People v. Torres

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Appellate Court Date: 2020.12.30

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People v. Torres, 2019 IL App (1st) 151276

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption MIGUEL TORRES, Defendant-Appellant.

District & No. First District, Sixth Division

No. 1-15-1276

Filed December 20, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-17776; the

Review Hon. Gregory Ginex, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.

Counsel on James E. Chadd, Patricia Mysza, and Stephanie T. Puente, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

John E. Nowak, and Lisanne P. Pugliese, Assistant State’s Attorneys,

of counsel), for the People.

Panel PRESIDING JUSTICE MIKVA delivered the judgment of the court,

with opinion.

Justice Walker concurred in the judgment and opinion.

Presiding Justice Griffin dissented, with opinion.

OPINION

¶1 On the night of October 2, 2011, Miguel Torres and Roberto Vargas approached a car

where Jose Salgado and Angel Cintron were sitting, and Mr. Torres fired two shots toward Mr.

Salgado, who was in the driver’s seat of the car. Mr. Torres was convicted of attempted first

degree murder while personally discharging a firearm (720 ILCS 5/8-4(a) (West 2010); 730

ILCS 5/5-8-1(a)(1)(d)(ii) (West 2010)) and aggravated discharge of a firearm in the direction

of a vehicle that Mr. Torres knew or reasonably should have known was occupied by a person,

specifically Mr. Cintron (720 ILCS 5/24-1.2(a)(2) (West 2010)).

¶2 At trial, Roberto testified against Mr. Torres. Roberto acknowledged that he had also

played a role in this shooting and told the jury that he had pled guilty in juvenile court to

attempted first degree murder (id. § 8-4(a)) and to aggravated battery (id. § 12-3.05(a)). This

testimony was not true. Roberto pled guilty only to aggravated battery—not to attempted first

degree murder. The testimony went uncorrected by the State, despite defense counsel

expressing concern that the jury might infer from that plea that Mr. Torres was also guilty of

attempted murder, thereby undermining his only defense, which was that he never had the

specific intent to kill someone, a necessary element for an attempted murder conviction.

¶3 Mr. Torres appeals his convictions on three bases: (1) the State’s use of and failure to

correct Roberto’s false testimony deprived him of his right to due process of law; (2) his trial

counsel was ineffective; and (3) his conviction for aggravated discharge of a firearm in the

direction of a vehicle he knew or reasonably should have known was occupied by a person

violated the one-act, one-crime rule.

¶4 For the following reasons, we reverse Mr. Torres’s conviction for attempted first degree

murder and remand for a new trial on that charge. We find that Roberto’s false testimony that

he pled guilty to attempted first degree murder was not harmless error in this case. This reversal

moots Mr. Torres’s argument under the one-act, one-crime doctrine. Finally, as to the

remaining charges against him, we reject Mr. Torres’s claim that he received ineffective

assistance of counsel.

¶5 I. BACKGROUND

¶6 In October 2011, Linda Torres-Jurado placed a telephone call to her 16-year-old son,

Roberto, and told him to find Miguel Torres and also to locate a gun so that the two of them

could scare Ruben Lopez. Linda had hired Mr. Lopez to drive a truck full of heroin from

Mexico to Chicago, but Mr. Lopez had not made the delivery or contacted Linda. Linda was

receiving threats against herself and her family in Mexico and was desperate to find Mr. Lopez

and recover the lost cargo.

¶7 Roberto did as he was told; on October 2, 2011, he secured a handgun from a local gang

member, and then he and Mr. Torres walked to Linda’s house. Along the walk, they picked up

Roberto’s 15-year-old girlfriend, Jesenia Carmona. When these three arrived at Linda’s house,

everyone got into her car, and they drove off in search of Ruben Lopez.

¶8 Mr. Lopez turned out to be an informant who was actively cooperating with local and

federal law enforcement in an investigation directed at Linda’s drug trafficking activities.

Shortly after the shooting in this case, Linda and her son were detained by agents of the United

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States Drug Enforcement Administration, and soon after that, Mr. Torres was arrested by

Cicero police officers.

¶9 While in custody, Mr. Torres waived his Miranda rights (see Miranda v. Arizona, 384 U.S.

436 (1966)) and gave a detailed written statement, confessing to having shot at the driver of

the car in order to scare him, after Linda had incorrectly identified the driver to him as being

Ruben Lopez’s brother, Beto. Mr. Torres said in his statement that Linda had told him to scare

Beto so that Beto would tell him where Ruben was. As it turned out, the person that Mr. Torres

shot was not Beto, but Mr. Lopez’s neighbor, Jose Salgado, who had no connection to Ruben

Lopez or to Linda’s missing drugs. Angel Cintron was in the car with Mr. Salgado and took

the wheel after the shots were fired to drive Mr. Salgado to the hospital.

¶ 10 Mr. Torres, who was 20 years old at the time, was charged with (1) attempted first degree

murder, (2) personally discharging a firearm during the commission of attempted first degree

murder, (3) aggravated battery, (4) two counts of aggravated discharge of a firearm in the

direction of another person, and (5) two counts of aggravated discharge of a firearm in the

direction of a vehicle that Mr. Torres knew or reasonably should have known to be occupied

by a person.

¶ 11 Roberto, who was 16 years old, was charged as a juvenile with 10 offenses, including

aggravated battery and attempted first degree murder. On June 20, 2013, Roberto pled guilty

to a single offense: aggravated battery. The State dismissed the remaining nine charges against

him, and Roberto received a sentence of five years’ probation.

¶ 12 On October 28, 2014, Mr. Torres’s case proceeded to a jury trial. During a single day of

testimony, the State called five witnesses: Jose Salgado, Angel Cintron, Roberto Vargas,

Jesenia Carmona, and Detective David Leuzzi. Mr. Torres presented no witnesses.

¶ 13 Jose Salgado testified that, in October 2011, he lived next door to Ruben Lopez. They drove

similar cars: Mr. Lopez drove a white Crown Victoria and Mr. Salgado drove a white Lincoln

Town Car. On October 2, 2011, at around 7:30 p.m., Mr. Salgado and his friend, Angel Cintron,

decided to get into Mr. Salgado’s car to go get something to eat. Mr. Salgado drove, and Mr.

Cintron sat in the front passenger seat. They backed out of a parking spot and started to drive

down the alley behind Mr. Salgado’s apartment when Mr. Torres waved them down. Mr.

