{ "id": 1295548, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE LOVE, Defendant-Appellant", "name_abbreviation": "People v. Love", "decision_date": "1996-11-25", "docket_number": "No. 1\u201495\u20141893", "first_page": "784", "last_page": "795", "citations": [ { "type": "official", "cite": "285 Ill. App. 3d 784" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "627 N.E.2d 1199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "256 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383050 ], "year": 1994, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0579-01" ] }, { "cite": "604 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5163693 ], "year": 1992, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0688-01" ] }, { "cite": "512 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3610807 ], "year": 1987, "pin_cites": [ { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0892-01" ] }, { "cite": "516 N.E.2d 1364", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "ignoring hearsay comment acceptable trial strategy" } ], "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546902 ], "year": 1987, "pin_cites": [ { "page": "1031", "parenthetical": "ignoring hearsay comment acceptable trial strategy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/1023-01" ] }, { "cite": "578 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592943 ], "year": 1991, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0001-01" ] }, { "cite": "609 N.E.2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 463", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5251871 ], "year": 1992, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1034-01" ] }, { "cite": "568 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "142 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236913 ], "year": 1990, "pin_cites": [ { "page": "314-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0258-01" ] }, { "cite": "176 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1931, "opinion_index": 0 }, { "cite": "334 Ill. 211", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5220567 ], "year": 1931, "pin_cites": [ { "page": "221-22" } ], "opinion_index": 0, "case_paths": [ "/ill/334/0211-01" ] }, { "cite": "319 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "59 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958289 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "191" }, { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0184-01" ] }, { "cite": "455 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515728 ], "year": 1983, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0465-01" ] }, { "cite": "647 N.E.2d 960", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "164 Ill. 2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477007 ], "year": 1995, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0356-01" ] }, { "cite": "592 N.E.2d 1112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 1063", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796422 ], "year": 1992, "pin_cites": [ { "page": "1067" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/1063-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "240 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "98 Ill. App. 2d 352", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2647314 ], "year": 1968, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/98/0352-01" ] }, { "cite": "571 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2604582 ], "year": 1991, "pin_cites": [ { "page": "124-25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0119-01" ] }, { "cite": "624 N.E.2d 1378", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 165", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5387279 ], "year": 1993, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0542-01" ] }, { "cite": "566 N.E.2d 222", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238368 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "401" }, { "page": "401-02" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0394-01" ] }, { "cite": "568 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1261" } ], "opinion_index": 1 }, { "cite": "142 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236913 ], "year": 1990, "pin_cites": [ { "page": "315" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/142/0258-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 23357, "ocr_confidence": 0.771, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30215062731456543 }, "sha256": "44bd9f982c32fee86270b80694c60aef59549cb0680ff9041b5fe14d5d4a6ab2", "simhash": "1:eb857054fbfd83d6", "word_count": 3965 }, "last_updated": "2023-07-14T19:02:27.033630+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. WILLIE LOVE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe defendant, Willie Love, was tried and convicted of first degree murder. He was given a 50-year sentence. Love claims errors occurred during trial and because of them he is entitled to a new trial.