{ "id": 4276645, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT INGRAM, Defendant-Appellant", "name_abbreviation": "People v. Ingram", "decision_date": "2008-04-11", "docket_number": "No. 1\u201406\u20141954", "first_page": "997", "last_page": "1009", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 997" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163903 ], "year": 1984, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0508-01" ] }, { "cite": "223 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3605030 ], "year": 2006, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0494-01" ] }, { "cite": "209 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462052 ], "year": 2004, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0001-01" ] }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "year": 1999, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "151 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292349 ], "year": 1992, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0168-01" ] }, { "cite": "161 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783183 ], "year": 1994, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0082-01" ] }, { "cite": "105 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141251 ], "year": 1984, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0001-01" ] }, { "cite": "100 L. 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ROBERT INGRAM, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019HARA FROSSARD\ndelivered the opinion of the court:\nA jury found defendant, Robert Ingram, guilty of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2000)). The trial court sentenced him to 25 years for the murder and 25 years for personally discharging a firearm, for a total of 50 years in the Illinois State Penitentiary. On appeal, defendant contends that (1) the trial court erred by admitting statements made by the victim to a civilian witness under the dying declaration exception to the hearsay rule, and (2) defendant\u2019s trial counsel was ineffective for failing to request a second degree murder instruction based on provocation. We affirm.\nThe State charged defendant with murder (720 ILCS 5/9 \u2014 1(a)(1), (a)(2) (West 2000)) and gave defendant notice that it would seek to introduce statements the victim, Anthony Hicks, made to Angela Cameron shortly before he died. Defense counsel filed a motion in limine to bar any reference to the statements made by Hicks to Cameron. The hearing on the motion revealed the State expected the evidence to show that Hicks, after being shot, stated to Cameron, \u201cLuscious, baby I\u2019m dead. Luscious, baby I\u2019m dead. I\u2019ve been shot in the heart.\u201d When Cameron asked, \u201cWho shot you?\u201d Hicks responded, \u201cPattyman shot me.\u201d\nIn the motion in limine, defense counsel argued the statement did not qualify under the dying declaration exception to the hearsay rule and that the dying declaration exception was inconsistent with Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).\nThe trial court denied the motion in limine, stating \u201c[tjhis is a classic instance of a dying declaration and, additionally, an excited utterance. It is not a Crawford case. Crawford specifically excluded traditional long embedded exceptions to the hearsay rule, which a dying declaration and excited utterances are.\u201d On appeal, defendant argues that the dying declaration was inadmissible and trial counsel was ineffective.\nBACKGROUND\nOn August 1, 2004, in the early morning hours, the defendant watched several people including the victim, Anthony Hicks, playing dice in the Altgeld Gardens Housing Development near 130th and Ellis Street in Chicago. After a few minutes, defendant went home. Eventually, Tyrone Campbell, the defendant\u2019s nephew, and Hicks got into a fight. Campbell picked up a bottle and told Hicks that he did not want to fight anymore. At that point, Hicks said he was going home to get his gun.\nCampbell returned home where he lived with his grandmother, who was the defendant\u2019s mother; however, he was unable to get in. Sharon Kennedy, the mother of defendant\u2019s children, lived at the home of the defendant\u2019s mother with Campbell. Kennedy testified that before Campbell returned, she heard Hicks banging on the back door, but refused to let Hicks into the home. After a few minutes she saw Hicks leave carrying a long stick or pole. Kennedy called Campbell\u2019s uncle, the defendant, Robert Ingram. Kennedy told defendant that Hicks was trying to get into the house and that she was scared. A few minutes later, Campbell returned home and Kennedy told him that Hicks was looking for him. Campbell paid little attention to her story and went to sleep.\nSharon Davis testified at trial that she lived at 13042 South Ellis. She knew defendant\u2019s nickname was Pattyman. Around 3 a.m. on August 1, 2004, she saw Campbell and Hicks scuffling and rolling on the ground. She went back into her house after she was unable to break them up. After about 45 minutes she heard two or three gunshots, went outside and saw Hicks on the ground. Angela Cameron, who was known as Luscious, was holding his hand.