of an issue under a lower

standard of proof after an acquittal in a criminal trial. Furthermore,

we find no independent support for Grayson’s expansive

interpretation of the principle of collateral estoppel in the double

jeopardy clause of the Illinois Constitution of 1970 (Ill. Const. 1970,

art. I, §10). This court has previously interpreted the Illinois

Constitution’s double jeopardy clause in a manner that is consistent

with the United States Supreme Court’s interpretation of the double

jeopardy clause of the fifth amendment. See In re P.S., 175 Ill. 2d 79,

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89-90 (1997), citing People v. Levin, 157 Ill. 2d 138, 160 (1993);

People v. 1988 Mercury Cougar, 154 Ill. 2d 27, 39 (1992). We have

no reason to do otherwise here. As we recently described in People

v. Caballes, our approach to determining the relationship between

cognate provisions of the Illinois Constitution and the United States

Constitution is an “interstitial,” or “limited,” form of the lockstep

doctrine. Caballes, 221 Ill. 2d at 309. Consistent with that approach

(Caballes, 221 Ill. 2d at 310-11), we find nothing in the language of

our state constitution (Ill. Const. 1970, art. I, §10 (“No person shall

*** be twice put in jeopardy for the same offense”)), the debates or

committee reports of the constitutional convention (3 Record of

Proceedings, Sixth Illinois Constitutional Convention 1376-80, 1390;

6 Record of Proceedings, Sixth Illinois Constitutional Convention 43-

44), or the tradition of our state that warrants interpreting the Illinois

Constitution’s double jeopardy clause to preclude a probation

revocation hearing after an acquittal of the substantive charge in the

manner suggested by Grayson. In light of these considerations,

overruling Grayson would have the salutary effect of harmonizing

this court’s case law regarding the collateral estoppel component of

the guarantee against double jeopardy with that of the United States

Supreme Court. It would also eliminate the tension between Grayson

and this court’s more recent decisions in Jackson and Nau.

Grayson’s doctrinal weakness is not the only factor that militates

in favor of its abrogation. The rule established by Grayson is

unworkable, because it creates a perverse system of incentives for the

State and for defense counsel in cases where a defendant faces both

a substantive charge and probation revocation based on the same

conduct. In such cases, the defendant can receive a trial on the

substantive charge before his probation revocation hearing, receive a

trial on the substantive charge after his probation revocation hearing,

or receive a trial on the substantive charge at the same time as his

probation revocation hearing. The third option is beneficial to the

State and the defendant, because it avoids duplicative litigation, and

thereby results in a more prompt, less costly disposition of all the

proceedings against the defendant. However, Grayson provides

defense counsel with an incentive to argue their own ineffectiveness

in consolidated proceedings that result in an acquittal and a probation

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revocation, and provides the State with a concomitant incentive to

avoid consolidation.

To illustrate this point, under Grayson, the only scenario in which

objecting to consolidation actually proves helpful to a defendant is

where the State tries the substantive charge first and the defendant is

acquitted. However, defense counsel can achieve the same result by

not objecting to consolidation, and can do so at an advantage to the

defendant. If counsel does not object, counsel secures the benefits of

prompt adjudication that consolidation provides. Counsel also avoids

the possibility that the State will simply proceed first with the

probation revocation hearing and obtain a finding that the defendant

violated his probation. Then, in the end, if the defendant is acquitted

of the substantive charge but found to have violated his probation,

defense counsel can argue he was ineffective for not objecting to

consolidation. A finding of ineffective assistance of counsel will

result in an automatic reversal of the finding that the defendant

violated his probation, because, pursuant to Grayson, the acquittal

precludes the State from proceeding with a new probation revocation

hearing.

Alternatively, defense counsel can simply request consolidation

on the defendant’s behalf. There again, the same concerns arise. The

defendant enjoys the benefits of a consolidated proceeding while

preserving the opportunity to obtain an automatic reversal of the

finding that he violated the terms of his probation.

Defendant’s point is well taken that lawyers have a reputational

interest in avoiding determinations that they provided ineffective

assistance of counsel. Grayson, however, has created a situation

where a defense lawyer is encouraged to provide ineffective

assistance of counsel in the interest of zealous advocacy. Therefore,

the fact that lawyers generally seek to avoid allegations of

ineffectiveness does little to assuage our concerns.

For the reasons expressed above, we believe good cause exists to

overrule Grayson. The appellate court’s decisions in People v. Porter

and In re A.V., which relied on Grayson in finding that the defendants

therein received ineffective assistance of counsel, are hereby

overruled as well. In light of our conclusion that collateral estoppel

does not preclude the State from proceeding with a probation

revocation hearing after a defendant has been acquitted of the

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substantive charge, defendant’s ineffective assistance of counsel

claim must fail.

II. Sufficiency of Evidence of Probation Violation

Having rejected defendant’s ineffective assistance of counsel

claim, we briefly address whether the evidence presented to the trial

court was sufficient to prove that defendant violated his probation.

Defendant argues that the evidence submitted at trial was

insufficient to demonstrate that the item he dropped was “firearm

ammunition” as defined by section 1.1 of the Firearm Owners

Identification Card Act (FOID Act) (430 ILCS 65/1.1 (West 2002)).

Specifically, defendant contends that Sergeant Glynn’s testimony

about finding an ammunition clip containing nine-millimeter rounds

was insufficient to prove that the clip actually contained live nine-

millimeter rounds. Defendant posits that the cartridges might have

been blanks, and that none of the evidence presented by the State

rules out this possibility.

