Opinion
1-22-1287
06-25-2024
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONQUILA BUTLER, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County 11 CR 08449 Honorable Carl B. Boyd, Judge Presiding
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.
ORDER
ELLIS, JUSTICE
¶ 1 Held: Affirmed in part, reversed in part, remanded. Good-faith exception applied to arrest following use of investigative alert, so any evidence stemming from defendant's arrest was admissible. Remanded for further preliminary Krankel proceedings.
¶ 2 Defendant Donquila Butler was convicted of two counts of aggravated criminal sexual assault and one count of kidnapping. In his first appeal, we affirmed the denial of his motion to quash his arrest and suppress the evidence, as police had probable cause to arrest him. But we remanded to the circuit court for a hearing, pursuant to People v. Krankel, 102 Ill.2d 181 (1984), on his pro se claims of ineffective assistance of counsel. People v. Butler, 2021 IL App (1st) 171400.
¶ 3 The court held that hearing and rejected defendant's claims. Before us now, defendant challenges the police's use of an investigative alert to arrest him, claiming such alerts without a warrant offend our state constitution. Second, he claims the preliminary Krankel inquiry was inadequate because the court failed to view a video he claims was exculpatory and ignored an additional claim he made orally at the preliminary Krankel hearing.
¶ 4 Defendant is entitled to no relief based on his challenge to the investigative alert because, regardless of whether these alerts are constitutional, the good-faith exception to the exclusionary rule applies. But his second argument is well taken. We remand for further preliminary Krankel proceedings.
¶ 5 BACKGROUND
¶ 6 Because this is defendant's second trip to this court on direct appeal, we briefly summarize the underlying facts, drawn primarily from our earlier decision. See Butler, 2021 IL App (1st) 171400, ¶¶ 5-38.
¶ 7 Before trial, defendant moved to quash his arrest and suppress the evidence seized incident to the arrest. Specifically, defendant targeted (1) the lineup where the complaining witness, S.J., identified him and (2) his DNA profile, which investigators procured from him after his arrest, then later matched to the profile found on the victim after the assault.
¶ 8 At that hearing, Blue Island Police Detective Jeff Werniak testified that on April 25, 2011, he was assigned to investigate the sexual assault against S.J. He interviewed her briefly at the hospital and then interviewed her at her home the following day. She told him that on April 25, 2011, in the late evening, she was walking southbound on Western Avenue when she noticed a black four-door car that kept passing her northbound and southbound on Western. The driver stared at her as he passed. She described the driver as a black male who was the only person in the car. She felt uncomfortable, so she turned off Western Avenue and walked one block west to Artesian Avenue, heading south toward her home. S.J. was then assaulted on Artesian Avenue.
¶ 9 S.J. believed that her assailant was the same person she saw driving the black car. She described her attacker as a Black male in his upper twenties, with a light caramel complexion and a thin goatee-style beard that was nicely trimmed. She described the car as a four-door sedan similar to a Buick. The car was black with a power moon roof and very distinctive "3-bladed" chrome rims. Wernick searched the internet for various types of wheel rims, and S.J. pointed out one that looked like the ones on. Werniak referred to the rims as "wishbone rims."
¶ 10 Based on this information, Werniak created an investigative alert to stop the car and arrest the occupant. He included a picture of the distinctive rim in the alert. The sketch S.J. helped create was also included in the alert.
¶ 11 Werniak went to Thornton's gas station in the area of the attack to see if its surveillance video captured anything useful to the investigation. The video showed S.J. walking southbound on Western Avenue and cutting through the Thornton's parking lot. Right after she cut through the lot, a black four-door car with a power moon roof and chrome wishbone rims pulled into the gas station. The video showed a Black male, whom Werniak identified as defendant, get out of the car and go into the store. Inside, defendant purchased condoms with a credit card. Thornton's corporate security records revealed that defendant's name was on the card used to purchase the condoms. Werniak obtained a driver's license photo of defendant and recognized him as the person he saw on the video getting out of the black car and going into the Thornton's store to purchase condoms.