\nHe contends:\n1. The prosecutor\u2019s comment during rebuttal argument improperly expressed her opinion of his guilt;\n2. The defendant\u2019s counsel was ineffective;\n3. The State improperly failed to reveal all pending charges against one of its witnesses.\nFor reasons that follow, we affirm the defendant\u2019s conviction and sentence.\nFACTS\nThe defendant, Willie Love (Love), was tried and convicted of the murder of Alberto Rivera (Rivera).\nRivera was killed October 10, 1992.\nHorace Harrington (Harrington) testified for the State.\nHarrington was a member of the Conservative Vice Lords. Love was a high ranking member of that gang. Harrington knew who Love was and was able to identify him in court.\nOn October 10, 1992, Harrington went to a vacant lot near his home to buy drugs. The lot was near the corner of Ohio and Hamlin streets in Chicago.\nThat day, Love ran a drug business out of the lot. Love was not directly involved in selling the drugs.\nWhen Harrington got to that lot that day, the sellers had temporarily run out of heroin. A line had formed. Harrington got in line. He was a few people behind Rivera. Harrington had seen Rivera other times when he went to buy drugs.\nWhile Harrington waited in line, Love came in from a nearby alley. Love walked over to the person selling drugs, Sherman Strickland (Strickland). After they talked, Love left. When Love came back, he got into line. He stood a few feet behind Rivera. Love asked Rivera, \"What the fuck up with you?\u201d This is all Love said to Rivera. Rivera did not say anything to Love. Love walked toward Rivera.\nHarrington noticed that Rivera was kind of high. Rivera had his head down and he put his hand into his pocket. He got out some money. Harrington said the money was \"what he was going to buy with,\u201d but did not say how he knew that.\nLove had a silver gun with a black handle. Love took his right arm and brought it around, like a pinwheel. When his arm was parallel to the ground, Love pulled the trigger.\nRivera fell to his knees, then on his face. Everybody scattered.\nHarrington went to a nearby store and called someone from a phone outside. Harrington saw Love get into Love\u2019s black and red Blazer and leave. Love drove down Ohio toward Avers and straight down Pulaski. There was someone else in the truck. Harrington heard four shots come from the truck. He did not see who did the shooting.\nHarrington used heroin every day. He had not used it for a few days before trial because he had been in police custody for failure to appear as a witness. Harrington had not appeared on his own because his family was afraid.\nTerry Williams (Williams) testified for the State.\nWilliams admitted that he was previously convicted of theft, burglary, and delivery of a controlled substance. He told the jury he had been to the penitentiary twice and was now in jail again.\nHe said that he had a \"sell of a controlled substance\u201d case that had been pending since sometime in 1992. It had not yet gone to trial. Williams admitted that he did not want to go to jail again. He said his testimony at Love\u2019s trial would not help the disposition of his own case.\nWilliams knew Love. Williams also was a member of the Conservative Vice Lords.\nWilliams sold drugs for Love\u2019s brother. Love dropped off \"packs\u201d and collected money for the operation.\nOn October 10, 1992, Williams worked security for the drug operation at the vacant lot. He stood at a corner near the place where the drugs were being sold. He watched for police.\nThe first time Williams saw Love that day, Love was driving around with someone named \"Annie Miller.\u201d He was driving a red Blazer with dark tinted windows. Love parked his car.\nThere was a commotion in the lot. Love left. He drove off and then came back around. He parked the Blazer and left it. Love walked toward the lot and up to Rivera.\nLove left the lot again. Love got into the Blazer and drove off. When Love came back, he jumped out of the Blazer with a gun. He went toward Rivera. Rivera began to argue that he shopped there every day and he did not want anyone butting in line.\nWilliams saw Love \"exchange words\u201d with Rivera. Rivera was not standing in line.\nLove cocked his arm back, then \"went forward with it.\u201d The gun went off, striking Rivera in the head. Love ran off and jumped in the Blazer.