People v. BaileyPeople v. Bailey
Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶ 1 Held: Trial court did not err in summarily dismissing defendant’s postconviction petition alleging ineffective assistance of trial and appellate counsel where affidavits attached to petition were not notarized as required by the Post-Conviction Hearing Act (
¶ 2 Defendant Dennis Bailey filed a pro se postconviction petition alleging ineffective assistance of trial and appellate counsel. The trial court summarily dismissed the petition, finding it to be without merit. We affirm.
¶ 4 In July 2005, defendant Dennis Bailey was indicted on two counts of predatory criminal sexual assault (
¶ 5 At the time the offenses took place, S.B. was 14 years old and K.B. was 10 years old. Bailey lived with the girls in their mother’s apartment. Their mother, Regina, is Bailey’s sister. He would babysit S.B. and K.B. while Regina worked. The girls resented that Bailey disciplined them and made them perform chores. One morning in June 2004, Bailey awoke S.B. and K.B., and S.B.’s 15-year-old friend Carmen F., who lived next door and had spent the night. He ordered K.B. and Carmen to go to Carmen’s house. He then assaulted S.B. A week or two later, he assaulted K.B., and repeated the assault on K.B. on two more occasions. On July 22, 2004, Christina W., the victims’ older sister, asked K.B. if Bailey had touched her. K.B. admitted the assaults had occurred and S.B. called the police.
¶ 6 Bailey denied that he assaulted K.B. and S.B. He asserted that the girls had made up the allegations of abuse in retaliation for him disciplining them and requiring them to do household chores in the hope that he would stop living with them. Bailey pointed to a physical altercation he had with S.B. after he had punished K.B. where S.B. threatened to get him in trouble. He also pointed to an incident where he and his girlfriend saw a friend of S.B. in the alley looking as if she had “just got done having sex” and S.B. became angry because he told others of the incident.
¶ 8 Gloria Bailey’s affidavit stated that she had been served with a subpoena and was present at the courthouse during the trial. If she had been called to testify, she would have stated that Dennis babysat her five daughters from the time they were infants until they were teenagers and that none of her daughters complained that Dennis engaged in sexual misconduct with them. She would also have stated that her niece, K.B., lived with her after the alleged abuse, that she did well in her academics and extracurricular activities, and behaved like a normal teenager.
¶ 9 Dorothy Bailey’s affidavit stated that she appeared in court on due days pursuant to a
¶ 10 Billy Bailey’s affidavit stated that he was subpoenaed and appeared in court but waited in the hallway and was not questioned by anyone. If he had testified, he would have stated that Bailey did not drive a white Monte Carlo until after July 22, 2004, because he did not have his driver’s license. He further would have testified that he visited his Aunt Regina’s apartment most days in June and July 2004, and saw K.B., S.B., and Carmen playing and joking with Bailey numerous times. Billy further averred that had he been called to testify, he would have explained that he and Bailey joked about Bailey catching S.B.’s friend “having sex in the alley;” that S.B. became angry and threatened Baily; and that S.B. was a “habitual liar” with “major influence over her sister [K.B.].”
¶ 11 The affidavit of Tawanda Logan states that she received a subpoena to testify at her uncle’s trial, that she appeared, and that Bailey’s attorney did not question her. She would have testified, if called, that Bailey used to babysit her and her sisters and that nothing sexually inappropriate ever occurred and that she visited Regina’s apartment several times during June and July 2004 and saw K.B. and S.B. playing and laughing with Bailey. She also saw them riding with Bailey in his car in July 2004. She would further testify that after Bailey moved in with Regina, the apartment was cleaner, and Bailey would help the girls and their friends with reading skills. K.B. and S.B. disliked
¶ 12 The trial court summarily dismissed Bailey’s petition, finding it to be without merit. The trial court also dismissed Bailey’s motions for grand jury transcripts and police reports. He appealed.
¶ 13 ANALYSIS
¶ 14 The issue on appeal is whether the trial court erred when it dismissed Bailey’s postconviction petition at the first stage of postconviction proceedings. Bailey argues that he alleged the gist of a constitutional claim that trial counsel was ineffective for a number of failings, including to call certain witnesses at trial who would have corroborated his testimony and impeached the victims’ testimonies, and that appellate counsel was ineffective for failing to raise the issues on direct appeal.
¶ 15 The Postconviction Hearing Act (Act) (
¶ 16 Claims of ineffective assistance are reviewed under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, a defendant must establish that counsel’s performance was below an objective standard of reasonableness. Strickland, 466 U.S. at 687. To satisfy the second prong, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Id. When evaluating an ineffective assistance claim based on counsel’s failure to investigate, the value of the evidence not presented must be considered, as well as the closeness of the evidence presented. People v. English, 403 Ill. App. 3d 121, 137 (2010). Counsel’s performance is not ineffective if he fails to present evidence that is cumulative to other evidence presented. People v. Phyfiher, 361 Ill. App. 3d 881, 886-87 (2005). In addition, counsel’s decision as to whether to present a witness is generally a matter of trial strategy and is presumed to be a product of sound trial strategy which will not support an ineffective
¶ 17 Bailey asserts that his postconviction petition presents an arguable claim of ineffective assistance of trial counsel for counsel’s failure to present witnesses who would have corroborated Bailey’s theory of defense or impeached the credibility of the victims. He points to the affidavits of Dorothy Bailey, Billy Bailey, Tawanda Logan, and Gloria Bailey, which he attached to his postconviction petition, as supportive of his claim. These affidavits are not notarized as required by the Act and are invalid. Moreover, as determined by the trial court, Bailey’s postconviction claims are without merit, lacking an arguable basis in fact or law. The arguments he makes in his petition, that trial counsel failed to call the witnesses who would testify according to their affidavits, and that such testimony would have corroborated his testimony and impeached the testimonies of the victims, do not establish ineffective assistance of counsel.
¶ 18 Our review of the record leads us to conclude that the offered testimony would not have affected the outcome of the trial. The evidence that Bailey seeks to offer is either cumulative to evidence presented at trial or irrelevant to his guilt or innocence. For example, he relies on the affidavit statements of Dorothy, Billy and Tawanda as corroborative evidenced of his theory that S.B. and K.B. made up the allegations because they resented him for disciplining them and assigning them chores. At trial, Bailey testified regarding this theory and the facts he claimed in support of it. Regina, the victims’ mother and Bailey’s sister, also testified that he was strict with her daughters. Gloria’s affidavit statements that Bailey babysat her daughters without incident, and Tawanda’s corroboration of that information is irrelevant to whether he assaulted K.B. and S.B. Similarly irrelevant is the statements in Billy’s affidavit that Bailey did not have the Monte Carlo in his possession until after the alleged assault of S.B.
¶ 20 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.
¶ 21 Affirmed.