{ "id": 564578, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE BURNS, Defendant-Appellant", "name_abbreviation": "People v. Burns", "decision_date": "1999-03-25", "docket_number": "No. 1\u201496\u20143988", "first_page": "1", "last_page": "12", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "268 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381860 ], "year": 1994, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0574-01" ] }, { "cite": "231 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "38 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2859808 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-2d/38/0321-01" ] }, { "cite": "530 N.E.2d 1340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555486 ], "year": 1988, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0117-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "687-88" }, { "page": "693-94" }, { "page": "2064-65" }, { "page": "688" }, { "page": "694" }, { "page": "2065" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "98 L. Ed. 2d 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 602206, 11300959 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01", "/us/347/0396-01" ] }, { "cite": "484 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 602206 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "413-14" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01" ] }, { "cite": "363 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3374690 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0769-01" ] }, { "cite": "145 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536011 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0477-01" ] }, { "cite": "112 S. Ct. 295", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "cite": "116 L. Ed. 2d 239", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "502 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6475264, 6475109, 6475173, 6475720, 6475629, 6475022, 6475343, 6475891, 6475479, 6475416, 6475549 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/502/0905-04", "/us/502/0905-02", "/us/502/0905-03", "/us/502/0905-10", "/us/502/0905-09", "/us/502/0905-01", "/us/502/0905-05", "/us/502/0905-11", "/us/502/0905-07", "/us/502/0905-06", "/us/502/0905-08" ] }, { "cite": "568 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236771 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/142/0410-01" ] }, { "cite": "229 Ill. App. 3d 144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217538 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "164" }, { "page": "167" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0144-01" ] }, { "cite": "43 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2725295 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0283-01" ] }, { "cite": "393 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3275388 ], "year": 1979, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0035-01" ] }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "121 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559424 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0193-01" ] }, { "cite": "15 Ill. App. 3d 110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461896 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0110-01" ] }, { "cite": "99 Ill. App. 3d 889", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101724 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0889-01" ] }, { "cite": "290 Ill. 259", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2419301 ], "year": 1919, "pin_cites": [ { "page": "285-89" } ], "opinion_index": 0, "case_paths": [ "/ill/290/0259-01" ] }, { "cite": "24 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5311303 ], "year": 1975, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/1018-01" ] }, { "cite": "98 L. Ed. 654", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1954, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 4, "year": 1954, "pin_cites": [ { "page": "229" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "123 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550782 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "132" }, { "page": "132" }, { "page": "132" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0113-01" ] } ], "analysis": { "cardinality": 1097, "char_count": 25959, "ocr_confidence": 0.731, "pagerank": { "raw": 1.2009298493859825e-07, "percentile": 0.5936259218201525 }, "sha256": "199672aea08e4166d1ca7b07f84d3c3613dc8a2e72e3b04f1662a70b51c1b173", "simhash": "1:b9bbd88e7361e79a", "word_count": 4348 }, "last_updated": "2023-07-14T16:20:24.702805+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. TERRENCE BURNS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SOUTH\ndelivered the opinion of the court:\nDefendant, Terrence Burns, was charged by indictment with four counts of first\" degree murder, one count of armed violence, one count of attempted armed robbery, and one count of attempted robbery arising out of the 1995 shooting death of Ethan Kane. Prior to trial, the State nol-prossed the armed violence and attempted robbery charges. Following a jury trial, defendant was found guilty of first degree murder and attempted armed robbery and was sentenced to a term of 40 years on the murder conviction and a consecutive 10-year term on the attempted armed robbery conviction.