Opinion
4-22-0872
08-17-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEX DAWSON, 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 Winnebago County No. 21CM2053 Honorable Jennifer J. Clifford, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
STEIGMANN, JUSTICE
¶ 1 Held: The appellate court affirmed defendant's convictions for domestic battery and criminal damage to property because trial counsel did not render ineffective assistance of counsel.
¶ 2 In October 2021, the State charged defendant, Alex Dawson, with domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2020)) and criminal damage to property (id. § 21-1(a)(1)). The State alleged that in October 2021, defendant caused bodily harm to his then-girlfriend, Angela Nelson, and destroyed her iPhone, which was worth less than $500.
¶ 3 The trial court conducted a bench trial over two days in July and August 2022 and found defendant guilty of all charges. In September 2022, the court sentenced defendant to 180 days in jail and 18 months of conditional discharge.
¶ 4 Defendant appeals, arguing he received ineffective assistance of trial counsel because counsel (1) failed to impeach Nelson's testimony in several ways and (2) cross-examined Nelson about her being strangled by defendant, despite raising a successful relevancy objection when the State mentioned the same during its opening statement. We disagree and affirm.
¶ 5 I. BACKGROUND
¶ 6 A. The Charges
¶ 7 In October 2021, the State charged defendant by information with (1) domestic battery (id. § 12-3.2(a)(1)), alleging that he "struck [Angela Nelson] in the face, right arm, left forearm, and left shoulder blade," and (2) criminal damage to property, less than $500 (id. § 21-1(a)(1)), alleging defendant "shattered [Nelson's] iPhone."
¶ 8 In July 2022, the State amended the domestic battery charge, alleging that defendant "bit [Nelson's] neck causing a red mark."
¶ 9 B. The Trial
¶ 10 Over two days in July and August 2022, the trial court conducted defendant's bench trial. In its opening statement, the State commented that "out of the blue," defendant "attacked her; strangled her; bit her; strangled her more; bit her again-." Defendant objected, arguing the comments were "inappropriate given the information," which alleged biting, and "there will be no evidence of this." The court agreed, noting, "there's nothing charged [as] to strangulation, and you didn't file any motion to get evidence of strangulation, so I'm going to sustain the objection."
¶ 111. Angela Nelson
¶ 12 The State's sole witness was Angela Nelson, who testified that she spent the evening with defendant at his house on October 4, 2021. Nelson stated she had been dating defendant for a few weeks but she had recently "broke it off with him," although they were "working things out." Nelson explained that she had worked a double shift that day and defendant invited her over to "talk things out," play games, and give her a back massage.
¶ 13 After Nelson arrived, the two "played Jenga, and *** had a couple drinks." As Nelson was almost done with her second drink, defendant asked her if she wanted to play another game or wanted the massage. Nelson chose the massage, and they went to defendant's bedroom. ¶ 14 Nelson testified that she sat down on the bed and defendant stood about an arm's length away, leaning against a desk next to the bed. Defendant asked to see Nelson's phone, and she refused. Nelson stated that defendant (1) snatched her phone and bit it, (2) reached over and tore her necklace off her neck, and (3) threw her on the bed "and that's when things happened." Nelson explained that earlier in the evening, defendant had asked Nelson to delete a particular text message that she had saved on her phone to remind her of why she broke up with him. Nelson refused and told defendant that "if you were to act like this again, I'm going to remember it's not the first time and I'm done." Nelson stated that they did not argue but defendant seemed unhappy and became quiet.
¶ 15 Nelson testified that when defendant bit her phone, "[h]e smashed it, and there was his blood in it. He literally destroyed the phone." The trial court admitted a picture of the broken phone. The photo showed that the screen in the top two corners was extremely cracked and shattered, with cracks across the remainder of the screen in a spiderweb fashion, though not nearly as severe. Two small rust-colored dots appear in the top right of the phone. In sum, the photo's appearance was consistent with Nelson's testimony that it had been bitten.
¶ 16 Nelson further testified that after defendant bit her phone, he reached out and ripped the necklace she was wearing off her neck. Defendant then threw Nelson on the bed and attacked her, and he began to alternate between choking her and biting her. Nelson testified that she was screaming for defendant to stop but he continued choking her and biting her in various places. Nelson stated that the last thing defendant did, as he was choking her, was threatened to kill her and her children if she called the police. When defendant "reached over to bite [Nelson] again," she shouted a prayer for help, "and he went flying off the bed and went jumping across the room to where his clothes were." Nelson leapt up, grabbed her things and phone, and ran to her car.
