{ "id": 5255931, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY MABRY, Defendant-Appellant", "name_abbreviation": "People v. Mabry", "decision_date": "1991-12-24", "docket_number": "No. 3-91-0242", "first_page": "193", "last_page": "196", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 193" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "547 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 332", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510766 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0332-01" ] }, { "cite": "380 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3339314 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0745-01" ] }, { "cite": "511 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3578326 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0699-01" ] }, { "cite": "419 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128740 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0797-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "395 N.E.2d 1081", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289404 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0330-01" ] }, { "cite": "447 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625027 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0818-01" ] }, { "cite": "539 N.E.2d 1312", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2627294 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/1035-01" ] } ], "analysis": { "cardinality": 410, "char_count": 6599, "ocr_confidence": 0.784, "pagerank": { "raw": 6.079572127879695e-08, "percentile": 0.37530720903033343 }, "sha256": "87ccc2e40aab9f4bf1db728a7b60be98a153dcb592f6b644a4b0a3858c544fea", "simhash": "1:3fb3d95bba218581", "word_count": 1087 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY MABRY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nA jury convicted the defendant, Terry Mabry, of theft (111. Rev. Stat. 1989, ch. 38, par. 16 \u2014 1(a)(1)). Thereafter, he was sentenced to a seven-year term of imprisonment. He appeals, and we affirm.\nOn appeal, Mabry first argues that the trial court erred in failing to grant his motion for a new trial. Specifically, Mabry contends he was prejudiced by the testimony of a State\u2019s witness suggesting that he had a prior record of criminal conduct.\nAny prejudice resulting from testimony concerning other crimes was committed by a defendant is generally cured by sustaining an objection and instructing the jury to disregard the testimony. (People v. Sledge (1989), 183 Ill. App. 3d 1035, 539 N.E.2d 1312.) In such cases, the decision of whether or not to grant a mistrial is within the broad discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) In order to establish an abuse of discretion, the defendant must show that he was prejudiced by the comment. People v. Rose (1979), 77 Ill. App. 3d 330, 395 N.E.2d 1081.\nIn the instant appeal, the record indicates that police officer Kenneth Orwig was asked if Mabry said anything when he was arrested. Orwig testified that Mabry said \u201che was going to go back to prison.\u201d Defense counsel immediately objected to the statement and asked for a mistrial. Following arguments, the objection was sustained and the court admonished the jury to disregard the comment. Thereafter, the trial court denied Mabry\u2019s motion for a mistrial.\nThe record reflects that Mabry testified at trial and admitted he had prior convictions for criminal sexual assault, forgery, and theft. Based on Mabry\u2019s admission, we find that even assuming the error caused by Orwig\u2019s testimony was not cured by the trial court\u2019s admonition to the jury, Mabry has failed to show how he was prejudiced by Officer Orwig\u2019s comment. Here, the jury heard from Mabry\u2019s own testimony that he had prior convictions. As such, we fail to see how Mabry was prejudiced by Office Orwig saying, in effect, the same thing.\nMabry next argues that he received ineffective assistance of trial counsel. Specifically, Mabry contends that his trial attorney failed to offer a jury instruction on the lesser offense of criminal trespass to a motor vehicle.\nThe record shows that Mabry went to an automobile dealership to look at a Chrysler Fifth Avenue. Once there, Mabry told a salesman, Ron Swenson, that he liked the car and had $3,500 in cash for a down payment. At that point, Swenson asked Mabry for his name and address. Mabry responded by giving false information. Swenson then allowed Mabry to take the car for a 10-minute test drive. Swenson stated that he did not accompany Mabry because he was busy with another customer.\nApproximately an hour later, Mabry called Swenson and told him the license plate had fallen off the car and he would be back to the dealership in about 15 minutes. However, Mabry never returned the car. Later that same evening, he was found and arrested.\nMabry stated the reason he never returned to the dealership was because he was trying to borrow money for the down payment.\nMabry testified that he got wrapped up in a conversation and by the time he was done, the dealership was closed. Mabry also claimed he intended to return the car the following morning. Mabry also said that he intended to purchase it, but was arrested before he could do so.\nFollowing his trial, Mabry filed a motion for a new trial. Mabry claimed he received ineffective assistance of counsel because his trial attorney failed to tender a jury instruction for criminal trespass to a motor vehicle. At the hearing on Mabry\u2019s motion, his trial attorney testified regarding his defense theory and trial strategy. The trial attorney\u2019s defense theory was that Mabry had lawful authority to be in the automobile and that Mabry intended to return it the next day. Therefore, the trial attorney testified that he did not even consider giving a criminal trespass to a motor vehicle jury instruction since the essence of that crime is being in a vehicle without lawful authority.\nTo pr\u00f3ve ineffective assistance of counsel, the defendant must first show that his trial attorney\u2019s performance was actually deficient. Additionally, the defendant must show that he was prejudiced by that deficiency. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Competency of counsel is determined from the totality of counsel\u2019s conduct at trial. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) However, our review of trial counsel\u2019s competency does not extend to those areas involving the exercise of professional judgment, discretion, or trial tactics. (People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235.) This is so even though, in hindsight, other trial counsel or a reviewing court might have acted in a different manner had it been defense counsel. (People v. Johnson (1978), 63 Ill. App. 3d 745, 380 N.E.2d 531.) The fact that one defense counsel may have pursued the defense of the cause under a different theory does not automatically render a trial counsel\u2019s performance ineffective. People v. Cunningham, (1989), 191 Ill. App. 3d 332, 547 N.E.2d 765.\nWe do not find the trial court erred in denying Mabry\u2019s motion. Our review of the record indicates that Mabry received effective assistance of counsel. Mabry\u2019s trial attorney testified that his defense strategy was that Mabry had lawful authority to be in the automobile. Because of this trial strategy, Mabry\u2019s attorney did not consider offering the jury instruction on criminal trespass to a motor vehicle. The trial attorney\u2019s strategy involved his professional judgment, and under the facts and circumstances of this case, was reasonable. Accordingly, we find no ineffective assistance of counsel since there is no showing that Mabry\u2019s trial attorney\u2019s performance was deficient or that Mabry was prejudiced by his performance.\nThe decision of the circuit court of Peoria County is affirmed.\nAffirmed.\nSTOUDER, P.J., and GORMAN, J., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Kevin W. Lyons, State\u2019s Attorney of Peoria (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY MABRY, Defendant-Appellant.\nThird District\nNo. 3 \u2014 91\u20140242\nOpinion filed December 24, 1991.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nKevin W. Lyons, State\u2019s Attorney of Peoria (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0193-01", "first_page_order": 217, "last_page_order": 220 }