THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SMITH, Defendant-Appellant.
No. 1-18-0550
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
October 25, 2021
2021 IL App (1st) 180550
JUSTICE PUCINSKI delivered the judgment of the court. Justices Coghlan and Walker concur in the judgment.
FIRST DIVISION. Appeal from the Circuit Court of Cook County. No. 02 CR 03169. The Honorable Brian Flaherty, Judge Presiding.
¶ 1 Held: circuit court order dismissing the defendant‘s petition for postconviction relief following a third-stage evidentiary hearing affirmed where the defendant failed to establish by the preponderance of the evidence that his trial attorneys rendered ineffective assistance by depriving him of his constitutional right to testify.
¶ 2 Defendant James Smith appeals the circuit court‘s dismissal of his petition for postconviction relief following a third-stage evidentiary hearing conducted in accordance with the
¶ 4 On the evening of January 14, 2002, Ronald Branch, the estranged husband of defendant‘s live-in girlfriend, Loletta Brown, was shot and killed. Defendant, who had a history of conflict with Branch, was arrested and charged with first degree murder in connection with those events.
¶ 5 Following his arrest, defendant met with attorneys from Jenner & Block and signed a pro bono engagement letter obtaining their legal services. The letter provided that defendant would “not be charged for time spent by attorneys or paralegals on this matter, or for [any] out-of-pocket expenses.” Although the letter specified that defendant would not be responsible for paying any legal fees, paragraph 4 of the letter required him to “cooperate fully” with any of Jenner & Block‘s efforts to “recover attorneys’ fees or expenses from the opposing party or the Court under any statute or rule of law” and provided that “any such recovery w[ould] belong exclusively to Jenner & Block, LLC.” After signing the engagement letter, David Ekman-Jimenez and Erin Schrantz, two attorneys from Jenner & Block, began to represent him. After obtaining counsel, defendant posted bond and ultimately elected to proceed by way of a jury trial.
¶ 6 Before the trial commenced, the circuit court was advised of the history of conflict that existed between defendant and Branch and ruled that evidence of prior altercations initiated by Branch against defendant could be introduced at the trial in accordance with the Illinois supreme court‘s decision in People v. Lynch, 104 Ill. 2d 194 (1984).
¶ 7 Trial1
¶ 9 On one occasion in September 2000, Branch attacked defendant when defendant arrived to pick up Brown from work during her lunch break. Branch positioned his work van in a manner that prevented defendant from exiting the parking lot, pulled defendant from his vehicle, and struck defendant in his face and head. Defendant, in turn, brandished a knife, which he used to cut Branch‘s hand. The altercation was ultimately broken up by the police. On another occasion, Branch followed defendant in his car and attempted to drive defendant off the road. He also purportedly threw a brick through defendant‘s window. In addition to physical acts of aggression, Branch also verbally threatened to kill defendant on multiple occasions. Defendant, in turn, responded by issuing threats to Branch.
¶ 10 Despite the interpersonal issues that existed between Brown, Branch, and defendant, Branch continued to have regular visitation with his son and his stepchildren. On January 14, 2002, Branch spent time with Neon and Jonathan to celebrate Jonathan‘s birthday while Brown remained at
¶ 11 Police officers arrived at the scene within minutes of the shooting and defendant, who dropped the gun on the driveway, acknowledged shooting Branch, stating, “I did the shooting, I‘m tired of all this shit.” Law enforcement officials recovered the weapon from the ground as well as ammunition from defendant‘s person.
¶ 12 An autopsy of Branch‘s body revealed that he sustained gunshot wounds to his left arm as well as to the left side of his chest and that he died as a result of those injuries. In addition, stippling evidence revealed that Branch was shot at close range.
¶ 13 Following the State‘s evidence, the defense called a series of witnesses, including one of defendant‘s neighbors who had previously observed Branch drive his work van past defendant‘s house several times per week. The neighbor also testified that Branch parked his van outside
¶ 14 The defense also introduced evidence that law enforcement officials conducted an inventory search of Branch‘s van following the shooting. During that search, officers found a duffle bag containing a utility knife inside the vehicle.
