Opinion
No. 1-13-2664
12-02-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LLEWILLYN JOHNSON, 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. 01 CR 2208 Honorable Thomas Hennelly, Judge Presiding. JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶ 1 Held: The circuit court properly granted the State's motion to dismiss defendant's postconviction petition alleging ineffective assistance of trial counsel for failing to investigate and call his mother as an alibi witness where defendant could not make a substantial showing that his trial counsel was objectively unreasonable or there was a reasonable probability the outcome of his trial would have been different. ¶ 2 Following a bench trial, defendant Llewillyn Johnson was convicted of first-degree murder and sentenced to 40 years in prison. His conviction and sentence were affirmed on direct appeal in People v. Johnson, No. 1-04-1812 (2005) (unpublished order under Supreme Court Rule 23). Defendant now appeals the circuit court's grant of the State's motion to dismiss his petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)). He contends the circuit court erred in dismissing his petition where he made a substantial showing that his trial counsel was ineffective for failing to investigate and present the evidence of an alibi witness, his mother. For the reasons that follow, we affirm. ¶ 3 At trial, Danielle Theus testified that at 9 a.m. on October 15, 1998, she was on the telephone with her friend Kena Brown, the victim in this case, when Brown received a page. Brown called her cousin, Tari Brisco (hereinafter, T. Brisco), while Theus was still on the line using three-way calling. Theus overheard Brown and T. Brisco plan a meeting at Brown's grandmother's house. Brown ended the call with T. Brisco. Brown told Theus that she was going to meet T. Brisco to drop off an "ounce" and then come over to Theus' house. On cross-examination, Theus said that she and Brown talked on the phone that day for about an hour. Theus admitted that Brown occasionally sold drugs, including sometimes to Brown's own relatives. ¶ 4 Investigator Thomas Ginnelly of the Chicago police department testified that he received an assignment to investigate a homicide in an industrial area at 4139 West Kinzie Street at 4:15 p.m. on October 15, 1998. A woman's body, later determined to be Brown, had been found inside a car parked in a loading dock. Brown had wounds to her left ear, her neck and right shoulder. Her head was face down on top of a purse, which was on top of a baby seat in the car. In the car, Ginnelly also discovered one nine-millimeter cartridge casing and a baby alive in the backseat. ¶ 5 James Parson testified that he knew defendant and defendant's cousin, T. Brisco, since 1994. The men "hustled on a dope spot" near the intersection of North Monticello Avenue and West Augusta Boulevard in Chicago. In October 1997, the police arrested Parson, and he pled guilty to possession of a controlled substance. Parson was released from prison on October 23, 1998. Later that month or in early November, he visited T. Brisco's house in Maywood where T. Brisco, defendant and defendant's brother were present. In the basement, defendant admitted that he and T. Brisco robbed their cousin, Brown, of nine ounces of cocaine. Defendant further admitted to shooting Brown in the head and described the shooting to Parson. Brown tried to "cover[] up," but defendant told her to put "her hands down" and "look [him] in the eye." Defendant explained that T. Brisco had called Brown and arranged a meeting on the 4100 block of West Kinzie Street. ¶ 6 A few weeks later, Parson was riding in a car with defendant and T. Brisco. Defendant wanted to show Parson the "cold ass spot where he had took his cousin." Defendant drove the car toward the 4100 block of West Kinzie Street and pointed to a dock behind a factory. Defendant told Parson that was the location where he shot Brown and left her body in the car. Defendant thought about shooting Brown's baby, but believed he and T. Brisco would have been caught "if they had took time to shoot the baby." Although T. Brisco did not say anything while they were talking about Brown's murder, Parson mentioned he just smiled in the backseat of the car. ¶ 7 Parson did not tell anyone about defendant's involvement in Brown's death until October 10, 2000, when the police arrested him on another drug case. Parson told the police what defendant said, gave them the names of the individuals involved and showed them the location where defendant killed Brown. Parson cooperated with the police and the State, and he agreed to wear a recording device. He was subsequently released. On December 10, 2000, Parson picked up defendant and brought him to a room at a Holiday Inn hotel, which the police were monitoring. In the room, defendant bragged about shooting his cousin, described how she begged for her life and how he was going to shoot the baby. Defendant again told Parson that he and T. Brisco robbed their cousin for nine ounces of cocaine. Defendant said he had to kill his cousin because it was her boyfriend's "stuff," and otherwise, there would have been "a lot of static with her boyfriend and it would have been a conflict with the family." Defendant shot his cousin because T. Brisco