THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL WESLEY, Defendant-Appellant.
No. 1-17-0442
Appellate Court of Illinois, First District, Sixth Division
September 6, 2019
2019 IL App (1st) 170442
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Delort and Harris concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County, No. 08 CR 17293; the Hon. Gregory Robert Ginex, Judge Presiding.
¶ 1 Defendant-appellant Terrell Wesley, convicted of first degree murder in the shooting death of Everett Brown in July 2008, appeals the first stage dismissal of his postconviction petition. On appeal, the defendant argues that the circuit court erred in dismissing his petition where he stated the gist of a claim that he was denied due process and effective assistance of trial and appellate counsel where the circuit court admitted into evidence two witnesses’ prior inconsistent statements that were not based on personal knowledge of the shooting. For the reasons that follow, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 The facts underlying the defendant’s murder conviction were set forth in great detail in our order on direct appeal (People v. Wesley, 2015 IL App (1st) 130710-U), and we repeat only those facts necessary to the disposition of the current appeal.
¶ 4 On July 17, 2008, the defendant shot Brown outside a grocery store in Maywood, Illinois. At a 2010 bench trial, only one witness, Jason Ervin, identified the defendant as the shooter. Ervin testified that he saw the defendant leaving the grocery store, walking backwards, and holding a gun. He then saw the defendant enter a black Pontiac driven by a female. Ervin took down the license plate number of the Pontiac and called the police. After the incident, Ervin spoke to police and described the defendant as a black man with short “dreads.”
¶ 5 Two other witnesses who were near the store heard gunshots and observed a black man wearing a white T-shirt walking
¶ 6 Shara Cannon, the defendant’s girlfriend at the time of the shooting, testified that, on the day of the shooting, she was driving a rental car “looking for weed” and the defendant was not with her. According to Cannon, the defendant did not have dreads on the day of the shooting. Cannon admitted that she appeared before the grand jury on July 21, 2008, but testified that she did not remember either the questions she was asked or the answers she gave. Based on this testimony, the court permitted the State to introduce, as substantive evidence, Cannon’s testimony before the grand jury that was inconsistent with her trial testimony.
¶ 7 As we previously recounted, Cannon testified before the grand jury as follows:
“[The] defendant had a ‘two-strand twist’ hairstyle. On the day of the shooting, she drove with defendant, who was wearing a white t-shirt, looking to purchase marijuana. At one point defendant asked her to stop so that he could ‘holler’ at someone at a convenience store. She stopped so that he could exit the car, then drove around before picking him up. Defendant got into the passenger side of the car and directed her to drive to Leon Thomas’s house. When they arrived, defendant went inside for a few minutes. Defendant and Thomas then got into the car and Cannon drove home. Once there, she began to clean. Defendant and Thomas were later joined by Pierre Robinson, Devlin Williams, and Tangeric Washington. The men chatted and smoked marijuana. At one point, Cannon heard defendant say that he tapped on a window, that a guy ran into the store, and that he pointed and shot.” Id. ¶ 9.
Also before the grand jury, Cannon testified that she provided a written statement to the police that was substantially true and correct and tracked her testimony at the hearing.
¶ 8 On cross-examination at trial, Cannon testified that she was taken into custody because drugs were allegedly recovered from her home and that the police told her that things would be easier if she told them that the defendant shot a man. The State subsequently introduced into evidence Cannon’s videotaped statements, which recounted the same sequence of events described in both Cannon’s written statement and her grand jury testimony.
¶ 9 Pierre Robinson likewise testified inconsistently with his grand jury testimony during trial. Before the grand jury, Robinson testified as follows:
“[O]n the day of the shooting, defendant had ‘little braids’ and *** Williams picked [Robinson] up and took him to Cannon’s home. When defendant learned that the victim was dead, defendant said that no witnesses were going to tell on him now. Defendant further said that when he tried to shoot the victim, the gun jammed, so the victim ran inside the store. However, the victim came back outside and taunted defendant. Defendant kept ‘messing with the gun’ and was able to shoot the victim.” Id. ¶ 12.
At trial, Robinson denied the truthfulness of this testimony. He testified that he gave those answers before the grand jury because the police threatened to charge him with murder if he did not testify that the defendant shot someone.
¶ 10 At the conclusion of the State’s case, the defendant moved for a directed
¶ 11 In his supplemental motion for a new trial, the defendant argued, in relevant part, that the admission of Cannon’s and Robinson’s grand jury testimony as well as the admission of Cannon’s written and recorded statements as substantive evidence was error due to the fact that neither witness had personal knowledge of the murder. The court disagreed and denied the motion for a new trial.
¶ 12 The court ultimately sentenced the defendant to 50 years’ imprisonment, and the defendant timely appealed. The sole issue on appeal was whether the defendant was deprived of his right to a fair trial and his right to counsel because the court decided the case before the parties could present closing argument. In a June 2015 order, we affirmed the judgment of the circuit court of Cook County. We rejected the defendant’s argument, noting that the circuit court acknowledged its error, permitted the parties to give closing arguments, and “reconsidered everything” in light of those arguments before issuing its ruling.
¶ 13 On August 5, 2016, the defendant filed a pro se postconviction petition arguing, inter alia, that the admission of Cannon’s and Robinson’s prior inconsistent statements was a constitutional error depriving him of his right to due process. He also contended that both trial and appellate counsel were ineffective for failing to bring this error to the court’s attention. On October 14, 2016, the circuit court summarily dismissed the petition as frivolous and patently without merit, finding that trial counsel, in his supplemental posttrial motion, objected to the substantive admission of both Cannon’s and Robinson’s prior statements. The defendant moved to file a late notice of appeal on February 23, 2017, which this court allowed.