¶ 12 The following day, April 29, 2011, Werniak attended a roll call meeting at the Blue Island police station, where he advised patrol officers that he was looking for defendant in connection with three sexual assaults in Blue Island. He told them they should look for a black four-door Lincoln with a power moon roof and chrome wishbone rims bearing a certain license plate number. Werniak also showed officers defendant's driver's license photo. Later that day, Werniak responded to a traffic stop near 127th Street and Vincennes Road. Once there, he recognized defendant as the same man he saw in the video surveillance tape from Thornton's. Defendant was then transported to the Blue Island police station and placed in a cell. The trial court denied defendant's motion to suppress, concluding police had probable cause to arrest him.
¶ 13 The evidence at trial largely tracked Werniak's testimony at the suppression hearing. First, the State called S.J., the victim, to testify. She said that on April 25, 2011, she was 18 years old and walking home from a bus stop at 119th Street and Western Avenue in Blue Island. She walked about half a block when she noticed a black sedan driving toward 123rd Street. The car had distinctive Y-shaped hubcap rims on its tires. The vehicle passed her, then turned around, passing her again in the opposite direction, back toward 119th Street. The car did this a total of three times, S.J. said, and she became nervous because she thought the driver was following her. She turned west at 121st Street, at a Thorton's gas station, and walked toward the next street over, Artesian Avenue.
¶ 14 As she walked down Artesian, S.J. did not see anyone on the street but heard footsteps behind her. She looked back and saw a man about a half-block behind her and began to walk faster. The man kept pace with her and eventually caught up to her; S.J. looked back when he was about three feet away. She described the man as Black, with a stocky build, and about 5 feet, 9 inches tall. He wore a black hooded sweatshirt with the hood pulled up over his head but nothing covering his face. At trial, S.J. identified defendant as the man behind her that night.
¶ 15 Defendant grabbed her around her neck with his arm, she testified, and told her not to refuse. He threatened to kill her, but S.J. continued to resist and tried to look at her attacker's face. Defendant attempted to insert his penis into her vagina but, at first, could not. He then forced her to the ground onto her back. S.J. again tried to look at his face, and though he told her to cover her face, she peeked through her hands and could see him. S.J. heard what she thought was a plastic wrapper and believed defendant had taken out a condom. Defendant then penetrated her vagina with his penis; S.J. did not consent to the act and said it was painful.
¶ 16 After the assault, defendant ran down Artesian Avenue. S.J. waited briefly to make sure her attacker was gone, then ran home. When she got there, she told her aunt what happened, and they called 911. S.J. spoke to a police officer and went to a hospital, where a nurse conducted a sexual assault examination on her.
¶ 17 The following day, S.J. spoke with investigators and described her attacker. On April 28, 2011, she sat down with a sketch artist and created a composite sketch of her assailant. Later, after defendant had been arrested, she viewed a lineup and identified defendant as the man who attacked and assaulted her.
¶ 18 A forensic scientist, Lisa Fallara, tested swabs taken from the victim after the assault for DNA and developed a profile that matched defendant's. Fallara said that the DNA profile found on the swabs would be expected to occur in approximately 1 in 1000 unrelated African American males, 1 in 1900 unrelated Caucasian males, and 1 in 1000 unrelated Hispanic males.
¶ 19 Defendant testified in his defense. He testified that on April 25, 2011, he was driving his black Lincoln with the Y-shaped rims. Defendant admitted going to Thornton's that night to buy condoms. He got back into his car after purchasing the condoms and left. He planned to meet someone at Popeye's to buy marijuana, so he drove out of the Thornton's parking lot to the Popeye's lot. When the person who was supposed to sell him marijuana did not show up, defendant left Popeye's and went to the Shell station at 119th Street and Western Avenue to buy gas. He tried to use the ATM inside but was told they were in the middle of a shift change and to come back later. He then drove to Harvey via Interstate 57. Defendant admitted that he initially lied to police about the reason for going to Popeye's; he initially told police that he was meeting a woman, because he did not want to admit to illegally purchasing marijuana, but he told police the truth the next day.
¶ 20 After a bench trial, the court convicted defendant of two counts of aggravated criminal sexual assault and one count of kidnapping.
¶ 21 On April 21, 2017, defendant filed a pro se motion entitled "Motion of ineffective assistance of counsel." However, at the next court hearing, on April 28, 2017, the court asked defendant if he was satisfied with his attorney; defendant responded, "I'm mixed on that, your Honor." The court did not acknowledge either the written motion or defendant's answer to its question and instead proceeded to sentence defendant to a total of 28 years in prison.