was too afraid. After the shooting, defendant and T. Brisco left the scene on foot and broke the gun into pieces with a hammer. ¶ 8 Parson eventually reached a plea agreement with the State who "reduced" his charge to possession of a controlled substance. The circuit court was aware of Parson's cooperation in the investigation of Brown's death and sentenced him to one year in prison. After his release from prison, Parson acknowledged that the State relocated him. On cross-examination, Parson was impeached with his prior felony convictions. He acknowledged the State gave him money to relocate after cooperating. Parson, however, further stated the State relocated him because defendant's friend and brother had threatened him, for which they were arrested. The video recording of the conversation between Parson and defendant was introduced into evidence at trial. ¶ 9 Detective Stanley Sanders of the Chicago police department testified that he and other officers monitored the meeting between Parson and defendant at the Holiday Inn hotel. He acknowledged that a loud heater in their room prevented the police from clearly hearing the conversation. On December 19, 2000, Sanders arrested defendant. When Sanders showed defendant the video recording of his meeting with Parson, defendant denied it was him on video. ¶ 10 The medical examiner determined that Brown's death was a homicide caused by a gunshot wound to her head. The medical examiner also determined there was evidence of a "contact range firing." ¶ 11 Defendant testified that while at the police station, he was only shown 15 seconds of the video that purported to show him and Parson. He remarked that the video was too blurry to make out any of the images. Defendant did admit to being at the hotel with Parson on December 10, 2000, but said they only talked about drugs, women and the time Parson had been shot. Defendant could only hear "bits and pieces" of what Parson said because he was "really mumbling." Defendant made up responses like "yeah, yeah" and "uh-huh, uh-huh" when he could not hear Parson. Before going to the hotel with Parson, defendant had not seen Parson "in a while." He denied seeing Parson in October or November 2000, and did not recall talking to him in the basement of his mother's house. Defendant also denied being present when Brown was shot, showing anyone where she had been shot or even knowing where she had been shot. ¶ 12 On cross-examination, defendant admitted he was in the video along with Parson, but reiterated that they were only discussing the time Parson had been shot. The State published portions of the video. Defendant denied discussing a location where Brown had been shot; rather, he explained he was discussing a drug spot. Defendant further explained that his discussion with Parson about "whacking" a woman was not about Brown, but rather about a woman who had shot Parson. Defendant maintained throughout his testimony that he and Parson never discussed Brown's murder. ¶ 13 After argument, the circuit court found defendant guilty of first-degree murder based on Parson's testimony and the video presented into evidence. The court specifically noted that it "scrutinize[d]" the testimony and credibility of Parson because of his lengthy criminal background and his motive for coming forward. The court observed that in the video of Parson and defendant, Brown's name was only mentioned once, but it still believed that they were discussing her murder. The court also found defendant's testimony that he and Parson were discussing another woman, not Brown, "incredible." ¶ 14 Defendant filed a motion for a new trial, which the court denied. In denying the motion, the court noted "for the record" that it only used a transcript of the video at trial as an aid and viewed the video more than once without the transcript. The court found the video corroborated Parson's testimony. The court further observed that the evidence against defendant was "overwhelming." It subsequently sentenced defendant to 40 years in prison. He appealed, and we affirmed his conviction and sentence in People v. Johnson, No. 1-04-1812 (2005) (unpublished order under Supreme Court Rule 23). Defendant filed a petition for leave to appeal with our supreme court, which the court denied in People v. Johnson, 218 Ill. 2d 550 (2006). ¶ 15 In October 2006, defendant filed a pro se postconviction petition alleging, inter alia, that his trial counsel was ineffective for failing to investigate and call his mother, Evette Brisco (hereinafter, E. Brisco), as an alibi witness. The petition alleged that E. Brisco would have testified that defendant "was at home with her at the time the crime was committed." The petition further alleged that defendant told his trial counsel about E. Brisco and her testimony, but trial counsel never interviewed her. The petition asserted that E. Brisco was available and willing to testify at defendant's trial. Attached to defendant's petition was an affidavit from E. Brisco dated September 6, 2006, stating that on October 15, 1998, she was home from work because her son Derry had a parent-teacher conference. That morning, defendant was not feeling well and asked E. Brisco if he could stay home from school, which she allowed. E. Brisco left her home to attend the conference