¶ 17 Nelson testified that although she could not view the screen, her phone was able to connect to her car's audio system via Bluetooth, which allowed her to voice-dial 9-1-1. Nelson spoke with the police at her home, and the trial court admitted four pictures of bruises on Nelson's body; these bruises were on her (1) neck, (2) forearm, (3) shoulder, and (4) shoulder blade. Nelson testified that the bruises were caused by defendant's biting her. In particular, Nelson described the bite on her neck as being circular and showing teeth marks. (We note that the photo of Nelson's neck contained in the record is consistent with her description.)
¶ 18 On cross-examination, defense counsel asked Nelson if she remembered telling the police that defendant strangled her between 3 and 25 times. The State objected, complaining that the defense was now inquiring about an area it had previously objected to during opening statements. The trial court overruled the objection because Nelson had testified about being choked and strangled multiple times on direct examination without objection.
¶ 19 Nelson remembered making the statement but said she could not remember the exact number. Nelson agreed that defendant choked her at least three times with both hands hard enough that she could not breathe. When asked about the degree of bruising on her neck from being choked, Nelson stated that she did not know "if there was a lot of bruising," but whatever she had was shown in the pictures.
¶ 20 On further cross-examination, Nelson acknowledged that (1) defendant had only one leg and (2) she refused medical attention after the incident. Nelson further acknowledged that she was very upset when speaking with the police and "said a lot of stuff," possibly including that she was "going to have [defendant] killed," because she "was flipping out." Nelson denied telling the police that she was ever on top of defendant during the altercation. Nelson further testified that she did not remember if it was physically painful for her to speak. Nelson denied that she took any drugs or that defendant put something in her drink.
¶ 21 At the end of defense counsel's cross-examination of Nelson, counsel asked, on the record, for a moment to speak with defendant. After consulting with defendant, counsel did not have any further questions.
¶ 22 On redirect, Nelson explained that she refused medical attention because she did not want anyone bothering her and wanted to be alone.
¶ 23 2. Jamie Benavides
¶ 24 Defendant called Winnebago County sheriff's deputy Jamie Benavides, who testified he spoke with Nelson at her home on the night of October 4, 2021. Benavides observed that Nelson's car was parked partly on her lawn. Nelson's speech was slurred and many of her answers were nonresponsive to his questions. Benavides opined that Nelson was highly intoxicated.
¶ 25 Benavides further testified that Nelson told him (1) she was on top of defendant during part of the altercation and (2) defendant strangled her between 3 and 25 times. Benavides stated he had experience investigating cases involving strangulation and he did not see any marks on Nelson's neck that were indicative of strangulation. Benavides testified that Nelson told him she may have been drugged and said multiple times that she was going to kill defendant.
¶ 26 On cross-examination, Benavides agreed that, in his experience, some people do not have bruising or markings even after they have been strangled. He also agreed that, in his experience, people who have experienced trauma often appear disjointed and have trouble with memory, requiring repetitive questioning for them to give answers.
¶ 27 The trial court found defendant guilty of all charges. In September 2022, the court sentenced defendant to 180 days in jail and 18 months of conditional discharge.
¶ 28 This appeal followed.
¶ 29 II. ANALYSIS
¶ 30 Defendant appeals, arguing he received ineffective assistance of trial counsel because counsel (1) failed to impeach Nelson's testimony in several ways and (2) cross-examined Nelson about her being strangled by defendant, despite raising a successful relevancy objection when the State mentioned the same during opening statement. We disagree and affirm.
¶ 31 A. The Applicable Law
¶ 32 "To demonstrate ineffective assistance of counsel, a defendant must show that (1) the attorney's performance fell below an objective standard of reasonableness and (2) the attorney's deficient performance prejudiced the defendant in that, absent counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different." People v. Jackson, 2020 IL 124112, ¶ 90, 162 N.E.3d 223 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "A reasonable probability is a probability which undermines confidence in the outcome of the trial." People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 84, 126 N.E.3d 703. "Because the defendant must satisfy both prongs of this test, the failure to establish either is fatal to the claim." Jackson, 2020 IL 124112, ¶ 90 (citing Strickland, 466 U.S. at 697).
¶ 33 The Illinois Supreme Court has "made it clear that a reviewing court will be highly deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel's performance from his perspective at the time, rather than through the lens of hindsight." People v. Perry, 224 Ill.2d 312, 344, 864 N.E.2d 196, 216 (2007). We use this deferential standard because there "are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. A defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy. People v. Manning, 241 Ill.2d 319, 327, 948 N.E.2d 542, 547 (2011). Counsel's strategic choices are virtually unchallengeable on appeal. Id. at 333. Whether and how to conduct a cross-examination is generally a matter of trial strategy. People v. Jackson, 2018 IL App (1st) 150487, ¶ 26, 105 N.E.3d 996.