\nOn December 3, 1995, Ethan Kane was murdered in the alley behind his home at 2038 North Mohawk in Chicago, Illinois. At trial, Seth Nichols, a friend of the victim\u2019s, testified that he and the victim were parked in a van when they were approached by two black men with guns. One man came to the driver\u2019s side of the van and pointed a gun at him through the glass. Nichols stated that he exited the van after one of the offenders opened the car door and hit him. Nichols heard a scuffle taking place on the other side of the van and then he heard the victim say, \u201cPlease don\u2019t shoot me.\u201d Nichols moved toward the front of the van, where he saw the victim struggling with the other offender and then saw the offender shoot the victim. Both offenders ran down the alley as the victim fell to the ground.\nKevin O\u2019Shea testified that he lived near the scene of the shooting when he looked out of his bedroom window after hearing five gunshots. He observed a red, two-door Pontiac Grand Am parked and idling in an alley. Then two people ran up to the car and got into the car. When the car door opened, O\u2019Shea could see that the occupants were three black males in their teens to late twenties. The car then sped southbound toward Armitage.\nDetective Terrence O\u2019Connor testified that, after an extensive investigation, he went to defendant\u2019s house to speak with him. When he arrived at defendant\u2019s home, he told defendant that he was investigating a murder and that his name had come up. Defendant agreed to go to the police station because he did not want to talk in front of his mother.\nAt the police station, defendant told Detective O\u2019Connor that, on the night of the murder, he had been on his back porch and heard gunshots and assumed that they were related to the incident. Defendant lived six blocks from where the murder took place. Defendant also told him that he knew the men who attempted the robbery and shot the victim. O\u2019Connor testified that eventually defendant told him that he was with \u201cO\u2019Tree\u201d and \u201cTop Dog\u201d on the night of the incident and acted as the lookout.\nDefendant told Detective O\u2019Connor that at approximately 3:45 the morning of the murder, O\u2019Tree, Top Dog, and James Lawrence, also known as \u201cJinx,\u201d picked him up in a two-door red car. They were all members of the Blackstone gang. O\u2019Tree showed them a loaded .380-caliber handgun and said that he wanted to do some robberies and get some money. They drove to the Lincoln Park area to find someone to rob. When they spotted a van pulling into the alley of Armitage between Larrabee and Mohawk, they agreed that defendant would act as the lookout while the other two did the robbery. O\u2019Tree and Top Dog approached the van and threatened two people in the van. O\u2019Tree got into a struggle with one of the people and shot the victim. O\u2019Tree and Top Dog ran back to the car and the three of them drove away from the alley. O\u2019Connor testified that defendant felt he was entitled to some of the robbery proceeds.\nAfter interviewing defendant, O\u2019Connor and his partner interviewed James Lawrence about the events of that night. After speaking with him, the police contacted the felony review unit of the office of the Cook County State\u2019s Attorney.\nAssistant State\u2019s Attorney (ASA) Ann Lorenz testified she interviewed defendant and James Lawrence. After she advised defendant of his Miranda rights, he waived them and agreed to speak to her. ASA Lorenz then reduced defendant\u2019s statement to writing, which he signed and initialed with some corrections that reflected his version of the events that night. Defendant made several corrections to the statement and placed his signature on the statement nine times. ASA Lorenz testified she never saw handcuffs on defendant and he never asked to go home. She also stated that defendant indicated the police were treating him properly.\nASA Lorenz also spoke with James Lawrence about the incident; although he was not a suspect, he agreed to speak with her. His statement was similar to defendant\u2019s up to the point when Lawrence said he got out of the car before the other three went to Lincoln Park. Lorenz reduced his statement to writing and allowed him to initial any corrections.\nAt trial, ASA Lorenz published both statements to the jury. When James Lawrence testified, he admitted he was a member of the Black-stones gang and that he knew O\u2019Tree and Top Dog and that they were members of the Blackstones but that defendant was not a member. Lawrence identified the written statement he gave to ASA Lorenz, his signatures and initials, but denied making or reading the statement. He stated he only signed the statement because the police beat him outside the presence of ASA Lorenz.