Salgado slowed to a stop and rolled down his window.

¶ 14 Mr. Torres stood an arm’s length away and asked, “where you from.” Mr. Salgado

answered, “Chicago.” Mr. Torres repeated the question. Mr. Salgado pointed to his apartment.

Mr. Salgado then heard gunshots and “saw the flashes” from Mr. Torres’s gun. Mr. Salgado’s

left arm went limp, and he felt a “burning sensation” in his chest. He attempted to drive to his

parent’s house because he believed he was “going to die.” Mr. Salgado could not drive, so Mr.

Cintron took the wheel and drove to a hospital where Mr. Salgado was treated for two gunshot

wounds, one to his chest and one to his arm. Mr. Salgado survived the shooting, and the bullets

were removed from his body six months later.

¶ 15 Angel Cintron gave a similar account. He testified that on the night of October 2, 2011, he

and Mr. Salgado left the apartment to go to a Chinese buffet. He got into the front-passenger

side of Mr. Salgado’s car, and they drove down the alley behind his apartment when Mr. Torres

flagged them down. Mr. Torres approached the driver’s-side door, got close, and twice asked

Mr. Salgado where he was from. Mr. Cintron noticed another man walking near the car on the

passenger side, saw Mr. Torres and the man nod at each other, and watched as Mr. Torres

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pulled a handgun from his sweatshirt pocket and shot Mr. Salgado “two or three times.” Mr.

Cintron drove Mr. Salgado to the hospital and called the police.

¶ 16 Roberto testified that he received a call from his mother in October 2011 and was directed

to find Mr. Torres and go look for a gun. Roberto found Mr. Torres and the two of them got a

handgun from a local member of the Gangster Disciples. It was black and silver in color and

loaded. Roberto and Mr. Torres walked to Roberto’s mother’s house and picked up Roberto’s

15-year-old girlfriend, Jesenia Carmona, along the way. When they arrived at Linda’s house,

everyone got into her gold Ford Explorer, and they went to find Mr. Lopez. Linda drove,

Jesenia sat in the front seat, and Mr. Torres and Roberto sat in the back.

¶ 17 While in the car, Linda instructed Roberto to give the handgun to Mr. Torres. Roberto

complied. She told them to “get one of [Mr. Lopez’s] family members or scare one of his

family members, shoot up the house, find one of his family members.” Roberto translated his

mother’s instructions from Spanish to English for Mr. Torres, who was not fluent in Spanish.

Linda drove by Mr. Lopez’s apartment and pointed it out to Roberto and Mr. Torres. She then

purchased some beer for them to drink. Roberto remembered doing some cocaine as well.

When Jesenia got hungry, they all ate at McDonald’s.

¶ 18 When it was dark, Linda dropped off her son and Mr. Torres in the alley behind Mr.

Lopez’s apartment. Roberto testified that as he walked down the alley, he saw Mr. Torres wave

at a car. The car stopped, and Roberto saw Mr. Torres fire the handgun two times into the

driver-side window. Roberto and Mr. Torres ran away, and Linda picked them up.

¶ 19 As they drove away from the scene, Roberto heard Mr. Torres say, “I shot him. I shot him

in the head and chest, and I better get something for it.” Linda replied, “good,” and told Mr.

Torres to clean and remove the fingerprints from the gun. Mr. Torres called Roberto the next

day, asking for money.

¶ 20 Roberto admitted that he was arrested after the shooting and taken to the Cicero Police

Department, where he waived his Miranda rights and told the police what happened the day

of the shooting. The State then questioned Roberto about his guilty plea in juvenile court. The

State asked, “on June 20th, 2013, in case number 11 JD 4268, you pled guilty in Juvenile Court

to attempt murder and aggravated battery; is that correct?” Roberto answered, “Yes.” The

prosecutor continued, “[a]nd you currently are serving five years[’] probation; is that correct?”

He answered, “Yes.” Roberto confirmed that this guilty plea was for his “involvement in the

shooting of Jose Salgado and into the vehicle that Angel Cintron was seated.”

¶ 21 However, Roberto did not plead guilty in juvenile court to the offense of attempted murder.

The docket sheet of Roberto’s plea in juvenile court, which Mr. Torres provided to this court

in a supplemental record, makes clear that Roberto only pled guilty to aggravated battery and

that the charge of attempted murder and a number of other charges were nol-prossed. The State,

which had asked Roberto to affirm that he pled guilty to attempted murder, never corrected

this false testimony.

¶ 22 Roberto’s girlfriend, Jesenia Carmona, took the stand and testified that she sat in the front

seat of Linda’s car on the night of October 2, 2011, and overheard Mr. Torres say that “he shot

the dude in the head and in the body.” She also heard Mr. Torres say that the gun “got stuck.”

¶ 23 The State called, as its last witness, Detective David Leuzzi, who interviewed Mr. Torres

following his arrest. Detective Leuzzi testified that he read Mr. Torres his Miranda rights and

that after Mr. Torres signed and initialed a preprinted Miranda form, he confessed to shooting

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Mr. Salgado. Mr. Torres was interviewed a second time and at a different location by Detective

Leuzzi and Assistant State’s Attorney (ASA) Tom Sianis. Mr. Torres waived his Miranda

rights and gave a written statement, which ASA Sianis typed out. Detective Leuzzi read Mr.

Torres’s written confession aloud to the jury. According to the statement, Mr. Torres told the

police that Linda had told him her family was in trouble and that he had to shoot Ruben (Lopez)

or scare Mr. Lopez’s family and then told him to shoot Mr. Salgado, whom she identified to

him as Ruben Lopez’s brother, Beto, “so that he could tell [Mr. Torres] where Ruben was at.”

¶ 24 The State rested its case, and Mr. Torres moved for a directed verdict. The motion was

denied. Mr. Torres rested without presenting any evidence.

¶ 25 At the jury instruction conference, defense counsel told the trial court he was surprised to

learn that Roberto had pled guilty to attempted murder and proffered an instruction that he

argued was necessary so that the jury would not “infer [Roberto’s] guilty plea [was Mr.

Torres]’s, especially where one of the key issues in the case [was Mr. Torres]’s intent on the

attempt murder.”