\nAfter Love left, Strickland and another person working security, David Lam (Lam), approached Rivera. They took money out of his hand and pockets.\nWilliams went to the other side of Hamlin. Strickland came up to him and said something. Williams left shortly after the shot was fired.\nLove did not return to the area. Williams went home.\nBoth parties stipulated to the testimony of Doctor Robert Kirshner (Dr. Kirshner), a forensic pathologist. He performed the autopsy on Rivera.\nRivera was injured by a single contact gunshot wound. The entrance of the wound was on the top of Rivera\u2019s head, near the mid-line. The bullet moved in an anterior direction down and toward the left. The bullet exited through the mandible, fracturing it. A photograph showed an exit wound under Rivera\u2019s chin.\nCordell Butler (Butler) testified for Love.\nButler had been on probation since May 1993 for delivery of a controlled substance.\nButler worked for Love selling narcotics. Love\u2019s job in the drug operation was to make sure everything was in order.\nButler no longer sold drugs because he had been caught. Butler was a former Conservative Vice Lord. He had quit a few months before trial.\nOn October 10, 1992, Butler worked for the drug operation in the vacant lot. He collected money from the customers. He was working next to the \"Pack Man,\u201d the person who sells the narcotics.\nHe remembered seeing a \"Puerto Rican fellow\u201d who was there to buy drugs.\nAccording to Butler, Rivera bought $110 worth of drugs, or 11 bags, from Strickland. The bags were very small.\nAfter Rivera bought the drugs, he began walking to an alley. At this point, another customer in the line, a heavyset \"black guy,\u201d caught Rivera about 20 feet from the alley. The second man had purchased one or two bags of drugs.\nThe second man grabbed Rivera by the collar. He pulled out a gun and began to hit Rivera on the top of his head. The second man told Rivera to give him his drugs. He hit Rivera two or three times. While he was being struck, Rivera called out to Strickland, asking for help. The third time, the gun went off.\nRivera was not facing the second man when the shot went off.\nRivera collapsed after he was shot. Butler and Strickland looked around to make sure they were not shot. Strickland jumped into the doorway. Two customers ran out the front.\nButler said Rivera was being robbed. Butler said the shooter did not take anything from Rivera.\nAfter Rivera was shot, Butler, Strickland, and Lam went over to him. Lam took something from the body, but Butler did not know what it was. Butler ran from the area. Lam later told Butler that he took about six or seven heroin packets.\nThe man who shot Rivera was tall, about 6 feet 5 or 7. He was wearing all brown clothing. Butler did not know him.\nLove was in the area the day the shooting occurred. He did not shoot the gun. Love did not argue with or push Rivera.\nTwo police officers also testified during Love\u2019s defense case. The police addressed inconsistencies between Williams\u2019 and Harrington\u2019s statements to the police and their testimony at trial. The inconsistencies involved such details as whether Love pushed Rivera and whether Love hit Rivera on the head.\nThe jury started deliberating after lunch. It returned a guilty verdict at 8:15 p.m. the same day.\nLove was given a 50-year-sentence.\nOPINION\n1. Did the Prosecutor\u2019s Comment During Rebuttal Argument Improperly Express Her Opinion of the Defendant\u2019s Guilt?\nAfter summarizing the evidence during rebuttal argument, the prosecutor concluded:\n\"View the evidence. Think about the evidence. We\u2019re certain you\u2019re going to come to the same conclusion we have come to. He\u2019s been proven guilty beyond a reasonable doubt, beyond a scintilla of doubt. The man is guilty of first degree murder. Please find him so.\u201d\nLove claims that .the prosecutor\u2019s comment expressed her personal opinion about his guilt. He claims that this comment constitutes reversible error.\nLove\u2019s attorney did not. object to the comment. Love argues the comment was plain error.\nA defendant must object to an error at trial and include the objection in his or her post-trial motion in order to preserve the error for review. People v. Mullen, 141 Ill. 2d 394, 401, 566 N.E.2d 222 (1990). If an error is not properly preserved for appellate review, the plain error rule may be invoked where the evidence is closely balanced or where the error adversely affected the defendant\u2019s right to a fair trial. Mullen, 141 Ill. 2d at 401-02.