¶ 22 On appeal, defendant challenged his arrest and argued that the court should have conducted a preliminary inquiry into his claim that counsel was ineffective pursuant to Krankel, 102 Ill.2d 181. Defendant's attack on his arrest was two-pronged: he argued that police did not have probable cause when they arrested him, or alternatively, that the use of the investigative alert in lieu of an arrest warrant violated the Illinois constitution. Id. A different panel of this court (1) held that police had probable cause to arrest defendant; (2) declined to address the constitutionality of the investigative alert; and (3) remanded for a hearing into defendant's ineffective claims pursuant to Krankel. Id. ¶ 60.
¶ 23 Back in the circuit court, now before a different judge than his trial judge, defendant appeared before the trial judge on July 15, 2022, for the preliminary Krankel hearing. The court went through defendant's motion, asking defendant to explain each individual claim, then asking trial counsel (who was present) to respond to them.
¶ 24 One claim centered on a piece of video evidence. Defendant claimed that counsel had the video, and that it would prove he did not commit the crime. To support the claim, defendant attached an excerpt from a police report that said police believed defendant went from the gas station to a Popeye's restaurant lot up the street while S.J. walked away from the area, toward Artesian Avenue. The video showed, defendant claimed, that he never left his car and did not walk to Artesian and assault the victim. If counsel had used the video, defendant believed it would show that he was somewhere else when the crime was committed.
¶ 25 When the court asked defendant's counsel to respond, she said she had watched the video and that it showed defendant's car leave the Popeye's parking lot and drive in the direction of the victim. Counsel later said there was no indication that the car in the Popeye's lot was the defendant's. The court did not review the video but concluded that counsel had made a strategic decision not to offer the video as evidence and rejected defendant's claim.
¶ 26 Near the end of the hearing, the court asked defendant if there was "anything you wish to say in closing[.]" Defendant said that after he left Popeye's, he went back to the gas station he had first gone to and used his debit card again to fill up his car with gas. He had a printed receipt that would show the date and time on it. Defendant told the court that he had asked counsel to subpoena his Chase Bank records to show the date and time of the transaction, which he believed would buttress his claim he was not assaulting S.J. at that time.
¶ 27 The court asked defendant where that claim was in the written motion he filed. When defendant said it was not in the written motion, the court said "It's outside of the four corners of the motion that you filed indicating that she was ineffective so I'm not certain I can consider that because she has not had the opportunity to review it and respond to it." The court did not inquire further or otherwise discuss the claim and denied the rest of defendant's motion.
¶ 28 Defendant again appeals.
¶ 29 ANALYSIS
¶ 30 Back before this court, defendant raises two errors. First, he claims the use of an investigative alert instead of a warrant to arrest him is unconstitutional, and the fruits of his arrest should be suppressed. Second, he takes issue with the court's preliminary Krankel examination and asks for a remand for further inquiry.
¶ 31 I. Constitutionality of Investigative Alert
¶ 32 In his first appearance before us, defendant challenged his arrest on two grounds: (1) that police did not have probable cause to arrest him in the first place; and (2) that even if police had probable cause, their use of an investigative alert in lieu of a judge-approved warrant offended the Illinois constitution. Id. ¶¶ 40, 54. A different panel of this court concluded that police had probable cause to arrest him but (for reasons not apparent to us) declined to address his investigative-alert argument. Id. ¶ 56.
¶ 33 Though this case returns to us after we remanded it only for a preliminary Krankel hearing, defendant renews his challenge to the use of the investigative alert. While it may seem that he is trying to take another bite at the appellate apple, he is within his rights to raise this issue now, as this court purposely declined to address his argument about the investigative alert in his previous appeal. See Zokoych v. Spalding, 84 Ill.App.3d 661, 667 (1980) (questions of law decided in previous appeal are binding on trial and appellate court in future case, but "matters concerning the merits of the controversy between the parties which were presented to but not decided by the appellate court can be relitigated on remand.") (citations omitted). It is not clear to us why this court declined to consider this argument on the previous appeal, but it certainly was through no fault of defendant. He has raised it again, and he has a right to be heard. The State has fully responded to it. We will consider the alleged error.
