2019 IL App (1st) 170442
Ill. App. Ct.2019Background
- In July 2008 Terrell Wesley was accused of shooting Everett Brown outside a Maywood grocery store; at trial only one eyewitness (Jason Ervin) identified Wesley as the shooter.
- Two bystanders saw a Black man with “dreads” or “stringy-like hair” pointing a gun, but neither saw his face.
- Shara Cannon (Wesley’s then-girlfriend) and Pierre Robinson gave grand jury testimony and written/videotaped statements that Wesley admitted the shooting; at trial both recanted and denied the grand jury statements.
- The trial court admitted Cannon’s and Robinson’s grand jury testimony as substantive evidence under section 115-10.1, and the State also argued for substantive use of Cannon’s written and videotaped statements. The court found the witnesses’ trial testimony not credible and convicted Wesley.
- Wesley filed a pro se postconviction petition alleging due-process error and ineffective assistance of trial and appellate counsel for admitting prior inconsistent statements that lacked personal knowledge; the circuit court dismissed the petition at the first stage and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of grand jury prior inconsistent testimony under 725 ILCS 5/115-10.1 and Rule 602 | Grand jury testimony was sworn and the witnesses were available for cross-examination, so admissible under §115-10.1(c)(1) | Grand jury testimony was inadmissible because witnesses lacked personal knowledge of the underlying shooting | Court: §115-10.1(c)(1) permits admission of prior sworn testimony without requiring personal knowledge of the crime; Rule 602 personal-knowledge requirement satisfied for the witnesses’ knowledge of the defendant’s admission; admission proper. |
| Admissibility of Cannon’s written and videotaped statements (not based on personal knowledge of the shooting) | State argued they were substantively admissible; alternatively, any error was harmless because they duplicated grand jury testimony | Wesley argued these statements were inadmissible under §115-10.1(c)(2) for lack of personal knowledge and that admission violated due process | Court: Those statements were indeed inadmissible under §115-10.1(c)(2) if lacking personal knowledge of the crime, but their erroneous admission was harmless because they were cumulative to properly admitted grand jury testimony and other strong evidence. |
| Ineffective assistance of appellate/trial counsel for failing to raise inadmissibility/due-process claims on direct appeal | People: Counsel not ineffective because underlying admissibility issues lacked arguable merit; appellate counsel may omit meritless claims | Wesley: Trial and appellate counsel were ineffective for not preserving/challenging admission of statements that lacked personal knowledge | Court: No arguable merit to the claims; appellate counsel not ineffective for declining to raise them; postconviction petition properly dismissed. |
Key Cases Cited
- People v. Whitfield, 217 Ill. 2d 177 (2005) (describing scope of Post-Conviction Hearing Act)
- People v. Pitsonbarger, 205 Ill. 2d 444 (2002) (postconviction petitions limited to constitutional errors not adjudicated on direct appeal)
- People v. Hodges, 234 Ill. 2d 1 (2009) (first-stage standard: petition must state the gist of a constitutional claim)
- People v. Swamynathan, 236 Ill. 2d 103 (2010) (de novo review of first-stage dismissal)
- People v. Blair, 215 Ill. 2d 427 (2005) (forfeiture may be excused where appellate counsel was ineffective)
- In re E.H., 224 Ill. 2d 172 (2007) (harmless-error standard for evidentiary errors)
- People v. Pelo, 404 Ill. App. 3d 839 (2010) (erroneous admission of prior inconsistent statement harmless when cumulative)
- People v. Harvey, 366 Ill. App. 3d 910 (2006) (same: prior inconsistent statements cumulative to admissible testimony)
- People v. Lacy, 407 Ill. App. 3d 442 (2011) (no prejudice from failure to raise meritless issues on appeal)