Opinion
No. 2-15-0282
10-11-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELIUS D. BOLES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Winnebago County. No. 11-CF-276 Honorable Ronald J. White, Judge, Presiding. JUSTICE JORGENSEN delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: Defendant was not denied due process of law pursuant to Brady v. Maryland, 373 U.S. 83 (1963), nor did trial counsel provide ineffective assistance for declining to seek a continuance. Affirmed. ¶ 2 A jury convicted defendant, Cornelius D. Boles, of armed violence, possession with intent to deliver 1 to 15 grams of cocaine within 1,000 feet of a church, aggravated reckless driving, resisting a police officer, and driving on a suspended license (among other offenses which were later deemed merged at sentencing). The trial court sentenced defendant to concurrent prison terms of 20, 15, and 6 years, and time served, respectively. Defendant appeals, implicating only the armed-violence conviction. He argues that the State committed a Brady violation by failing to disclose an exculpatory video from the squad car of Forest Park police officer Richard Becker until immediately prior to Becker's testimony. Defendant asserts that the video could have been used to impeach the earlier testimony of civilian witness Cassandra Evans, who testified that defendant pointed a gun at her and her four-year-old daughter. As an alternative to the Brady argument, defendant argues that counsel was ineffective for failing to seek a continuance to recall Evans to the stand to question her with specific reference to the video. Defendant's arguments are based on a false premise. That is, as demonstrated by the record, there was no discovery violation. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On January 28, 2011, at approximately 3:15 p.m., Forest Park police officer Daniel Miller attempted to stop a silver Dodge Charger driven by defendant for a violation of the Illinois Vehicle Code (tinted windows). Miller turned on his lights and sirens, and defendant pulled over to the side of the road. As Miller exited his vehicle, defendant drove off, initiating a continuous high-speed chase that would run from Forest Park to Rockford, involve multiple police departments, and end in a crash. The crash left defendant's passenger, James Woods, permanently paralyzed from the deltoid muscle down. Cocaine and over $3,000 in cash were found in defendant's vehicle and on his person. ¶ 5 Both parties agree that the chase involved an essentially unbroken chain of police witnesses. Toward the end, a news camera followed by helicopter. The camera captured footage of a passenger in defendant's vehicle (presumably Woods) throwing out an object that appeared to be a gun into a snow-covered area. That day, officers found a pistol with a fully loaded magazine in the same location. It was nearly covered in snow. Twenty-two days later, a citizen found a handgun in the same area. This, along with Evans' testimony, comprised the main evidence supporting the armed-violence conviction.
¶ 6 A. The State's Case: Armed Violence
¶ 7 1. Evans' Testimony
¶ 8 Evans testified that, between 3 and 3:30 p.m. on the day in question, she was driving in her 2010 black Cadillac Escalade westbound on Cermak Road in Forest Park. She was on her way to pick up her three-year-old daughter from daycare. Her four-year-old daughter sat in a car seat in the back. As she approached an intersection, a white Dodge Charger approached her car from the passenger side. The driver, whom Evans later identified as defendant, lowered his window and pointed a gun at her and her daughter. She testified:
"[EVANS]: [A]t th[e] time[,] I thought it was a rifle or something. You know, I wasn't sure what kind of gun it was.¶ 9 Defendant bumped his car into hers, forcing her to go into the next lane. She removed her daughter from the car seat and pushed her to the ground. Evans then saw an officer, later determined to be Becker, exit his vehicle in an attempt to apprehend defendant. Defendant, still pointing his gun, maneuvered in front of Evans' car. Evans saw a passenger in his car. Defendant then turned left, going south. Before the jury, Evans drew a diagram of the incident. ¶ 10 After defendant turned, Evans called 911. She told the operator that someone had just pointed a "rifle" or a "big black gun" at her. A few days later, Evans was shown a picture and identified the type of gun as a handgun, not a rifle. ¶ 11 During cross-examination, Evans testified that, after calling 911, she drove to the Forest Park police station. She picked up her three-year-old daughter on the way to the station. Before going inside the station, she called the girls' father to take them home, because they were crying. She called the girls' uncle to take the Escalade, because she was too shaken to drive. Evans spoke with one officer for 10 minutes in that first session. At one point, perhaps in a second interview, she told an officer that defendant struck her car, but she could not remember if the officer asked to look at her car. ¶ 12 Counsel asked Evans why she told the 911 operator that defendant pointed a rifle, rather than a shotgun or a handgun. This exchange occurred:
[STATE]: Why did you think that?