¶ 34 When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, this court's review is de novo. Sturgeon, 2019 IL App (4th) 170035, ¶ 85.
¶ 35 B. This Case
¶ 36 Defendant argues that trial counsel was ineffective for failing to pursue various lines of cross-examination and impeachment that he claims would have been more effective. Specifically, defendant asserts that his counsel's errors included the following:
"1) failing to impeach Nelson's testimony regarding [defendant] biting her with Deputy Benavides's probable cause statement that is absent any reference to [defendant] biting her, 2) failing to impeach Nelson's testimony of [defendant] biting her after cutting his mouth on her phone with Exhibit 2, a photo showing no blood where [defendant] bit her, 3) failing to cross examine Nelson on the physical impossibility of [defendant], an amputee, being on top of her, choking her with both hands, biting her, then jumping off, 4) failing to impeach Nelson's testimony relevant to the criminal damage to property charge with the photo of her phone
showing no blood on it and the photo of her mouth showing a cut on it, and 5) objecting to the State's opening statement alleging [defendant] strangled Nelson, but spending much of his cross-examination of Nelson eliciting testimony about [defendant] strangling her."
¶ 37 Defendant's arguments amount to little more than second-guessing his counsel's decisions at trial through the lens of hindsight. Defense counsel's strategy was to highlight what Nelson said to the police following the attack and to show those statements were implausible, highly biased, or inconsistent with her trial testimony.
¶ 38 Further impeachment that Benavides did not document Nelson reporting the biting would not have affected her credibility or the outcome because Benavides agreed with the State that in his experience, victims of trauma often have disjointed memories or scattered thoughts and frequently remember or disclose further details as time goes on. In effect, the trial court had to decide, in light of Benavides's testimony, whether Nelson's trial testimony was more credible than her original statements.
¶ 39 Similarly, questions about the physical impossibility of defendant's jumping on top of Nelson and then off of her would have had no effect. Trial counsel did cross-examine Nelson about defendant's physical limitations, and any further questioning of Nelson ran the risk of belittling her, especially considering that her testimony indicated that she was speaking figuratively when she described the attack. Nelson maintained that defendant "went flying off the bed" in response to a prayer. Her description clearly demonstrates the stress and trauma she was experiencing at the time of the event.
¶ 40 Defendant's arguments about the photos also lack merit. The trial court stated on the record that the photo of the broken phone had a spot of blood on it, and after examining that photo, we reach the same conclusion. At the very least, defendant presents no reason to question the trial court's factual finding regarding the presence of blood on the phone. Regarding the lack of blood in any of the photos of Nelson, defendant offers no explanation why blood should have been present when the photos were taken several minutes, if not hours, after the attack. Defendant was not bleeding profusely, and he was choking Nelson in between biting her. Any blood would have been minimal and hard to see if it had not been wiped off during the attack or by Nelson afterward as she got dressed and went home.
¶ 41 Decisions for what lines of questioning to pursue and the depth of that questioning are for trial counsel to make as part of his trial strategy. Because trial counsel did impeach Nelson, the fact that the specific language was not to defendant's liking is of no consequence. Further, the record does not show that more questioning was likely to have produced a different result. As we wrote above, the trial court had all the evidence in front of it and had to decide Nelson's credibility, knowing that her police statements were generally different than her trial testimony. Even so, the court found her testimony and the photographic evidence compelling, which is a conclusion the record supports.
¶ 42 The trial court, as the trier of fact, did not accept defense counsel's theory or version of events, finding instead that the evidence supported Nelson's version of events. Just because counsel's strategy was not ultimately successful does not mean that his performance was constitutionally deficient. See People v. Palmer, 162 Ill.2d 465, 479-480, 643 N.E.2d 797, 803 (1994) ("Errors in judgment or trial strategy do not establish incompetence [citation] 'even if clearly wrong in retrospect.' [Citation.]").
¶ 43 We also note that the only evidence regarding the incident in question came from Nelson. Given (1) that fact and (2) the trial court's careful consideration of all the evidence the court heard in this bench trial, we conclude that defendant's claim of ineffective assistance of counsel fails to satisfy the second prong of Strickland-namely, that "absent counsel's deficient performance, there is a reasonable probability that the result of the proceedings would have been different." Jackson, 2020 IL 124112, ¶ 90.
¶ 44 For the foregoing reasons, we conclude that trial counsel did not render ineffective assistance because (1) his strategic decisions were reasonable and (2) defendant did not suffer any prejudice because the outcome of his trial would not have been different had counsel performed as defendant suggests counsel should have at trial.
¶ 45 III. CONCLUSION
¶ 46 For the reasons stated, we affirm the trial court's judgment.
¶ 47 Affirmed.