Opinion
NOS. 4-15-0226
11-28-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A.J. MAYS, 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 Circuit Court of McLean County
No. 13CF629
Honorable Scott D. Drazewski, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Appleton and Knecht concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding (1) defense counsel's prior representation of a State's witness did not constitute a per se conflict of interest, (2) the State's error during closing argument did not support a finding of plain error or ineffective assistance of counsel, and (3) the fines and fees imposed by the trial court were properly assessed.
¶ 2 In May 2013, the State charged defendant, Michael A.J. Mays, with three counts of murder in the shooting death of Aaron Robinson. 720 ILCS 5/9-1(a)(1), (2) (West 2012)). A jury found defendant guilty and the trial court subsequently sentenced him to 55 years' imprisonment. As part of the judgment, the court assessed certain fines and fees.
¶ 3 Defendant appeals, asserting (1) defense counsel labored under a per se conflict of interest due to his prior representation of a State's witness, (2) the prosecutor engaged in prosecutorial misconduct during his closing argument, and (3) the circuit clerk improperly imposed certain fines and fees. We affirm.
¶ 4 I. BACKGROUND
¶ 5 In May 2013, the State charged defendant with three counts of first degree murder in the shooting death of Robinson. The case proceeded to a jury trial in November 2014. Attorneys James Tusek and Michael Herzog represented defendant at trial. Because defendant is not challenging the sufficiency of the evidence, we outline only those facts necessary to resolve this appeal.
¶ 6 On May 15, 2013, defendant and his friend, Christopher Rose, got into a brief but heated altercation with Robinson inside a convenience store. Upon being asked to leave the store, Robinson and three of his friends left the store and walked down the street. Surveillance footage outside the convenience store showed Robinson and his friends leave, followed a few minutes later by defendant and Rose. A few minutes later, while walking around, defendant and Rose came upon Robinson at an apartment complex. Witnesses differed as to whether Robinson approached defendant or if defendant approached Robinson but, in the end, defendant shot Robinson in the back as Robinson attempted to flee. Both Rose and defendant testified they thought Robinson had a gun. During the trial, defendant unsuccessfully argued he acted in self-defense and provided evidence of his own reputation for peacefulness in contrast to Robinson's reputation for violence. One of the witnesses to the shooting was Romel Frazier, whom defense counsel Tusek had previously represented.
¶ 7 A jury found defendant guilty of first degree murder, and the trial court sentenced him to a total of 55 years in prison. The court also imposed "the mandatory fines, fees[,] and costs, no additional fines, fees[,] and costs." The court's supplemental sentencing order, however, listed specific fines, fees, and costs.
¶ 8 This appeal followed.
¶ 9 II. ANALYSIS
¶ 10 On appeal, defendant argues (1) defense counsel labored under per se conflict of interest due to his prior representation of a State's witness, (2) the prosecutor engaged in prosecutorial misconduct during his closing argument, and (3) the circuit clerk improperly imposed certain fines and fees. We take these arguments in turn.
¶ 11 A. Conflict of Interest
¶ 12 Defendant first argues Tusek, one of his attorneys, labored under a per se conflict of interest because he contemporaneously represented defendant and Frazier, a State's witness.
¶ 13 "[A] criminal defendant is entitled to the undivided loyalty of counsel who is free from conflicting interests or inconsistent obligations." People v. Murry, 305 Ill. App. 3d 311, 314, 711 N.E.2d 1230, 1233 (1999). Where the facts in the record are undisputed, the issue of whether an attorney operated under a conflict of interest is a legal question subject to de novo review. People v. Murphy, 2013 IL App (4th) 111128, ¶ 24, 990 N.E.2d 815.
¶ 14 "A per se conflict of interest exists where certain facts about a defense attorney's status, by themselves, engender a disabling conflict." People v. Fields, 2012 IL 112438, ¶ 17, 980 N.E.2d 35. An attorney labors under a per se conflict of interest where defense counsel's past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant. People v. Becerril, 307 Ill. App. 3d 518, 524, 718 N.E.2d 1025, 1029 (1999). "Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal." Fields, 2012 IL 112438, ¶ 18, 980 N.E.2d 35.