The State maintains that the evidence was sufficient to show by

a preponderance that defendant was in possession of firearm

ammunition as a felon. According to the State, it is clear that the

credible testimony of one witness is sufficient to sustain a defendant’s

conviction, even if that testimony is contradicted by the defendant.

Here, Sergeant Glynn’s testimony that he observed defendant in

possession of a black, semiautomatic pistol, and that he recovered an

ammunition clip containing nine-millimeter rounds, was sufficient to

establish that defendant was in possession of firearm ammunition.

The State emphasizes that Sergeant Glynn was an 18-year veteran of

the Chicago police department at the time of the offense, and that his

testimony was neither impeached nor discredited.

Section 24–1.1 of the Criminal Code of 1961 provides, in

pertinent part:

“It is unlawful for a person to knowingly possess on or

about his person *** any weapon prohibited under Section

24–1 of this Act or any firearm or any firearm ammunition if

the person has been convicted of a felony under the laws of

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this State or any other jurisdiction.” (Emphasis added.) 720

ILCS 5/24–1.1(a) (West 2002).

Section 2–7.1 of the Code defines “firearm ammunition” as

having the meaning ascribed to it in section 1.1 of the FOID Act (720

ILCS 5/2–7.1 (West 2002)). Section 1.1, in turn, provides that

“[f]irearm ammunition” means:

“[A]ny self-contained cartridge or shotgun shell, by

whatever name known, which is designed to be used or

adaptable to use in a firearm; excluding, however:

(1) any ammunition exclusively designed for use with

a device used exclusively for signalling or safety and

required or recommended by the United States Coast

Guard or the Interstate Commerce Commission; and

(2) any ammunition designed exclusively for use with

a stud or rivet driver or other similar industrial

ammunition.” 430 ILCS 65/1.1 (West 2002).

The State must prove a violation of probation by a preponderance

of the evidence. 730 ILCS 5/5–6–4(c) (West 2002). One condition of

probation is that a person on probation “not violate any criminal

statute of any jurisdiction.” 730 ILCS 5/5–6–3(a)(1) (West 2002). In

the State’s petition to revoke defendant’s probation, the State alleged

that defendant violated his probation by committing the offense of

unlawful use of a weapon by a felon. Defendant’s information

specified that he committed the offense by “knowingly possess[ing]

on or about his person any firearm ammunition, to wit: bullets, after

having been previously convicted of the felony offense of aggravated

unlawful use of a weapon.” Accordingly, to demonstrate that

defendant violated a condition of his probation, the State had to show

by a preponderance of the evidence that, while on probation,

defendant knowingly possessed firearm ammunition as a felon.

Defendant does not dispute that, on April 19, 2004, the date of his

alleged probation violation, he was on probation and was a felon.

Defendant also does not dispute that he was in knowing possession

of the item that Sergeant Glynn saw him drop in the alley and

subsequently recovered. Defendant argues only that the evidence

presented at trial was insufficient to demonstrate by a preponderance

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that the item in question was, in fact, “firearm ammunition” as

defined by section 1.1 of the FOID Act.

We note that defendant’s challenge to the sufficiency of the

evidence assumes that, as a matter of law, blank ammunition does not

qualify as “firearm ammunition” for purposes of section 1.1 of the

FOID Act. We need not address the validity of this assumption, as

defendant has made no attempt to justify it through argument or

citation to relevant authority. See 210 Ill. 2d R. 341(h)(7) (argument

portion of brief “shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the

record relied on *** [and] [p]oints not argued are waived”); Miller v.

Rosenberg, 196 Ill. 2d 50, 56 n.2 (2001) (declining to address party’s

challenge to ruling barring his attorney fees as element of damages in

his malicious prosecution claim where brief contained insufficient

discussion of issue). Moreover, even assuming, arguendo, that blanks

do not qualify as “firearm ammunition” within the meaning of the

relevant statutory definition, the evidence presented to the trial court

provided it with a sufficient basis for inferring that the clip in

defendant’s possession contained live nine-millimeter rounds, not

blanks.

When the trial court finds that a violation of probation has been

proved, a challenge to the sufficiency of the evidence of the type

asserted by defendant will succeed only if the trial court’s finding is

against the manifest weight of the evidence. People v. Houston, 118

Ill. 2d 194, 199 (1987); People v. Cooper, 66 Ill. 2d 509, 514 (1977);

People v. Crowell, 53 Ill. 2d 447, 451-52 (1973). In the instant case,

Sergeant Glynn’s testimony established that he was an 18-year

veteran of the Chicago police department, that he clearly observed

defendant in possession of a black, semiautomatic pistol, and that he

recovered a magazine from that pistol containing nine-millimeter

rounds. As the State points out, Sergeant Glynn’s testimony was not

contradicted or impeached in any way, and there is no indication in

the record before us that the cartridges he identified were blanks.

Therefore, the trial court could reasonably have inferred that the

ammunition in defendant’s possession was live ammunition, and the

court’s finding that defendant violated his probation by committing

the offense of unlawful use of a weapon by a felon was not against

the manifest weight of the evidence. Accord People v. Lee, 48 Ill. 2d

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272, 281 (1971) (rejecting defendants’ argument that, by failing to

prove that shotgun shells introduced into evidence were live shells,

the State failed to meet its burden of proving defendants guilty

beyond a reasonable doubt of unlawful possession of firearm

ammunition, because whether shells were capable of being discharged

was for trier of fact to decide, and nothing in record suggested shells

were not, in fact, live).

CONCLUSION

For the reasons expressed above, we hold that defendant was not

denied the effective assistance of counsel, and that the evidence was

sufficient to demonstrate that defendant violated his probation.

Accordingly, we reverse the judgment of the appellate court and

affirm the judgment of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

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