\nAngela Cameron testified that her nickname is Luscious. Anthony Hicks was like a brother to her. She was awakened in the early morning hours of August 1, 2004, by gunshots. Her husband told her that her brother had been shot. She understood that her husband was referring to Anthony Hicks. She ran to a parking lot about half a block from her house and knelt next to Hicks. She said, \u201cI\u2019m here.\u201d Hicks said several times, \u201cLusch, baby I\u2019m dead,\u201d and told her, \u201cPat-tyman shot me, he hit me up good.\u201d Hicks also told her he had gotten hit in the heart. Angela Cameron asked him again who shot him, and Hicks said, \u201cPattyman.\u201d The ambulance took him away and she later learned that Hicks died.\nAngela Cameron testified that she did not see a pipe or pole near Hicks and admitted her focus was on Hicks. She also said that she could tell that Hicks had been drinking. The State rested its case after Cameron\u2019s testimony and the court denied the defense motion for a directed verdict.\nThe defendant testified that in the early morning hours of August 1, 2004, he was watching people shoot dice, including Anthony Hicks. After a few minutes he went home and fell asleep. He was awakened by Tyrone Campbell knocking on the door. Campbell told defendant that \u201che had got into it with Hicks.\u201d Hicks had gotten a gun, so Campbell got defendant, who took a loaded revolver and walked Campbell home.\nDefendant further testified that while he and Campbell were walking, Hicks jumped out and approached them with a metal pole about two feet long. Hicks swung the pole at Campbell, who ran away. Hicks went after defendant, who tried to defend himself. Hicks went to grab defendant\u2019s gun, but defendant pushed him away. At that point, Hicks reached for his waistband and defendant believed Hicks had a gun so, to defend himself, he shot Hicks. Defendant said he was 25 feet away, fired his gun four times, but did not know if he hit Hicks, as he ran away while Hicks was still standing.\nOn cross-examination defendant admitted that the first time he spoke to the police he denied shooting Hicks, but claimed to be with Latoya Spears. After the detectives confronted defendant with the fact that Spears told them defendant was not with her, defendant then told the police he was struggling with Hicks when the gun went off.\nThe defense called no other witnesses. The prosecution called Detective Ayers in rebuttal to discuss the various conversations he had with defendant after his arrest. Both the State and defense rested.\nAfter receiving the instructions on the law, the jury deliberated for approximately eight hours before finding defendant guilty of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2000)). The trial court sentenced him to 25 years for the murder and 25 years for personally discharging a firearm, for a total of 50 years with a credit for 424 days. Defendant\u2019s motion to reconsider sentence was denied.\nOn appeal, defendant contends that the trial court erred by admitting statements made by the victim to a civilian witness under the dying declaration exception to the hearsay rule. Defendant also argues that his trial counsel was ineffective for failing to request a second degree murder instruction based on provocation. We take each argument in turn.\nADMISSION OF DYING DECLARATION\nWe review the issue of the admissibility of the statements de novo because, in the context of this case, we are required to determine whether the admission of the statements made by Hicks violate the defendant\u2019s constitutional rights. People v. Redeaux, 355 Ill. App. 3d 302, 304 (2005).\nDefendant argues that the statements admitted under the hearsay exception as a dying declaration or excited utterance violate the sixth amendment (U.S. Const., amend. VI) as interpreted by the United States Supreme Court in Crawford v. Washington and Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006). In support of that argument, defendant contends that \u201c[bjecause the statements were testimonial in nature, and because there was no opportunity for cross-examination, the admission of such statements violated Mr. Ingram\u2019s Sixth Amendment rights.\u201d\nDefendant, relying on Crawford and Davis, argues as follows:\n\u201cCrawford held that the admission of hearsay statements of an unavailable declarant violates the right to confrontation unless the defendant had a prior opportunity to cross-examine the declarant, if the hearsay statements are testimonial. Furthermore, and importantly for purposes of this case, the Supreme Court in Davis v. Washington reiterated that excited utterances, a firmly rooted hearsay exception, are still subject to the Crawford rule, and are therefore inadmissible when the statements are considered testimonial. Thus, contrary to the trial court\u2019s ruling, the primary concern should not have been whether the statement sought to be admitted fell within a firmly rooted hearsay exception but, rather, whether the declarant\u2019s statement was \u2018testimonial\u2019 in nature.