¶ 15 Defendant ultimately elected not to testify after receiving admonishments in open court. His waiver was made during the course of the following exchange:
“THE COURT: Mr. Smith, you understand you have a constitutional right to testify, absolute right to testify [o]n your own behalf? Understand that sir?
[DEFENDANT]: Yes, sir.
THE COURT: You also have the absolute right not to testify and rely on the presumption of innocence. Do you understand that, sir?
[DEFENDANT]: Yes.
THE COURT: Have you discussed your case with your lawyer?
[DEFENDANT]: Yes, I have.
THE COURT: Do you desire to testify [or] rely on the presumption of innocence or not testify?
[DEFENDANT]: Correct
THE COURT: Which one? Do you want to testify or not testify?
[DEFENDANT]: No, I don‘t want to testify.
THE COURT: And you‘ve discussed this matter with your lawyer?
[DEFENDANT]: Yes.
THE COURT: You may be seated. Thank you very much.”
¶ 16 At the close of the evidence, the jury received instructions pertaining to first degree murder, second degree murder, and self-defense. Defendant was found guilty of first degree murder and was sentenced to a total of 60 years’ imprisonment.
¶ 17 Posttrial Proceedings
¶ 18 Defendant appealed his conviction, raising a number of claims; however, none of those claims pertained to the waiver of his right to testify. On review, this court ultimately rejected his claims of error and affirmed defendant‘s conviction, but ordered that his mittimus be corrected. People v. Smith, 1-05-1535 (March 31, 2008) (unpublished order under Supreme Court Rule 23).
¶ 19 Thereafter, on May 15, 2009, defendant filed the instant postconviction petition.2 The pro se petition contained a number of contentions of error,3 including an allegation that his trial counsel deprived him of his constitutional right to testify when “he coerced [defendant] not to testify to his state of mind leading up to the shooting death of Ronald Branch.” Specifically, defendant alleged:
“Several times prior to trial and while trial was in process, [he] repeatedly informed his trial attorney he wanted to testify that at the time he shot and killed the victim he was afraid for his life based on the following three factors: (1) The frequency of the victim[‘]s prior attacks on him—the defendant; (2) The victim‘s many threats to kill him—the defendant;
and (3) The victim had recently purchased a gun and had shown it to others telling them he was going to use it on him—the defendant.”
¶ 20 Defendant further alleged:
“During one of the trial recesses [his] trial counsel told defendant that counsel would not put defendant on the stand to testify under any circumstances. Defense counsel then told defendant that if he persisted in testifying he would withdraw from the case and defendant would not get a refund on the fee he had already paid for a defense attorney. Because defendant was afraid to be without an attorney, could not afford to hire another attorney, and did not want to lose the fee he had already paid trial counsel, defendant submitted to the will of his counsel‘s pressures not to testify. When the court asked defendant if he wanted to testify, because he did not want to be without any attorney for the remainder of the trial and did not want to be without a fee for another attorney, he said no.”