\nGiven the strength of the State\u2019s case, we find Love waived this issue. Even if we were to consider the alleged error, we would note that prosecutors have a great deal of latitude during closing argument. For a prosecutor\u2019s remark to be considered reversible error, it must have caused such substantial prejudice to the defendant that it would have affected the verdict. People v. Myers, 246 Ill. App. 3d 542, 547, 616 N.E.2d 633 (1993).\nA prosecutor cannot express his or her opinion of the defendant\u2019s guilt. People v. Brown, 253 Ill. App. 3d 165, 176, 624 N.E.2d 1378 (1993). For example, in People v. Roach, 213 Ill. App. 3d 119, 124-25, 571 N.E.2d 515 (1991), this court found reversible error where repeated comments expressing the prosecutor\u2019s opinion were not based on the record, but instead were intuitive judgments that lay within the jury\u2019s province.\nProsecutors may, however, state an opinion that is based on the record or on a legitimate inference derived from the record. Brown, 253 Ill. App. 3d at 176. For example, in People v. Hill, 98 Ill. App. 2d 352, 355-56, 240 N.E.2d 801 (1968), a comment concerning the prosecutor\u2019s opinion of the defendant\u2019s guilt was not improper because it was reached after he \"listened to the case.\u201d\nIn this case, the prosecutor said that she had come to the conclusion that the defendant was guilty after she summarized the evidence. Her comment clearly was linked to that summary. It was not intended to place the authority of the prosecutor\u2019s office behind her argument. The single comment was not error.\n2. Was Defendant\u2019s Counsel Ineffective?\nLove argues that he was prejudiced because his counsel was ineffective.\nTo prove that defense counsel was ineffective, a defendant must first show that the defense counsel\u2019s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). The defendant then must show that this deficient performance resulted in prejudice. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Albanese, 104 Ill. 2d at 525. This means that the defendant must show that counsel\u2019s errors actually adversely affected the outcome of the case. People v. Dooley, 227 Ill. App. 3d 1063, 1067, 592 N.E.2d 1112 (1992). The defendant cannot merely speculate that the results would have been different. People v. Holman, 164 Ill. 2d 356, 369, 647 N.E.2d 960 (1995).\nLove claims that his counsel was ineffective in three ways.\nAccomplice Instruction\nLove argues his counsel was ineffective because he failed to ask the trial court to give the accomplice instruction, Illinois Pattern Jury Instructions, Criminal, No. 3.17 (3d ed. 1992) (hereinafter IPI Criminal 3d No. 3.17), \"Testimony of an Accomplice.\u201d That instruction reads:\n\"When 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.\u201d IPI Criminal 3d No. 3.17.\nThe threshold question is whether Williams can be considered an accomplice. If not, there would be no reason for the trial judge to give the IPI Criminal 3d No. 3.17.\nThe test for determining whether a witness is an accomplice, entitling the defendant to the accomplice-witness instruction, is whether \"there is probable cause to believe that [he] was guilty as a principal, or on the theory of accountability.\u201d People v. Cobb, 97 Ill. 2d 465, 476, 455 N.E.2d 31 (1983), quoting People v. Robinson, 59 Ill. 2d 184, 191, 319 N.E.2d 772 (1974).\nTo be considered an accomplice, the witness \"must take some part, perform some act or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime.\u201d People v. Robinson, 59 Ill. 2d at 191, quoting People v. Hrdlicka, 334 Ill. 211, 221-22, 176 N.E.2d 308 (1931). An accomplice is not somebody who was an admitted participant in an offense distinct from the one at bar, even if the offense was related to the charge being tried. People v. Henderson, 142 Ill. 2d 258, 314-17, 568 N.E.2d 1234 (1990); People v. Carlson, 224 Ill. App. 3d 1034, 1043, 586 N.E.2d 1368 (1992).\nWilliams was part of the defendant\u2019s drug operation. He was kind of a security guard. It was the State\u2019s theory at trial that the killing of Alberto Rivera was defendant\u2019s method of keeping the peace at the scene of the drug-dealing business.\nAt the same time, there is no evidence Williams knew anything about the killing before it happened or that he had any direct role in it. Nor is there any evidence that Williams ever was led to believe any law enforcement agency considered him a suspect in the murder.\nStill, Williams was part of the drug operation and was acting to further its interests. The murder apparently, although not clearly, was intended to protect that same business. Since Williams was part of the unlawful enterprise that the defendant arguably was seeking to further, by shooting Rivera, we find there is probable cause to believe Williams was guilty of murder under accountability principles. See People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746 (1984).