\u201d\nThe confrontation clause of the sixth amendment provides: \u201cIn all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.\u201d U.S. Const., amend. VI. Prior to Crawford, the Supreme Court held that the out-of-court statements of an unavailable witness may be admitted into evidence so long as they had adequate \u201cindicia of reliability.\u201d Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980). A statement showed such reliability if it fell within a \u201cfirmly rooted hearsay exception\u201d or demonstrated \u201cparticularized guarantees of trustworthiness.\u201d Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.\nIn Crawford, 541 U.S. at 60, 158 L. Ed. 2d at 198, 124 S. Ct. at 1369, the Court concluded that the Roberts rationale had departed from the original common law principles underlying the confrontation clause by allowing the introduction of testimonial statements of witnesses that were never subject to cross-examination. Thus, the Court held that out-of-court testimonial evidence was inadmissible unless the witness was unavailable and the defendant had a prior opportunity to cross-examine that witness. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. While the Court refused to provide a comprehensive definition of what constituted \u201ctestimonial\u201d evidence, it stated that such evidence would necessarily include \u201cprior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. \u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.\nIn Davis v. Washington, the United States Supreme Court addressed two separate cases which raised the issue of what constituted \u201ctestimonial\u201d evidence under two very different fact patterns. Davis, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266. In addressing these two cases, the court in Davis provided guidelines for determining when a statement is \u201ctestimonial.\u201d In one case, the police responded to a domestic disturbance at the home of Amy and Hershel Hammon. The officers separately questioned the couple. Amy completed and signed a battery affidavit against her husband. Amy did not appear at Hershel\u2019s trial for domestic battery; however, her affidavit and testimony from the officer who questioned her were admitted over Hershel\u2019s objection that he had no opportunity to cross-examine her. Hershel was convicted and the Indiana Supreme Court affirmed, concluding that, although Amy\u2019s affidavit was testimonial and should not have been admitted, the error was harmless beyond a reasonable doubt. Davis, 547 U.S. at 821, 165 L. Ed. 2d at 236, 126 S. Ct. at 2273.\nIn resolving whether Amy\u2019s statements were inadmissible testimonial evidence, the Court noted that Amy\u2019s interrogation was part of an investigation into possibly criminal past conduct and there was no emergency in progress. Davis, 547 U.S. at 829, 165 L. Ed. 2d at 241-42, 126 S. Ct. at 2278. In concluding that Amy\u2019s statements were testimonial in nature, the Court applied the principles previously articulated in Crawford, and held that statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecutions. Davis, 547 U.S. at 822, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273-74. Under those principles the Court reversed and remanded, finding Amy\u2019s statements to be inadmissible testimonial evidence. Davis, 547 U.S. at 830-34, 165 L. Ed. 2d at 242-44, 126 S. Ct. at 2278-80.\nApplying those principles to the statements at issue in the instant case, we find the statements are not testimonial in nature. Unlike Davis, in the instant case, there was no \u201cinterrogation\u201d as contemplated by the Davis standard and the conversation was not being conducted as interrogation to establish or prove past events potentially relevant to later criminal prosecutions. Rather, the conversation between Hicks and Cameron occurred as a natural consequence of the shooting. The record reflects this conversation occurred between friends immediately after Hicks, who was a friend of Cameron, was fatally shot. This is unlike the situation where statements to detectives are found to be testimonial because they were \u201cmade in response to police questioning while the police were conducting an investigation into the *** commission of a crime.\u201d People v. Victors, 353 Ill. App. 3d 801, 812 (2004) (statements implicating defendant made by domestic battery victim to police officer while officer was conducting investigation were testimonial). Based on our examination of the totality of the circumstances surrounding this conversation, including its content and context, we reject defendant\u2019s argument that the statements were testimonial in nature.\nThe additional issue presented by the factual context of the instant case is whether Crawford applies to dying declarations. Regarding exceptions to the hearsay rule, the Court in Crawford indicated that \u201cthere is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.\u201d (Emphasis in original.) Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 195, 124 S. Ct. at 1367. In a footnote, the Court addressed dying declarations as follows:\n\u201cThe one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. [Citations.] Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. [Citations.] We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.\u201d Crawford, 541 U.S. at 56 n.6, 158 L. Ed. 2d at 195 n.6, 124 S. Ct. at 1367 n.6.\nDefendant relies on various out-of-state cases that have found a violation of the confrontation clause where statements were admitted in evidence under the dying declaration exception. However, in Illinois the question of whether admitting dying declarations violates the confrontation clause under the principles articulated in Crawford was addressed in People v. Gilmore, 356 Ill. App. 3d 1023 (2005).\nThe court in Gilmore concluded that the victim\u2019s statements to detectives qualified as dying declarations and were not rendered inadmissible by the principles articulated in Crawford. In reaching that conclusion, the court in Gilmore followed the supreme court of California in People v. Monterroso, 34 Cal. 4th 743, 763-65, 101 P.3d 956, 971-72, 22 Cal. Rptr. 3d 1, 19-20 (2004). The reasoning in Monterroso, which we find particularly instructive, is as follows:\n\u201c[I]f, as Crawford teaches, the confrontation clause \u2018is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding\u2019 [citations], it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.\u201d Monterroso, 34 Cal. 4th at 765, 101 P.3d at 972, 22 Cal. Rptr. 3d at 20, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365.\nThe defense argues that we should reject these cases because \u201call of these cases pre-date Davis, and rely on reasoning specifically rejected in Davis.\u201d We note that neither of the two cases addressed by the United States Supreme Court in Davis involved dying declarations. Moreover, as previously discussed, under the principles articulated in Davis for determining whether a statement is testimonial in nature, the statements in the instant case were not testimonial evidence. The court in Davis concluded that statements are testimonial when there is no ongoing emergency and the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecutions. Davis, 547 U.S. at 822, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273-74. In the instant case, the statements were not elicited as the result of police interrogation. The conversation was not being conducted for the purpose of interrogation to establish or prove past events potentially relevant to later criminal prosecutions. Rather, there was an ongoing emergency as Anthony Hicks was in the process of dying and made the statements at issue in general conversation with his friend Angela Cameron.\nWe conclude there is no constitutional impediment to admitting the statements made by Hicks to Cameron as he was dying. The record reflects the statements by Hicks were beyond any doubt dying declarations and not testimonial in nature.\nWe are mindful that the requirements for admitting a dying declaration are \u201c(1) the declaration pertains to the cause or circumstances of the homicide; (2) the declarant [has] the fixed belief and moral conviction that death is impending and almost certain to follow almost immediately; and (3) the declarant [has the] mental faculties sufficient to give an accurate statement about the cause or circumstances of the homicide.\u201d Gilmore, 356 Ill. App. 3d at 1033, citing People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1009 (1999), and People v. Walker, 262 Ill. App. 3d 796, 801 (1994).\nIn the instant case, the statement by Hicks directly pertained to the cause of the homicide. Hicks told Cameron he was dying and he told her that Pattyman shot him. The statements by Hicks reflect his moral conviction that death was impending and almost certain to follow immediately. The record reflects no evidence that his mental faculties were impaired. Accordingly, the statements are hearsay exceptions which satisfy the requirements for admission into evidence as dying declarations.\nWe conclude the evidence was sufficient to allow the trial court to find beyond a reasonable doubt that the statements made by Hicks were admissible as dying declarations. For the reasons previously discussed, the statements made by Hicks are not testimonial. Accordingly, under the principles of Crawford, as further articulated in Davis, there is no constitutional impediment to admitting the nontestimonial statements under the dying declaration exception to the hearsay rule. We need not further resolve whether the statements were properly admitted as excited utterances because we find the statements properly admitted under the dying declaration exception to the hearsay rule.\nTRIAL COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE\nDefendant contends he made a substantial showing that his right to effective assistance of counsel was violated because although trial counsel requested an instruction on second degree murder based on defendant\u2019s unreasonable belief that he was justified in shooting Hicks, counsel failed to request a second degree murder instruction based on provocation. Whether the trial court properly instructed the jury is a question of law subject to de novo review. People v. Herron, 215 Ill. 2d 167, 174 (2005).