¶ 21 Defendant‘s postconviction petition advanced to the second stage of post-conviction review and counsel was appointed to represent him. The State subsequently filed a motion to dismiss defendant‘s petition, which the circuit court granted. Defendant appealed, and after reviewing the claims contained in the petition, this court found that defendant‘s petition made a substantial showing that he was denied his right to effective assistance of counsel predicated on the improper denial of his right to testify and remanded the case for a third-stage evidentiary hearing on that issue only. People v. Smith, 2015 IL App (1st) 123708-U (February 3, 2015) (unpublished order under Supreme Court Rule 23). We explained our ruling as follows:
“Accepting the allegations in defendant‘s petition as true and construing them liberally for purposes of a second stage proceeding, we find that the petition supports a substantial showing that he was denied effective assistance of counsel at trial. In reaching this
conclusion, we are persuaded by the argument that evidence of defendant‘s purported perception of a physical threat from the victim would have been relevant to the jury‘s determination of whether defendant acted in self-defense, or whether defendant‘s actions amounted to the lesser mitigated offense of second degree murder. Moreover, evidence of defendant‘s subjective belief at the time he encountered and shot Branch—regardless of whether a jury found it to be objectively reasonable—could only have been elicited through defendant‘s own testimony. Brown‘s testimony that defendant said he would kill Branch if the latter showed up at the house does not foreclose the possibility that defendant perceived Branch as a threat, particularly when viewed against the evidence at trial that revealed a prior history of confrontation between the two men. As such, there is a reasonable probability that the jury would have reached a different verdict had it considered testimony by defendant regarding his subjective state of mind and belief as to the existence of a threat—regardless of whether it was objectively reasonable—at the time he shot Branch. For these reasons, we find that defendant has sufficiently alleged facts to avoid a second stage dismissal of his postconviction claim of ineffective assistance of counsel. Our finding today does not suggest, however, that defendant‘s allegations regarding his perception of a threat would outweigh any evidence challenging the credibility or reasonableness of his alleged perception. We simply conclude that defendant‘s petition—which contain well-pled allegations that must be taken as true, is legally sufficient and establishes a substantial showing of a constitutional violation based on ineffective assistance of counsel. Therefore, a third stage evidentiary hearing is warranted.” Id. ¶ 22.
¶ 22 On remand, the circuit court presided over the requisite third-stage hearing. At the hearing, defendant testified that attorneys from Jenner & Block met with him at the Cook County jail
¶ 23 Defendant acknowledged that when the trial resumed, the trial judge informed him that he had the right to testify and asked him if he wanted to testify. Defendant further also acknowledged informing the trial judge that he did not want to testify but explained that he only did so because his attorneys indicated that they would withdraw if he elected to testify. He also believed that paragraph four of the pro bono engagement letter that he signed, which required him to cooperate with any of Jenner & Block‘s efforts to collect attorney‘s fees, would have allowed his attorneys to take $15,000 sum he posted as bond if they withdrew their representation in the middle of trial. Based on his understanding of paragraph four, he believed that “any funds, anything involved, would go to Jenner [&] Block.”
¶ 24 Defendant stated that if he would have testified at trial, he would have explained the events that led to the shooting. Specifically, he would have testified that on the day of the shooting, he spoke to Brown and told her she had to leave his home. As they were putting bags into their
¶ 25 On cross-examination, defendant acknowledged that he was on antiseizure medication during the trial. He also acknowledged that he spoke to both of his attorneys prior to trial and discussed his desire to testify; however, he “remember[ed] speaking to Ms. Schrantz more so than Mr. Jimenez.” Defendant admitted that he did not have any problems communicating with his attorneys and was aware of their theory of the case, which was that he acted in self-defense. During the trial recess, when he told his attorneys he wanted to testify, they told him that there was “no need” for him to testify in light of the weak testimony provided by Brown, the State‘s “key witness.” Although he wanted to testify, defendant admitted that he understood the admonishments that the circuit court provided him pertaining to his constitutional right to testify and that he informed the court that he did not want to exercise his right to testify at his trial. Finally, defendant testified
¶ 26 Following defendant‘s testimony, the State called David Ekman-Jimenez to testify. He explained that he was a partner at Jenner & Block and that he represented various criminal defendants over the years pro bono, including defendant. Erin Schrantz, another attorney at Jenner & Block, partnered with him to represent defendant at trial. Ekman-Jimenez did not specifically recall discussing the terms of the pro bono engagement letter that defendant signed in March 2003, but testified that he was “sure either [he] or Ms. Schrantz did.” He explained that such a discussion is had during “the normal course of representing [their] pro bono clients” and that defendant “certainly knew over the course of the representation that [they were not] charging him a fee.” As part of their representation of defendant, Jenner & Block hired a private investigator and “[m]embers of the team spoke with essentially every witness who would speak with [them].” He and Schrantz also discussed the possibility of defendant testifying at trial. Specifically, they “spoke to [defendant] collectively at some length about what he might say if he testified.” Ekman-Jimenez explained that when he has conversations with clients about their right to testify, he “tell[s] them a couple of things. Number one, I always tell them that it is fundamentally their choice whether to testify; that the lawyers get to make some decisions regarding the case, but the decision whether to testify on his or her behalf is always ultimately the client‘s. I also say that we will give a recommendation about testifying. We talk always about the risks and potential benefits of testifying. And I always emphasize to the clients because it‘s true in my experience that if a client is caught in a lie on the stand, particularly during a jury trial, there‘s a very substantial risk of being convicted of the crime even if the lie doesn‘t directly relate to whether or not they committed the crime.”