¶ 26 The trial court denied defense counsel’s request and instead gave a more general instruction

regarding accomplice testimony. See Illinois Pattern Jury Instructions, Criminal, No. 3.17

(approved Oct. 17, 2014). The ASA pointed out that it had notified the defense that it intended

to introduce Roberto’s guilty plea at Mr. Torres’s trial, but the ASA did not notify either the

court or defense counsel at that time or any other time that Roberto had not pled guilty to

attempted murder, that he had pled guilty only to aggravated battery, or that the attempted

murder charges had in fact been dropped.

¶ 27 Mr. Torres’s case proceeded to closing argument, and the State emphasized the fact that

Mr. Torres had shot Mr. Salgado twice at close range. Defense counsel delivered a meandering

closing argument that began with reflections upon his early years as a law student. He discussed

his experience reading a case about the “Small Birds Act in Canada” and explained how it

taught him to “think legally,” i.e., that sometimes one must focus on the technical requirements

of the law, rather than what a layperson might instead presume the law to be. Defense counsel

then asked the jury to think legally and find that the State failed to prove that Mr. Torres had

the specific intent to kill Mr. Salgado beyond a reasonable doubt. The thrust of the closing

argument was the following: “Every witness you heard from, every witness talked about that

the intent was to scare, scare, not kill.” After touching on both the ratification of the United

States Constitution in 1787 and the Wendy’s “Where’s the Beef” commercial, defense counsel

concluded by asking the jury to find Mr. Torres not guilty of attempted first degree murder.

¶ 28 The jury deliberated and found Mr. Torres guilty on all charges. Mr. Torres hired a new

attorney, who filed a motion for a new trial. The first claim in that motion was that the State

had failed to disclose that Roberto had “pled guilty in juvenile court to attempted murder and

aggravated battery in exchange for receiving five years[’] probation” and that it was

“inconceivable” that Roberto had not been promised something in exchange for such a lenient

sentence. The motion was supported by affidavits from Mr. Torres’s trial counsel, averring that

they had repeatedly asked the State for the outcome of Roberto’s juvenile case and were told

that Roberto had received a sentence of probation. One of Mr. Torres’s trial lawyers stated that

the ASA told him, just before jury selection, that “documents reflecting [Roberto’s] criminal

record were available on the table of the jury room for our inspection” but that he “did not

examine the records at that time” and was “not provided with a photocopy.” It appears from

the affidavits attached in support of Mr. Torres’s motion for a new trial that his trial counsel

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was still unaware, at the time they submitted those affidavits, that Roberto had in fact pled

guilty only to aggravated battery and not to attempted murder. At the hearing on the motion,

which the trial court denied, the ASA denied that there had been any deal with Roberto but,

again, never advised the court or defense counsel that, contrary to the testimony elicited by the

State at trial, Roberto had only pled guilty to aggravated battery.

¶ 29 The trial court merged a number of the offenses and sentenced Mr. Torres to 35 years in

prison for attempted first degree murder while personally discharging a firearm (id. § 8-4(a);

730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2010)) and 6 years in prison for aggravated discharge of

a firearm in the direction of a vehicle that Mr. Torres knew or reasonably should have known

was occupied by a person, to wit, Mr. Cintron (720 ILCS 5/24-1.2(a)(2) (West 2010)). The

sentences were consecutive. Mr. Torres’s motion to reconsider his sentences was denied and

this appeal followed.

¶ 30 On November 9, 2017, the Office of the State Appellate Defender, which represents Mr.

Torres on appeal, sought leave to file in this court an electronic supplemental record instanter.

The State did not object, and on November 16, 2017, we allowed the motion. The supplemental

record consists of a printout from case No. 11 JD 4268, the juvenile case against Roberto

Vargas. This record makes it clear that the only crime Roberto pled guilty to was count VII,

aggravated battery, and that all of the other charges, including the charge of attempted murder,

were nol-prossed by the State.

¶ 31 II. JURISDICTION

¶ 32 Mr. Torres was sentenced on May 14, 2015, and timely filed his notice of appeal that same

day. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill.

Const. 1970, art. VI, § 6), and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule

606 (eff. Dec. 11, 2014), governing appeals from final judgments of conviction in criminal

cases.

¶ 33 III. ANALYSIS

¶ 34 A. Attempted Murder Conviction

¶ 35 We first consider Mr. Torres’s claim, as it relates to his conviction for attempted murder,

that Roberto gave false testimony about what he pled guilty to. At the outset, we reject the

State’s arguments that (1) we should not have granted Mr. Torres leave to supplement the

appellate record in order to show us that the testimony was false and (2) even as supplemented,

the record is not complete because it does not include Roberto’s “rap sheet,” making this claim

more appropriate for a collateral proceeding.

¶ 36 The State’s first argument fails for several reasons. First, the State failed to object when

Mr. Torres sought to supplement the record on appeal. Second, the docket sheet from Roberto’s

juvenile case, which shows that the only offense Roberto actually pled guilty to was aggravated

battery, is necessary to our consideration of Mr. Torres’s claim that false testimony was used

to convict him. See Ill. S. Ct. R. 329 (eff. July 1, 2017) (a supplemental record may be filed if

the record is insufficient to fully and fairly present the questions raised on appeal). Third, our

supreme court has made it clear that it is “well within” our authority to take judicial notice of

court records in related cases. In re N.G., 2018 IL 121939, ¶ 32.

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¶ 37 The State’s second argument also fails. It assumes that Roberto’s “rap sheet” is the

document that Mr. Torres’s trial counsel referenced in the affidavit attached to Mr. Torres’s

motion for a new trial—the document he noted had been on the table of the jury room for

“inspection,” but which he had never looked at. The State also assumes that this document

would have revealed that Roberto only pled guilty to aggravated battery. If all of this was true,

and this document was in the record, it might support a claim of ineffective assistance of

counsel on Mr. Torres’s conviction for attempted first degree murder. Because we reverse that

conviction on other grounds, there is no need to reach this issue. For reasons that we discuss

later in this opinion, what Roberto pled guilty to could not have affected the jury’s findings on

any other charges. Thus, the record is not incomplete or inadequate because of the missing “rap

sheet.” We now turn to the merits of Mr. Torres’s claim.

¶ 38 The State in this case directly solicited the false testimony from Roberto, asking him in a

leading manner, “on June 20th, 2013, in case number 11 JD 4268, you pled guilty in Juvenile

Court to attempt murder and aggravated battery; is that correct?” Then, during the jury

instruction conference later that same day, defense counsel drew special attention to this

testimony, expressing concern that the jury might “infer [Roberto’s] guilty plea [was Mr.