¶ 15 A per se conflict of interest occurs "(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; (2) where defense counsel contemporaneously represents a prosecution witness; and
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant." Id. Here, defendant focuses on the second situation: where defense counsel has a contemporaneous relationship with the defendant and a prosecution witness. "[I]n cases where defense counsel has represented a State's witness, a per se conflict of interest will not be held to exist unless the professional relationship between the attorney and the witness is contemporaneous with defense counsel's representation of the defendant." Id. ¶ 20. However, a contemporaneous relationship does not require simultaneous representation of a defendant and the prosecution's witness. See People v. Daly, 341 Ill. App. 3d 372, 377, 792 N.E.2d 446, 450 (2003). It is on this language from Daly that defendant directs his focus, as Tusek did not simultaneously represent defendant and Frazier.
¶ 16 Tusek represented Frazier on an unrelated charge from February 1, 2013, until March 15, 2013, at which time Frazier entered into a plea agreement for probation. See McLean County case Nos. 13-CF-41, 13-CF-114. Defendant's murder charge arose from the May 2013 shooting, and Tusek began representing defendant in June 2013. In other words, Tusek had concluded his professional relationship with Frazier prior to the murder and, therefore, prior to beginning his representation of defendant.
¶ 17 Even though Tusek did not engage in simultaneous representation of Frazier and defendant, defendant asserts a contemporaneous representation exists because Tusek "represented Frazier in a matter that was ultimately related to, and therefore 'concerning,' [defendant's] case," due to Frazier later testifying against defendant. Essentially, defendant argues that cross-examining a former client about the former client's criminal history somehow "concerned" defendant's case. We fail to see the connection.
¶ 18 Defendant argued Tusek failed to properly cross-examine Frazier, demonstrating his divided loyalties between defendant, a current client, and Frazier, a former client. But, as defendant notes, Tusek did not cross-examine Frazier; rather, that task was left to Herzog, another attorney. Defendant argues this was a tacit acknowledgement by Tusek that he had a conflict with Frazier. We find this argument unpersuasive.
¶ 19 Defendant has failed to demonstrate Tusek's representation of Frazier in any way "concerned" defendant's case, particularly where the murder did not occur until after Tusek ended his representation of Frazier. This is consistent with Fields, 2012 IL 112438, ¶ 25, 980 N.E.2d 35, in which the supreme court held no contemporaneous representation existed where the attorney represented the State's witness several years prior to representing the defendant. See also People v. Flores, 128 Ill. 2d 66, 83, 538 N.E.2d 481, 487 (1989) (no per se conflict existed where defense counsel previously represented a State's witness); People v. Enoch, 146 Ill. 2d 44, 52-53, 585 N.E.2d 115, 119 (1991) (no per se conflict existed where defense counsel represented the State's witness four years prior to representing the defendant). We reached a similar conclusion in People v. Schutz, 2017 IL App (4th) 140956, ¶ 29, 79 N.E.3d 849, where we found no contemporaneous representation existed where defense counsel's representation of the State's witness ended months prior to his representation of the defendant. In cases where contemporaneous representation has been found, the defense attorney's representation of the State's witness overlapped his representation of the defendant. See, e.g., People v. Murphy, 2013 IL App (4th) 111128, ¶ 77, 990 N.E.2d 815; People v. Coleman, 301 Ill. App. 3d 290, 300, 703 N.E.2d 137, 144 (1998); People v. Thomas, 131 Ill. 2d 104, 112-13, 545 N.E.2d 654, 657 (1989).
¶ 20 In Daly, 341 Ill. App. 3d at 378, 792 N.E.2d at 451, this court concluded contemporaneous representation existed where defense counsel had previously represented a
State's witness; however, we held the professional relationship with the State's witness was ongoing due to the witness entering into an informant agreement as part of defense counsel's plea negotiations. No such arrangement exists here. In fact, Frazier entered into his plea agreements before the murder even occurred.
¶ 21 Defendant makes much of the fact that, during the course of this case, the State filed petitions in February 2014 against Frazier for violating his probation, and those petitions were later dismissed when Frazier was sentenced to prison in another case (McLean County case No. 14-CF-115). However, another attorney represented Frazier during those proceedings, not Tusek. Defendant fails to connect the outcome of Frazier's cases with either Tusek's representation of Frazier or defendant's case.