\nWaltarasha Jackson testified she knew O\u2019Tree, Top Dog, Jinx, and defendant from the neighborhood and knew them all to be Black-stones. She stated that around 7 p.m. on December 1, 1995, she saw O\u2019Tree and Top Dog in a red car owned by O\u2019Tree\u2019s sister.\nDana Redmond testified that on December 2, 1995, O\u2019Tree was arrested at about 9 p.m. for hitting her in the face. On cross-examination, defense counsel established that as a result of Redmond\u2019s criminal complaint, O\u2019Tree was at the police station; however, Redmond did not know what time O\u2019Tree was released.\nDefendant testified that he knew Top Dog and O\u2019Tree and would sometimes go to Blackstone meetings on Friday nights behind the Manierre school. However, he denied being in the gang.\nDefendant further testified that he did not recall where he was in the early morning hours of December 3, 1995. On December 26, 1995, Detective O\u2019Connor came to his home at about 10:30 a.m. and, without explanation, demanded that defendant come with him. Defendant stated that the police did not handcuff him until after he told them he knew nothing about the murder. At that point, defendant said the police kept tightening the handcuffs until he signed the statement.\nDefendant denied ever telling the police that he was involved in Ethan Kane\u2019s murder. He also denied telling ASA Lorenz anything about the murder. He maintained that he was at the police station two days before being charged. Further, he denied ever reading the statement that bears his signature and denied that anyone else read it to him. He said that he only signed the statement because Detective O\u2019Connor and ASA Lorenz told him that he could go home if he did.\nIn rebuttal, ASA Lorenz testified that all of the information came from defendant. She further testified that her conversation with defendant occurred on December 27, 1995, and that defendant had told her that he arrived at the police station at 11 a.m. that day. She also stated that defendant was never told that he could go home if he signed the statement.\nDefendant argues that, before the trial commenced, relatives of the decedent sat near a juror and possibly held a conversation with the juror.\nAfter the State presented two witnesses, during a court recess, defense counsel informed the court that a juror was seen having a conversation with the victim\u2019s family. The court allowed defense counsel to call witnesses to testify about what they observed before calling out the juror.\nElmore Burns, one of defendant\u2019s relatives, was sworn and testified that the decedent\u2019s family was seated near the rear of the courtroom, and a woman who was eventually selected for the jury was sitting near them. Burns further related that the juror was talking with some of them for about 15 to 20 minutes, but he could not identify whom the juror was talking to or if the individuals were in fact the decedent\u2019s family members. Burns also stated that there were other jurors all around. However, Burns also stated that he did not see anybody in the family with whom the juror was specifically speaking. When questioned further, Burns could not state or recall if the prospective juror spoke to any family member of the decedent. He only remembered that the person did not have on a \u201cjuror sticker.\u201d\nDefense counsel requested that the court question the juror but the court denied the request. The trial court ruled that, based upon the evidence presented, the allegations were so vague they did not warrant any further inquiry. On appeal, defendant argues that the allegations of extraneous communication between one of the jurors and some members of decedent\u2019s family was prejudicial and that the trial court\u2019s failure to make specific inquiry of her entitles him to a new trial.\nIt is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant\u2019s right to a fair trial. Although this presumption of prejudice is not conclusive, the burden rests upon the State to establish that such contact with the jurors was harmless to the defendant. People v. Harris, 123 Ill. 2d 113, 132 (1988), citing Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 655, 74 S. Ct. 450, 451 (1954). Parties and other persons connected with a case or having some interest therein, including counsel, witnesses, and relatives of parties, should carefully avoid private conversations and social intercourse with jurors. \u00a7\u00a7 75 Am. Jur. 2d Trial \u00a7\u00a7 1005, 1008 (1974); People v. Kelly, 24 Ill. App. 3d 1018, 1033 (1975). A reversal or a new trial will not be ordered because of a conversation between a juror and a third person that is of a harmless character and unrelated to the case. People v. Strause, 290 Ill. 259, 285-89 (1919). The trial court has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant. People v. Harris, 123 Ill. 2d 113, 132 (1988). A verdict will not be set aside where it is obvious that no prejudice resulted from a communication to the jury, either by the court or by third persons outside the presence of the defendant. See Harris, 123 Ill. 2d at 132; People v. Buckhana, 99 Ill. App. 3d 889 (1981).