Torres]’s, especially where one of the key issues in the case [was Mr. Torres]’s intent on the

attempt murder.” The State did not, on either of these occasions, correct the record and make

clear that Roberto had only pled guilty to aggravated battery.

¶ 39 Mr. Torres’s argument is that the State’s failure to correct Roberto’s false testimony

deprived him of due process of law. The State concedes that Roberto’s testimony was

inaccurate but takes the position that because Mr. Torres did not object at trial, it is Mr. Torres’s

burden to convince this court that the admission of this testimony rose to the level of plain

error. The plain error doctrine allows a reviewing court to consider unpreserved claims of error

only when the evidence is closely balanced or the error is so serious that it challenges the

integrity of the judicial process. People v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 40 The State’s premise—that Mr. Torres must show that admission of this false testimony

rises to the level of plain error—is incorrect. Where, as here, the State elicits and then fails to

correct testimony it is charged with knowing is false because it relates to a plea deal that the

State made with its own witness, the defendant has no obligation to uncover the falsehood and

object. People v. Olinger, 176 Ill. 2d 326, 348 (1997). Rather, “if there is any reasonable

likelihood that the false testimony could have affected the jury’s verdict,” the defendant is

entitled to a new trial. Id. at 349. The burden is on the State to correct the testimony or, having

failed to do so, to show that the testimony’s admission was harmless beyond a reasonable

doubt. Id. at 348-49. This standard is applied by both the United States Supreme Court and our

own supreme court when false testimony has been offered at trial regarding a deal the State

has struck with a witness—a subject uniquely within the State’s knowledge. See Napue v.

Illinois, 360 U.S. 264, 270-72 (1959) (conviction reversed where a witness testified falsely that

he received no consideration in return for his testimony and where such testimony “may have

had an effect on the outcome of the trial”); Giglio v. United States, 405 U.S. 150, 152-55 (1972)

(conviction reversed where witness testified falsely that he was not promised immunity in

exchange for testimony); Olinger, 176 Ill. 2d at 345-47 (evidentiary hearing ordered on

postconviction petition claim that prosecution witness failed to disclose promises made to him

by the prosecution); People v. Jimerson, 166 Ill. 2d 211, 222-23, 230-31 (1995) (new trial

ordered on a postconviction petition where the State elicited testimony from a witness that she

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had not been promised anything, when in fact the State had promised her that the murder charge

against her would be dropped). Like those cases, the false testimony here was about a deal the

State had made with one of its own witnesses. The State allowed Roberto to plead guilty only

to aggravated battery and dropped the attempted murder charge against him.

¶ 41 Our supreme court summarized the law on this point in Lucas:

“We have held that where the State’s case includes perjured testimony, and the State

knew, a ‘ “strict standard of materiality” ’ applies, and a court of review must overturn

the conviction ‘if there is any reasonable likelihood that the false testimony could have

affected the judgment of the jury.’ [Citation.] ‘This standard is equivalent to the

harmless error standard ***.’ [Citation.] The strict standard of materiality applies even

if the State did not solicit the false testimony, but rather left it to go uncorrected.”

People v. Lucas, 203 Ill. 2d 410, 422 (2002).

¶ 42 While it is not at all clear on this record that the prosecutor trying the case actually knew

that Roberto’s testimony was false, our supreme court has made clear that “knowledge on the

part of any representative or agent of the prosecution is enough.” Olinger, 176 Ill. 2d at 348.

Thus, in Olinger, the court ruled that if the prosecutor’s office knew that a State witness had

worked out a multijurisdictional deal in exchange for his testimony, it was a due process

violation to allow that witness to testify that he was only given immunity from prosecution on

one charge, regardless of whether the prosecutor in the courtroom knew the full extent of the

deal. Id. at 346-48; see also Giglio, 405 U.S. at 154 (“[W]hether the nondisclosure was a result

of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an

entity and as such it is the spokesman for the Government. A promise made by one attorney

must be attributed, for these purposes, to the Government.”).

¶ 43 In Olinger, Jimerson, and Lucas, the defendants’ claims that the State elicited false

testimony were first raised in postconviction petitions. This case, however, is one of those rare

situations in which the fact that trial testimony was false can be demonstrated on direct appeal

because Mr. Torres was able to provide this court with the record of conviction in Roberto’s

juvenile case. Indeed, the State does not dispute that while Roberto testified that he pled guilty

to attempted murder, he in fact pled guilty only to aggravated battery.

¶ 44 Since it is undisputed that the State elicited false testimony as to what Roberto pled guilty

to, the only question remaining is whether there is “any reasonable likelihood that the false

testimony could have affected the judgment of the jury.” (Internal quotation marks omitted.)

Lucas, 203 Ill. 2d at 422. In his brief, Mr. Torres focused on the possibility that this false

testimony about what charges were dropped against Roberto might have “misled the jury to

believe that Roberto had no motive to testify favorably for the State.” In fact, the potential

prejudice to Mr. Torres is far starker: because the jury was falsely told that Roberto pled guilty

to attempted murder, the jury could have concluded that Mr. Torres must also be guilty of this

offense. This would have eviscerated the only defense that Mr. Torres offered, which was that

he had no specific intent to kill anyone. His trial counsel picked up on this at the jury instruction

conference, when he asked for a special jury instruction because of his concern that the jury

could “infer [Roberto’s] guilty plea [was Mr. Torres]’s, especially where one of the key issues

in the case [was Mr. Torres]’s intent on the attempt murder.”

¶ 45 Mr. Torres’s sole defense was that he lacked the specific intent to kill. The State was

required to prove that specific intent beyond a reasonable doubt. People v. Ephraim, 323 Ill.

App. 3d 1097, 1110 (2001). Mr. Torres told the police that he intended to scare Mr. Lopez or

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a relative, not to kill. This was supported by Roberto’s testimony that his mother’s instructions

to the two of them were to scare Mr. Lopez or one of his relatives. The jury rejected this

defense, and Mr. Torres does not suggest that the verdict cannot be supported on this record.

But the jury’s false belief that Roberto pled guilty to attempted murder absolutely could have

contributed to the jury’s finding that Mr. Torres was also guilty of attempted murder.

