*1 THE PEOPLE OF THE ILLINOIS, STATE OF Plaintiff-Appellee, v. TRULY,
BILLY Defendant-Appellant. (3rd Division) First District No. 1 — 88—3149 Opinion 17,1992. filed June *2 J., dissenting in TULLY, concurring part. in part and Associates, Freelon, Chicago, appellant. for J. of Freelon & Owen (Renee O’Malley, Chicago Jack State’s Goldfarb James Attorney, of Fitzgerald, counsel), People. Attorneys, E. Assistant State’s for the
PRESIDING JUSTICE delivered the opinion GREIMAN court: trial, found Billy Truly guilty
After a bench was years armed of a and sentenced to 10 in store grocery prison. (1)
In he ineffective as- appeal, this defendant contends received failed attorney investigate, prepare sistance of counsel when his crime; (2) attorney defendant’s his failed to present alibi inform he student and fail- being by him that counseled a law counseling ure consent for such con- obtain written counsel; (3) ineffective the cumula- stituted se assistance per deprived by attorney tive effect of the committed errors right defendant of of counsel. effective assistance se per We the trial no viola- ruling affirm court's there was tion to be inter- permission for the failure obtain defendant’s student, viewed there was ineffec- finding a law but reverse prepare tive of counsel failure to investigate, assistance present alibi. 1987, men,
At on one whom p.m. about December two defendant, Foods on George’s was later identified as entered South Alharsha, Kedzie Street. Said store, owner of the present brothers, with his two Naser Alharsha and Ahmed Alharsha. Said Alharsha testified that defendant nodded to his accomplice, who then told Said that it awas The two men stickup. took from money the cash register, the wallets of the three brothers and ran out of the store.
Said testified that he next saw defendant at about 11:30 a.m. on 1, 1988, January four days after the holdup. When defendant en- tered men, the store with two other Said pushed silent alarm button. Defendant carried a golf club and said “Don’t about worry it, it’s not a stick-up.”
Defendant told Said that he knew store had been robbed if and that Said wanted to live and neighborhood, work he him pay and the two men with him per week. $50 Said testified that he haggled over price with defendant until police arrived, then advised police that defendant committed the Decem- ber 28 robbery and was now attempting to extort money from him. Both Said and his brother Naser testified that knew they prior to the robbery, from the neighborhood.
Officer Smith testified for the State that when answered the silent alarm at George’s Foods January Said identified defendant as person involved the earlier robbery and who *3 was now demanding protection money. After Smith arrested defend- ant and took him police station, to the defendant acknowledged to Smith that he was aware of the robbery and wanted the as pro- $50 tection to the money keep being store from again. robbed
After the trial court found defendant of guilty armed robbery, defendant filed an amended motion for new trial based incom- upon petency counsel.
At that hearing, defendant testified that his trial counsel visited him on the only court, he was to days appear in and the visits lasted 5 to 10 only minutes. Defendant that stated he provided counsel with the names and addresses of four potential witnesses who could testify during the time of the alleged robbery, defendant was from a recuperating gunshot wound and that the complainants had ulterior for motives defendant as the identifying culprit.
Defendant claims he directed his counsel to these subpoena nesses and Mt. Sinai Hospital records and to establish personnel that he had hospitalized prior been and retained some physical incapacity the time of the Defendant fur- robbery. trial, ther testified that on the day request he asked counsel to a of the wit- subpoenaed any had counsel not continuance because records, therapist. his nesses, physical or his medical his intern law he, partner either Counsel testified the case was before defendant’s to defendant whenever spoke trial. He ac- 10 to 12 times before total of court, approximately a theo- possible that he and defendant discussed knowledged months be- three to four strategy ries trial and admitted alleged informed trial, his law intern the fore defendant had the alibi witnesses. success, to contact the wit- attempted, without
Counsel had not directly and therefore contends he was a by telephone nesses of these to de- position potential to evaluate value witnesses defender’s office was re- investigator public fense. No from witnesses, to nor were potential contact quested attempt he assumed the wit- they acknowledged Counsel subpoenaed. own, on their of their fail- nesses would come forward and because available, an prepare ure make themselves he was unable to alibi testimony. their upon defense based if he the trial ready proceed
When asked with date, trial that “the responded pleadings completed counsel were I Mr. gone the case could trial. don’t believe that Tru- he ly’s alleged day.” witnesses were there that While testified that trial, it was decision to that he go acknowledged had told that he could get defendant doubted he continuance since he had earlier made a trial demand.
