Find Legal Information

NO.5-99-0087

IN THE

APPELLATECOURT OF ILLINOIS

FIFTHDISTRICT

JUSTICE MAAG delivered the opinion of the court:

John Scott Penrod (defendant) was convicted by a jury of residential burglary, a class1 felony, and theft under $300, a class 4 felony by reason of his prior burglary conviction. Defendant was sentenced to concurrent prison terms of 12 years on the residential burglaryconviction and three years on the theft conviction. On appeal, defendant contends that hewas denied his right to a speedy trial, that he was denied the effective assistance of counsel,and that the State failed to prove guilt beyond a reasonable doubt.

A detailed procedural history of this case follows. Those facts pertinent to aresolution of the remaining issues will be provided during a discussion of those points. OnDecember 17, 1996, defendant was initially arrested and taken into custody on a warrantunrelated to this case. Later that day, defendant was charged with a residential burglary thatoccurred on December 17, 1996, and another burglary that occurred on December 7, 1996. At the time of his arrest, defendant was serving a period of mandatory supervised releaseunder the supervision of the Illinois Department of Corrections for a prior felony offense.

On December 19, 1996, defendant appeared in court and was advised of the chargesagainst him. During this appearance, the court appointed James Henson, an attorney fromthe public defender's office, to represent defendant. The court also set a bond and scheduledan arraignment and a preliminary hearing for January 8, 1997. On December 23, 1996, thegrand jury indicted defendant on the residential burglary offense, thus obviating the need fora preliminary hearing. Following defendant's arraignment on January 8, 1997, the court seta final pretrial conference for February 26, 1997, and a jury trial for March 11, 1997.

On February 20, 1997, the Illinois Department of Corrections issued a parole-violation warrant based primarily on the new burglary charges, and defendant was returnedto one of its corrections facilities.

On February 25, 1997, the State filed a motion to continue the jury trial because it hadnot received the results of forensic tests from the Illinois State Police crime lab. OnFebruary 26, 1997, the court granted the State's motion and reset the case for trial on March25, 1997. On March 11, 1997, the State filed an answer to discovery, listing additionalState's witnesses. On March 17, 1997, the State filed an additional count charging defendantwith theft with a prior burglary conviction.

On March 25, 1997, attorney Henson informed the court that he was representing oneof the witnesses whom the State identified in its March 11, 1997, disclosure and thereforehad a conflict of interest. The court permitted Mr. Henson to withdraw and appointedanother public defender, Jerry Crisel, to represent defendant. The court continued the trialto April 22, 1997, and set a pretrial conference for March 27, 1997, two days later. On theState's motion, the court released defendant from bond on the pending burglary and theftcharges. Defendant remained in the custody of the Illinois Department of Correctionspending a hearing on the alleged violations of his mandatory supervised release.

On April 17, 1997, defendant filed a motion to dismiss the residential burglary andburglary charges, claiming that his right to a speedy trial had been violated because he hadbeen in custody for more than 120 days and had not been brought to trial within that time. After a hearing on April 21, 1997, the court denied the motion to dismiss. Following theresidential burglary and theft convictions, the State dismissed the remaining burglary charge.

In his first point, defendant argues that the trial court erred in failing to dismiss thecharges because the State failed to try him within the time limits prescribed in section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 1992)). TheState argues that because defendant was in the custody of the Department of Correctionsafter March 11, 1997, the date the court released defendant from his bond, he was requiredto make a written demand for a speedy trial pursuant to the intrastate detainers statute (730ILCS 5/3-8-10 (West 1992)) but that he failed to do so.

We note that the prosecution and the defense agree that defendant was taken intocustody on December 17, 1996. Defendant concedes that he never made a demand for aspeedy trial. Instead, he contends that section 103-5(a) of the Code of Criminal Procedureof 1963 applies to his case and that, according to this provision, the State was obligated totry the case within the time specified, without a demand by defendant. Section 103-5 of theCode of Criminal Procedure of 1963 is commonly referred to as the speedy trial act. Wemust decide whether section 103-5(a) of the speedy trial act or the provisions of theintrastate detainers statute apply. Before answering the specific question, it is important toreview the differences between the two statutes.

