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11/19/87 the People of the State of v. Joe Hicks

November 19, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOE HICKS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 807, 162 Ill. App. 3d 707, 114 Ill. Dec. 652 1987.IL.1717

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After a jury trial, defendant, Joe Hicks, was convicted of possession of incendiary devices (Ill. Rev. Stat. 1985, ch. 38, par. 20-2(a)), transportation of incendiary devices (Ill. Rev. Stat. 1985, ch. 38, par. 20-2(a)), and unlawful use of weapons (Ill. Rev. Stat. 1985, ch. 38, par. 24-1(a)(7)). He appeals, contending that he was denied (1) effective assistance of counsel because his trial counsel failed to present exculpatory expert testimony; (2) a fair trial because the jury instructions did not define the term "arson"; and (3) a fair trial because the prosecutor's closing argument improperly denigrated the burden of proof and discounted the defense of impossibility. We affirm.

On March 9, 1986, at approximately 2:30 a.m., Officer Nichols of the Bensenville police department was patrolling an industrial park when he observed defendant walking toward a car located in front of an office building. Defendant entered the car and drove it a few feet before Nichols ordered him to stop and get out of the car. Upon being asked what he was doing, defendant responded that he had stopped to urinate. Nichols checked the area and found no evidence of urination.

Officer Bloode discovered two bottles, one near the rear and another approximately 100 feet from defendant's car, which were filled with gasoline. Each had a folded paper towel wick protruding from the bottle's neck. Bloode also observed a gasoline can, package of paper towels, pouring spout, and funnel in the hatchback area of defendant's car. Defendant's wallet contained two business cards with the addresses of the office buildings next to where he stopped his car.

At trial, the State presented the expert testimony of Jack Nowicki, a forensic chemist of the Illinois State police department. Nowicki performed a visual examination and gas chromatography test of liquid samples obtained from the two bottles and the gasoline can. Nowicki testified that, within a reasonable degree of scientific certainty, all three samples were regular leaded gasoline. Nowicki stated that commercial grade gasoline contains additives but that he did not determine which additives were present in the samples. Nowicki further testified that, in his opinion, the same manufacturer made the paper towels found in defendant's car and the paper towels used as wicks, Nowicki further stated that the wicked bottles of gasoline, commonly referred to as Molotov cocktails, were incendiary devices.

Defendant testified that the car he was driving belonged to a friend, and, because it had a faulty gasoline gauge, defendant carried a full, reserve gasoline can. Defendant further testified that he had driven into the industrial park to urinate because he was familiar with that area and that he was employed in the building in front of which he had parked. Testimony from other witnesses established that no fingerprints were found on either of the bottles, and defendant's hands did not smell of gasoline. Additionally, no matches, lighter or other ignition device were found in defendant's possession when he was arrested.

Defendant offered no instructions at the conference on instructions. While deliberating, the jurors sent the Judge a note requesting definitions for the terms "transportation of incendiary device," "transportation," and "incendiary devices." The Judge decided that no further instructions or definitions were necessary for those terms, and defendant was found guilty on all counts.

Defendant's post-trial motion alleged, inter alia, (1) ineffective assistance of counsel due to trial counsel's failure to call an exculpatory expert witness; (2) improper jury instructions; and (3) improper remarks made concerning the burden of proof during closing argument. In support of his motion, defendant submitted the affidavit of an expert witness which stated that he had conducted three types of tests on the liquid samples and concluded that the sample obtained from the gasoline can had an element in it which was not present in the two bottle samples. Defendant's motion was denied, and this appeal followed.

Defendant first contends that his counsel's failure to present exculpatory expert evidence in trial violated his sixth and fourteenth amendment rights to effective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that his counsel committed errors so serious that, Judged by an objective standard, his performance was incompetent, and that the errors caused prejudice to defendant without which there is a reasonable probability that the result of the proceedings would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68; People v. Collins (1985), 106 Ill. 2d 237, 273, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267; People v. Jaffe (1986), 145 Ill. App. 3d 840, 850, 493 N.E.2d 600.) We find that defendant has failed to sustain his burden in this case.

There is a strong presumption that trial counsel's performance falls within the "wide range of reasonable professional assistance," and "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland v. Washington (1984), 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065; see also People v. Mack (1984), 105 Ill. 2d 103, 129-30, 473 N.E.2d 880.) It is well settled that the decision whether to present a given witness is a matter of trial strategy and, therefore, does not generally support a claim of ineffective assistance of counsel. (People v. Wright (1986), 111 Ill. 2d 18, 26-27, 488 N.E.2d 973; People v. Cloyd (1987), 152 Ill. App. 3d 50, 57, 504 N.E.2d 126.) As defendant correctly notes, there are exceptions to the general rule. (See People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973 (failure to call expert witness based on trial counsel's misunderstanding of law constituted ineffective assistance of counsel); People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701 (trial counsel's failure to interview witnesses from list which the defendant gave him constituted ineffective assistance of counsel).) In our view, this case does not fall under an established exception, and we conclude that further erosion of the general rule is not warranted in this case.

At trial the State's expert witness testified as follows:

"MR. FLEMING [Assistant State's Attorney]: What can you tell about the ...


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