around 8 a.m. and returned "before 10:00 a.m." When E. Brisco returned, she saw defendant playing video games. The affidavit further attested that once E. Brisco returned home that day, defendant did not leave the house until the following morning. E. Brisco specifically remembered the day because it was the same day she "heard on the news about [her] cousin Kena Brown being killed." ¶ 16 Approximately two months later, defendant filed an amended pro se postconviction petition, which included the claim concerning the alibi testimony of his mother. The amended petition also included new claims, including prosecutorial misconduct, and additional claims of ineffective assistance of both trial and appellate counsel. However, prior to defendant filing his amended petition, the circuit court docketed defendant's original petition and appointed the public defender to represent him. ¶ 17 In January 2010, an assistant public defender filed a supplemental postconviction petition, which adopted all of the allegations made in defendant's original petition and his amended petition. The assistant public defender added additional claims of ineffective assistance of both trial and appellate counsel. Three months later, the assistant public defender filed an amended supplemental postconviction petition, which adopted all of the allegations made in defendant's previous pro se petitions and augmented defendant's supplemental petition. The amended supplemental petition included a brief memorandum of law. ¶ 18 In December 2010, the State filed a motion to dismiss defendant's postconviction petitions, arguing res judicata and waiver barred his claims, and he failed to state a cognizable claim of ineffective assistance of counsel. Specific to the alibi testimony of his mother, the State argued that defendant could not demonstrate any prejudice. It argued that because the murder of Brown occurred in the morning and defendant's mother admitted she was not home for two hours that morning, her testimony would not have changed the outcome of defendant's trial. The State also argued that any surviving claims must be dismissed because defendant failed to make a substantial showing that any of his constitutional rights were violated. ¶ 19 Approximately two and a half years later, defendant filed a response to the State's motion to dismiss. Defendant's delay in responding was due to his efforts to subpoena the Clerk of the Circuit Court for the video recording of defendant and Parson at the Holiday Inn hotel. In the response, defendant only argued that his trial counsel was ineffective for failing to file a motion to suppress the video of defendant and Parson because the audio was inaudible and unintelligible. He made no mention of the alibi testimony of his mother. ¶ 20 At the hearing on the motion to dismiss, neither party argued about defendant's alibi claim concerning his mother. After argument, the court concluded that "this has all been decided by [the circuit court] and by the appellate court" and that there was "nothing new here." The court additionally found that defendant did not demonstrate ineffective assistance of counsel, and the remaining claims were res judicata. The court subsequently granted the State's motion to dismiss. This appeal followed. ¶ 21 On appeal, defendant abandons all of the claims in his various postconviction petitions except for one. Defendant solely contends that the circuit court improperly dismissed his postconviction petition where he made a substantial showing that his right to effective assistance of counsel was violated when his trial counsel failed to investigate and call his mother as an alibi witness. ¶ 22 Under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)), a defendant may challenge his conviction based on a substantial denial of his federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2006). The Act has three stages. People v. Domagala, 2013 IL 113688, ¶ 32. Under the first stage, after the defendant files his postconviction petition, the circuit court has 90 days to review the petition, and either dismiss it or docket it for further consideration. 725 ILCS 5/122-2.1 (West 2006). If the circuit court dockets the defendant's petition for further consideration, the defendant has reached the second stage of review. Domagala, 2013 IL 113688, ¶ 33. ¶ 23 Under the second stage of the Act, the court may appoint counsel for the defendant if he is indigent. 725 ILCS 5/122-4 (West 2006). Counsel will then consult with the defendant concerning his claims, examine the record and amend the petition, if necessary, to adequately present his claims. