Opinion
No. 1-12-0505
03-19-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYBOO PHILLIPS, 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. 07 CR 7847
Honorable
Nicholas R. Ford,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶ 1 Held: Defendant's postconviction petition was properly dismissed because defendant did not present affidavits from potential witnesses. In addition, affidavits as to separate issue that were attached to petition and defendant's later filing contained hearsay statements. ¶ 2 Syboo Phillips, the defendant, appeals the summary dismissal of his pro se postconviction petition. On appeal, defendant contends the petition sufficiently alleged his trial counsel was ineffective for failing to present the testimony of two witnesses to support his claim of self-defense as to an altercation defendant had with two men, one of whom was fatally shot. Defendant also asserts the affidavits he presented describing a prison confession by the surviving victim constitute newly discovered evidence that the surviving victim perjured himself at defendant's trial. We affirm. ¶ 3 Following a bench trial in 2008, defendant was convicted of the second degree murder of Billy Graham and the attempted first degree murder of Marvell Barker. Defendant also was convicted of violating the armed habitual criminal statute. ¶ 4 The undisputed evidence at trial established that at about 10:30 a.m. on August 5, 2006, a weapon was fired during a dispute between defendant and Graham in a yard near 83rd and Peoria in Chicago. The State's witnesses testified that defendant fired at Barker as Barker fled. Police arrested defendant for the shooting seven months later. The parties stipulated that Graham was killed by a gunshot wound through his left cheek and a bullet was recovered from the base of his brain. ¶ 5 Deandre Barksdale testified he did not know any of the parties involved. On the morning of the shooting, Barksdale was inside his house and saw and heard Graham and defendant arguing across the street from his house. When Barksdale first observed the men, he did not see a gun in either man's hand but he surmised defendant had a weapon "like up his sleeve." Barksdale testified the shot struck Graham in the chin and Graham fell to the ground. ¶ 6 Barksdale testified defendant ran after Barker, who stood two or three houses away during the shooting. Defendant was holding the gun as he ran and shouted a racial epithet at Barker, preceded by "Don't run now." Barksdale heard two more gunshots from the direction in which defendant chased Barker. He later identified defendant in a police photo array. ¶ 7 David Wofford testified that at about 10:30 a.m. on August 5, 2006, he was in an alley near Peoria Street helping a friend move. Wofford heard two or three gunshots and saw a man run through a nearby gangway from the direction of Peoria. The man fell to the ground and got up and positioned himself between two houses as if he was hiding from someone. Another man entered the alley and looked back and forth. When the second man left, the man who was hiding motioned to Wofford as if he was asking "What should I do?" Wofford shrugged his shoulders as if to say he did not know. After the second man left, Wofford motioned for the first man to come out of his hiding place, and the man ran in the opposite direction of Peoria. ¶ 8 Barker testified he was incarcerated at the time of defendant's trial for armed robbery and vehicular hijacking convictions. He testified he and Graham were friends and on the day of the shooting, he allowed Graham into his van and Graham told him to drive to 84th and Peoria. While Barker approached the 8300 block of Peoria, Graham told Barker to let him out, and told Barker to park the van. ¶ 9 As Barker parked the van, he could see Graham and defendant in his rear view mirror standing about three houses away. Barker got out of the van, heard a shot and saw defendant holding a gun. He testified, "I heard one shot go off and saw [Graham's] body drop." Defendant then chased after Barker, shouting, "Don't run now, mother f- ." Defendant fired two shots at Barker as Barker "flipped over the top" of a fence and chased him through a gangway. Barker testified he hid alongside a house. Barker said he saw a man in the alley who directed him which way to proceed safely. Barker identified photographs of the scene and testified he identified defendant in a police photo array. ¶ 10 On cross-examination, Barker stated he and Graham were lifelong friends and that he knew defendant from around the neighborhood. Barker said he had seen defendant four or five times in the months before the shooting. Barker acknowledged that while Graham and defendant were talking, he looked up and down the street. Defense counsel asked Barker how defendant was dressed and if defendant wore a black T-shirt. Barker did not remember what defendant's shirt looked like or if it had short or long sleeves. When asked if defendant was carrying anything in his hand, Barker responded, "I didn't see Syboo with nothing in his hand. I heard a shot." Barker said Graham was not carrying a weapon. Barker then said he saw defendant holding a gun by his side after Graham fell to the ground. ¶ 11 Michael Gillespie testified he was smoking marijuana in the area when defendant, whom he considered a friend, approached. Gillespie saw Barker and Graham pull up in a van, and Graham got out, approached defendant and grabbed his arms. Defendant and Graham walked away, and Gillespie heard gunshots shortly thereafter and saw Graham on the ground. Gillespie testified he did not see any of the three men holding a weapon. ¶ 12 Defendant raised a theory of self-defense. Defendant testified that in 2005, about a year before the instant events, Graham and Barker had robbed him at gunpoint in front of his apartment, taking $6 in cash and defendant's cell phone. More recently, on August 4, 2006, the morning before this offense, Barker confronted defendant and demanded money while defendant sat in a vehicle. Defendant refused to give Barker anything, and Barker left. ¶ 13 Defendant testified that the night before the shooting, his friend Daniel Ealy told him he should "watch out for Billy [Graham] and Marvell [Barker], that they were planning something" for defendant. Defendant testified he was "scared" but did not do anything in response to that warning. ¶ 14 Defendant testified that Graham got out of Barker's vehicle and approached defendant, and defendant walked toward his apartment. Defendant testified that Graham grabbed him by the left arm and told him, "We can do this the easy way or the hard way." Graham displayed a gun, and defendant tried to grab the gun with his right hand. Defendant said there "was a small tussle" and he "snatched the gun" away from Graham. Graham tried to recover the gun from defendant, and defendant swung at Graham with his right