Defendant’s counsel testified that he did remember defendant records, mentioning thought they but concerned medical arrest, time not at the time of only defendant’s health at the robbery, so he did not consider them relevant did obtain them. Bynum, one of the four
Henry stepfather, for Mr. testified requested subpoena Bynum trial. hearing at the that on the post-trial day robbery, left house at time Bynum’s p.m., approximate robbery, mother, an return until 9 run errand and did not home time, p.m., and at that not walk the aid defendant did without cane, gunshot due to a recent wound. *4 Swift, peo- of the four
Lawrence defendant’s uncle another trial, appeared ple requested subpoenaed defendant had be also at post-trial hearing. testimony the substance made an offer of hearsay. post-trial was ruled Defendant’s he had with proof testify that Mr. Swift would as to a conversation 952
Said that would reflect on Said’s motivation for against retribution defendant. The offer of proof indicated that Said was upset with defendant because he was dissatisfied with some radios and VCRs him, defendant had sold believed defendant had cheated him and made a threat to even the score. witnesses,
Defendant’s other two alibi at least one of whom was medical personnel who would testify as to defendant’s physical con- dition, did not testify hearing; Joyce Stevens was subpoe- naed, witness, but the fourth Matlid, Christine could not be located. While defendant also subpoenaed Mt. Sinai Hospital for his medical records for the purpose the hearing, those documents were not tendered, so the court had no chance to consider them in ruling. its
The “benchmark” in determining whether there has been inef fective assistance of counsel is “whether counsel’s conduct so un dermined the proper functioning of the adversarial process that the trial cannot be relied on having as result.” (Strick produced just land v. Washington (1984), 668, 466 686, U.S. 674, 80 L. Ed. 2d 692-93, 2052, 2064; 104 S. Ct. People v. Davis (1990), 203 Ill. App. 129, 139, 3d 1072; 560 N.E.2d People v. Garza (1989), 180 Ill. App. 263, 267, 3d 968.) 535 N.E.2d A reviewing court does not evaluate Davis, matters of judgment, discretion or trial tactics. 203 Ill. App. 3d at 139. The U.S. Supreme Court developed a fact-sensitive analysis “
in Strickland which seeks to measure
‘the quality
impact
counsel’s representation
under the circumstances of the individual
”
(Garza, 180
case.’
268,
Ill.
3d at
App.
quoting W. LaFave & J.
Israel, Criminal
§11.10,
Procedure
at 28 (Supp. 1988).) A defendant
must prove (1) that counsel’s representation fell
objective
below an
standard of reasonableness and the
shortcomings
counsel were so
severe
to deprive
as
trial,
defendant of a fair
(2)
that there is a
that,
reasonable probability
but for
unprofessional errors,
the result of the proceedings would have been
(Strick
different.
land,
687,
A reviewing court must evaluate the attorney’s performance from counsel’s perspective considering the circumstances trial, time of without the distorting effects of hindsight, and the defendant must overcome the strong presumption the chai-
953 Strickland, strategy. sound trial be considered might action lenged 2065; Garza, 694, Ct. at 104 S. 689, at 80 L. Ed. 2d at U.S. 466 Ill. 3d at 269. App. 180 to investigate failed his counsel first contends that
Defendant
assist
alibi,
resulting in ineffective
thus
develop
and
v.
People
Garza
Ill.