¶ 22 In making its argument that Tusek's prior representation of Frazier creates a per se conflict of interest, defendant invites us to broadly interpret "contemporaneous representation" to include any prior representation of a State's witness. We find no case law to support such a sweeping definition of a per se conflict of interest. Rather, this situation is more appropriately analyzed as an actual conflict of interest, but defendant makes no claim that the conflict adversely affected defendant's case. See People v. Austin M., 2012 IL 111194, ¶ 82, 975 N.E.2d 22 (to prove an actual conflict, the defendant must show "an actual conflict of interest adversely affected the lawyer's performance."). The ramifications of adopting defendant's position would be widespread and hinder criminal defense attorneys' ability to represent criminal defendants. We therefore decline defendant's invitation to ignore legal precedent and interpret "contemporaneous representation" so broadly. Thus, we hold Tusek did not labor under a per se conflict of interest.
¶ 23 B. Prosecutorial Misconduct
¶ 24 Defendant contends the prosecutor's statements during closing argument constitute reversible error. He concedes this argument was not properly preserved, and asks us to review it for plain error. In the alternative, defendant asks us to find defense counsel provided ineffective assistance of counsel for failing to object to certain statements made by the prosecutor.
¶ 25 When a defendant fails to make a timely objection or preserve an issue in a posttrial motion, the issue is deemed forfeited. People v. Kitch, 239 Ill. 2d 452, 460, 942 N.E.2d 1235, 1240 (2011). However, we may consider a forfeited claim where the defendant demonstrates plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). To prove plain error, a defendant must first demonstrate a clear or obvious error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007). If an error occurred, we will only reverse where (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error"; or (2) the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Id. at 565, 870 N.E.2d at 410-11.
¶ 26 1. The Prosecutor's Statements
¶ 27 "A prosecutor has wide latitude in making a closing argument and is permitted to comment on the evidence and any fair, reasonable inferences it yields." People v. Glasper, 234 Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). "A closing argument must be viewed in its entirety, and the challenged remarks must be viewed in their context." Id. at 204, 917 N.E.2d at 420.
¶ 28 During his closing argument, which lasted more than an hour, the prosecutor made several statements to which defendant now objects.
¶ 29 First, the prosecutor stated by executing Robinson, defendant deprived Robinson of the right defendant was now enjoying: "The right for a transient from New York to trade in his 'do rag and hoodie for a suit and tie to have his loyal friends come and tell you how sweet and gentle he is."
¶ 30 Defendant asserts the prosecutor's comments contrasting defendant's courtroom attire with his attire on the night of the shooting implied he was attempting to deceive the jury by wearing a suit and tie. According to defendant, this implication of deceit was amplified by the prosecutor's statement that defendant had "his loyal friends come and tell you how sweet and gentle he is." Defendant asserts the prosecutor's comments neutralized any benefit defendant gained by wearing the suit and tie. In support, defendant cites People v. Rogers, 172 Ill. App. 3d 471, 478, 526 N.E.2d 655, 660 (1988), for the proposition that "where a defendant's testimony is not inconsistent with that of any of the other witnesses, it is improper to argue that defendant is a liar because there is no basis in the record for such an argument."
¶ 31 We find two problems with defendant's argument. First, throughout the trial, the jury observed defendant in a suit and tie, and witnesses identified him in open court by describing him as wearing a suit. The prosecutor pointed out the suit was in direct contrast to the attire defendant wore the night of the murder—a hoodie and a "do rag"—which the jury observed on the surveillance video. The prosecutor's comment that defendant wore the suit and tie while parading in his loyal friends to testify as to his reputation for peacefulness was a comment directed toward defendant's self-defense claim. This argument implied defendant's reputation for peacefulness was at odds with his behavior of shooting Robinson. Thus, the prosecutor was commenting on the evidence.
¶ 32 Second, while it would be improper for the prosecutor to classify defendant as a liar where there is no basis in the record, like in Rogers, such a basis does exist in the present case. The jury heard different, inconsistent versions of events from witnesses, and defendant's testimony was inconsistent with some of those witnesses. The jury was called upon to make a credibility determination; in other words, the jury was tasked with determining if any of the witnesses were lying. "[I]t is not error for the State to challenge a defendant's credibility or the credibility of his theory of defense when evidence exists to support the challenge." Glasper, 234 Ill. 2d at 207, 917 N.E.2d at 421.
¶ 33 Thus, the reasoning in Rogers does not help defendant's case.