¶ 34 Defendant's claim relies on two decisions from this court that found arrests made pursuant to investigative alerts unconstitutional in the absence of a warrant. See People v. Bass, 2019 IL App (1st) 160640, ¶¶ 4, 31-32, aff'd in part &vacated in part, 2021 IL 125434; People v. Smith, 2022 IL App (1st) 190691, ¶ 99. The Bass appellate holding is no longer good law on this point, as the supreme court vacated that portion of the appellate decision as unnecessary to the judgment. See People v. Bass, 2021 IL 125434, ¶¶ 30-31. Smith has not been reviewed by our supreme court, though several other appellate decisions have disagreed with it (and with the appellate Bass decision). See, e.g., People v. Wimberly, 2023 IL App (1st) 220809, ¶ 26; People v. Gill, 2023 IL App (1st) 201109-U, ¶ 104; People v. Streater, 2023 IL App (1st) 220640, ¶ 70.
¶ 35 But we need not reach the constitutional question here, for even if defendant's argument carried the day, he is not entitled to the remedy he seeks. Defendant wants the evidence obtained from his arrest to be suppressed under the "exclusionary rule," by which evidence gathered as a result of unconstitutional actions by police are excluded from evidence. See People v. LeFlore, 2015 IL 116799, ¶ 22. The exclusionary rule is a judge-created remedy to deter violations of the Fourth Amendment. Id. But our supreme court has held that, if the police acted with a good-faith belief that they were complying with the constitution when obtaining that evidence, the remedy of suppression is unwarranted, as the deterrence effect loses its force. Id. ¶¶ 23-24.
¶ 36 And this court has held that, before the holdings in Bass (in 2019) and Smith (in 2022), the prevailing case law in Illinois would have left police officers with a good-faith basis to believe that the constitution permitted arrests pursuant to investigative alerts alone, absent a warrant. People v. Erwin, 2023 IL App (1st) 200936, ¶ 49. We should note here that one concurring decision in 2012 called into question the constitutionality of warrantless arrests based solely on investigative alerts, without expressly finding the practice unconstitutional. See People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 38-52 (Salone, P.J., specially concurring). But in Erwin, the defendant's arrest was in 2003, long before even the 2012 concurring opinion. Erwin, 2023 IL App (1st) 200936, ¶ 35. And in our case here, defendant was arrested in 2011-again, long before Bass and Smith and even before the 2012 concurring opinion.
¶ 37 So for all the reasons given in Erwin, see id. ¶¶ 23-49, the good-faith exception to the exclusionary rule applies to the arrest of defendant here based on an investigative alert and absent a warrant. The officers had a good-faith reason to believe that their arrest complied with the constitution. As defendant would not be entitled to the suppression of any evidence obtained following his arrest, his claim must fail.
¶ 38 II. Preliminary Krankel Inquiry
¶ 39 Defendant seeks a remand to the trial court for further Krankel proceedings based on two alleged errors. Our supreme court, beginning in Krankel, developed a procedure to review a defendant's pro se claims of ineffective assistance of counsel after conviction but before sentencing. People v. Jolly, 2014 IL 117142, ¶ 29. The procedure serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue the defendant's claims. People v. Patrick, 2011 IL 111666, ¶ 39. The pro se defendant is not required to do any more than bring his or her claims to the trial court's attention. People v. Ayers, 2017 IL 120071, ¶ 11. A defendant is not required to file a written motion and may raise the issue orally or through a letter to the court. Id.
¶ 40 Once a defendant brings forth a claim, the court must conduct a preliminary inquiry into the factual basis behind the claims. People v. Moore, 207 Ill.2d 68, 77-78 (2003). The preliminary inquiry should include some interchange between the trial court and trial counsel regarding the facts and circumstances of each allegation of deficient representation. Ayers, 2017 IL 120071, ¶ 12. That inquiry must be sufficient to determine the factual basis of each claim. Id.
¶ 41 If the trial court determines the claim lacks merit or pertains only to matters of trial strategy, the court need not appoint new counsel and may deny defendant relief. Moore, 207 Ill.2d at 78. If, however, the allegations show possible neglect of the case, new counsel should be appointed to present defendant's claim to the court. Id. Whether the trial court properly conducted a Krankel preliminary inquiry is a legal question we review de novo. People v. Jackson, 2020 IL 124112, ¶ 98.