Though the subject matter of the intrastate detainers statute is the same as that of thespeedy trial act, namely, a defendant's right to a speedy trial, the application of each statutedepends upon the classification of the defendant. The intrastate detainers statute and thespeedy trial act establish different time periods and demand requirements for differentlysituated defendants. People v. Staten, 159 Ill. 2d 419, 424, 639 N.E.2d 550, 553 (1994).

Section 103-5(a) of the speedy trial act provides, "Every person in custody in thisState for an alleged offense shall be tried by the court having jurisdiction within 120 daysfrom the date he was taken into custody unless delay is occasioned by the defendant ***." 725 ILCS 5/103-5(a) (West 1992). This provision requires the State to bring the defendantto trial on the alleged offenses within the time specified, without any demand from thedefendant. Staten, 159 Ill. 2d at 424, 639 N.E.2d at 553. The legislature imposed thisburden on the State because defendants who remain in custody before their trial, unlike thosereleased on bail, suffer the loss of their liberty before they are adjudicated guilty of a crime. Staten, 159 Ill. 2d at 424, 639 N.E.2d at 553-54.

In contrast, subsection (b) of the speedy trial act requires a defendant who is on bailor released on his own recognizance to serve the State with a formal written demand for aspeedy trial, before the clock begins to tick. 725 ILCS 5/103-5(b) (West 1992). Thus, thelegislature protected a nondetained defendant's right to a speedy trial but shifted the burdenand required the defendant to make the demand. Staten, 159 Ill. 2d at 424, 639 N.E.2d at554.

The intrastate detainers statute (730 ILCS 5/3-8-10 (West 1992)) was enactedsubsequent to the speedy trial act. The legislature specifically incorporated certainprovisions of the speedy trial act into the intrastate detainers statute. 730 ILCS 5/3-8-10(West 1992). The intrastate detainers statute provides that subsections (b), (c), and (e) of thespeedy trial act also apply to persons who are committed to an institution or facility orprogram of the Illinois Department of Corrections and who have untried complaints,charges, or indictments pending in any county of this State. 730 ILCS 5/3-8-10 (West1992); 725 ILCS 5/103-5(b),(c),(e) (West 1992). The intrastate detainers statute requiresthis class of defendants to comply with specific provisions of the statute, which includeserving a written demand for a speedy trial to start the clock ticking. 730 ILCS 5/3-8-10(West 1992).

In enacting this provision, the legislature acknowledged that a person committed toan institution, facility, or program of the Department of Corrections retained a right to aspeedy trial on untried charges, but it recognized that the person's loss of liberty was notbased solely upon untried charges but, rather, was based upon a prior conviction. Staten,159 Ill. 2d at 428, 639 N.E.2d at 555. Thus, the legislature imposed the burden ondefendants committed to the custody of the Department of Corrections to make a writtendemand for a speedy trial. 730 ILCS 5/3-8-10 (West 1992); Staten, 159 Ill. 2d at 428, 639N.E.2d at 555.

Though both the speedy trial act and the intrastate detainers statute deal with theaccused's right to a speedy trial, the intrastate detainers statute is a particular enactment thatonly applies to persons committed to the custody of the Department of Corrections. Underprinciples of statutory construction, statutes relating to the same subject matter must beconstrued together so that effect may be given to all the provisions of each statute if it canbe done by a fair and reasonable construction. People v. Gardner, 15 Ill. App. 3d 255, 257,304 N.E.2d 125, 127 (1973). It is presumed that all statutes relating to one subject aregoverned by one policy and that the legislature intended them to be operative andharmonious. People v. Gardner, 15 Ill. App. 2d at 257-58, 304 N.E.2d at 127. Where thereis one statute or a provision thereof dealing with a subject in general and comprehensiveterms and another statute or provision dealing with a part of that same subject in a moreminute and particular way, the particular enactment is held to qualify and to be operative asagainst the general provisions. Ashton v. Cook County, 384 Ill. 287, 298, 51 N.E.2d 161,166 (1943); People v. Hale, 55 Ill. App. 2d 260, 264, 204 N.E.2d 833, 835 (1965). According to these principles, the intrastate detainers statute is a particular enactment thatdoes not conflict with but, rather, qualifies the speedy trial act.

We now turn to defendant's argument that section 103-5(a) of the speedy trial actapplies to this case. Defendant's argument is premised upon his contention that he was notin the custody of the Department of Corrections on the parole violation but, rather, was inthe continuous custody of the State for the pending burglary offenses from the date he wasarrested. We disagree with defendant's initial premise.