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). After counsel has examined the petition and made any amendments to it, the State may move to dismiss it. 725 ILCS 5/122-5 (West 2006). The circuit court then must determine whether the petition and any supporting documentation demonstrate a substantial showing of a constitutional violation. Domagala, 2013 IL 113688, ¶ 33. All well-pled facts not positively rebutted by the record must be accepted as true. Id. ¶ 35, citing People v. Coleman, 183 Ill. 2d 366, 385 (1998). The court does not undertake any credibility or fact-finding determinations at this stage; rather, the court only determines whether the petition is legally sufficient. Id. The defendant bears the burden of demonstrating a substantial showing. Pendleton, 223 Ill. 2d at 473. We review a second-stage dismissal de novo. Id. ¶ 24 A claim of ineffective assistance of counsel is judged according to the test set forth in Strickland v. Washington, 466 U.S. 668 (1984); Domagala, 2013 IL 113688, ¶ 36. To prevail, the defendant must show that his counsel's performance was deficient and the deficiency prejudiced him. Id. Specifically, he must prove his "counsel's performance was objectively unreasonable under prevailing professional norms and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id. quoting Strickland, 466 U.S. at 694. The defendant must prove both prongs of Strickland, and the failure to prove either prong precludes a finding of ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35. ¶ 25 We will first discuss trial counsel's performance. Trial counsel has a duty "to make reasonable investigations or to make a reasonable decision which makes particular investigations unnecessary, and the reasonableness of a decision to investigate is assessed applying a heavy measure of deference to counsel's judgment." People v. Pecoraro, 175 Ill. 2d 294, 324 (1997). Ineffectiveness for failing to investigate "is generally determined by the value of the evidence that was not presented and the closeness of the evidence that was presented." People v. Clark, 2011 IL App (2d) 100188, ¶ 24. The decision regarding whether to call a certain witness is a "matter[] of trial strategy, reserved to the discretion of trial counsel." People v. Enis, 194 Ill. 2d 361, 378 (2000). The decision on what theory of defense to pursue is likewise trial strategy. People v. Rogers, 2015 IL App (2d) 130412, ¶ 71. There is a strong presumption that these decisions "reflect sound trial strategy, rather than incompetence." Enis, 194 Ill. 2d at 378. Therefore, trial counsel is generally immune from a claim of ineffective assistance of counsel for such decisions. Id. A defendant can overcome this strong presumption, however, if he shows that trial counsel's choices were "so irrational and unreasonable that no reasonably effective defense attorney, facing similar circumstances, would pursue such a strategy." People v. Jones, 2012 IL App (2d) 110346, ¶ 82. ¶ 26 Defendant has failed to overcome this presumption. First, trial counsel's failure to interview and present the mother as an alibi witness was not unreasonable because her affidavit does not give defendant an ironclad alibi for Brown's murder. In the affidavit, defendant's mother averred that defendant was home from about 10 a.m. on the day Brown was killed until the following morning. However, the mother admitted on that day from 8 a.m. to sometime "before 10:00 a.m.," she was not home because she was with her son Derry at a parent-teacher conference. While defendant argues that the affidavit establishes his "whereabouts at the time of the murder," the evidence at trial does not conclusively support this assertion. ¶ 27 Danielle Theus testified that she was on the phone with Brown at approximately 9 a.m. on the day in question. Sometime during that call, Brown received a page from her cousin, T. Brisco. Brown called T. Brisco while Theus was still on the line. After Brown's conversation with T. Brisco ended, she told Theus that she was going to meet T. Brisco "to drop off an ounce." While Theus stated her conversation with Brown was "[a]bout an hour" long, she never expressly stated when the conversation began, only that at 9 a.m. she was on the phone with Brown. As such, it is impossible to know exactly when Brown left to meet T. Brisco. Moreover, no evidence was presented as to when Brown was killed, only that Investigator Ginnelly received an assignment to investigate a woman's body in a car at 4:15 p.m. Because defendant's whereabouts are still unknown from 8 a.m. to 10 a.m. on the day Brown was killed, the mother's affidavit does not provide defendant an absolute defense. See People v. Gonzalez, 407 Ill. App. 3d 1026, 1038-39 (2011) (failure to call mother of the defendant's child as an alibi witness was reasonable trial strategy where the alibi was "weak"). ¶ 28 Additionally, the alibi witness was defendant's own mother. See id. (failure to call mother of the defendant's child as an alibi witness was reasonable trial strategy where because of her "relationship with the defendant, she likely would not have been considered credible"); People v. Deloney, 341 Ill. App. 3d 621, 635 (2003) (failure to call cousins as alibi witnesses was reasonable trial strategy where because of their relationship to the defendant, "their credibility may have carried little weight"). ¶ 29 Moreover, while defendant's petition stated that he told his trial counsel about his mother's potential alibi testimony, there is no indication that E. Brisco brought this supposed alibi to anyone's attention prior to defendant's trial, and in fact, her affidavit is dated almost eight years after the offense. See People v. Gabriel, 398 Ill. App. 3d 332, 342 (2010) (stating "the trial court is not obligated to believe a defendant's alibi witnesses over the State's witness, especially where the defendant's witnesses are related to the defendant and failed to come forward during the initial