¶ 28 He also acknowledged speaking to defendant about the possibility of him testifying during a recess at trial after the State finished presenting its evidence. During that conversation, Ekman-Jimenez “strongly recommended that [defendant] not testify,” because “[a]t that point in the case, [the defense] had proffered substantial pieces of evidence, mostly testimonial, in favor of the self-defense theory. The judge had made a number of rulings that permitted this evidence in under the People v. Lynch case, and essentially the judge had allowed [them] to present the defense almost unfettered. [They] had gotten in most everything that [they] had asked to get in.” In addition, Ekman-Jimenez had “concerns” about defendant testifying because his testimony during the pretrial preparation sessions “was inconsistent with some of the prior statements that he had made, and despite further preparation, it remained somewhat inconsistent. And under those
¶ 29 On cross-examination, Ekman-Jimenez testified that he and his partner were able to “elicit testimony [at trial] that showed the violent acts and threats of the victim” toward defendant, which supported their theory of self-defense. His recommendation that defendant not testify was based on his belief that “the case was not going to get any better for self-defense than it was” at that point. He did not recall defendant stating that he wanted to testify during the conversation they had during the trial recess. If defendant had insisted on testifying, Ekman-Jimenez stated that he would have put him on the stand because it was ultimately defendant‘s decision to make. Based on his recollection, defendant decided not to testify following his attorneys’ recommendation that he not do so.
¶ 30 Ekman-Jimenez testified that notes contained in defendant‘s file reflected concerns over the “inconsistencies” in his testimony during pretrial preparation sessions as well as the fact that he included “irrelevant information” in his testimony. The notes also reflected that defendant
¶ 31 After presenting the aforementioned evidence, the parties delivered their respective arguments concerning the merits of defendant‘s ineffective assistance of counsel claim and the circuit court took the matter under advisement. At a subsequent court date, the court dismissed defendant‘s petition for post-conviction relief, explaining its rationale, in pertinent part, as follows:
“I find that Defendant‘s attorney was a credible witness, very credible witness, who was prepared to put Defendant on the stand, but made a recommendation, based on all the facts that were available to him at the time. That the Defendant‘s attorney told Defendant that he was free to ignore that recommendation and testify in this case and that it was his right to testify and only the Defendant‘s right to testify.
As a side note, anybody who has practiced criminal law knows that putting a defendant, specifically one who has already given a statement, putting that defendant on the stand is an extremely risky proposition. Any impeachment of the defendant—and I agree with the Defense attorney—could affect the defense the Defendant was attempting to put forth, in other words, self-defense.
I find there was no threat made to the Defendant by his attorneys, either a threat to withdraw or a threat to keep any bond money. The Defendant was admonished by Judge Baker, and he replied that he did not want to testify.
Under the Strickland analysis, the Defendant failed to show even the first prong that his [attorneys‘] performance fell below an objective standard of reasonableness.
What we have here, insofar as I am concerned, Defendant knowingly and voluntarily waived his right to testify, and he did that based on the recommendation of the lawyers. The case didn‘t turn out as he hoped it would because he was found guilty. And so now he is saying that his attorneys threatened to withdraw and threatened to keep his bond money, which I find did not happen. ***
This post-conviction [petition] is dismissed after hearing the evidence. Stage three.”
¶ 32 This appeal followed.