The record indicates that defendant was serving a period of mandatory supervisedrelease at the time of his arrest on the burglary charges. Section 3-14-2(a) of the UnifiedCode of Corrections provides that the Department of Corrections "shall retain custody of allpersons placed on parole or mandatory supervised release *** and shall supervise suchpersons during their parole or release period in accord with the conditions set by the PrisonerReview Board." 730 ILCS 5/3-14-2(a) (West 1992). According to this provision, defendantremained in the custody of the Department of Corrections during the mandatory supervisedrelease program. Defendant had not been "discharged" from the Department of Corrections. The Unified Code of Corrections defines "discharge" as "the final termination of acommitment to the Department of Corrections." 730 ILCS 5/3-1-2(g) (West 1992). Amandatory supervised release is not a "discharge." See 730 ILCS 5/3-1-2 (West 1992); 725ILCS Ann. 5/3-1-2, Council Commentary, at 11 (Smith-Hurd 1997).

Therefore, defendant was committed to the continuous custody and under thesupervision of the Illinois Department of Corrections during the entire period of hismandatory supervised release program and subsequent thereto when he was recommitted toone of its facilities pending a parole-revocation hearing. See 730 ILCS 5/3-14-2 (West1992); 730 ILCS 5/3-1-2 (West 1992). Because defendant was committed to a program andsubsequently to an institution of the Illinois Department of Corrections, he was required tomake a demand for a speedy jury trial pursuant to and in compliance with provisions of theintrastate detainers statute (730 ILCS 5/3-8-10 (West 1992)). Because defendant nevermade a demand for a speedy trial in this case, the applicable time period never began to run. Accordingly, there is no speedy-trial violation.

In his second point, defendant claims that the State failed to prove his guilt beyonda reasonable doubt. Defendant argues that the evidence in this case consisted primarily ofan accomplice's testimony, that the accomplice testified with an expectation of leniency, andthat his testimony was improbable, unsupported by corroborating evidence, and inherentlysuspicious.

A criminal conviction will not be set aside on review unless the evidence is soimprobable or unsatisfactory that there remains a reasonable doubt about the defendant'sguilt. People v. McLaurin, 184 Ill. 2d 58, 79, 703 N.E.2d 11, 21 (1998). Determinationsof the credibility of witnesses, the weight to be given their testimony, and the reasonableinferences to be drawn from the evidence are responsibilities of the trier of fact. McLaurin,184 Ill. 2d at 79, 703 N.E.2d at 21. As a court of review, we do not reweigh the evidenceor substitute our judgment for that of the trier of fact. People v. Collins, 106 Ill. 2d 237,261, 478 N.E.2d 267, 277 (1985). The relevant question is whether, after viewing theevidence in a light most favorable to the prosecution, any rational trier of fact could havefound the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at261, 478 N.E.2d at 277, citing Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560,573, 99 S. Ct. 2781, 2789 (1979).

Because the testimony of an accomplice has inherent weaknesses, it should be viewedwith suspicion and subject to careful scrutiny. People v. Williams, 147 Ill. 2d 173, 233, 588N.E.2d 983, 1006 (1991). Nevertheless, the Illinois Supreme Court has repeatedly said thatsuch testimony, whether corroborated or uncorroborated, is sufficient to sustain a criminalconviction if it convinces the jury of the defendant's guilt beyond a reasonable doubt.McLaurin, 184 Ill. 2d at 79, 703 N.E. 2d at 21; Williams, 147 Ill. 2d at 233, 588 N.E.2d at1006; People v. Farnsley, 53 Ill. 2d 537, 544-54, 293 N.E.2d 600 (1973); People v.Wollenberg, 37 Ill. 2d 480, 484-85, 229 N.E.2d 490 (1967).

This standard of review applies whether the evidence is direct or circumstantial. People v. Watt, 244 Ill. App. 3d 103, 119, 613 N.E.2d 1160, 1170 (1993). This was acircumstantial evidence case. Circumstantial evidence is the proof of facts or circumstancesthat give rise to a reasonable inference of other facts that tend to establish the guilt orinnocence of a defendant. Watt, 244 Ill. App. 3d at 119, 613 N.E.2d at 1170. It is notnecessary that the jury be satisfied beyond a reasonable doubt as to each link in the chain ofcircumstances. It is sufficient if all the evidence taken together satisfies the jury beyond areasonable doubt of the accused's guilt. People v. Jones, 105 Ill. 2d 342, 350, 475 N.E.2d832, 835 (1985).