[EVANS]: I seen a big black gun pointed at me in my direction with my daughter, and all I could think was he was gonna shoot us."
"[COUNSEL]: And you know the difference between a rifle and a shotgun; correct?¶ 13 Counsel asked Evans about the severity of the car damage. She answered: "My car had scrapes on it and it had a little dent" on the passenger-side bumper. ¶ 14 During redirect, the State asked Evans how she could have mistaken a handgun for a rifle. She answered: "At the time I was panicking and I didn't—I thought I was getting carjacked." The State asked Evans whether she was concerned about the damage to her car. She answered: "No, I was not. *** I was concerned about my daughter and myself." The State also asked Evans to draw a path on her original diagram showing where defendant's vehicle crossed in front of her. Evans complied. ¶ 15 During recross-examination, counsel challenged Evans' diagram:
[EVANS]: No, I don't.
* * *
[COUNSEL]: So you have no idea what the difference is between a handgun and a rifle?
[EVANS]: Yes, I do."
"[COUNSEL]: If other cars pulled up, why are there no other cars in your diagram if he was able to get around [be]cause other cars pulled up?¶ 16 Also, counsel again asked Evans about her car damage:
[EVANS]: Because at that time, they had already speeded on through and he cut in front of me."
"[COUNSEL]: When did you get your car repaired after the occurrence?Evans' testimony concluded.
[EVANS]: I—I don't recall the date of that repair.
[COUNSEL]: Okay, but, I take it, at the time in which you got it repaired, you were concerned about the damages; correct?
[EVANS]: No. No, I wasn't.
[COUNSEL]: You weren't ever concerned about the damages. So you just had plenty of money and just paid for it yourself.
[EVANS]: I wouldn't say that."
¶ 17 2. Becker's Video: Discovery Documentation
¶ 18 The State called Becker to testify to his participation in the chase, the first portion of which overlapped with Evans' encounter. Becker brought an extra copy of his squad-car video with him. Outside the presence of the jury, the State informed the court that it had tendered five different squad-car videos prior to trial. It could not be certain, without viewing Becker's video, whether Becker's video had been part of that group: "Officer Becker brought in this squad[-]car video today, an extra copy. I don't know if it was tendered before or not. I don't know if [counsel] received it from my predecessors who did this case." Defense counsel believed that Becker's video had been tendered as part of the group prior to trial. However, because he had viewed many videos in relation to the case, he wanted to confirm that he had already seen the video. The court interjected:
"COURT: The point is by your office and the other prosecutors it wasn't turned over.The court granted a 15-minute recess for the parties to view Becker's video. After viewing the video, counsel agreed that it had been disclosed as part of the group:
STATE: Well, no. I'm not saying that.
* * *
STATE: "I need to make a record. We tendered [the group of videos] on March 4, 2011 [18 months before the start of trial]." (Emphasis added.)
"COURT: All right. Let's go on record. [State], [counsel], that video. Has it been disclosed before, [counsel]?
COUNSEL: Yes, Judge, it has."
The written answer to discovery requests in the record confirms that five squad videos were disclosed on March 4, 2011. However, as defendant notes for the first time in his petition for rehearing, the discovery receipt does not specify Becker's squad number, 230. Instead, it lists numbers 220, 245, 279, 610, and 637. The list includes no officer names.