(180
the situations
ance of counsel similar
158 Ill.
People
v. Solomon
(1987),
263,
968)
3d
535 N.E.2d
App.
that failure to ade
432,
These cases found
3d
In counsel substance, the charge delivery fense to of unlawful controlled to find the witness who could steps but failed take reasonable Solomon inducement. The proved improper the element was ineffective where defense court found assistance counsel the entrapment defense improperly counsel introduced the without the and failed to secure chemical controlled sub analysis witness Solomon, the 158 Ill. subject stance which was matter the case. 3d at App. 436-37. Garza,
In held there ineffective assist appellate court closely of counsel balanced very ance where evidence discrepancies defense counsel failed elicit the inconsistencies sole who linked eyewitness in the State’s testimony there was reasonable to the crime. court concluded in level of defendant’s counsel probability performance by Garza, Ill. at 180 3d proceedings. App. fluenced result of 269. Garza,
Moreover, to offer in evidence defense counsel failed abil might upon two have cast doubt witness’ photographs identify argued appeal defendant. the State ity While counsel, appellate this was a tactical decision merely photos court reasoned that since had failed to obtain the and, fact, them, saw he could have made an informed never not Garza, tactical decision or 180 Ill. 3d way App. one the other. 269.
We the same to the case at Counsel apply reasoning bar. not in the any testified he would include witnesses proceedings 954
if he did them not have contact with testimony know what their argues be. While State here that it was a matter of trial strategy whether to require witnesses, of the four appearance we find, as found, the Garza court not counsel could have made a since strategic decision he admitted that he had made no contact with the witnesses and did know what the content of tes their timony might be. courts
Traditionally, have not reviewed an attorney’s choices when made on the basis of strategic considerations. these strategic decisions may only be made after there has been a “thor ough of all investigation plausible matters relevant options.” (Strickland, U.S. at L. 466 80 Ed. 2d at 104 S. Ct. 2066; People v. Whittaker 3d 628-29, App. *6 468.) N.E.2d find that We defendant here apprised attorney of several occasions what to be a appears plausible option: an alibi coupled with a physical incapacity.
Defendant told his defense that repeatedly counsel the testi- of the mony four witnesses would reveal (1) his whereabouts at the time of the robbery, 33 blocks from the away complaining wit- store; nesses’ (2) defendant was physically handicapped, walk- ing with a cane at the time of not robbery, likely and to have testified; run out of the as complainants (3) store and that the com- revenge had a plainants identifying motive defendant as one the robbers.
Counsel thought corroborating testified these potential own, witnesses would come on their and when did they forward not, the record establishes that he made no reasonable attempt contact them. When his initial calls not raise phone could nesses, he to subpoena failed these witnesses or in- request an vestigator public from the office find them. defender’s
The situation in this case differs from a situation in which an
attorney’s decision whether to call a witness to
con
testify may be
(See
66, 85-86,
sidered strategic.
People
v. Flores
128 Ill. 2d
Here,
481.)
538 N.E.2d
decision
could
be considered
strategic
investigate
since he failed to
all matters
relevant
alibi,
plausible
revenge
defenses
that defendant
incapacity
Strickland,
to him.