The following facts are not in dispute. On December 17, 1996, detectives from thesheriff's department went to a home, known as a crack house, to arrest defendant on anoutstanding warrant, unrelated to the residential burglary. The officers arrived about 2:15p.m., found defendant hiding in a shower, and placed him under arrest. At the time ofdefendant's arrest, these officers had no knowledge of the residential burglary. The burglarywas not reported until about 2:30 p.m. that day. After defendant was placed under arrest,the officers found costume jewelry in his pocket. The officers also noted a red cancontaining other pieces of jewelry in a room near the shower, but they did not seize it at thattime. After the officers learn about the residential burglary, they returned to the crack housewith a warrant and seized the jewelry and a bag containing two weapons and a holster. Allof these items were later identified as property taken from the victim's home during theburglary.

During the trial, the State called a number of witnesses who stayed at the crack house. One of those witnesses, Charles Tate, was an alleged "accomplice." A summary of pertinentportions of Mr. Tate's testimony follows. Mr. Tate told the jury that he "hooked up" withdefendant about 7 a.m. on the morning of December 17, 1996. Tate admitted that he starteddrinking early on the morning of December 17, 1996, and that he had been "partying" andusing crack cocaine the night before. According to Tate, defendant asked him for a ride outto the country that morning, but he initially declined because he did not have enough gas. After defendant came up with two or three dollars for gas, Tate agreed to drive defendantto a residence south of Mt. Vernon. When they arrived, defendant went to the front door andknocked. No one answered. Defendant then went to some French doors and slid open ascreen. He told Tate that they were at home. Defendant instructed Tate to go down the roadand then come back and pick him up. Tate complied.

When Tate returned, defendant was in the driveway. Tate noticed that defendant'scoat was bulkier, as though he had something under it, that defendant was clenching hismidsection, and that defendant was sweating even though it was a cold day. During the rideback, defendant asked Tate to stop at another house. Prior to arriving there, defendant puta .25-caliber automatic pistol in Tate's right-hand coat pocket. Tate testified that it was thenhe realized that defendant "had robbed this house." Tate stated that he never got out of hiscar and never went into the house. Tate admitted to the jury that he was testifying with theexpectation that he was going to get a reduced charge and no jail time. The pistol thatdefendant gave Tate was identified as one taken from the victim's home during the burglary.

Against his own counsel's advice, defendant testified. During his testimony,defendant admitted that he had three prior felony convictions. He denied any involvementor participation in the residential burglary. Defendant testified that he was placed underarrest on December 17, 1996, on an outstanding warrant. When the police arrested him, theyfound some costume jewelry in his pockets. Defendant testified that he told the police hehad purchased the jewelry from Charles Tate. He testified that Tate came to the crack housewith some jewelry and weapons about 11 a.m. that morning and asked defendant where hecould sell them.

In this case, the resolution of defendant's guilt or innocence turned on the credibilityof the State's witnesses, defendant's credibility, and the weight to be given that testimony. It was the jury's charge to determine issues of credibility, to weigh the testimony, and toresolve any conflicts in the evidence. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

During direct examination, Mr. Tate admitted his abuse of drugs and alcohol. Mr.Tate told the jury that he was testifying with the expectation of leniency. Tate testified thatafter he gave his statement, the police indicated they would try to get "a lesser charge" forhim. The court instructed the jury that the testimony of an accomplice is subject to suspicionand should be considered with caution.

The testimony of defendant conflicted with the testimony of the accomplice. The juryhad the opportunity to view each witness and to assess the demeanor and credibility of eachwitness. The jury was fully apprised of the infirmities in Mr. Tate's testimony. The jurychose to believe the accomplice. After reviewing the record, we cannot say that the jury'sconclusion was unreasonable or that the evidence was so improbable that it created areasonable doubt about defendant's guilt. After viewing the evidence in a light mostfavorable to the prosecution, we conclude that there is sufficient evidence to support thejury's verdict.

In his final point, defendant claims that his constitutional right to the effectiveassistance of counsel was violated because his attorney committed a number ofunprofessional errors.