¶ 19 3. Becker's Testimony
¶ 20 Becker testified that, around 3:15 p.m., he responded to a broadcast concerning the chase. As Becker drove east down Cermak, defendant's vehicle passed him going the other direction. Becker turned on his lights and siren. Becker did a U-turn and drove west down Cermak, approaching the intersection of Cermak and Des Plaines Road. Defendant's vehicle, along with others, were stopped at a traffic light. Becker exited his vehicle in an attempt to apprehend defendant. Becker took about two steps before defendant maneuvered around another vehicle and continued driving. Becker followed defendant onto I-290 and lost sight of him near Mannheim Road. Becker drew a map consistent with his testimony. Becker later drove to Rockford, where he identified defendant as the driver of the vehicle. Becker also made an in-court identification of defendant. ¶ 21 During cross-examination, defense counsel played Becker's video. Becker testified to certain points captured on video. The video shows Becker's vehicle performing a U-turn to follow defendant. Defendant slows at the light. A black Escalade stops behind defendant's vehicle. Defendant maneuvers around parked vehicles and flees once again, turning left. He does not appear to hit anyone during the maneuver. ¶ 22 The video does not show Becker step outside his squad car. It does not show defendant bump Evans' vehicle, roll down his window, or point a gun. It does not show when Evans would have had an opportunity to remove her child from a car seat. ¶ 23 The State presented additional evidence in relation to the other charges. At the close of the State's case, defense counsel moved for a directed verdict, which the trial court denied.
¶ 24 B. Defendant's Case: Armed Violence
¶ 25 Defense counsel called Forest Park police officer Steve Zanoni to testify. Zanoni testified that he interviewed Evans. Evans told him that an "occupant" of the vehicle, not the "driver" or the "passenger," pointed a gun at her. Evans gave Zanoni a description of the officer who exited his vehicle on Cermak. Based on that description, Zanoni concluded that the officer was Becker. Counsel also called Rockford police officer Michael Jury to testify regarding items found at the scene of the crash. After being informed of his rights, defendant declined to testify. The defense rested.
¶ 26 C. Closing Argument and Verdict
¶ 27 In closing, defense counsel stressed that Evans' testimony conflicted with Becker's video:
"[The State has not] show[n] you that he possessed a gun. What they've shown you is they brought in a witness, Cassandra Evans, basically to tell you a story that's proved to be impossible by way of the tape. And, luckily, we have the tape where you're able to see that, to see that her statement that this vehicle is parked side-by-side to her vehicle when he does all of this and that it's parked side-by-side as the officer is out of the vehicle and standing there. Her testimony is impossible based on the facts of this case." (Emphases added.)¶ 28 The State argued in rebuttal that defense counsel would have the jury believe that the State's witnesses "were somehow in this all together just to pin drugs and weapons on [defendant], but that's not what happened." As to Evans, it noted:
"[W]itnesses are human and, as all human beings, are not perfect. Miss Evans came in here and she told you what happened. *** [M]aybe [she] didn't get high marks on her drawing *** an impromptu art project she was asked to do in front of all of you ***. *** She said and told you that the defendant's car pulled up alongside of her to the right and that he then got in front of her, made a sharp left turn, got into the turn lane and turned left. Well, guess what? That's what Officer Becker said that the defendant's vehicle did too. *** Sandra Evans is corroborated by Officer Becker, not shown to be a liar. Officer
Becker said he pulled up his squad car, he got out of it, he tried to, through the element of surprise, to see if he could catch the driver. He got out and he tried to go up to it but Miss Evans' Escalade was there.¶ 29 The jury convicted defendant of armed violence, possession with intent to deliver 1 to 15 grams of cocaine within 1,000 feet of a church, aggravated reckless driving, resisting a police officer, and driving on a suspended license (among other offenses which were later deemed merged at sentencing). The trial court sentenced defendant to concurrent prison terms of 20, 15, and 6 years, and time served, respectively.