¶ 14 ANALYSIS
¶ 15 We note that we have jurisdiction to review this matter, as we allowed the defendant to file a late notice of appeal following the circuit court’s order dismissing his petition.
¶ 16 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a penitentiary to challenge his conviction or sentence for violations of his federal or state constitutional rights.
¶ 17 The Act establishes a three-stage process for adjudicating a postconviction petition. See
¶ 18 The defendant’s arguments on appeal surround the admission of Cannon’s and Robinson’s grand jury testimony and Cannon’s written and videotaped statements as substantive evidence. According to the defendant, his postconviction petition presented the gist of a claim that the admission of these statements violated his due process rights and that trial and appellate counsel were ineffective for failing to raise the alleged due process violation.
¶ 19 Initially, we note that the defendant’s due process and ineffective assistance of trial counsel claims could have been raised on direct appeal but were not. Ordinarily, these claims would be forfeited (see Pitsonbarger, 205 Ill. 2d at 456); however, because the defendant alleges that the forfeiture was due to appellate counsel’s ineffective assistance, we may consider them (see People v. Blair, 215 Ill. 2d 427, 450-51 (2005) (holding that forfeiture may be excused where it stems from the ineffective assistance of appellate counsel)).
¶ 20 A claim of ineffective assistance of appellate counsel requires a defendant to show (1) counsel’s performance was deficient and (2) the deficient representation was prejudicial. People v. Papaleo, 2016 IL App (1st) 150947, ¶ 21. Significantly, appellate counsel is not required to brief every conceivable issue on appeal but may competently refrain from briefing meritless issues. People v. Jones, 362 Ill. App. 3d 31, 35 (2005). Unless the underlying issue is meritorious, there is no prejudice from the failure to raise that issue on appeal. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011). During first stage review, the circuit court may not dismiss a petition alleging ineffective assistance of counsel if (1) it is arguable that counsel’s performance fell below an objective standard of reasonableness and (2) it is arguable that defendant was prejudiced as a result. Hodges, 234 Ill. 2d at 17.
¶ 21 Here, the defendant argues that appellate counsel was ineffective for failing to argue that Cannon’s and Robinson’s prior inconsistent statements regarding
¶ 22
“(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge[.]”
725 ILCS 5/115-10.1(a)-(c) (West 2016) .
¶ 23
¶ 24 Turning first to Cannon’s and Robinson’s grand jury testimony, both witnesses testified before the grand jury that they heard the defendant admit to shooting someone. The defendant does not dispute that this was inconsistent with the witnesses’ testimony at trial (where both denied the truth of their grand jury testimony), nor does he dispute that both witnesses were available for cross-examination. Instead, he argues that, notwithstanding the plain language of
¶ 25 For purposes of
¶ 26 Despite this well-settled precedent, the defendant attempts to obscure the issue by arguing the relevance of Rule 602, which also refers to personal knowledge. It is sufficient to note that personal knowledge within the meaning of Rule 602
¶ 27 That leaves Cannon’s written and videotaped statements,2 wherein she likewise recounted hearing the defendant admit to the shooting. On appeal, the State does not dispute that these statements were inadmissible as substantive evidence pursuant to
evidence is subject to a harmless error analysis. People v. Pelo, 404 Ill. App. 3d 839, 865-66 (2010). An evidentiary error is harmless if there is no reasonable probability that the jury would have acquitted the defendant absent the error. In re E.H., 224 Ill. 2d 172, 180 (2006).
¶ 28 This court has repeatedly held that the erroneous admission of a prior inconsistent statement is harmless where it is cumulative to properly admitted evidence. See People v. Wilson, 2012 IL App (1st) 101038, ¶ 56 (error in admitting witness’s audio and handwritten prior inconsistent statements was harmless where statements were identical to properly admitted grand jury testimony); People v. Harvey, 366 Ill. App. 3d 910, 921-22 (2006) (same); Cook, 2018 IL App (1st) 142134, ¶ 49 (same). This is the case here. Cannon’s written and videotaped statements were nearly identical to her grand jury testimony that she heard the defendant admit to shooting someone. As such, the error in admitting those statements was necessarily harmless.
¶ 29 To the extent that the defendant argues that it is inappropriate for this court to undertake a harmless error analysis when reviewing a first stage dismissal, we disagree. On direct appeal, we considered whether the court’s error in issuing its ruling before the parties had presented closing arguments was harmless and concluded that it was based on the substantial evidence of the defendant’s guilt—namely, Ervin’s identification testimony, the testimony of two witnesses who saw a man matching the defendant’s description holding a gun outside the grocery store, and Cannon’s and Robinson’s grand jury testimony that the defendant admitted to the shooting. Thus, any argument that the error in admitting Cannon’s written and video statements as substantive evidence was not harmless is contradicted by the record and has no arguable legal merit. See Hodges, 234 Ill. 2d at 17.
¶ 30 Because the defendant’s arguments surrounding the admission of Cannon’s
¶ 31 CONCLUSION
¶ 32 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 33 Affirmed.
People v. Wesley
No. 1-17-0442
Appellate Court of Illinois, First District, Sixth Division
September 6, 2019
2019 IL App (1st) 170442
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR 17293; the Hon. Gregory Robert Ginex, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Robert Hirschhorn, of State Appellate Defender‘s Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg and Janet C. Mahoney and Mari R. Hatzenbuehler, Assistant State‘s Attorneys, of counsel), for the People.