\nA defendant is guaranteed the right to the effective assistance of counsel under the United States and Illinois Constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, \u00a78. In order to establish a violation of the constitutional right to effective assistance of counsel, a criminal defendant must show that counsel\u2019s performance was deficient in that it was objectively unreasonable and that the deficient performance so prejudiced the defense as to undermine confidence in the outcome of the proceedings or deprive defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-89, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064-65 (1984). In People v. Albanese, 104 Ill. 2d 504 (1984), the Illinois Supreme Court adopted the Strickland rule, stating that \u201c \u2018the benchmark for judging any claim of ineffectiveness must be whether counsel\u2019s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u2019 \u201d Albanese, 104 Ill. 2d at 525, quoting Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064; Ill. Const. 1970, art. I, \u00a78.\nA defendant has the burden of demonstrating that counsel was ineffective. People v. Lundy, 334 Ill. App. 3d 819, 829 (2002). Under the first prong of the Strickland test, defendant must overcome a \u201cstrong presumption that counsel\u2019s conduct falls within a wide range of reasonable professional assistance; that is, defendant must overcome the presumption that, under the circumstances, the challenged action \u2018might be considered sound trial strategy.\u2019 \u201d Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164 (1955). Evaluation of counsel\u2019s conduct cannot extend into areas involving the exercise of judgment, discretion or trial tactics even where the reviewing court would have acted differently. People v. Mitchell, 105 Ill. 2d 1, 12 (1984).\nTo prove the prejudice prong, defendant must show that \u201ccounsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. A defendant\u2019s failure to make a requisite showing of either deficient performance or sufficient prejudice defeats an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. If the claim of ineffective assistance can be disposed of on the basis that the defendant did not suffer sufficient prejudice, a court need not consider whether counsel\u2019s performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Erickson, 161 Ill. 2d 82, 90 (1994).\nIn reviewing the conduct of trial counsel, we note defendant is entitled to effective, not perfect, representation (People v. Odie, 151 Ill. 2d 168, 173 (1992)), and this is to be determined from the totality of counsel\u2019s performance. People v. Evans, 186 Ill. 2d 83, 94 (1999). Defendant argues his trial counsel was ineffective for failing to request a second degree murder instruction based on provocation. Defendant contends the record supported such an instruction because the record reflects that before Hicks was shot by the defendant, there was a 10-minute fistfight between defendant\u2019s nephew, Tyrone, and Hicks. After the fight, Hicks went to Tyrone\u2019s house with a pipe or pole demanding to see Tyrone. Defendant testified that while he was walking Tyrone home, Hicks stepped into their path with a metal pipe and swung at both of them. Defendant argues that under \u201cthese circumstances, defense counsel\u2019s failure to ask for an instruction on second degree murder based on provocation was unreasonable, and undermined confidence in the outcome of the trial.\u201d\nThe purpose of jury instructions is to convey to the jury the correct principles of law applicable to the evidence so that the jury may reach a correct conclusion according to the law and the evidence. People v. Hopp, 209 Ill. 2d 1, 8 (2004). While the giving of jury instructions is generally within the discretion of the trial court, we review de novo the question of whether the jury instructions accurately conveyed to the jury the applicable law. People v. Parker, 223 Ill. 2d 494, 501 (2006). In the factual context of the instant case, defense counsel asked and received an instruction on second degree murder based on defendant\u2019s unreasonable belief that he was justified in shooting Hicks. In considering the totality of defense counsel\u2019s performance, our review of the record reflects that defense counsel cross-examined the witnesses, made appropriate objections, argued various motions, presented witnesses on defendant\u2019s behalf, made an opening statement, gave closing argument and asked for specific jury instructions consistent with his theory of defense.\nTrial counsel obtained a second degree murder instruction based on the theory that defendant mistakenly believed that the circumstances would justify the deadly force he used. That instruction was consistent with defendant\u2019s testimony during trial. That instruction was consistent with trial counsel\u2019s theory of defense.