As far as the video from Officer Becker's squad, Officer Becker's video misses what happened to Miss Evans. It's not that it didn't happen. He's too late. It's already occurred by the time he gets up there. By the time he gets up there she is no longer in that far right lane with her black Escalade, which is, by the way, shown on the video, proving that she was in fact there that day. The Charger is not next to her when the video starts. It's already in front of her. He's already cut her off, displayed the weapon and gone over. Can we please play the video clip of Officer Becker's squad car[?] Notice how the Escalade is already behind the Charger. It's already cut over. *** You may recall when the defense played Officer Becker's squad video that he did a U-turn. Right at that point was when Miss Evans was staring down the barrel of a gun. [Becker] hadn't turned around yet. She didn't lie to you. She had no reason to lie to you. She didn't know defendant before this. From Miss Evans' standpoint, she said it was a rifle or a shotgun. That gun was pointed in her face, her bab[y] [wa]s in the car. ***. To her, it probably looked like a canon. That wasn't lying or being untruthful. She focused on the gun, not on anything else but the gun. *** The video didn't contradict her. It corroborated her. *** [W]e didn't see *** Officer Becker on his squad video ***. Does that mean he wasn't there? *** Just because it doesn't happen on the video doesn't mean it didn't occur."
¶ 30 D. Posttrial Motions
¶ 31 Defendant moved for a judgment notwithstanding the verdict and, alternatively, a new trial. He argued, inter alia, that the State: (1) knowingly used Evans' perjured testimony; and (2) violated due process through the late disclosure of the Becker video. ¶ 32 Before the trial court heard the motion, counsel moved to withdraw and defendant submitted a pro se ineffective-assistance claim. Defendant alleged, inter alia, that counsel was ineffective for failing to seek a continuance, based on the late disclosure of the Becker video. ¶ 33 The trial court conducted a Krankel hearing. People v. Krankel, 102 Ill. 2d 181 (1984). There, counsel recounted the State's disclosure of the video, as he recalled it:
"COUNSEL: If you recall, [the Becker video] came about at the time we learned of it during the course of trial.¶ 34 Defense counsel explained why he chose not to ask for a continuance to recall Evans. In his view, calling Evans would only give the State an opportunity to rehabilitate her. Also, calling Evans would give the State another opportunity to humanize her and highlight her traumatic experience. It would be more effective to play the video and note that it contradicted Evans' earlier testimony, giving her no opportunity to respond. Counsel stressed in closing argument that the video contradicted Evans' testimony. ¶ 35 The trial court denied defendant's pro se ineffective-assistance claim, finding it unnecessary to appoint new counsel. It stated that counsel "explained to [its] satisfaction what he did and why he did it." Defendant's allegations implicated counsel's trial strategy. Counsel was not ineffective. ¶ 36 Defendant proceeded with his motion for a new trial, with the assistance of his original counsel. He did not argue at the hearing, as pleaded, that there had been a discovery violation related to the Becker video. Instead, he argued that the State knowingly used Evans' perjured testimony. The court agreed that there were significant inconsistencies in Evans' testimony, particularly as to whether defendant damaged her car. However, this was not necessarily perjury. Moreover, the court could not find real fault with the most critical aspect of her testimony, whether she saw a gun. The court noted that Evans, without any apparent ulterior motive, had called 911 to report being threatened with a gun. The court denied the posttrial motion. This appeal followed.
* * *
THE COURT: [Counsel], did you receive an answer to discovery indicating from the State that they had video?
COUNSEL: They did not Judge. *** And this was an issue in the first couple of days of trial when it was learned that there was the video camera from Officer Becker's vehicle.
THE COURT: When did you view that Officer Becker's video?
COUNSEL: Prior to him being placed on the stand."
We note upfront that this account is refuted by the record, supra ¶ 18.
¶ 37 II. ANALYSIS
¶ 38 Defendant raises two arguments on appeal: (1) he was denied due process of law pursuant to Brady, based on the late disclosure of the Becker video; and (2) alternatively, trial counsel was ineffective for failing to seek a continuance, based on the late disclosure of the Becker video, to recall Evans to the stand and confront her with the Becker video. Each of defendant's arguments turn on a false premise: that there was a late disclosure of the Becker video. As we will discuss, this is refuted by the record. Therefore, we reject defendant's arguments.