\nUnder some circumstances, a defense lawyer would be ineffective for failing to request the accomplice witness instruction. In People v. Butler, 23 Ill. App. 3d 108, 318 N.E.2d 680 (1974), where ineffectiveness was found, the accomplice was a crucial State witness in a close case. And in People v. Campbell, 275 Ill. App. 3d 993, 657 N.E.2d 87 (1995), failure to ask for IPI Criminal 3d No. 3.17 was ineffectiveness where the witnesses admitted their role in the crime and both admitted they had benefited from their agreements to testify for the State.\nOn the other hand, we have held that the general credibility instruction, telling the jury to consider any interest, bias, or prejudice the witness might have, is sufficient to cure any prejudice caused by the failure of defense counsel to request the accomplice instruction. People v. Lewis, 240 Ill. App. 3d 463, 609 N.E.2d 673 (1992).\nIn this case, the State contends the failure to ask for IPI Criminal 3d No. 3.17 must have been a strategic decision. Even if we were to speculate on defense counsel\u2019s reasons for not asking for IPI Criminal 3d No. 3.17, we can\u2019t think of one. He should have asked.\nEven an able and experienced defense lawyer can make a mistake. Whether the oversight in this case amounts to ineffectiveness of counsel is a question we need not decide. The jury heard about Williams\u2019 prior convictions and a pending drug charge, in addition to his unsavory occupation. Defense counsel vigorously argued Williams\u2019 lack of credibility. Given the record in this case, we cannot see how the giving of IPI Criminal 3d No. 3.17 would have affected the probable outcome of this trial. Because the second prong of the Strickland test has not been satisfied, there is no need to inquire further into counsel\u2019s performance on this point. Failure to prevail on either prong of the Strickland two-prong test is sufficient to defeat a claim of ineffectiveness of counsel. People v. Pecoraro, 144 Ill. 2d 1, 13, 578 N.E.2d 942 (1991).\nHearsay Testimony\nLove claims he was prejudiced by his attorney\u2019s failure to object to hearsay testimony from Williams.\nDuring his direct testimony, as Williams was about to relate something that Strickland had told him, Love\u2019s counsel objected. The objection was sustained.\nDuring Williams\u2019 cross-examination, Williams explained that he did not hang around long after the shot was fired. In explaining this, Williams said, \"I hung around long enough until Sherman Strickland told me that Mr. Love said, yaw, haven\u2019t seen anything, you know, just you know, lay low.\u201d This statement was not responsive to the defense lawyer\u2019s question. No motion to strike the answer was made.\nLove argues that this hearsay comment lent additional weight to the State\u2019s argument during closing that it was possible other witnesses failed to testify out of fear. More likely, any comments referring to witnesses\u2019 fear about testifying referred to the fact that Harrington did not originally show up at trial because his family was afraid.\nEven if Williams\u2019 testimony was objectionable, Love\u2019s attorney\u2019s failure to object to it well may have been part of his trial strategy. Love\u2019s attorney did not react to Williams\u2019 comment in any way. He continued to question Williams on the testimony he had given during direct examination. Love\u2019s attorney reasonably could have believed that he would have led the jury to suspect he was hiding something if he objected and decided not to call attention to what Williams had said. See People v. Campbell, 163 Ill. App. 3d 1023, 1031, 516 N.E.2d 1364 (1987) (ignoring hearsay comment acceptable trial strategy).\nEven if Love\u2019s attorney\u2019s failure to object was not trial strategy, we would find that Love was not prejudiced by it. While the statement implicated Love, it was not a crucial piece of evidence. The two eyewitness accounts were much more crucial. Had the statement been excluded, there is no reasonable probability that the jury would have acquitted Love. See People v. Winchel, 159 Ill. App. 3d 892, 903, 512 N.E.2d 1298 (1987). We cannot say every inartful question that draws a damaging answer amounts to ineffective assistance of counsel.\nClosing Argument\nLove claims he was prejudiced because his attorney failed to object to the prosecutor\u2019s comment that she believed Love was guilty.\nAs we have said, the comment was not error. Therefore, we find that Love was not denied effective assistance of counsel because of his attorney\u2019s failure to object to the remark.