\nDefendant contends that the evidence supports the theory that the defendant was acting under a sudden and intense passion resulting from serious provocation by the victim. In the instant case, defendant told several different versions of what happened the night of the murder. Defendant admitted during his testimony that he had changed his story and defendant\u2019s nephew and the mother of his children gave conflicting testimony at trial. Defense counsel requested and received an instruction for second degree murder based on the theory that defendant believed the circumstances existed which justified the deadly force he used, but his belief that such circumstances existed was unreasonable. 720 ILCS 5/9 \u2014 2(a)(1), (a)(2) (West 2000).\nThat instruction is factually supported by defendant\u2019s version of what happened which he provided under oath at trial. Defendant testified at trial that while he and Campbell were walking, Hicks approached them with a metal pole about two feet long and swung the pole at Campbell, who ran away. Hicks then went after defendant, who tried to defend himself. Hicks attempted to grab defendant\u2019s gun, but defendant pushed him away. At that point, according to the testimony of the defendant, Hicks reached for his waistband and defendant believed Hicks had a gun, so to defend himself, he shot Hicks. Defendant said he was 25 feet away, fired his gun four times, but did not know if he hit Hicks, as he ran away while Hicks was still standing.\nOn cross-examination, defendant admitted that he initially told the police that he did not shoot Hicks, but was with Latoya Spears. It was not until the police confronted him with the fact that Spears told them defendant was not with her, that defendant then described himself struggling with Hicks when the gun went off.\nIn the factual context of the instant case, it was reasonable trial strategy for defense counsel to decide that any additional instructions would only serve to emphasize the fact that defendant told several different stories. It was strategically sound for defense counsel not to submit the second degree instruction for sudden and intense passion resulting from serious provocation by Hicks, as that alternate theory could have served to undermine the credibility of defendant\u2019s testimony at trial which supported the theory that defendant mistakenly believed the circumstances justified his use of deadly force to prevent death or great bodily harm to himself.\nRather than considering a jury instruction in isolation, we review whether the instructions given the jury considered as a whole, fully and fairly provide the jurors with the applicable law. People v. Terry, 99 Ill. 2d 508, 516 (1984). In the instant case, the jury instructions taken as a whole, including those submitted by defense counsel that were used by the trial court to instruct the jury, accurately conveyed to the jurors the applicable law. Taking into consideration the total record, we cannot conclude that trial counsel\u2019s performance was deficient. Accordingly, we find the conduct of trial counsel to be objectively reasonable.\nMoreover, the record does not reflect actual prejudice. To show actual prejudice, defendant must establish that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different or the trial process was fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nThe defendant told multiple stories and his various versions of the events were uncorroborated. In the factual context of the instant case, the record does not reflect that the failure to instruct the jury on second degree murder based on provocation changed the result of the proceeding or was fundamentally unfair. Based on the totality of the record, defendant has not satisfied the Strickland standard for demonstrating ineffective assistance of counsel. The record does not reflect deficient performance or prejudice as the result of trial counsel\u2019s representation. Accordingly, defendant failed to demonstrate a violation of Strickland. When considered and read as a whole in the factual context of the instant case, the instructions fully and fairly informed the jury of the applicable law.\nCONCLUSION\nFor the reasons previously discussed, we conclude the evidence was sufficient to allow the trial court to find beyond a reasonable doubt that the statements made by Hicks were admissible as nontesti-monial dying declarations. Accordingly, under the principles articulated by the United States Supreme Court in Crawford and Davis, there is no constitutional impediment to admitting the nontestimonial statements under the dying declaration exception to the hearsay rule. Further, based on our review of the record, we conclude that defense counsel\u2019s representation reflects that defendant was provided effective assistance of counsel.\nAffirmed.\nFITZGERALD SMITH, P.J., and TULLY, J., concur.", "type": "majority", "author": "JUSTICE O\u2019HARA FROSSARD" } ], "attorneys": [ "Patricia Unsinn and Melissa C. Chiang, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Marie Q. Czech, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT INGRAM, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201406\u20141954\nOpinion filed April 11, 2008.\nRehearing denied June 5, 2008.\nPatricia Unsinn and Melissa C. Chiang, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Marie Q. Czech, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0997-01", "first_page_order": 1015, "last_page_order": 1027 }