¶ 42 As noted, in defendant's first appeal, we remanded this case for a preliminary Krankel hearing into his claims that his trial counsel was ineffective. Butler, 2021 IL App (1st) 171400, ¶¶ 57-58. While that appeal was pending, defendant filed a "Motion of Ineffective Assistance of Counsel" in the trial court, laying out his complaints about counsel's performance. That filing became the basis of the preliminary Krankel hearing upon remand.
¶ 43 Defendant finds error in the preliminary Krankel hearing on two grounds. We should say at the outset that, while we agree with defendant on both errors he asserts regarding the Krankel hearing, nothing we say below should color the fact that the trial court clearly was patient and painstaking in attempting to get through a series of arguments raised by defendant. Though we do find error in two distinct ways, we commend the court for its willingness to spend whatever time necessary to afford defendant a fair hearing.
¶ 44 A. Video Evidence
¶ 45 First, defendant claims the trial court's initial inquiry into his claim that counsel failed to offer exculpatory video evidence was inadequate, as the court did not personally review the video in question.
¶ 46 We note here, to avoid any confusion, that defendant actually raised two points about video evidence at the preliminary Krankel hearing. One is that he wanted trial counsel to request additional surveillance video evidence, as the videos available to the defense cut off before, at least according to defendant, the video would have shown him driving his car in the opposite direction of S.J., heading northbound. Defendant has made clear in his brief that he "does not address that claim here." So the alleged failure of counsel to seek and procure additional video evidence is not something we consider.
¶ 47 Instead, he is only addressing on appeal the "video evidence that was in [trial] counsel's possession." It is undisputed that defendant and his trial counsel viewed and discussed this video evidence while defendant was in jail before trial. Defendant now argues that trial counsel should have used that evidence at trial as corroborative of his trial testimony.
¶ 48 To put a finer point on it, the question comes down to the events that transpired after both defendant and S.J. were seen at the Thornton's gas station on Western Avenue-defendant stopping there to buy condoms, S.J. walking home through that lot. Defendant testified at trial that, after leaving the Thornton's gas station on 12052 South Western Avenue, he drove to a Popeye's restaurant at 12100 South Western-practically next door, though separated by 121stStreet-to meet someone from whom he was going to buy marijuana. (After his contact did not arrive, defendant testified, he drove north to the Shell gas station at 119th and Western to buy gas before driving home.) S.J. testified that, after leaving the Thornton's gas station, she crossed over to the next street, Artesian Avenue, where she was ultimately attacked.
¶ 49 At the preliminary Krankel hearing, defendant testified that the video evidence showed that he drove to Popeye's after leaving Thornton's and parked his car at the Popeye's. He testified that he and his lawyer reviewed a video, which defendant narrated to her in advance of seeing it, and which corroborated his narrative once they watched it together. As he described it, and as he claims the video depicted:
"I noticed a Blue Island Police car drive from southbound and turn left on 121st Street headed westbound which brought him in between the Thornton's Gas Station and the Popeye's Chicken lot where I was sitting. And I watched him turn into the Thornton's lot where he parked his car down by the entrance and by the air machine. After he leaves, another police car enters the gas station. I watched this officer get out of his car and walk to a man's car while he's pumping his gas and talks with this man at his car before getting back into his squad car and leaves the gas station and heads southbound down Western. And I told this to [trial counsel] even before I saw this footage. *** So there is no way I'm somewhere else committing a crime and is [ sic ] able to tell you what was going on over here. I can't be in two places at the same time and she can tell you that what I'm saying is true."
¶ 50 Defendant also noted that Detective Werniak, in a supplemental investigation report defendant attached to his motion, made the following notes about the path of the "suspect vehicle"-defendant's car-based on video footage:
"After the purchase [of condoms at Thornton's], the driver got into the vehicle, back up, drove north through the lot, as the victim walked south on Western Avenue. The suspect vehicle slowly exited the gas station's lot, traveled east on 120th Place, and stopped at the alley. The suspect vehicle is seen turning south in the east alley of Western Avenue, as the victim walked across the Thornton's gas station lot, towards 121st and Artesian Street.
The suspect vehicle was observed exiting westbound from a private drive at the Midwest Title Loans (12047 Western Avenue) and into the Popeye's Chicken lot (12100 South Western) and [the victim] walked westbound on 121st towards Artesian Street."