¶ 34 The second statement to which defendant takes exception occurred while the prosecutor described the altercation at the convenience store as including "Trash talk. These folks live in a different world than what we're accustomed to." Defendant also argues the prosecutor's comments—describing defendant as a transient from New York who lives in a different world where "trash talk" occurs—created an "us versus them" mentality and emphasized defendant's race. Attempts to create such a mentality are "a perversion of the principle that a jury is composed of non-partisans who function under the presumption that a defendant is innocent until proved otherwise." People v. Thomas, 146 Ill. App. 3d 1087, 1089, 497 N.E.2d 803, 804 (1986).
¶ 35 Contrary to defendant's argument, nothing in the prosecutor's statement singled defendant out on the basis of race in an attempt to create an "us versus them" mentality. The prosecutor's reference to "trash talk" was a comment on the witnesses describing "trash talk" and the nature of such arguments, and the prosecutor inferred that "trash talk" may not be language the jury is accustomed to hearing. The statement was not inflammatory so as to incite the jury to
act out of passion and outrage rather than reason and deliberation. See People v. Johnson, 208 Ill. 2d 53, 79, 803 N.E.2d 405, 420 (2003).
¶ 36 Moreover, the prosecutor's comment about defendant being a "transient from New York" was one of the conflicts between Robinson and defendant. The hostility Robinson had toward defendant arose, in part, from defendant being from New York, and therefore supported defendant's claim that he acted in self-defense due to Robinson's hostility. Thus, the fact that defendant was a transient from New York was a comment on the evidence, as it formed one of the bases for conflict between defendant and Robinson.
¶ 37 Finally, defendant takes exception to the prosecutor inserting his personal beliefs and speculation about how he would act in certain situations: "If I'm home at night and somebody wants to break into my house and I get out my gun and I put a bullet in 'em, I'm not going to go hide that gun before the police come. I'm going to tell 'em what happened and that the guy deserved it." He went on to say,
"Lack of remorse I think is important. I mean, I don't know if I—I guess if I shot somebody in self-defense, I probably wouldn't feel that bad about it, but I think I would still maybe run through my head, 'What could I have done differently? Does this guy have a family? Does this guy have kids?' You know, I guess it's just—I don't think it's something that I would take pride in, I would do. I enjoy, you know, the right to defend myself. I hunt; I use firearms, but I still think that there would be—if I had to take another human life, I would have some sort of emotion."
The prosecutor made this statement to contrast his speculative response with the lack of emotion defendant displayed upon his arrest.
¶ 38 Defendant argues the prosecutor's "musings" about what he would have done in defendant's place constituted prosecutorial misconduct. It is improper for a prosecutor to present what amounts to his own testimony in closing argument. People v. Smith, 141 Ill. 2d 40, 60, 565 N.E.2d 900, 908 (1990). Additionally, "it is improper for the prosecutor to do or say anything in argument the only effect of which will be to inflame the passion or arouse the prejudice of the jury against the defendant, without throwing any light on the question for decision." Id.
¶ 39 The State argues part of a jury's obligation is to use its own common sense and life experiences in making a decision (People v. Runge, 234 Ill. 2d 68, 146, 917 N.E.2d 940, 984 (2009)), and the prosecutor was asking the jury to consider the reasonableness of defendant's actions in light of the situation and his lack of emotion when confronted by police. We disagree. Here, the prosecutor gave a detailed hypothetical in which he speculated how he—i.e., a reasonable person—would react in a situation where he killed someone, and then contrasted his hypothetical actions to those of defendant—i.e., an unreasonable person. The prosecutor's comments amounted to testimony regarding his personal beliefs as to defendant's guilt. While it is valid for a prosecutor to explore the evidence, it is not acceptable for the prosecutor to inject his personal thoughts and opinions into the proceedings. See People v. Pope, 284 Ill. App. 3d 695, 706, 672 N.E.2d 1321, 1329 (1996). The prosecutor's hypothetical scenario outlining his personal opinion as to defendant's behavior provided no insight into the evidence, and attempted to arouse the prejudice of the jury against defendant. We therefore conclude the prosecutor's comments were improper.
¶ 40 2. Plain Error
¶ 41 We next turn to whether the prosecutor's improper statement constituted plain error. Here, defendant asks for reversal under the second prong of plain-error analysis, arguing the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Piatkowski, 225 Ill. 2d at 565, 870 N.E.2d at 410-11.