¶ 33 ANALYSIS
¶ 34 On appeal, defendant argues that the “circuit court erred in denying the post-conviction petition where [he] demonstrated by a preponderance of the evidence that he was prejudiced by his attorneys’ deficient performance that prevented him from testifying at trial.” He notes that although Ekman-Jimenez testified that he never threatened to withdraw if defendant exercised his constitutional right to testify, “the State failed to present any evidence” that his other trial attorney, Erin Schrantz, never issued the same threat.
¶ 35 The State responds that the circuit court “properly dismissed petitioner‘s post-conviction petition after the third stage evidentiary hearing” where one of his trial attorneys testified that no threat to withdraw representation was made and where the court “explicitly found [his] claim that he was coerced incredible.”
¶ 36 The Act provides a mechanism pursuant to which criminal defendants who have suffered a substantial violation of their constitutional rights at trial may obtain relief.
¶ 37 At the first stage, it is incumbent upon the defendant to file a petition that “clearly set[s] forth the respects in which [his] rights were violated” (People v. Coleman, 183 Ill. 2d 366, 379 (1998)) and the circuit court may only dismiss the petition if the claims set forth therein are “frivolous or patently without merit” (
¶ 38 If the circuit court does not summarily dismiss the petition, it proceeds to the second stage, where an indigent defendant may obtain appointed counsel and the State may move to dismiss the petition.
¶ 39 If a petition makes this substantial showing, it then advances to the third and final stage of postconviction review, where an evidentiary hearing is held to determine the truth of the allegations contained in the petition.
¶ 41 On review, the only issue before this court is whether defendant established by the preponderance of the evidence that trial counsel rendered ineffective assistance by improperly denying him his constitutional right to testify. To prevail on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and establish that (1) counsel‘s performance fell below an objective standard of reasonableness and (2) counsel‘s deficient performance prejudiced defendant. People v. Albanese, 104 Ill. 2d 504, 525 (1984); People v. Baines, 399 Ill. App. 3d 881, 887 (2010). With respect to the first prong, the defendant must overcome the “strong presumption” that counsel‘s action or inaction was the result of sound trial strategy. People v. Jackson, 205 Ill. 2d 247, 259 (2001); People v. Shelton, 401 Ill. App. 3d 564, 583 (2010). ” ‘In recognition of the variety of factors that go into any determination of trial strategy, *** claims of ineffective assistance of counsel must be judged on a circumstance-specific basis, viewed not in hindsight, but from the time of counsel‘s conduct, and with great deference accorded counsel‘s decisions on review.’ ” People v. Wilborn, 2011 IL App (1st) 092802, ¶ 79 (quoting People v. Fuller, 205 Ill. 2d 308, 330-31 (2002)); see also People v. Mitchell, 105 Ill. 2d 1, 15 (1984) (“The issue of incompetency of counsel is always to be determined from the totality of counsel‘s conduct.“). To satisfy the second prong, the defendant must establish that, but for counsel‘s unprofessional errors, there is a reasonable probability that the trial court proceeding would have been different. People v. Peeples, 205 Ill. 2d 480, 513 (2002). A defendant must satisfy both the performance and prejudice prongs of the
¶ 42 Every criminal defendant has a fundamental constitutional right to decide whether or not to testify at his or her trial. Knapp, 2020 IL 124992, ¶ 46; People v. Madej, 177 Ill. 2d 116, 145-46 (1997). Accordingly, although an attorney may provide advice to his or her client about the potential benefits or pitfalls of testifying at trial, the ultimate decision whether or not to exercise that right belongs solely to the defendant (Knapp, 2020 IL 124992, ¶ 46; People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009)), and only the defendant may waive his or her right to testify (Madej, 177 Ill. 2d at 146). As a general rule, an attorney‘s representation will not be found to be ineffective simply because counsel advised the defendant not to testify; rather, counsel will only be found to be ineffective where the “evidence suggests that counsel refused to allow the defendant to testify.” (Emphasis added.) Youngblood, 389 Ill. App. 3d at 217.