\nHere, the trial court found that the contact, if any, between the juror and the decedent\u2019s family was not prejudicial to the defendant. There are no other facts that indicate that the trial court abused its discretion. Defendant argues that Remmer v. United States, 347 U.S. 227, 98 L. Ed. 654, 74 S. Ct. 450 (1954), People v. Peterson, 15 Ill. App. 3d 110 (1973), and People v. Mitchell, 121 Ill. App. 3d 193 (1984), are analogous to this case and their holdings require remandment for a new trial.\nIn Mitchell, a prospective juror in a burglary case lied under oath about having been the victim of a burglary. When the matter was brought to the trial court\u2019s attention, the court refused to reopen voir dire at the request of defense counsel. The court found this to be specific, detailed and nonconjectural evidence of bias. Therefore, it was error for the trial court not to make at least a limited inquiry into the incident. Mitchell, 121 Ill. App. 3d at 195-96.\nIn Peterson, after being sworn, a juror indicated to defense counsel that she \u201c \u2018was praying that the defendants will plead guilty\u2019 so she could go home.\u201d Peterson, 15 Ill. App. 3d at 110. The trial court refused to reopen voir dire in this case or excuse the juror. The court found that \u201cthe remark itself vitiates any previous conclusion made as to impartiality.\u201d Peterson, 15 Ill. App. 3d at Ill.\nThese cases are distinguishable from the instant case. Here, the information brought forth by defense counsel was vague at best. After extensive questioning of Elmore Burns, the alleged eyewitness to the improper conversation, the probability that any contact between a juror and a member of decedent\u2019s family was low. In this case, Elmore Burns could not identify any person the juror spoke to nor was he certain that the person whom the juror spoke to was actually a member of the decedent\u2019s family. When Burns was asked to describe what he observed, he could not remember what, if anything, he noticed. Burns\u2019 testimony was considerably less reliable than the specific, detailed and nonconjectural evidence standard set forth in Mitchell. Therefore, there was not a sufficient basis that the court could reasonably rely upon to justify questioning the juror. Absent any clear evidence that there existed any improper communication between a prospective juror and a member of the decedent\u2019s family, it must be presumed that the jury followed the judge\u2019s instruction and reached a verdict based solely on the evidence placed before it. See People v. Harris, 123 Ill. 2d 113, 134 (1988); People v. Silagy, 116 Ill. 2d 357 (1987).\nThere is no basis in the record for disregarding the trial court\u2019s decision on whether to risk tainting the jury by reopening voir dire on the mere speculation that the juror might have had a conversation with the Kane family. Further, as the trial court noted, the juror responded candidly when asked during voir dire if she could be impartial toward both sides. The trial court had the opportunity to view the demeanor of the juror; therefore, this court should defer to the trial court\u2019s decision not to question the juror. We do not find the court abused its discretion.\nDefendant next asserts that the trial court committed reversible error when it denied his counsel the opportunity to present testimony from alibi witness Felix Davenport.\nThe record reveals that, prior to trial, defendant\u2019s attorney informed the court that the defense to the charges was only as to the sufficiency of the evidence. Furthermore, counsel specifically stated that there would be no affirmative defenses as late as eight days prior to the commencement of the trial. When counsel did respond to the State\u2019s discovery request, the response included Felix Davenport, with a Chicago address, as a possible witness.\nOn September 17, 1995, after the trial began and the State was presenting its case, defendant made a motion to amend his discovery to include Felix Davenport as an alibi witness. Defense counsel explained that he did not know about the witness until sometime after September 9. However, counsel never indicated that he would be using an alibi defense prior to this time. Defense counsel generally offered that the witness would testify that defendant was with him on the evening of the murder. The court refused to allow Felix Davenport to testify as an alibi witness based upon prejudice to the State and defense counsel\u2019s noncompliance with discovery rules. However, the court allowed defendant to testify about an alibi if he chose to do so.\nSupreme Court Rule 413(d) provides:\n\u201cDefenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial.\u201d 134 Ill. 2d R. 413(d).\nSupreme Court Rule 415(g)(i) provides:\n\u201cIf at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule *** the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.\u201d 134 Ill. 2d R. 415(g) (i).\nThe purpose of the discovery rules \u201cis to prevent surprise or unfair advantage and to aid in the search for the truth.