¶ 42 To demonstrate reversible error under the second prong, this court must consider the context and content of the statements, whether the statements were related to the evidence, and whether the statements impacted the defendant's right to a fair trial. People v. Williams, 333 Ill. App. 3d 204, 214, 775 N.E.2d 104, 113 (2002). Here, the prosecutor improperly attempted to paint himself as a reasonable person by hypothetically describing how he would react to a shooting, and contrasting his behavior with that of defendant. But this statement constituted a few short minutes of a closing argument that lasted over an hour and the prosecutor commented extensively on the evidence. We cannot see how "these isolated comments made by the State during argument would cause the jury to ignore the clear instructions given to it by the court as to the proper course of its deliberations." See People v. Sims, 403 Ill. App. 3d 9, 22, 931 N.E.2d 1220, 1233 (2010); see also Glasper, 234 Ill. 2d at 215, 917 N.E.2d at 426. When viewed in its entirety and in context, "[w]e cannot conclude that the prosecutor's argument about a hypothetical scenario was so prejudicial that the jurors ignored the instructions and based their decision on a make-believe situation." Glasper, 234 Ill. 2d at 215, 917 N.E.2d at 426.
¶ 43 Accordingly, we decline to apply the plain-error exception in this case.
¶ 44 3. Ineffective Assistance of Counsel
¶ 45 Alternatively, defendant argues he received ineffective assistance of counsel where defense counsel failed to object to the prosecutor's improper comments during closing
argument. We review ineffective-assistance-of-counsel claims de novo. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25, 960 N.E.2d 27. To prove ineffective assistance of counsel, defendant must demonstrate counsel's (1) performance fell below an objective standard of reasonableness; and (2) deficient performance resulted in prejudice to the defendant such that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). If a defendant fails to prove either prong of the Strickland test, his claim for ineffective assistance of counsel must fail. People v. Williams, 2012 IL App (1st) 100126, ¶ 26, 976 N.E.2d 476. We first address the second prong.
¶ 46 To demonstrate prejudice, defendant must show the results of the proceeding would have been different had his attorney objected to the closing argument. As discussed above, "[w]e cannot conclude that the prosecutor's argument about a hypothetical scenario was so prejudicial that the jurors ignored the instructions and based their decision on a make-believe situation." Glasper, 234 Ill. 2d at 215, 917 N.E.2d at 426. When considering the evidence before the jury and the brief period of the closing argument devoted to the prosecutor's hypothetical statement, we conclude defense counsel's failure to object did not prejudice defendant. Defendant's claim of ineffective assistance of counsel must therefore fail.
¶ 47 C. Clerk-Imposed Fines
¶ 48 Defendant asserts the trial court improperly delegated its authority to impose fines to the circuit clerk and, therefore, any clerk-imposed fines must be vacated. The State concedes this issue. However, after reviewing the record, we reject the State's concession.
¶ 49 Circuit clerks lack the authority to impose fines and, therefore, any fines imposed by the circuit clerk are void from their inception. People v. Daily, 2016 IL App (4th) 150588,
¶ 28, 74 N.E.3d 15. "The propriety of the imposition of fines and fees presents a question of law, which this court reviews de novo." Id. ¶ 27.
¶ 50 Both defendant and the State agree, in its oral pronouncement of defendant's sentence, the trial court imposed "the mandatory fines, fees[,] and costs, no additional fines, fees[,] and costs." The parties also agree the court issued a supplemental sentencing order, and under the section entitled "Mandatory Fines," the court listed only a $30 statutory surcharge. The parties argue the first appearance of additional fines appears in the circuit clerk's "notice to the parties," and from that, they infer the clerk, not the court, imposed the additional fines. In examining the supplemental sentencing order to which both parties cite, we conclude the record contradicts their statements.
¶ 51 The supplemental sentencing order, which was signed by the trial court, includes the imposition of not only the $30 statutory surcharge, but also the following fines: (1) a $100 violent crime victim fund assessment, (2) a $50 court system fee, (3) a $25 split fee between the Children's Advocacy Center and drug court, (4) $30 in juvenile expungement fines, (5) a $10 medical costs fund fee, and (6) a $5 State Police operations assistance fee. Notably, these are the same fines the parties concede the circuit clerk imposed. Because the court clearly imposed these fines, we reject the argument that these are clerk-imposed fines. We encourage the parties to more carefully examine the court's sentencing judgments in the future before assuming the circuit clerk improperly imposed any fines.
¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we affirm the trial court's judgment. As part of our judgment, we grant the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).
¶ 54 Affirmed.