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145 Ill. App. 3d 840

493 N.E.2d 600

97 Ill.Dec. 793

People v. Jaffe

Appellate Court of Illinois

Decided June 11, 1986

Appellate Court of Illinois · decided 1986-06-11

Relies on Strickland v. Washington · 111 Ill. 2d 18 - People v. Wright · 111 Ill. 2d 334 - People v. Weir

Good law ✅— No negative treatment on recordhow we know

Decided 1986-06-11

How this case has been cited

Cited by 49 later decisions — most recently March 2026 · most notably 163 Ill. App. 3d 754 - People v. Robinson (1987), 197 Ill. App. 3d 574 - People v. Sambo (1990)

1 federal appellate · 48 state decisions

25019861990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

¶2Both the State and defendant have filed petitions for rehearing. The State requests rehearing solely to present argument regarding that portion of our opinion which reversed defendant’s attempted murder conviction on the basis that his counsel was ineffective in failing to tender self-defense instructions to the jury. Specifically, the State argues that this court’s affirmance of defendant’s murder conviction requires the conclusion that no jury on retrial could acquit defendant of the attempted murder charge and thus, no prejudice to defendant resulted from his trial counsel’s failure to submit self-defense instructions.

¶3 To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel’s representation “fell below an objective standard of reasonableness” and (2) there is a reasonable probability — a probability which is sufficient to undermine confidence in the outcome but which need not be proof by a preponderance of the evidence — that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2065, 2068.) As the State itself acknowledges, defendant offered no testimony regarding the murder of Pat which the evidence suggested occurred in the bedroom. In finding defendant guilty, the jury could have believed at least some of Ghazi’s testimony and could have considered other evidence in the record concerning the events in the bedroom.

¶4The attempted murder charge, however, was based upon different facts which occurred in a different room of the house. The fight between Ghazi and defendant, which was acknowledged by both in their testimony, occurred in the living room. Based upon defendant’s testimony that he struggled with Ghazi in self-defense, the jury could have concluded that a reasonable doubt existed regarding the defendant’s commission of the offense of attempted murder. Consistently, the jury also could have convicted defendant of Pat’s murder on the basis of some of Ghazi’s testimony as to the events in the bedroom. Contrary to the State’s position, the jury was not required to accept all or none of Ghazi’s testimony in reaching its verdicts. As such, a reasonable probability exists that but for counsel’s failure to submit self-defense instructions to the jury, the result of the proceeding would have been different.

¶5 In his petition for rehearing, defendant argues on the authority of People v. Wright (1986), 111 Ill. 2d 18, decided after our decision in the case at bar, that he was denied the effective assistance of counsel because his attorney failed to raise or tender instructions on the defense of voluntary intoxication. Wright, however, arose in a substantially different procedural context. There, the defendant was convicted of murder and armed violence, and filed both a notice of appeal and a post-conviction petition alleging the incompetence of his counsel. After an evidentiary hearing, the trial court granted the defendant’s petition, finding that her counsel’s failure to introduce evidence of the defendant’s intoxication and drug ingestion based upon his misapprehension of the law, amounted to incompetence. In reaching this conclusion, the supreme court in Wright had before it the evidence introduced at the post-conviction hearing including the testimony of the defendant’s attorney. The Wright court specifically observed that the attorney never considered that the act of the defendant, who admitted shooting the victim, arguably was reckless and thus might warrant a conviction for involuntary manslaughter and not murder. This error, the Wright court concluded, established that the attorney’s representation did not meet the objective standard of reasonable competence.

¶6In contrast to Wright, here the record contains no testimony from defendant’s counsel regarding the voluntary intoxication defense. Defense counsel, after reviewing the record, may well have concluded that defendant’s testimony denying involvement in the murder was his strongest defense and that assertion of the defense of voluntary intoxication as an alternative argument might diminish the effectiveness of his principal argument. Such a decision would be more in the nature of a trial tactic and would not constitute a misapprehension of the law. On the record before us, however, we are unable to determine the reasoning underlying the decision of defense counsel at trial. Unlike Wright, therefore, defendant has not developed a record for this court which establishes that the attorney’s representation fell below a reasonable level of competence.

¶7Wright is also distinguishable in that there, unlike here, the record conclusively established that the results of the proceeding would have been different. The defendant in Wright was convicted after a bench trial, and the same judge ruled on the post-conviction petition. After hearing the testimony at the post-conviction hearing, the trial judge stated that this evidence, had it been introduced at trial, would have convinced him to find defendant guilty of involuntary manslaughter and not murder. Here, the evidence in the record is insufficient to establish the existence of a substantial likelihood that the outcome of this jury trial would have been different had the defense of voluntary intoxication been raised. Compare People v. Weir (1980), 111 Ill. 2d 334, 340 (where the court rejected an ineffective assistance of counsel claim because the defendant’s conduct belied his contention that his intoxication negated the required mental state).

¶8Another distinction between Wright and the case at bar is that in Wright, the evidence adduced at trial and at the post-conviction hearing established that the defendant’s conduct was reckless. Here, the evidence would not have supported a finding of recklessness. Defendant’s testimony was that he did not kill Pat; the State’s evidence tended to prove that defendant murdered Pat. The evidence introduced on either theory would not have supported a finding of recklessness. As Wright is substantially different from the case at bar, we are unpersuaded by defendant’s argument that Wright requires reversal of his murder conviction.

¶9 Defendant also asserts that this court misapprehended certain points in defendant’s argument. Specifically, defendant contends that this court cannot fairly conclude that defendant was not prejudiced by his counsel’s failure to raise the voluntary intoxication defense because the jury did not hear all of the relevant evidence regarding defendant’s intoxication. In asserting a claim of attorney incompetence, however, the defendant bears the burden of establishing a reasonable probability that the results of the proceeding would have been different. Defendant has failed to explain what the additional evidence of intoxication would have been. We cannot conclude the prejudice prong of Strickland is satisfied on the basis of conjectural evidence. We therefore conclude that defendant has failed to sustain his burden demonstrating the incompetence of his trial counsel regarding the murder offense.

¶10Accordingly, we deny both petitions for rehearing.

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