This court has noted involves more previously representation than the conduct courtroom of counsel: “ if during enough ‘The exercise of the utmost skill trial is not neglected necessary investigation prepara-
counsel has or to essential witnesses to interview tion of case failed course, will omissions, of Such arrange for their attendance. trial, and to that extent on the of the rarely be surface visible reviewing regarding judge judge] of the trial impression [or ” Davis, incomplete.’ counsel will be ability the skill and (3d Cir. Moore v. United States App. quoting 3d at 730, 739. 1970),432 F.2d derelict in his duties find from the record that counsel was
We to lo- attempt or his made reasonable that he assistants never witnesses, the four witnesses who subpoena potential cate or the- told could corroborate his defense repeatedly to coun- provided names addresses were ories, whose witnesses assistance sel This amounts to ineffective defendant. dereliction objec- fall an find that counsel’s errors below counsel because we and that there is at least a reason- tive standard reasonableness errors, able that but for counsel’s probability unprofessional Further, have been different. we proceedings result find defendant'to be balanced. against closely the evidence grounded testimony
The State’s evidence is in the Said Alharsha, they Naser who both stated that knew him prior recognized during and that rob they bery. However, investigate defense counsel failed to and develop plausible identification of him theory brothers’ for deal revenge past fabricated out of desire business informed ings counsel that he had a with defendant. Defendant Swift, witness, to this on his be testify theory Lawrence who could half. revenge theory, proffered with defendant’s alibi coupled *7 the
that he and to commit rob- physically geographically was unable bery, plausible theory forms a defense for which defendant offered to four Because defense counsel failed forward put witnesses. alibi, the was inte- plausible revenge theory defendant’s to which gral, testimony we cannot that of the Alharsha brothers say trier proof carries such so as to a rational of fact weight provide if the had of- guilt a reasonable other evidence been beyond doubt fered. from two of defendant’s trial court heard testimony
While trial, the other two potential hearing witnesses at new to were not available defendant at hospital nesses records that the of the two wit- testimony that time. trial court stated motion, find it but we that nesses did not to persuade grant was in fact testimony prejudiced their demonstrates that defendant failure by to secure witnesses and investi- adequately gate defense theories.
Consideration of the testimony of these post-trial witnesses a hearing is in different than a context it have it been had during offered been course the trial subsequent rather than to the trier of fact determining guilt. defendant’s
In Perez People 148 Ill. 2d in a death penalty post-conviction hearing, counsel was found when ineffective he failed to or send pursue court-appointed investigator a to pursue mitigating information and supplied witnesses defendant. by
While recognize we that Perez death concerns a hear- penalty ing, the in situation case is present similar that defendant supplied counsel with specific information that exon- potentially erating. The case is more present possibly egregious since counsel knew of the trial, information four months approximately before Also, rather than few only days as the situation Perez. here, Perez, counsel as in to ask failed for a continuance to investi- gate evidence, the proffered though even defendant here requested do so.
The Perez court stated that had the heard jury the evidence it, which had not made to been available there is a probability it would have concluded that balance of factors did not warrant death. we must Similarly might conclude there have been guilt reasonable as to trier doubt had the of fact heard the witnesses to defense counsel failed locate.
We further find the record establishes defense counsel obtain, obtain, to failed attempt defendant’s written consent to allow a case, law student as is re help prepare Supreme Rule quired pursuant Court counsel did not believe such consent was no court necessary appearance where was involved. that failure to not obtain written consent is se per agree ineffective assistance of counsel. While we constitutional of a not do rights may compromised, be we rights not find that defendant’s such risk in this put been case the failure obtain written consent. above,
As noted judicial regarding review ineffective assistance case-by-case is on a in an performed attempt basis comprehend counsel’s perception integration combination facts, unique circumstances and law to that case. The situation in case analogized one be may easily situation another. hold attorney’s To that an con- failure obtain defendant’s written is per sent se ineffective assistance of counsel would handicap
957 inef- where in other cases of such violations review judicial restrict alleged. counsel is assistance of fective of involving representation cites two cases
Defendant (People a judge. students in before by proceedings defendants law 334; In re Moore Ill. 3d 528 N.E.2d (1988), App. 174 Schlaiss do not 917.) we 3d 380 N.E.2d App. Schlaiss, In to the situation. present those cases apply find right his sixth amendment defendant denied court found that person representing that to he was not aware counsel because given and he had not trial not a attorney, him in his licensed by to a law student. represented consent be a in which pro hearing in Moore se in appeared The defendant required mental treatment. charged the State le- court found that defendant was not informed appellate student, a licensed gal chosen, he had a law was not advisor that had given so consent. attorney, proper repre- that he receive zealous agree with defendant should We attorney stage process. sentation at each of the trial A is to out of court as competent representation entitled court, well have set here in clearly as as we forth our discussion four regarding potential counsel’s assessment defendant’s charge nesses. But this case cannot of ineffective assist- support of counsel upon ance based counsel’s failure to obtain defendant’s consent a Rule 711 allowing participate prepa- law student to ration of his case.