\n3. Did the State Improperly Fail to Reveal All Charges Pending Against One of its Witnesses?\nLove claims that he was prejudiced when the State failed to reveal all pending charges against Williams. Love argues this failure violated his right to due process. And he maintains the State violated discovery procedures set out in Supreme Court Rule 412 because it did not disclose \"material or information within [the State\u2019s] possession or control which tend[ed] to negate the guilt of the accused as to the offense charged.\u201d 134 Ill. 2d R. 412(c).\nDuring direct testimony, Williams admitted that he was previously convicted of theft, burglary, and delivery of a controlled substance. He admitted he had \"a drug case pending.\u201d\nThis court granted Love\u2019s request to include a supplemental record. The supplemental record contains documents showing that Williams had a second drug case pending at the time of Love\u2019s trial. The two cases were tried and sentences imposed at the same time.\nThe State\u2019s failure to disclose the second pending charge was improper and inexcusable.\nHowever, we find that Love was not prejudiced by the State\u2019s failure to disclose Williams\u2019 second drug case. A new trial is not warranted for a violation of Rule 412 unless the violation was \"material,\u201d meaning it might have affected the outcome of the trial. People v. Dugan, 237 Ill. App. 3d 688, 692, 604 N.E.2d 1117 (1992).\nLove argues that this case is similar to People v. Preatty, 256 Ill. App. 3d 579, 589-90, 627 N.E.2d 1199 (1994). In Preatty, the court found a Rule 412 violation \"material\u201d and granted the defendant a new trial. The facts of the case were relatively simple and the verdict depended on a credibility determination between the State\u2019s witness and the defendant. The State\u2019s witness had been allowed to plead guilty to a felony and was placed on pretrial diversion without a conviction with the prosecutor\u2019s approval. The court found that the State\u2019s failure to disclose a possible motivation to lie, known to the prosecutors, undermined confidence in the verdict.\nThis case is unlike Preatty in that the jury was aware that Williams was going to be tried for at least one crime. It was aware that Williams had been convicted for other crimes and twice sentenced to the penitentiary. It heard Williams deny he had made any deals with the State. In his closing argument, Love\u2019s attorney insinuated that even if Williams had denied making any deals, he was testifying because he was afraid of what would happen in his pending drug case. It is difficult to imagine that the jury, having heard so much about Williams\u2019 checkered career, would have arrived at a different verdict had it been aware of the second charge.\nCONCLUSION\nWe affirm the defendant\u2019s conviction and sentence.\nAffirmed.\nBUCKLEY, J., concurs.", "type": "majority", "author": "JUSTICE WOLFSON" }, { "text": "JUSTICE BRADEN,\nspecially concurring:\nI agree with the majority\u2019s conclusion affirming defendant\u2019s conviction and sentence. However, I am compelled to disagree with the finding that the accomplice instruction should have been requested by defense counsel concerning the testimony of Williams. This instruction should be given if, from the totality of the evidence and reasonable inferences drawn from the evidence, there is probable cause to believe not merely that the witness was present and failed to approve of the crime, but that he participated in the planning or commission of the crime. People v. Henderson, 142 Ill. 2d 258, 315, 568 N.E.2d 1234, 1261 (1990).\nEven though Williams was an active participant in the drug operation in which defendant was involved, he was not a participant in the commission or planning of the murder of Rivera by Love. By all indications, Williams did not know or foresee that this unfortunate incident would occur. There is strong support in the evidence that the murder of Rivera was a separate, independent, and unconnected crime and that Williams did not participate in its commission or planning.\nFor these reasons, I believe that defense counsel was not ineffective because of his failure to request the accomplice instruction.", "type": "concurrence", "author": "JUSTICE BRADEN," } ], "attorneys": [ "Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE LOVE, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201495\u20141893\nOpinion filed November 25, 1996.\nRehearing denied January 22, 1997.\nBRADEN, J., specially concurring.\nMichael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Judy L. DeAngelis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0784-01", "first_page_order": 804, "last_page_order": 815 }