\u201d People v. Daniels, 75 Ill. App. 3d 35, 41, 393 N.E.2d 667, 673 (1979). Sanctions are designed to accomplish the purpose of discovery, but it is clear that the imposition of sanctions should not encroach on a fair trial. People v. Rayford, 43 Ill. App. 3d 283 (1976). Exclusion of alibi testimony has been recognized as an appropriate exercise of the trial court\u2019s discretionary authority under Rule 415(g). See People v. Morris, 229 Ill. App. 3d 144, 164 (1992). The Illinois Supreme Court has found no abuse of discretion in a trial court\u2019s preclusion of alibi testimony. People v. Morgan, 142 Ill. 2d 410, 568 N.E.2d 755 (1991), cert, granted, 502 U.S. 905, 116 L. Ed. 2d 239, 112 S. Ct. 295 (1992).\nIn the instant case, defense counsel never provided the State or the court with information regarding defendant\u2019s alibi defense as required by Supreme Court Rule 413(d). The record indicates that defense counsel knew of Felix Davenport\u2019s alleged alibi for defendant all along and, despite his contentions, had adequate opportunity to disclose the defense. In fact, the record is clear that Felix Davenport\u2019s name appeared as a possible witness but defendant purposefully and unequivocally indicated that he was not presenting any affirmative defenses.\nDefendant relies heavily on People v. Foster, 145 Ill. App. 3d 477 (1986), in support of his contention that the exclusion of Felix Davenport\u2019s testimony was too harsh a sanction. In Foster, prior to jury selection, defendant\u2019s attorney requested permission to amend the discovery answer to add another witness. The State objected, but the trial court reserved its ruling. The court later denied defendant\u2019s motion as a sanction for failure to name the witness on the initial discovery answer. This court found the sanction an abuse of discretion because the record showed that the initial failure to list the witness was unintentional, and the record indicated that the witness\u2019 exculpatory testimony was material to defendant\u2019s case and its exclusion prejudicial to defendant. Foster, 145 Ill. App. 3d at 481.\nDefendant also analogizes this case to People v. Jackson, 48 Ill. App. 3d 769, 363 N.E.2d 392 (1977). In Jackson, the court denied defense counsel\u2019s motion to call 14 witnesses not previously disclosed to the State after the State rested its case in chief. Defendants testified that they were all at different locations when the crime took place and the other witnesses were needed to establish or corroborate their alibis. Further, they were witnesses known to the State and their identities could have been disclosed to defendants in response to their discovery motion. Therefore, the court found the exclusion of all of the witnesses reversible error. Jackson, 48 Ill. App. 3d at 771.\nThis case is distinguishable from Foster because, here, there is no evidence that defense counsel\u2019s failure to inform the court or the State of the affirmative alibi defense was unintentional. In fact, from the record it appears that it was a tactical decision to wait until the last minute to reveal this defense. The case is also distinguishable from Jackson because the defendants testified to their own alibis and needed these witnesses to corroborate their versions of events. Further, the court found that the State had control over the undisclosed witnesses because they were all fellow inmates of defendants. In this case, defendant did not have an alibi in defense to the charges. Although he testified that he did not recall his whereabouts on the night of the murder, nothing in the record corroborates his story. Felix Davenport, on the other hand, allegedly would testify that defendant was with him. However, this testimony does not corroborate defendant\u2019s testimony. Furthermore, no offer of proof was made by defense counsel as to what exactly Davenport would have testified to with respect to the alibi. We have no time frame in the record, so it is speculative at best as to what Davenport would have testified.\nThis issue was discussed in Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988). In Taylor, on the second day of trial, the defense attorney made an oral motion to amend his discovery answers to include two additional witnesses. Upon inquiry from the trial judge as to why the motion should be granted, counsel represented that he had just been informed about these witnesses. The following day, the first witness appeared for an offer of proof and revealed that he had actually met with defense counsel a week before the trial started. The trial judge then did not allow either of the witnesses to testify due to defense counsel\u2019s blatant violation of discovery rules. The Supreme Court affirmed the trial court\u2019s exclusionary sanction. The Court reasoned that the sanction of preclusion serves an important purpose, noting:\n\u201cOne of the purposes of the discovery rule itself is to minimize the risk that fabricated testimony will be believed. Defendants who are willing to fabricate a defense may also be willing to fabricate excuses for failing to comply with a discovery requirement. The risk of a contempt violation may seem trivial to a defendant facing the threat of imprisonment for a term of years. A dishonest client can mislead an honest attorney, and there are occasions when an attorney assumes that the duty of loyalty to the client outweighs elementary obligations to the court.