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People v. Frieson

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION
Apr 16, 2013
2013 Ill. App. 93232 (Ill. App. Ct. 2013)

Opinion

No. 1-09-3232

04-16-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY FRIESON, 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

Cook County.


No. 04 CR 22783


Honorable

Diane Gordon Cannon,

Judge Presiding.

JUSTICE delivered the judgment of the court.

Justices Quinn and Neville concurred in the judgment.

ORDER

¶ 1 Held: Summary dismissal of post-conviction petition reversed where defendant set forth an arguable claim of ineffective assistance of trial counsel to advance petition to the second stage of proceedings. ¶ 2 Defendant Troy Frieson appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2008). He contends that the circuit court erred in dismissing his petition at the first stage of proceedings where he set forth cognizable claims of a due process violation and ineffective assistance of trial counsel. ¶ 3 We initially affirmed the circuit court's summary dismissal of defendant's pro se post-conviction petition on August 31, 2011, finding that (1) his claim that his right to due process was violated where two witnesses provided false testimony at the behest of the State had no arguable basis in law, and (2) that he failed to establish ineffective assistance of counsel based on his claims that counsel failed to investigate his proposed alibi defense and that he was prejudiced when counsel forced him not to testify at trial. People v. Frieson, No. 1-09-3232 (2011) (unpublished order under Supreme Court Rule 23). Thereafter, the supreme court entered a supervisory order directing this court to vacate that judgment and reconsider our decision in light of People v. Tate, 2012 IL 112214. People v. Frieson, No. 113190 (Ill. Jan. 30, 2013). We have done so, and for the following reasons, reverse and remand for further post-conviction proceedings. ¶ 4 The record shows, in relevant part, that following a 2006 jury trial, defendant was convicted of two counts of first degree murder in the shooting death of John Payne, and sentenced to concurrent terms of 55 years' imprisonment. On direct appeal, this court vacated one count of first degree murder and its corresponding sentence under the one-act, one-crime rule, and affirmed the judgment in all other respects. People v. Frieson, No. 1-07-0181 (2008) (unpublished order under Supreme Court Rule 23). ¶ 5 The evidence adduced at trial showed that about 6 p.m. on August 17, 2004, a group of 10 to 30 people, including defendant and the victim, had been outside partying for a few hours at 68th Place and Hoyne Avenue, in Chicago, when defendant and the victim began arguing over a container of Remy Martin which defendant was "hogging." The argument also involved "something about Bin Laden and guns," and eventually turned physical when defendant started pushing the victim, who asked him to stop. Defendant subsequently left the party in the direction of Damen Avenue, then returned a few minutes later with a gun and shot the victim in the head. ¶ 6 On July 28, 2009, defendant filed a pro se "Motion for Discovery and Common Law Records" to support the filing of his post-conviction petition. On August 4, 2009, defendant filed a pro se petition for post-conviction relief alleging, as pertinent to this appeal, that his right to due process was violated where the State presented the false testimony of Jordash Robinson and Tyrone Means at trial. Defendant also alleged ineffective assistance of trial counsel in that counsel "[f]orced [a]nd [c]oerced" him into giving up his right to testify, and failed to investigate and present his alibi that he was playing basketball at Marquette Park at the time of the shooting. In support of his allegations, defendant attached six affidavits to his petition, three of which are his own. ¶ 7 As pertinent to the disposition of this appeal, defendant averred that prior to trial, he told counsel that from 5 to 8 p.m. on August 17, 2004, he was playing basketball at Marquette Park with 10 other people, and gave her the address of Jake Brunt who had also been at the park. However, when defendant asked counsel if this alibi would be presented at trial, she stated, "I cannot present your Alibi because of how many witnesses are against you." Defendant nonetheless told her that he had not killed anyone and "wasn't even there." Counsel stated that she did not know what to do with his case, and whenever defendant would give her details regarding where he was at or who he was with, "she acted like she was writing down what I was saying, but really she was just brushing me off." ¶ 8 Jake Brunt averred that from 5 to 8 or 8:30 p.m. on August 17, 2004, he was playing basketball with defendant at Marquette Park, that he did not see defendant leave the park during that time, and that he would have testified to having seen him there that day. He informed defendant's family that defendant had been at the park with him and was told by them that counsel would contact him, but he was never contacted by anyone. ¶ 9 Tyrone Means averred that on August 17, 2004, he made a statement to police that defendant had shot his good friend John Payne. At first, he told the police that he had not seen the shooter, but then "said yeah" after an officer told him that everyone had said defendant was the shooter. Although he maintained that he "really wasn't sure," the police made him give his statement despite knowing that he was "drunk and high off somking [sic] marijuana." He wanted to come forward sooner