¶ 43 Based on the record and the evidence presented during the evidentiary hearing, we conclude that the trial court did not err in finding that defendant knowingly and voluntarily waived his right to testify and properly rejected his ineffective assistance of counsel claim. First, we note that defendant was admonished in open court about his right to testify. The court informed defendant that he had an “absolute right” to choose to testify or to choose not to testify and rely on the presumption of innocence. The court then inquired whether he understood his rights and whether he had “discussed the matter” with his attorneys. In response to the court‘s inquiries, defendant acknowledged that he understood his rights, that he had conferred with trial counsel, and that he did not want to testify. Although the court did not specifically advise defendant that the choice whether or not to testify was a choice that belonged to him alone and not to his attorneys, it is well established that no such specific admonishment is required. See People v. Smith, 176 Ill. 2d 217,
¶ 44 Although defendant later testified during the evidentiary hearing that his waiver was only made in response to threats that his attorneys would withdraw their representation in the middle of trial and abscond with his bond money if he chose to testify, David Ekman-Jimenez flatly contradicted defendant‘s account. Although Ekman-Jimenez admitted that he discussed the possibility of defendant testifying during a trial recess, he denied that he ever threatened to withdraw his representation or keep defendant‘s bond money if defendant exercised his constitutional right. Instead, he recalled that he “strongly recommended” that defendant not testify, and that defendant made the decision not to do so following their discussion. Ekman-Jimenez explained that his recommendation was predicated on the fact that the trial court‘s pre-trial Lynch ruling had allowed the defense to introduce the evidence necessary to support defendant‘s claim of self-defense. In addition, he was concerned that defendant‘s testimony could potentially hinder that defense given the “inconsistencies” in his accounts that were apparent during their pretrial preparation sessions.
¶ 45 Despite the circuit court‘s finding that Ekman-Jimenez was a “very credible witness” and that “there was no threat made to him by his attorneys” (Emphasis added), defendant argues that the circuit court erred in dismissing his petition because the State never called Erin Schrantz, his other trial attorney, to rebut his claim that such a threat has been made. We disagree. Initially, we note that in his petition for post-conviction relief, defendant‘s petition focused almost exclusively on the conduct of his male attorney. For example, he alleged that he “inquired of his attorneys during court recess when he would be getting a chance to tell his side of the story of what happened the day decedent was shot and killed [and] his trial counsel told him he was not going to put him on the witness stand.” (Emphasis added.) Defendant further alleged: “During one of the trial recesses defendant‘s trial counsel told defendant that counsel would not put defendant on the stand to testify under any circumstances. Defense counsel then told defendant that if he persisted in testifying he would withdraw from the case and defendant would not get a refund on the fee he had already paid for a defense attorney.” (Emphasis added.) Defendant‘s petition did not identify any specific threat or conduct attributable solely to his female trial attorney; rather, when a gender specific pronoun was used in the context of his ineffective assistance of counsel claim, defendant utilized the male pronoun. Based on the evidence in the record, Ekman-Jimenez was the only male attorney who represented defendant at trial, and he denied that he ever issued any threats to defendant or prevented him from testifying.
¶ 47 We reiterate that it was defendant‘s burden to prove by a preponderance of the evidence that he was denied his right to effective assistance of trial counsel. See generally Coleman, 2013 IL 113307, ¶ 92 (recognizing that it is the defendant‘s burden to prove a denial of a constitutional right by the preponderance of the evidence). The record shows that defendant was admonished of his right to testify in open court and waived that right following consultation with counsel. Defendant and Ekman-Jimenez, one of his trial attorneys, both provided testimony at the third-stage evidentiary hearing about a conversation that occurred during a trial recess that preceded defendant‘s waiver. While defendant testified that his attorneys threatened to withdraw their representation and abscond his money if he chose to exercise his right to testify, Ekman-Jimenez denied issuing any such threats. Defendant never identified any threat issued to him solely by Shrantz, his other trial attorney, either in his petition or at the hearing. The circuit court carefully considered testimony from defendant and Ekman-Jimenez, deemed Ekman-Jimenez to be the more
¶ 48 CONCLUSION
¶ 49 The judgment of the circuit court is affirmed.
¶ 50 Affirmed.