Defendant actions or raises additional instances of at ineffec- cumulatively omissions trial that he contends amount to to tive assistance of counsel: failure file a motion in limine ob- (1) any reference to crime jecting alleged store 1, 1988; (2) object hearsay testimony failure to January alleged as to the and defendant’s at- complainant robbery armed extortion; (3) object hearsay testimony failure to tempt extortion; arresting as to armed (4) officer and (5) counsel’s introduction into the police report; evidence tried counsel’s statement that defendant had closing argument money extort from the Alharshas. omissions,
We cannot enumerated actions or say these even taken assistance of counsel cumulatively, amount ineffective they appear protected category since within the generally be trial strategic decisions.
However, we have trial counsel failed indicated to make a reasonable to contact witnesses and submit hos- attempt records that
pital might provided corroborative evidence valid theory benefitting Such defendant. failure amounts to ineffective assistance of counsel since we find that the omissions so undermine the proper functioning the adversarial process *9 we cannot rely the trial as upon having just produced result. the of
Accordingly, judgment we reverse the circuit court and grant defendant a trial. new
Reversed.
CERDA, J., concurs. TULLY, JUSTICE concurring in in part dissenting part: agree I defense counsel’s failure obtain permis written sion allow a law acting student under the authority Supreme of (134 Court Rule 711 (c)(1) (c)(1)) 2d R. 711 to assist defense se violation of per counsel is not a right the defendant’s to effective of assistance counsel for the reasons in the opinion. articulated I must with respectfully my colleagues dissent defendant was rendered ineffective assistance his which resulted an trial. The of unjust my foundation concurrence on is Washington established in Strickland v. this issue the rule of law Ct. 2052. Strickland 688, 674, 466 U.S. L. Ed. 2d S. 80 104 issued mandate that double-pronged counsel’s behavior must fall an of objective below standard behav- reasonableness counsel’s ior must fall to a the deficiency level such that eventual outcome of the trial would been for (466 have different but counsel’s actions. at 2d at 693, U.S. 80 L. Ed. 104 Ct. at 2064.) prongs S. Both of the Strickland mandate must be met reach a of un- conclusion trial am reliable results. I of the that defense opinion counsel’s actions, viewed in the the totality surrounding circumstances case, did not meet the criteria established in Strickland.
The defendant that a rec- argues subpoena hospital certain would have he ords validated claim that was incapacitated Yet, the time the occurred. to Officer robbery defendant admitted two days period “incapacitation” freely Smith after into the protection money. walked site of the and demanded robbery What, effect, the have Could hospital records established? hospital records have the condition of conclusively established at the of the patient time or would have estab- robbery they lished the condition time he hos- during was under assuming arguendo supervision his wound? pital Even ambulate, club golf needed assistance a cane defendant demand he entered the site to day he carried on the which Thus, defense coun- have served this function. money extortion could were not relevant medical records sel’s claim the defendant’s falls within entirely on the case is credible bearing had no strategy. of counsel’s trial scope that his failure to interview
Defendant’s argument fails to to the crime also who could established his alibi nesses have L. Ed. U.S. at (466 meet the criteria set forth Strickland. did 2064.) simply ignore 104 S. Defense counsel 2d at Ct. the ef- contact certain Counsel made request witnesses. Counsel fort to contact witnesses but unsuccessful. requested It after only discussed trial with the defendant. strategy go made to trial without the benefit the decision or that coun- provided information witnesses could could not did not counsel to ask for a con- request sel proceeded. Therefore, tinuance to the location the witnesses. pursue his cli- investigate upon counsel cannot be to have failed to act said *10 a trial clearly proceeded ent’s information rather counsel with but Accordingly, that was the defendant. strategy implicitly sanctioned in the has finding unreliability process no trial been substantiated due the actions of defendant’s counsel. REGAS, ASSOCIATED RADIOLO Plaintiff-Appellant,
WILLIAM T.
GISTS, LTD., Defendant-Appellee. (3rd Division) 1 — 90—1973
First District No. 17,1992. Opinion filed June