¶ 46 This was a very short trial; five witnesses were presented in the span of a single day. And

Roberto was the only witness who was an accomplice to the crime. The State clearly elicited

an answer from him about the nature of his plea that the prosecutor knew or should have known

was false. The potential harm from this testimony was specifically brought up at the jury

instruction conference where Mr. Torres’s counsel expressed concern that the jury might infer

that his client was also guilty of attempted murder. The State never corrected the false

testimony it had elicited. We cannot assume this false answer was buried in a myriad of other

details or witness testimony. On this record, we simply cannot conclude that the false testimony

was harmless beyond a reasonable doubt.

¶ 47 The dissent suggests that the evidence here was so overwhelming that the false testimony

could not have mattered. However, while the evidence was certainly undisputed that Mr.

Torres shot Mr. Salgado, the evidence was very much disputed as to whether he intended to

kill the occupant of the vehicle or only scare him.

¶ 48 The dissent’s characterization of this defense as being “based on a single word” in Mr.

Torres’s confession is simply not correct. Throughout his statement to the police and

throughout Roberto’s and Jesenia’s testimony, evidence was presented that the reason Mr.

Torres fired two shots at Mr. Salgado, whom Mr. Torres thought was “Beto,” was to scare him,

never to kill him. The testimony was undisputed that the gun used did not belong to Mr. Torres

but was thrust at him by Roberto with instructions from Linda to use it to scare Beto. While

the dissent references Mr. Torres’s “statement” that the gun “got stuck,” implying that he

would have continued to fire shots, this alleged statement was reported only by Jesenia. In his

own statement, Mr. Torres said that after he shot at the driver twice, “he panicked and ran

down the alley.” The thrust of the defense’s closing argument was that “there was an intent to

scare, not the intent to kill.” While the jury was not required to accept this argument, they were

entitled to consider it, and there was certainly a “reasonable likelihood” that their incorrect

belief that the man who was with Mr. Torres throughout this incident, Roberto Vargas, had

pled guilty to attempted murder contributed to the guilty verdict.

¶ 49 The dissent also argues that Olinger and the other cases cited above do not apply here

because there is no showing that the prosecutor deliberately suborned perjury or that Roberto

had any motive to lie to the jury. However, as Olinger makes clear, it does not matter whether

the prosecutor in the courtroom knew what Roberto pled guilty to; that prosecutor is charged

with knowledge possessed by anyone in the office of the Cook County State’s Attorney.

Olinger, 176 Ill. 2d at 348. It also does not matter whether Roberto knew the import of what

he was testifying to or why it could impact Mr. Torres’s trial. As the United States Supreme

Court has stated, whether by “negligence or design,” false testimony from a prosecution

witness about a deal between that witness and the government implicates due process concerns.

Giglio, 405 U.S. at 154.

¶ 50 The dissent cites People v. Redmond, 265 Ill. App. 3d 292, 309 (1994), for the proposition

that Mr. Torres must demonstrate by clear and convincing evidence that the false testimony he

is complaining of was “willfully and purposefully falsely given.” (Emphasis and internal

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quotation marks omitted.) Redmond, which was decided several years before our supreme

court decided Olinger, would not be controlling if it stood for a conflicting rule of law.

However, it does not. Redmond has nothing to do with testimony by a witness regarding a deal

between that witness and the government. In contrast to this case, Olinger, and the other cases

cited above, Redmond involved a garden-variety claim that certain trial testimony was

contradicted by other evidence. Id. at 308-09. It is in that context that the court in Redmond

pointed out that a defendant has the burden of showing that the State knowingly used perjured

testimony and that the testimony was “willfully and purposefully falsely given.” (Emphases in

original and internal quotation marks omitted.) Id. at 309.

¶ 51 In Redmond, this court rejected the defendant’s argument that his lawyer cooperated with

the State in a fraudulent scheme in which a police officer purportedly lied about where certain

bullets had been recovered. Id. at 308-09. In People v. Trimble, 220 Ill. App. 3d 338, 346

(1991), which we relied on in Redmond, the defendant on appeal made a due process argument

based on inconsistencies between a witness’s pretrial statement and trial testimony. Neither

case had anything to do with a prosecutorial decision to nol-pross charges or another deal

between the prosecution and the witness.

¶ 52 Olinger, the other cases we cited above, and this case all deal with testimony from a

prosecution witness that is not just undermined by other evidence at trial but is directly

contradicted by information that is uniquely in the hands of the prosecutor. The prosecution is

not responsible for ensuring the veracity of every witness it presents, but the prosecution is

charged with knowledge as to the plea deals it makes with its own witnesses. And when those

witnesses deny or misrepresent those deals on the stand, the defendant is entitled to a new trial

if there is any reasonable likelihood that the false testimony affected the verdict.

¶ 53 The dissent also suggests that this false testimony did not matter because Roberto’s

testimony was not critical to the prosecution’s case. However, the import of the false testimony

is not whether it gave the jury a false reason to believe Roberto, but that it gave the jury a false

understanding of what Roberto pled guilty to. It would not matter if Roberto had offered no

testimony at all. The problem in this case was that the jury was falsely told that Roberto—the

other participant in this crime—pled guilty to attempted murder. There is a real danger that

this representation suggested to the jury that Mr. Torres, who actually fired the gun, should be

convicted of that crime as well.

¶ 54 Mr. Torres’s conviction for attempted murder must be reversed, and this case remanded

for a new trial on that charge. We turn now to the arguments with respect to Mr. Torres’s other

conviction.

¶ 55 B. Aggravated Discharge of a Weapon Conviction

¶ 56 In contrast to the attempted murder charge, it is clear on this record that Roberto’s

testimony did not impact the jury’s finding that Mr. Torres was guilty of aggravated discharge

of a firearm in the direction of a vehicle he knew or reasonably should have known was

occupied by a person (720 ILCS 5/24-1.2(a)(2) (West 2010)). Although Mr. Torres urges us to

find that Roberto’s false testimony impaired defense counsel’s ability to undermine Roberto’s

credibility, we are unpersuaded that this had any impact on the jury’s finding him guilty of this

second offense.

¶ 57 Roberto’s credibility simply did not matter on the charge of aggravated discharge of a

weapon. Mr. Torres acknowledged in his own statement that he fired the gun at the car where

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Mr. Cintron was sitting, and all of the witnesses testified to this fact. Thus, even if this false

testimony somehow enhanced the credibility of Roberto and his girlfriend, Jesenia, its

admission was harmless beyond a reasonable doubt for purposes of Mr. Torres’s conviction

for aggravated discharge of a weapon.