Claims of ineffective assistance of counsel are evaluated under a two-pronged testestablished in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052(1984). To succeed on a claim of ineffective assistance of counsel a defendant must show:(1) that counsel's performance was so seriously deficient as to fall below an objectivestandard of reasonableness under prevailing professional norms and (2) that the substandardrepresentation so prejudiced defendant that there is a reasonable probability that, absent theerrors, the outcome would have been different. Strickland, 466 U.S. at 687, 80 L. Ed. 2dat 693, 104 S. Ct. at 2064; People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255(1984). The benchmark must be "whether counsel's conduct so undermined the properfunctioning of the adversarial process that the trial cannot be relied on as having produceda just result." Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

In evaluating counsel's performance, a defendant must overcome a strongpresumption that the challenged action might be considered sound trial strategy. Strickland,466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Any evaluation of counsel'sconduct cannot properly extend into matters involving the exercise of judgment, trial tactics,or strategy. People v. Mitchell, 105 Ill. 2d 1, 473 N.E.2d 1270 (1984). On review, thedetermination of the reasonableness of trial counsel's actions must be evaluated from trialcounsel's perspective at the time of the alleged error, without hindsight, in light of thetotality of the circumstances. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct.at 2065.

The court need not determine whether counsel's performance was deficient beforeexamining the prejudice suffered by the defendant as a result of the alleged deficiencies. Ifit is easier to dispose of an ineffectiveness claim on the ground of lack of sufficientprejudice, that course should be followed. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1256.

Defendant first claims that his counsel was ineffective because he did notcommunicate with defendant while preparing for the trial. During the ineffective-assistancehearing, defendant's trial counsel admitted that he neither called nor traveled to the stateprison to meet with defendant while defendant was incarcerated there. Counsel testified thathe spoke with defendant on a couple of occasions before the trial and that it was hisrecollection that the meetings were longer than five minutes. The record supports counsel'srecollection. According to the March 25, 1997, report of proceedings, after permittingdefendant's first attorney to withdraw, the court set a pretrial conference for the expresspurpose of providing defendant an opportunity to meet with his new counsel. The March27, 1997, report of proceedings indicates that defendant and his counsel were given thatopportunity following a brief pretrial conference.

In addition, defendant has not shown how further pretrial communication would havealtered the outcome of this case. See People v. Davis, 228 Ill. App. 3d 123, 128-29, 592N.E.2d 464, 468 (1992). In our view, defendant's counsel appeared to have anunderstanding of the factual and legal issues in the case. Counsel filed a motion to dismissbased upon an alleged speedy-trial violation and argued other pretrial motions on defendant'sbehalf. During the cross-examination of the State's witnesses, counsel demonstrated that hewas familiar with the facts of the case and facts reflecting on the credibility of thosewitnesses. Defendant has not shown that he was denied a fair trial nor that, absent thealleged ineffective assistance, the result of the proceeding would have been different. SeeDavis, 228 Ill. App. 3d at 129, 592 N.E.2d at 468.

Defendant next claims that his counsel was ineffective because he failed to interviewand subpoena an alibi witness, Jerry Hill. We first note that defendant has presented noevidence of what Mr. Hill would have testified to had he been called. Mr. Hill was notcalled and did not appear as a witness during the ineffective-assistance hearing. Defendantdid not submit an affidavit from Mr. Hill setting forth what information Mr. Hill couldprovide. Without testimony or an affidavit, this court cannot determine whether theproposed witness could have provided any information or testimony favorable to defendant. See People v. Johnson, 183 Ill. 2d 176, 192, 700 N.E.2d 996, 1004 (1998); People v. Guest,166 Ill. 2d 381, 402, 655 N.E.2d 873, 883 (1995).

Further, the decision of whether to call a witness is a tactical and strategic decision,and defense counsel is given wide latitude in making those decisions. People v. Flores, 128Ill. 2d 66, 85-86, 538 N.E.2d 481, 485-86 (1989); Davis, 228 Ill. App. 3d at 130, 592 N.E.2dat 469. During the ineffective-assistance hearing, counsel testified that he was aware of thegeneral nature of Mr. Hill's purported testimony, based upon discussions with defendant. Counsel testified that he did not subpoena Mr. Hill to testify because Hill was known as acrack dealer and, as such, would not likely be viewed as a very credible character. Counselstated that in his judgment any association between his client and Mr. Hill would do thedefense more harm than good.