¶ 39 A. No Discovery Violation
¶ 40 In Brady, the Supreme Court held that the State violates a defendant's constitutional right to due process if it fails to disclose evidence favorable to the accused and material to guilt or innocence, despite a request by the defense for the production of evidence. Brady, 373 U.S. at 87. A Brady claim requires a showing that: (1) the evidence was suppressed by the State, either willfully or inadvertently; (2) the evidence was favorable to the defendant, be it exculpatory or impeaching; and (3) the defendant was prejudiced because the evidence was material to guilt or punishment. People v. Beaman, 229 Ill. 2d 56, 73-74 (2008). The Brady rule has been codified by Illinois Supreme Court Rule 412(c) (eff. March 1, 2001), which requires that, following the written motion of defense counsel, "[t]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor[e]." The defendant carries the burden of establishing a Brady violation. People v. Velez, 123 Ill. App. 3d 210, 219 (1984). ¶ 41 Here, defendant cannot meet the first element. The record refutes that Becker's video was suppressed by the State, either willfully or inadvertently. When Becker arrived to testify, he brought an "extra copy" of the video. The State, counsel, and the court discussed whether the video was new. The State and counsel believed that the video had been previously disclosed as part of a group of videos prior to trial. The court gave counsel 15 minutes to view the video. Counsel viewed the video, and counsel contemporaneously reported to the court that the video was previously disclosed. The court accepted counsel's answer, and the trial resumed. ¶ 42 In support of his assertion that the State committed a discovery violation, defendant cites to two misleading statements in the record. First, defendant cites to only one page of transcript just prior to Becker's testimony. Again, there, the State initially represented: "Officer Becker brought in this squad[-]car video today, an extra copy. I don't know if it was tendered before or not. I don't know if [counsel] received it from my predecessors who did this case." This statement does not show that the State failed to disclose the video. Rather, it shows that a newly assigned, conscientious attorney wanted to ensure that it had been disclosed. Indeed, the pages that follow show that counsel confirmed his timely receipt of the video. ¶ 43 Second, defendant cites to several pages in the transcript of the Krankel hearing. Again, there, counsel inaccurately recounted the State's disclosure of the video: "If you recall, [the Becker video] came about at the time we learned of it during the course of trial." Counsel's statement at the Krankel hearing that he received the video just prior to Becker's testimony is refuted by the court's contemporaneous documentation of the issue. Again, the question as to whether the State had involuntarily suppressed the video arose just prior to Becker's testimony, but the record shows that the question was answered in the negative. The court and the parties explicitly documented that there was no discovery violation so as to avoid an issue like this on appeal. ¶ 44 In his petition for rehearing, defendant again argues that counsel "corrected the record" months later, posttrial, to show that he did not receive the video until just before Becker's testimony. He notes that the State did not contradict counsel's posttrial assertions. This does not persuade us to change our holding. The State cannot participate in a Krankel hearing, and, at most, has a di minimus role in a Krankel hearing. People v. Jolly, 2014 IL 117142, ¶ 38. Therefore, the State's silence is not telling. And, defendant never asked the trial court to make a determination consistent with counsel's alleged correction of the record. Given that the court denied defendant's posttrial motions, we cannot infer that the court implicitly accepted counsel's alleged correction. ¶ 45 Also in his petition for rehearing, defendant notes, for the first time, that the March 4, 2011, discovery receipt lists five squad numbers, none of them Becker's number. Becker's number is 230, and the receipt lists numbers 220, 245, 279, 610, and 637. This discrepancy does not warrant a remand for an evidentiary hearing on whether a discovery violation occurred. Defendant has always had access to the discovery receipts, and, again, the court denied his posttrial motions, and defendant never sought an explicit posttrial determination from the court that there was a discovery violation. Further, the import of the squad-number discrepancy is minimal, in light of counsel's contemporaneous representation that he had previously seen the substance of the video, regardless of how it was identified, with or without squad number markings. Defendant characterizes counsel's contemporaneous representation as "hasty," but counsel was given 15 minutes to view the video before informing the court that he had previously seen it. ¶ 46 Even if there had been a discovery violation, there is not a reasonable likelihood that it affected the outcome of the case. A reasonable explanation existed for why the video did not capture defendant pointing a gun at Evans: it could have occurred during Becker's U-turn or it may have been hidden from the camera's view, which did not clearly capture the interior of defendant's car or even an image of Becker himself as he approached defendant's car on foot. Additionally, the jury would have to believe that Evans, an ordinary citizen who did not know defendant, lied when she called 9-1-1 to report being threatened by a gun. When she called 9-1- 1, she did not know that, in two hours time in Rockford, defendant's passenger would throw a gun out the car window, further corroborating her account. ¶ 47 While the video certainly favored defendant, in that it challenged the accuracy of Evans' testimony that defendant bumped her, rolled down his window, pointed a gun, and prompted her to remove of her child from the car seat, the video was not suppressed. Counsel had access to the video, and, as we will discuss, he exercised his professional judgment in choosing how to present it.