investigation"). ¶ 30 Further, the record reveals that trial counsel had a clear and sound defense strategy, which was to attack the credibility of Parson, the State's key witness. This strategy was exemplified by trial counsel's cross-examination of Parson and closing argument. After trial counsel impeached Parson with his eight felony convictions, counsel attempted to show that Parson had a motive to testify falsely. Parson admitted on cross-examination that he told no one about defendant's involvement in Brown's murder, which occurred in 1998, until 2000 when he "caught a case." For this case, Parson pled guilty to the reduced charge of possession of a controlled substance and spent only a year in prison despite it being his eighth conviction. Counsel elicited information that the State gave Parson money to help him relocate after cooperating. During closing argument, counsel remarked that Parson "a life-time criminal *** was trying to work off a case." ¶ 31 In light of the foregoing, defendant cannot make a substantial showing that his trial counsel's choices were "so irrational and unreasonable that no reasonably effective defense attorney, facing similar circumstances, would pursue such a strategy." Jones, 2012 IL App (2d) 110346, ¶ 82. Therefore, defendant has failed to rebut the presumption that trial counsel's decisions were not the product of sound trial strategy (see Enis, 194 Ill. 2d at 378), and in turn, he has failed to show counsel's performance was objectively unreasonable. See Domagala, 2013 IL 113688, ¶ 36, citing Strickland, 466 U.S. at 694. ¶ 32 Although defendant's failure to substantially show his trial counsel's performance was objectively unreasonable precludes a finding of ineffective assistance of counsel (see Simpson, 2015 IL 116512, ¶ 35), we will still examine the prejudice component of defendant's claim. Under Strickland, in order for defendant to demonstrate prejudice, he must make a substantial showing that there is a reasonable probability the outcome of his trial would have been different had his mother testified. See Enis, 194 Ill. 2d at 384-85. ¶ 33 Here, where the evidence of defendant's guilt was overwhelming, the potential testimony of defendant's mother would not have changed the outcome of his trial. The State presented into evidence a videotaped conversation between Parson and defendant in which defendant detailed how and why he killed Brown. Parson testified that defendant admitted to him on multiple occasions that he killed Brown. First, in the basement of T. Brisco's house, defendant recounted that Brown tried to cover up, but he told her to put "her hands down" and "look [him] in the eye." Defendant then shot Brown in the head. A few weeks later, defendant drove Parson to the location where he killed Brown. Defendant pointed to a dock behind a factory and told Parson that he left Brown's body in the car and contemplated shooting the baby in the car, which he ultimately decided against. Finally, defendant again discussed killing Brown at the Holiday Inn hotel with Parson. Defendant bragged about shooting Brown, told Parson that she begged for her life and reiterated that he thought about shooting the baby. ¶ 34 The State also presented non-civilian witnesses who corroborated portions of Parson's testimony. The medical examiner testified that Brown was killed by a gunshot wound to the head. Investigator Ginnelly testified that he observed Brown's body in a car and also found a baby alive in the backseat. The location where Ginnelly observed Brown's body was the same location to where defendant drove Parson. In contrast, defendant testified incredibly at trial where he denied the video recorded conversation between him and Parson had anything to do with Brown, but rather concerned another woman who had shot Parson. ¶ 35 Nevertheless, in arguing that he was prejudiced because the circuit court was precluded from "considering a potentially exculpatory defense theory," defendant relies on People v. Morris, 335 Ill. App. 3d 70 (2002). In Morris, this court found that the defendant made a substantial showing that he was prejudiced by his trial counsel's failure to subpoena, disclose and call known alibi witnesses and another witness who would have corroborated the defendant's claim that his oral confession to the police was coerced. Id. at 85-86. The latter witness would have directly challenged the voluntariness of the defendant's confession to the police, which this court found "critical to the State's case." Id. at 82. In finding that there was a reasonable probability the outcome of the defendant's trial would have been different, this court relied on the cumulative nature of the absent witnesses. Id. at 85-86. In the instant case, the allegation concerns a single witness whose testimony, as discussed, would likely have been of little evidentiary value to defendant and would not have changed the outcome of the proceeding. As such, we find Morris unpersuasive. ¶ 36 Accordingly, the circuit court properly granted the State's motion to dismiss defendant's postconviction petition, and we affirm the order of the circuit court of Cook County. ¶ 37 Affirmed.
Because there are two individuals with the last name "Brisco" at issue in this appeal, we will abbreviate their first names throughout.