¶ 58 Mr. Torres’s only other argument for reversing his conviction for aggravated discharge is

that this conviction violated the one-act, one-crime doctrine, which prohibits multiple

convictions based upon the same physical act. See People v. Kotero, 2012 IL App (1st) 100951,

¶ 19. Following our reversal of Mr. Torres’s conviction for attempted murder, however, there

is only one conviction and therefore no one-act, one-crime issue. We decline to speculate on

whether or how this issue might arise again on remand.

¶ 59 C. Ineffective Assistance of Counsel

¶ 60 We also reject Mr. Torres’s claim that his trial counsel was ineffective as a basis for

overturning his conviction for aggravated discharge of a weapon. Claims of ineffective

assistance of counsel are judged under the two-pronged standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and adopted by our supreme court in People v. Albanese,

104 Ill. 2d 504 (1984). People v. Dupree, 2018 IL 122307, ¶ 44. Under the Strickland standard,

a defendant must show that (1) “counsel’s performance fell below an objective standard of

reasonableness” and (2) “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. “Failure to make the

requisite showing of either deficient performance or sufficient prejudice defeats the claim.”

People v. Banks, 2016 IL App (1st) 131009, ¶ 123.

¶ 61 Mr. Torres claims that his trial counsel was deficient for failing to verify what Roberto

actually pled guilty to. This apparently relates to the “rap sheet” that was not made part of the

record, but which defense counsel said in an affidavit filed in support of a new trial was left on

the table in the jury room for inspection. Mr. Torres also claims that counsel was deficient

because of his “rambling” and “incoherent” closing argument. We may dispose of an

ineffective assistance of counsel claim by proceeding directly to the prejudice prong. People

v. Hale, 2013 IL 113140, ¶ 17. The prejudice prong requires Mr. Torres to show that counsel’s

deficiency was so serious it deprived him of a fair trial. People v. Smith, 195 Ill. 2d 179, 188

(2000). We need not address any deficiency as it pertains to Mr. Torres’s conviction for

attempted murder, since we reverse that conviction on other grounds. It is clear to us that any

possible prejudice from counsel’s performance would be limited to that conviction; thus, we

reject Mr. Torres’s claim of ineffective assistance.

¶ 62 The only argument that Mr. Torres offers to demonstrate prejudice is that if the jury knew

that the State had dropped the attempted murder charge, this might have undermined Roberto’s

and Jesenia’s credibility and helped the jury to see that they each had a motive to testify

favorably for the State. Mr. Torres does not offer any suggestion about what his trial counsel

could have but failed to argue in his closing argument on any of these other charges. The

evidence on all the aggravated battery charges was overwhelming. Mr. Torres has offered no

defense (other than his argument under the one-act, one-crime doctrine) to any of those

charges, either at trial or on appeal. The only defense that Mr. Torres has ever offered was that

he had no intent to kill. Thus, Mr. Torres cannot make the showing of prejudice by Strickland

on any of the remaining charges against him.

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¶ 63 IV. CONCLUSION

¶ 64 We reverse Mr. Torres’s conviction for attempted first degree murder and remand for a

new trial on that charge. We affirm his conviction for aggravated discharge of a firearm in the

direction of a vehicle occupied by a person.

¶ 65 Affirmed in part and reversed in part; cause remanded.

¶ 66 PRESIDING JUSTICE GRIFFIN, dissenting:

¶ 67 The jury in this case heard defendant’s confession to the crime and the testimony of two

eyewitnesses, one of whom defendant shot twice, once in the chest and once in the right arm,

at point-blank range. Defendant’s theory of the case was based on a single word contained in

his four-page confession: “scare.” He asked the jury to believe that he intended to “scare” his

victim, not kill him. The jury rejected this argument. But the majority concludes that there was

a chance the jury believed defendant and convicted him anyway because Roberto Vargas

testified incorrectly that he pled guilty to attempted first degree murder (720 ILCS 5/8-4(a)

(West 2010)). The majority finds that the State “directly solicited” (see supra ¶ 38) perjured

testimony from Vargas and holds that it failed to prove harmless error. The majority grants

defendant a new trial.

¶ 68 I disagree with the majority’s finding and with its decision to apply the harmless error

standard to this case, as opposed to plain error. A close reading of the majority opinion reveals

that it relaxed the forfeiture rule in order to review Vargas’s testimony for harmless error. The

premise was that a defendant should be under no obligation to “uncover” and “object” to

perjured testimony that the State solicits from its own witness. Supra ¶ 40. This would make

good sense if there was any evidence in the record that the State solicited perjured testimony

from Vargas. There is no such evidence in the record, and the parties did not ask us to conduct

a harmless error analysis.

¶ 69 Based on the evidence presented in this case and defendant’s claims of plain error and

ineffective assistance of counsel raised on appeal, I would affirm defendant’s conviction for

attempted first degree murder while personally discharging a firearm (720 ILCS 5/8-4(a) (West

2010); 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West Supp. 2011)). I would then vacate defendant’s

conviction and sentence for aggravated discharge of a firearm in the direction of a vehicle he

knew or reasonably should have known was occupied by Angel Cintron (720 ILCS 5/24-

1.2(a)(2) (West 2010)) because it violates the one-act, one-crime doctrine. In the following, I

discuss the overwhelming evidence of the crime presented at trial and the lack of any evidence

that the State directly solicited perjured testimony from Vargas or dropped his attempt murder

charge in exchange for his testimony at trial. I conclude with an explanation as to why

defendant’s failure to preserve his argument for appeal should not have been excused.

¶ 70 Defendant confessed in writing to shooting Salgado. His confession was admitted into

evidence at trial, read aloud to the jury by Detective David Leuzzi, and given to the jury for

use during deliberations. Defendant essentially gave everything up in his confession: how the

plan to send a message to Ruben Lopez for failing to arrive in Chicago with a truck full of

heroin was cooked up, what his orders were from Linda Vargas (“Linda told [defendant] that

he had to shoot Ruben or scare his family”), and how he carried out those orders when he

“pointed the gun at the driver” and “shot at the driver twice.” Defendant’s words were brought

to life when Jose Salgado and Angel Cintron took the stand.

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¶ 71 Salgado testified at trial that on October 2, 2011, defendant walked up to the driver’s-side

door of his car, and from a distance of just “two feet,” pulled a gun and shot him twice in the

chest and right arm. Salgado saw the “flash” from defendant’s gun and he immediately felt a

“burning sensation” in his chest. He tried to drive to his parent’s house “just to say bye to

them” because “he was going to die.” Cintron, who sat in the front passenger seat, testified that

defendant stood a mere “five feet” away when he discharged his gun into the car “two or three

times.” Luckily, Cintron took the wheel and managed to get Salgado to the hospital before he

died.