¶ 51 Defendant also submitted a letter from his trial counsel, sent before trial and in response to queries from defendant about using the video, where she discussed the video footage:
"I reviewed the Thornton video to make sure what's there. At about 10:04 p.m., I saw a person with white or light-colored pants walk across the station lot and off the screen at the top right. As soon as that person walks off the screen a black or dark vehicle moves out of the Popeye 's lot in the direction of the walker. The trouble is one cannot say that is you in the described black car and one cannot say that is the complaining witness in the light pants. The film is essentially useless to both sides as an identification aid." (Emphasis added.)
¶ 52 Defendant insisted to the court that the video did not show the vehicle "moving in the direction of the walker," meaning the victim, as counsel's letter said in the portion highlighted above. Defendant also noted that Werniak never said that, either, when he testified at trial about the video evidence he discovered.
¶ 53 Trial counsel for defendant spoke at the preliminary Krankel hearing, as well. She made two points relevant to this issue. First, as she wrote in her letter quoted above, she said that both the vehicle and the person walking in the video were not identifiable. In her view, it could not be established that the car was defendant's, nor that the person walking was the victim. And second, as she also wrote in that letter, she said that the video showed the vehicle moving in the direction of the victim, S.J., after leaving Popeye's. So from her viewpoint, that particular video was
"a problem because our entire strategy had been to try to shield him from even being
placed at the scene. We know what the complaining witness saw but there were holes, there were problems with her testimony as we've already discussed. And we didn't want him to be saying yeah, that's me turning in the direction of the complaining witness. So that part of the video, Judge, was not put on."
¶ 54 Simply put, according to trial counsel, "We wanted this to be this weird identification put out there into the blue but really nothing that tied to Mr. Butler as far as the crime is concerned." The video would not have advanced that trial strategy.
¶ 55 The trial court then rejected this claim of ineffectiveness, stating that "trial strategy cannot serve as a basis for a Krankel claim."
¶ 56 To be sure, matters of trial strategy are generally immune from claims of ineffectiveness. Moore, 207 Ill.2d at 78. But not always, not universally without exception. "[C]ertain claims that may generally be matters of trial strategy could still potentially support an ineffective assistance claim." (Internal quotation marks omitted.) People v. Lawson, 2019 IL App (4th) 180452, ¶ 42." 'Given that a defendant may, at least potentially, overcome the strong presumption of sound trial strategy, a [trial] court should not dismiss a claim of ineffectiveness on the bare fact that it may relate to trial strategy.'" Id. (quoting People v. Maya, 2019 IL App (3d) 180275, ¶ 27).
¶ 57 Defendant's claim certainly approached, if it did not exceed, the minimal standard of possible neglect required for a preliminary Krankel hearing to appoint new counsel to litigate this claim. Trial counsel's assertion of trial strategy is based on two premises. The first is that counsel did not consider either the vehicle or the "walker"-S.J.-to be identifiable in the video. Nothing wrong with arguing a lack of identifiability-except that was not the defense at trial. Defendant admitted to being at the Thornton's before, he testified, he went to Popeye's for a time, then to the Shell station two blocks north on the same street, Western Avenue. Defendant freely put himself in that vehicle. So the lack of identification, while theoretically a fine trial strategy, was not in fact the trial strategy the defense pursued. Once defendant testified to being in that Thornton's lot, it is hard to imagine a good reason for counsel not to introduce the video that (according to defendant, at least) showed him leaving the Thornton's, driving to Popeye's, and remaining there for a decent interval of time, ostensibly awaiting his drug dealer as he claimed.
¶ 58 Unless, of course, the video contained something highly incriminating-and here we arrive at counsel's second basis for her trial strategy. According to counsel, the video showed the defendant's vehicle moving in the direction of the victim after leaving Popeye's. If counsel is correctly recalling the video, her assertion of trial strategy would seem eminently reasonable, as defendant would be hard-pressed to claim that he left Popeye's and drove north to the Shell station if the video showed his vehicle, instead, heading west toward the victim. But defendant swears up and down that the video does not show any such thing-his trial counsel is mistaken.
¶ 59 There was a simple way to resolve the conflicting accounts: The trial court could have reviewed the video itself.