\u201d Taylor, 484 U.S. at 413-14, 98 L. Ed. 2d at 813, 108 S. Ct. at 655.\nIn this case, the court obviously felt that preclusion was the only effective sanction. That decision was clearly not an abuse of its discretion.\nLastly, defendant claims that defense counsel was ineffective for failing to timely disclose the alibi testimony. He further contends that counsel was ineffective because he did not present testimony from a police officer to prove that defendant\u2019s accomplice was in jail at the time of the offense.\nStrickland v. Washington sets forth the standard for determining whether there exists an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Strickland established a two-prong test for judging attorney performance: first, defendant must show that counsel\u2019s performance was deficient; and second, that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65. A strong presumption exists that defense counsel\u2019s performance falls within the \u201cwide range of reasonable professional assistance\u201d and, thus, is not deficient. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. The Strickland test also requires a \u201creasonable probability of a different result, not merely a possibility of a different result.\u201d People v. Gacy, 125 Ill. 2d 117, 129-30, 530 N.E.2d 1340 (1988).\nDefendant claims that counsel was ineffective because he failed to disclose the alibi testimony. In this case, as stated above, defendant did not file his answer to the State\u2019s discovery request until 10 days prior to trial. In the answer, defense counsel stated that the defense would question the sufficiency of the evidence only. However, because Felix Davenport was listed as a possible witness, it is clear that this is not a scenario where the attorney failed to investigate his defense. Rather, this situation is more akin to the attorney deliberately choosing not to disclose this defense until the last minute. Thus, this deliberate violation of the discovery rules falls below the standard of reasonableness for professional assistance. Therefore, trial counsel\u2019s performance in this instance was deficient. However, as defendant could not testify as to his own whereabouts at the time of the murder and had given an inculpatory statement about his involvement, it cannot be said that this testimony would have rendered a different result.\nDefendant also claims that counsel was ineffective for failing to present evidence that one of his accomplices was possibly in jail at the time of the crime. Defendant contends that because this information would have discredited his own inculpatory statement, he was prejudiced and should receive a new trial. The State initially argues that because defendant did not attach an. affidavit specifying what the testimony would entail, it has been waived.\nWhere the disposition of a defendant\u2019s ineffective assistance of counsel claim requires consideration of matters beyond the record on direct appeal, it is more appropriate that the defendant\u2019s contentions be addressed in a proceeding for postconviction relief, and the appellate court may properly decline to adjudicate the defendant\u2019s claim in his direct appeal from his criminal conviction. See People v. Morris, 229 Ill. App. 3d 144, 167 (1992). Courts allow postconviction petitions where resolution of the issues requires an inquiry into matters outside the common law record. People v. Thomas, 38 Ill. 2d 321, 231 N.E.2d 436 (1967); People v. Smith, 268 Ill. App. 3d 574, 578 (1994).\nNeither the police officer\u2019s identity nor the testimony that the officer would allegedly present was made part of the official report of the proceedings. Therefore, this court cannot consider any attachments to the record, as extrinsic evidence cannot be presented to address an ineffective assistance of counsel claim. See People v. Morris, 229 Ill. App. 3d 144, 166 (1992).\nBased upon the foregoing analysis, the judgment of the circuit court is affirmed.\nAffirmed.\nHOFFMAN and HALL, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SOUTH" } ], "attorneys": [ "Michael J. Pelletier and Pamela Z. O\u2019Shea, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A, Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Noreen M. Daly, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE BURNS, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201496\u20143988\nOpinion filed March 25, 1999.\nMichael J. Pelletier and Pamela Z. O\u2019Shea, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A, Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Noreen M. Daly, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0001-01", "first_page_order": 19, "last_page_order": 30 }