¶ 72 The jury heard more evidence. Jesenia Carmona testified that defendant got into Linda’s

car after the shooting and said he “shot the dude in the head and the body” and that his gun

“got stuck.” The jury learned that Carmona was present in the car after the shooting because

defendant confirmed the fact in his written confession: “Yesenia was sitting in the front

passenger seat.”

¶ 73 Defendant’s theory of the case was that he intended to “scare” Salgado, not kill him. But

the specific intent to kill can be inferred from conduct, and defendant’s conduct spoke volumes.

The specific intent to kill is a question of fact for the jury. People v. Valentin, 347 Ill. App. 3d

946, 951 (2004). It is seldom proven by direct evidence and, therefore, may be inferred from

the acts committed and the surrounding circumstances, such as the character of the attack, use

of a deadly weapon, and the severity of the injury. Id. Specific intent may be inferred when it

has been demonstrated that the defendant voluntarily and willingly committed an act, the

natural tendency of which is to destroy a person’s life. People v. Winters, 151 Ill. App. 3d 402,

405 (1986). For an attempted murder charge, courts consider the number of shots, the range,

and the general target area in assessing the strength of intent evidence. People v. Bryant, 123

Ill. App. 3d 266, 274 (1984). We have even held that “ ‘[t]he very fact of firing a gun at a

person supports the conclusion that the person doing so acted with an intent to kill.’ ” People

v. Ephraim, 323 Ill. App. 3d 1097, 1110 (2001) (quoting People v. Thorns, 62 Ill. App. 3d

1028, 1031 (1978)).

¶ 74 The jury could have easily inferred defendant’s specific intent to kill from his conduct, and

if that was not enough, the jury could have turned to defendant’s statements that his gun “got

stuck” after “he shot the dude in the head and the body.” The evidence of defendant’s guilt was

overwhelming, and this was not a close case by any stretch of the imagination. But defendant’s

confession, his statements made after the shooting, and the testimony of the eyewitnesses speak

to more than just the apparent imbalance of the evidence. They place Vargas’s corroborating

testimony in context.

¶ 75 The majority cites Olinger in its opinion, but in that case our supreme court made clear that

the defendant was entitled to an evidentiary hearing to determine whether the State knowingly

used perjured testimony against him at trial because the allegedly perjurious testimony was

“critical to the State’s case against defendant.” Olinger, 176 Ill. 2d at 349. More specifically,

the testimony “was the only evidence placing the murder weapon in defendant’s hands,” and

the State’s witness “provided the only evidence which attributed a motive to defendant for the

killings.” (Emphases in original.) Id. Vargas’s testimony was not critical to the State’s case.

Frankly, Vargas corroborated defendant’s confession and his plea testimony was not even used

by the State as a basis for his guilt during closing argument.

¶ 76 More importantly, our supreme court in Olinger found that the defendant made a

substantial showing that the State’s witness committed perjury when he “framed his testimony”

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so as to conceal his potentially “powerful motive to testify falsely” for the State: the witness

told the jury that, in exchange for his testimony, the State agreed to drop burglary charges

pending against him in a single jurisdiction when, in fact, there was evidence indicating that

the defendant had received a multijurisdictional deal with authorities. Id. at 346-50. Critically,

the court also found that the defendant “made a substantial showing that Illinois authorities

knew of this multijurisdictional deal, but nonetheless allowed [the State witness’s] false

testimony to go uncorrected.” Id. at 348. It explained that even though the prosecutor trying

the case may not have known about the multijurisdictional deal, the evidence demonstrated

that the “prosecutor’s office” knew about the agreement and that was enough. Id. at 348-49

(“the prosecutor actually trying the case need not have known that the testimony was false;

rather, knowledge on the part of any representative or agent of the prosecution is enough”).

¶ 77 As support for its decision to charge the entire office with knowledge of the

multijurisdictional deal in Olinger, our supreme court cited Giglio v. United States, 405 U.S.

150, 152-53 (1972). In that case, the acting prosecutor was not informed that a government

witness had struck a deal with another prosecutor to provide testimony before the grand jury.

At trial, the acting prosecutor stated that “[the witness] received no promises that he would not

be indicted.” Id. The United States Supreme Court held that “[a] promise made by one attorney

must be attributed, for these purposes, to the government” and reversed the defendant’s

conviction because (1) the jury was entitled to know about the deal and (2) the “[g]overnment’s

case depended almost entirely on [the witness’s] testimony.” Id. at 154.

¶ 78 It is clear from Olinger and Giglio that a prosecutor’s office cannot strike a deal with a

witness to offer material testimony against a defendant at trial and later claim the acting

prosecutor lacked personal knowledge of the agreement when the witness commits perjury on

the stand. Under such circumstances, the prosecutor is charged with the requisite knowledge

and the conviction violates the guarantees of due process. But the facts that triggered the

operation of this principle in Olinger and Giglio are wholly absent from the record in this case.

¶ 79 There is no evidence that the State dropped Vargas’s attempted murder charge in exchange

for his testimony at trial. Surely, Vargas got a “deal” in the colloquial sense. After all, he

received a sentence of five years’ probation for his involvement in a heinous crime. But there

was no evidence that Vargas’s testimony was the consideration for the dropped charge. Vargas

pled guilty more than a year before defendant proceeded to trial. By that time, assuming the

State had given Vargas the proverbial carrot, it is doubtful the State could have used the stick.

Moreover, Vargas entered his plea of guilty to aggravated battery (720 ILCS 5/12-3.05(a)

(West Supp. 2011)) after a Rule 402 conference (Ill. S. Ct. R. 402 (eff. July 1, 1997)) (402

Conference), where the State asked for jail time and did not receive it from the judge. If there

was a deal, it may not have been fair to proceed to a 402 Conference. Finally, the State’s case

did not depend on Vargas’s testimony.

¶ 80 Accordingly, the principle outlined in Olinger and Giglio does not operate in this case. But

even if it did, the State would be charged with knowledge of a factual inaccuracy, not perjury.

There is no evidence of perjury in this case, but before turning to that discussion, I find it

necessary to quickly address two additional questions asked of Vargas at trial.