¶ 60 With that in mind, defendant cites People v. Haynes, 331 Ill.App.3d 482 (2002). The defendant was convicted of murder; he never denied pulling the trigger but said that the victim had a weapon and was about to use it before the defendant opened fire. Id. at 483. Post-trial, he complained to the court that his lawyer should have called five different individuals to testify to his claim that the victim was armed. Id. At the preliminary Krankel hearing, trial counsel told the court that there were two reasons why he chose not to call those witnesses-one of the witnesses was in federal custody and would taint defendant by association, and all of these witnesses would impeach defendant's claim that the victim was armed," 'based on the statements previously given to the police by the witnesses.' "Id. at 484. The defendant disagreed, stating that these witnesses' statements supported his claim that the victim had a weapon. Id.
¶ 61 The trial court denied this claim based on trial strategy without reviewing the witness statements. Id. This court found error: "Given the conflicting nature of the testimony, we believe the trial court should have either examined the police reports if they were available, continued the hearing until they could be obtained, or should have simply appointed new counsel." Id. at 485. This court added: "[W]here a defendant's assertions, if true, strongly suggest possible neglect, and those assertions may be readily proved or disproved by consulting the record, we believe it is incumbent upon the trial judge to do so." Id. We thus remanded for further initial proceedings under Krankel. Id.
¶ 62 The same result should obtain here. Given the conflict between defendant and his trial counsel regarding the contents of the video, the court should review the video at further initial proceedings under Krankel. The court may well determine, after considering the video and any other evidence (likely including the supplemental police report we mentioned above), that counsel's decision was a matter of trial strategy; by no means do we foreclose that possibility.
¶ 63 B. Bank Records
¶ 64 Defendant's second claim of error on appeal is that the court erred in refusing to consider another claim of ineffectiveness: that trial counsel was deficient for failing to subpoena his bank records to corroborate his purchase of gas at the Shell station at 119th and Western Avenue. Recall that defendant testified that, after leaving the Popeye's lot, he drove north two blocks to that Shell station. His bank records, he says, would have corroborated that fact and placed him several blocks away from the attack of S.J. on Artesian Avenue.
¶ 65 Recall as well that defendant had filed a written motion in advance of the preliminary Krankel hearing. That motion, entitled "Motion of ineffective assistance of counsel," did not include any claim of ineffectiveness regarding the failure to subpoena these bank records.
¶ 66 Defendant raised this issue orally at the preliminary Krankel hearing:
"The Court: Is there anything you wish to say in closing, Mr. Butler?
Defendant: Yes, Your Honor. Your Honor, I just wanted to also bring to this Court in my closing that I told [trial counsel] that once I left the Popeye's I went back to the Shell Gas Station where I used my debit card again to pump gas in my car and printed out the receipt that showed the date and time on it. Somehow the detective said he never found it. And I asked [trial counsel] to subpoena my bank records from Chase that would show the time and the date of my transaction that would have shown the time that I was there.
The Court: Is that in your motion? Is that anywhere in the motion that you filed?
Defendant: No, sir.
The Court: It's outside of the four corners of the motion that you filed indicating that she was ineffective so I'm not certain I can consider that because she has not had an opportunity to review it and respond to it."
¶ 67 As noted above, a pro se defendant is not required to do more than bring his or her claims to the trial court's attention; a defendant need not file a written motion and may raise an additional issue orally. Ayers, 2017 IL 120071, ¶ 11. Indeed, even if a defendant makes a later claim of ineffective assistance after he has already made one in a separate filing or hearing, the court must make further inquiry into the new claims. People v. Horman, 2018 IL App (3d) 160423, ¶¶ 27-29 (defendant may raise multiple ineffective-assistance claims in successive post-trial hearings). The fact that defendant announced one claim in open court that was not in his written filing is irrelevant; the trial court had a duty to inquire further about it once defendant made the court aware of it. See People v. Roberson, 2021 IL App (3d) 190212, ¶ 19 ("Even where the court has already conducted an inquiry into claims of ineffective assistance, it must conduct a preliminary Krankel inquiry into further claims raised afterward.").
¶ 68 The trial court should have heard this oral claim. So our remand here includes a preliminary inquiry into defendant's claim that his trial counsel was ineffective for failing to subpoena defendant's bank records from the evening in question.
¶ 69 CONCLUSION
¶ 70 We reject defendant's challenge to his arrest and the evidence obtained therefrom based on the use of an investigative alert. We remand for a further preliminary Krankel inquiry as discussed herein.
¶ 71 Affirmed in part and reversed in part; remanded.