but had been told by the prosecutor "that I couldn't change my story because they needed the conviction," and he would have told counsel everything if she would have spoken to him before he testified. ¶ 10 Finally, Jordash Robinson averred that on August 17, 2004, he was drinking and smoking marijuana while celebrating his birthday at 68th Street and Hoyne Avenue. When the shooting started, he immediately ducked and did not have an opportunity to see the shooter, but afterwards asked the victim's brother, James, who the shooter was, and James told him that it looked like it had been defendant. Robinson subsequently told police "that Troy was the person that was shooting, based on what James had told me, and I didn't see." The police wanted to take him to the station in their car and searched him before getting in, and, in doing so, they found a half-ounce of marijuana and 40 bags of crack cocaine. The police told him they would not charge him if he would make a statement that he saw defendant shooting, and testify accordingly, so he identified defendant as the shooter to avoid jail. ¶ 11 On October 14, 2009, the circuit court denied defendant's motion for discovery and common law records, and summarily dismissed his post-conviction petition. In this appeal, defendant solely challenges the dismissal of his post-conviction petition. ¶ 12 The Act provides a mechanism by which a criminal defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. People v. Delton, 227 Ill. 2d 247, 253 (2008). At the first stage of proceedings, defendant need only set forth the "gist" of a constitutional claim (Delton, 227 Ill. 2d at 254); however, the circuit court must dismiss the petition if it finds that the petition is frivolous or patently without merit (725 ILCS 5/122-2.1(a)(2) (West 2008)), i.e., it has no arguable basis either in law or in fact (People v. Hodges, 234 Ill. 2d 1, 16 (2009)). We review the summary dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388 (1998). ¶ 13 Defendant maintains that he set forth a claim of ineffective assistance of counsel warranting further proceedings under the Act. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was objectively unreasonable and that he was prejudiced as a result thereof. Hodges, 234 Ill. 2d at 17, citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). However, at the first stage of post-conviction proceedings, a petition alleging ineffective assistance of counsel may not be summarily dismissed if it is arguable that counsel's performance fell below an objective standard of reasonableness, and it is arguable that he was prejudiced thereby. Tate, 2012 IL 112214, ¶ 19, citing Hodges, 234 Ill. 2d at 17. ¶ 14 Here, defendant contends that counsel was ineffective for failing to investigate and present his alibi defense that he was playing basketball at the time of the shooting. He calls our attention to his own averments and those of Jake Brunt which show that Brunt would have testified that he was playing basketball with defendant at Marquette Park at the time of the shooting, that he did not see defendant leave the park during that time, and that defendant had informed counsel of that fact before trial and also given her Brunt's address. ¶ 15 The State responds that defendant's claim has no arguable basis in law because defense counsel's decision whether to call Brunt as a witness was a matter of trial strategy. However, in Tate, the supreme court held that arguments regarding trial strategy are "inappropriate" during the first stage of proceedings where the "arguable" Strickland standard is applied. Tate, 2012 IL 112214, ¶¶ 20, 22. After applying that test, we find, for the reasons to follow, that defendant has met this test. ¶ 16 Here, as in Tate, the State's main case against defendant rested on the testimony of numerous eyewitnesses, some of whom testified to seeing defendant with a gun, and some of whom testified to seeing him shoot the victim. Also, as in Tate, no murder weapon was recovered, no physical evidence tied defendant to the crime, and defendant did not confess. As such, Brunt's testimony that he was playing basketball with defendant at Marquette Park at the time of the shooting would directly contradict the testimony of the State's witnesses who placed defendant at the scene of the shooting during the same time period. Under these circumstances, we find, as in Tate, that it is at least arguable that defendant was prejudiced by the lack of Brunt as a witness, and that defense counsel's performance fell below an arguable standard of reasonableness. Tate, 2012 IL 112214, ¶24. ¶ 17 Accordingly, we conclude that defendant's affidavits are sufficient for the petition to advance to the second stage of post-conviction proceedings and we remand this case to the circuit court for further proceedings. Tate, 2012 IL 112214, ¶¶ 23, 25. In view of this determination, we need not address the remainder of defendant's arguments. Tate, 2012 IL 112214, ¶ 27; People v. Flores, 153 Ill. 2d 264, 371, 283 (1992). ¶ 18 We, therefore, reverse the summary dismissal of defendant's post-conviction petition by the circuit court of Cook County and remand for further proceedings. ¶ 19 Reversed and remanded.


Summaries of

People v. Frieson

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION
Apr 16, 2013
2013 Ill. App. 93232 (Ill. App. Ct. 2013)
Case details for

People v. Frieson

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY FRIESON…

Court:APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SECOND DIVISION

Date published: Apr 16, 2013

Citations

2013 Ill. App. 93232 (Ill. App. Ct. 2013)