¶ 81 During the direct examination of Vargas about his guilty plea in juvenile court, the

prosecutor asked: “[w]ere any threats or promises made to you prior to your testimony today?”

Vargas answered, “No.” The prosecutor continued: “[w]ere any threats or promises made to

you prior to your pleading guilty in [the juvenile] case?” Vargas again answered, “No.” The

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majority makes no mention of this exchange in its opinion. By the majority’s reasoning, this

too would constitute a due process violation and perhaps, may better fit the facts and

circumstances present Olinger and Giglio. But again, the record contains no evidence of a deal

or perjury, the State’s case did not depend on Vargas’s testimony and this specific testimony

did not relate to defendant’s specific intent to kill. Accordingly, even if the majority had

addressed this exchange at trial, it would not be reversible.

¶ 82 To prove the State’s knowing use of perjured testimony, the defendant must show by clear,

convincing, and satisfactory evidence that the testimony was not merely false, but “ ‘willfully

and purposefully falsely given.’ ” (Emphases in original.) People v. Redmond, 265 Ill. App. 3d

292, 309 (1994) (quoting People v. Trimble, 220 Ill. App. 3d 338, 346 (1991)). A witness

commits perjury if he or she “gives false testimony concerning a material matter with the

willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).

¶ 83 There is no evidence of perjury in the record. Defendant tried to argue on appeal that

Vargas struck a deal with the State and had something to gain from his testimony, but theory

fell flat when (1) the State denied the existence of any such agreement and (2) the transcript of

Vargas’s plea proceeding showed that it was accepted after a 402 Conference. The State could

have dismissed Vargas’s attempted murder charge for any number of reasons; to show that it

was dismissed pursuant to an agreement to cooperate, there must be evidence to that effect and

in this record, there is none.

¶ 84 There is also no evidence that the State intentionally solicited Vargas’s testimony. In fact,

defendant did not argue that the State intentionally solicited Vargas’s testimony. Rather,

defendant made clear in his opening brief that the State asked an “inaccurately worded

question” and failed to correct the answer given. The State relied on this position in its response

brief and advanced no argument in defense of a claim that it suborned perjury. “While it is true

that the prosecutor’s question is partially misworded, there is no evidence, and defendant does

not allege, that this misstatement was intentional on the part of the prosecutor or that Vargas

intentionally falsely relayed an improper conviction.”

¶ 85 The only conclusion to be drawn from the record in this case, and we are bound by the

record, is that the State asked an “inaccurately worded question” and failed to correct the

answer given. To arrive at a different conclusion here, the majority must find its own facts and

does so, on direct appeal, without any response from the State in its own defense. See Olinger,

176 Ill. 2d at 371 (remanding the case to the trial court for an evidentiary hearing on the issue

of whether the State knowingly used perjured testimony against the defendant at trial).

¶ 86 Defendant conceded in his opening brief that he failed to preserve his argument for appeal

(“Torres acknowledges that this issue was not preserved for review.”). But the majority relaxes

the forfeiture rule and reverses defendant’s conviction because the State failed to prove

harmless error beyond a reasonable doubt. I certainly would agree with the majority that if the

State directly solicits perjury from its own witness and a defendant does not pick up on it at

trial, then the forfeiture rule should be relaxed, and we should excuse the defendant’s failure

to object to the perjured testimony at trial. The State’s knowing use of perjured testimony

should never be condoned; when it is proven, it should be strongly condemned.

¶ 87 But in this case, there is no evidence, or even an allegation of perjury, and we have a

defense attorney whom the parties do not dispute was given access to Vargas’s criminal

background before trial and simply did not look at the document. Defense counsel even

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admitted that he did not look at the document: “[o]n the eve of trial, just prior to jury selection,

I was informed by [the prosecutor] that documents reflecting Vargas’ criminal record were

available on the table of the jury room for our inspection” but “I did not examine the records

at that time, and I was not provided with a photocopy.”

¶ 88 As the majority points out, defense counsel proffered a “[f]ederal instruction” to the trial

court during the jury instructions conference and argued that it “should be used in this case so

that the jury does not infer Mr. Vargas’ guilty plea is the defendant’s.” But when defense

counsel proffered the instruction, he was still unaware that Vargas’s testimony was factually

inaccurate. The trial court denied defense counsel’s request, but gave Illinois Pattern Jury

Instructions, Criminal, No. 3.17 (approved Oct. 17, 2014), in its place: “[w]hen a witness says

he was involved in the commission of a crime with the defendant, the testimony of that witness

is subject to suspicion and should be considered by you with caution. It should be carefully

examined in light of the other evidence in the case.”

¶ 89 Given the truly unique circumstances of this case, the majority’s decision to review this

case for harmless error, as opposed to plain error, can be reasonably interpreted as a declaration

that even if a defendant knows the State asked its witness an “inaccurately worded question”

and received a factually inaccurate answer, he or she would have no obligation to object at trial

or raise the objection in a posttrial motion. In other words, the State on appeal must always

prove harmless error beyond a reasonable doubt to protect the jury’s verdict when it incorrectly

elicits inaccurate testimony from its own witness at trial. I would find that the record before us

fails to provide a sufficient factual predicate upon which to base the determination that the

State always bears such a burden on appeal.

¶ 90 Given the state of the record, and the issues raised and argued by the parties on appeal, I

would affirm defendant’s conviction for attempted first degree murder while personally

discharging a firearm (720 ILCS 5/8-4(a) (West 2010); 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West

Supp. 2011)). Defendant cannot demonstrate first-prong plain error, and he cannot demonstrate

prejudice such that his claim of ineffective assistance of counsel must fail. See People v. White,

2011 IL 109689, ¶ 133 (explaining that first-prong plain error review is functionally similar to

the prejudice prong of the Strickland test (citing Strickland v. Washington, 466 U.S. 668, 694

(1984))). Defendant’s claim of second-prong plain error fails outright because he has failed to

show that the State’s failure to correct Vargas’s testimony was a clear and obvious error that

falls into the unique category of nonstructural second-prong plain errors established by our

supreme court. In re Samantha V., 234 Ill. 2d 359, 378-79 (2009); People v. Walker, 232 Ill.

2d 113, 131 (2009).

¶ 91 This was a heinous crime perpetrated against an innocent victim. Jose Salgado was not

involved in the drug trade, but he will forever be one of its victims. All because defendant

followed orders to shoot a drug trafficker and shot the wrong person.

¶ 92 I respectfully dissent.

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