Defendant failed to rebut the strong presumption that counsel's decision not tointerview or subpoena Mr. Hill constituted reasonable trial strategy. See Flores, 128 Ill. 2dat 85-86, 538 N.E.2d at 485-86. In addition, defendant failed to demonstrate that Mr. Hillwould have testified favorably to the defense and that his testimony would have made adifference in the outcome. See People v. Ashford, 121 Ill. 2d 55, 77, 520 N.E.2d 332, 341(1988).

Defendant also claims that counsel was ineffective in failing to present an openingstatement. A defense attorney's decision to make or waive an opening statement on behalfof a defendant is a question of judgment in strategy or tactics that will not in and of itselfdemonstrate the ineffective assistance of counsel. Davis, 228 Ill. App. 3d at 127, 592N.E.2d at 467; People v. Georgev, 38 Ill. 2d 165, 169, 230 N.E.2d 851, 854 (1967). "Onlythe most egregious of tactical or strategic blunders may provide a basis for a violation of adefendant's right to effective assistance of counsel." Davis, 228 Ill. App. 3d at 127, 592N.E.2d at 467; People v. Lee, 185 Ill. App. 3d 420, 445, 541 N.E.2d 747, 761-62 (1989).

Though an opening statement is ordinarily important in order to provide the jury witha clear understanding of the theory of the case or to explain complex issues (Davis, 228 Ill.App. 3d at 127, 592 N.E.2d at 467), there are strategic reasons for waiving the openingstatement (People v. Flores, 231 Ill. App. 3d 813, 826, 596 N.E.2d 1204, 1212 (1992)).

During the ineffective-assistance hearing, counsel testified that his decisions toreserve the opening statement until the close of the State's case and then to waive openingstatement were matters of trial strategy. He explained that sometimes there are uncertaintiesas to how the evidence will develop. In this case, he recognized that several State'switnesses were unsavory crack addicts who could not be relied upon to appear for the trialor to testify consistently with statements previously given. Counsel stated that in hisjudgment it would be proper for the defense to "wait and see" how the evidence developed. Counsel also stated that he had some concerns about consistency in his own client'stestimony and that he wanted to avoid any potential for conflict between his client'stestimony and his opening statement. Counsel expressed concern that the jury would noteany variance between his opening statement and defendant's testimony and hold it againstdefendant.

Considering the nature of this case and the unpredictable character of the witnesses,counsel decided that it was unwise to present an opening statement that might box him intoone particular theory. See Flores, 231 Ill. App. 3d at 826, 596 N.E.2d at 1212. In our view,this was an acceptable trial strategy under the circumstances of this case. Accordingly, weconclude that counsel's decision not to make an opening statement did not violatedefendant's right to the effective assistance of counsel.

Finally, defendant claims that counsel was ineffective in agreeing to a stipulationregarding forensic testing. Two screwdrivers, which were seized by the police from theroom adjacent to where defendant was arrested, were sent for testing. The stipulation statedthat the screwdrivers were examined by a forensic scientist employed by the Illinois StatePolice who specializes in the comparison of tool marks. The stipulation also stated that ifthe expert was called, he would testify that "the screwdrivers could not be excluded as apossible source" for damage marks found at the point of entry but that they were not a"match." The stipulation also provided that there were no latent prints suitable forcomparison on a bag which was recovered at the crack house and which contained itemstaken from the victim's home.

Counsel may have considered such a stipulation preferable to the possibility of havinglengthy and detailed testimony from the State's expert, which may have highlighted thisevidence and made it appear more important than it was. See People v. Puente, 125 Ill. App.3d 152, 159, 465 N.E.2d 682, 687 (1984).

Further, the fact that the screwdrivers may have been used in the burglary is notparticularly damaging to the defense, given defendant's theory that he did not commit theburglary and that he was found in possession of stolen jewelry because he had purchasedthose items from Tate earlier that day. We note that the police found not only thescrewdrivers but also other proceeds of the burglary in the room adjacent to the area wherethey arrested defendant, that this room was accessible to a number of people, including Tate,and that there were no usable prints on any of the items recovered. Defendant has not shownthat this stipulation harmed his theory of the case. See Guest, 166 Ill. 2d at 403, 655 N.E.2dat 884.

In our view, counsel's decision to stipulate to this evidence was a matter of trialstrategy. Further, defendant has not demonstrated that the outcome of the proceeding wouldhave been different had his attorney rejected the stipulation.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CHAPMAN and WELCH, JJ., concur.