¶ 48 B. Ineffective Assistance
¶ 49 Alternatively, defendant argues that trial counsel was ineffective for failing to seek a continuance following the late disclosure of Becker's video to recall Evans to the stand and confront her with the squad video. When there is a discovery violation, counsel may seek a continuance to remedy surprise and prevent prejudice to defendant's case. Carrasquillo, 174 Ill. App. 3d at 1032. Counsel provides ineffective assistance when: (1) his performance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, there is a reasonable probability that the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that, under the circumstances, the challenged action was sound trial strategy. People v. Albanese, 104 Ill. 2d 504, 526 (1984). Tactical decisions are beyond review of an attorney's competence. People v. Fernandez, 162 Ill. App. 3d 981, 987 (1987). ¶ 50 Defendant's argument fails at the outset, because there was no discovery violation. Supra, ¶ 18. Because there was no discovery violation, there was no need for counsel to seek a continuance to remedy surprise and prevent prejudice. See, e.g., Carrasquillo, 174 Ill. App. 3d at 1032. ¶ 51 Even if there had been a discovery violation, counsel's actions fell within the bounds of sound trial strategy and cannot constitute an ineffective-assistance claim. From the first round of testimony, counsel knew Evans to be a difficult witness, capable of garnering sympathy from the jury. For example, she explained misstatements about the type of gun by stating that she "panicked" and "all [she] could think was he was gonna shoot us." When asked why she did not seek to document the damage to her high-end vehicle, she answered pointedly that she was not thinking about her vehicle. She was thinking about her daughter and herself. Counsel did not need to give Evans another chance to say that, while she might not be good with details, she knew that she saw a gun pointed at her four-year-old daughter. Also, counsel did not need to give Evans a chance to explain that the video simply did not capture the critical moment when defendant bumped her car and pointed a gun. As counsel stated at the Krankel hearing, recalling Evans would give the State the opportunity to rehabilitate her, and a second chance to stress the traumatic experience and humanize her. Instead, counsel thought it more effective to let the video speak for itself and argue that it contradicted Evans' testimony. Counsel stressed this point in closing argument. The video was a significant piece of evidence, and counsel exercised very reasonable professional judgment in deciding how to most effectively present it to the jury. Counsel was not ineffective for deciding to let the video, not Evans, be the final word. ¶ 52 It did not escape our attention that defendant did not put his ineffective-assistance claim in context. That is, defendant already raised the same claim in a pro se posttrial motion. Following a Krankel hearing, the trial court determined that the claim lacked merit and pertained only to matters of trial strategy. The court listened to counsel's explanation and drew upon its own recollection of counsel's performance. Defendant raises no challenge to the trial court's determination at the Krankel hearing. We do not further consider defendant's ineffective-assistance claim.
Defendant also asserts that counsel was ineffective for failing to seek a mistrial. He fails to cite any authority in support of his position and has, therefore, forfeited the claim. Ill. S. Ct. Rule 341(h)(7) (eff. July 1, 2008); Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010). Forfeiture aside, a mistrial is an extreme remedy for a discovery violation, when a recess or a continuance is sufficient to protect the other party from surprise or prejudice. See People v. Carrasquillo, 174 Ill. App. 3d 1023, 1032 (1988). --------
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we affirm the trial court's judgment. We grant the State's request to assess defendant statutory State's Attorney's fees. 55 ILCS 5/4-2002(a) (West 2016); People v. Nicholls, 71 Ill. 2d 166, 178 (1978). ¶ 55 Affirmed.