hand, in which defendant held the gun. Defendant did not remember if he struck Graham with his hand, but he stated the gun went off once, and Graham fell to the ground. ¶ 15 Defendant looked in Barker's direction and chased after Barker; defendant said he did so because he was angry and scared for his safety and the safety of his family. Defendant initially denied firing the weapon while he chased Barker but later stated he fired a shot to "scare him off." Defendant then walked back to his apartment building. ¶ 16 On cross-examination, defendant admitted firing two shots while chasing Barker but said he did not point the gun at Barker. Defendant denied shouting anything as he ran. Defendant later stated he fired the gun twice but the gun only discharged once. He said that when he struggled with Graham, he did not pull the trigger but that the gun just "went off." ¶ 17 Defendant acknowledged that after Graham and Barker robbed him in 2004, he did not report the incident to police. He also did not seek out police after the shooting and moved out of his apartment the following day because he was concerned about his safety. Defendant said retaliation would have occurred if he had contacted police about the shooting. ¶ 18 Ealy testified Graham and Barker had a reputation in the neighborhood for violent behavior. Ealy contradicted defendant's testimony that Ealy had warned defendant about Graham and Barker the night before the shooting; Ealy testified that defendant told him the two men were looking for defendant. Ealy was nearby when the shooting occurred and saw Graham grab defendant's arm. Defendant and Graham struggled with the gun and Ealy heard a "pow" and went inside. When asked if David Jones was present the morning of the shooting, Ealy said he did not see Jones. ¶ 19 Certified copies of defendant's prior convictions for burglary, unlawful use of a weapon by a felon and possession of a controlled substance were entered into evidence. The defense also introduced evidence pursuant to People v. Lynch, 104 Ill. 2d 194 (1984), that Graham and Barker had committed prior violent crimes, including robbery and battery. ¶ 20 In finding defendant guilty of the second degree murder of Graham and the attempted murder of Barker, the court noted Barksdale's testimony that defendant had a weapon, in comparison to Gillespie's account that he did not see defendant or the two victims with a gun. The court found that defendant possessed a handgun and that the shooting occurred during a struggle. The court found defendant not guilty of first degree murder but guilty of the lesser offense of second degree murder based on defendant's imperfect belief in the need for self-defense. The court also found defendant guilty of the attempted murder of Barker and of being an armed habitual criminal. ¶ 21 The court sentenced defendant to 20 years in prison for second degree murder and a consecutive term of 12 years in prison for attempted murder. The court also imposed a six-year sentence for the armed habitual criminal conviction to run concurrently to defendant's other sentences. On appeal, this court affirmed. People v. Phillips, No. 1-08-2464 (2010) (modified unpublished order under Supreme Court Rule 23). ¶ 22 On August 12, 2011, defendant filed a pro se petition seeking relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)). Among other claims, defendant asserted in the petition that his trial counsel was ineffective for failing to call Jones and James Williams as witnesses and that their testimony would have "been pertinent to [his] alibi." The petition stated that defendant told his trial counsel where Jones and Williams lived and that they were willing to testify on his behalf. The petition stated: "Because these witnesses would have testified that not only there wasn't [sic] any arguing prior to the offense but in fact a[] robbery attempt by the deceased and the living victim, my attorney was ineffective for failing to call them to testify at my trial." ¶ 23 Defendant further stated in the petition that his trial counsel "was under the presumption" that because the State had Jones under subpoena, the prosecution would call him to testify and defense counsel would then be able to cross-examine Jones; however, the State did not call Jones to testify. Defendant asserted that his counsel "did not make an attempt to call Jones to testify even after counsel realized the State was not going to use Jones." ¶ 24 The petition also stated that Williams would have contradicted Barksdale's account that defendant and Graham argued before the gun was fired. Defendant said his counsel spoke with Williams, who reported he "was sitting on his porch when he saw Barker and Graham exit a van, but he didn't see or hear anything prior to hearing a gunshot." Defendant stated his counsel "never made any attempt to call upon these witnesses" even after defendant, his wife and Ealy asked counsel to do so. He further stated in the petition he could not obtain affidavits from Jones and Williams because they moved to another state after his trial and he could not obtain their addresses due to his incarceration. ¶ 25 Although he did not provide affidavits from Jones and Williams, defendant attached to the petition several of his own affidavits. In one of those affidavits, defendant averred that on July 19, 2011, he was working as a barber in the prison barbershop at Lawrence Correctional Center when he encountered Barker, who was also an inmate there. Defendant's affidavit stated as follows:
"I confronted [Barker] and asked how could he try to rob me then come to court and act like he was the victim? He told me because he wanted to come. I told him that was some bulls— and that was their second time trying to rob me and I didn't go to police after the first time so y'all tried again. [Barker] told me that they should've just killed me the first time and I was lucky it wasn't him that ran up on me because he wouldn't have let my b— a- take the gun from him. I told him I was glad he said that."¶ 26 Also accompanying the petition was an affidavit of Frank Drew, another inmate employed in the Lawrence prison barbershop. Drew attested he overheard the conversation between defendant and Barker and recounted the exchange consistently with defendant's affidavit. ¶ 27 On November 2, 2011, the circuit court summarily dismissed defendant's pro se postconviction petition in a written order. As to defendant's claim that his counsel was ineffective in failing to call Jones and Williams as witnesses because they would have refuted testimony that defendant and Graham argued and would have testified that Graham and Barker in fact attacked defendant, the circuit court noted the selection of witnesses is a matter of trial strategy. The court further noted that defendant did not provide an affidavit from either potential witness. As to the other claims in defendant's petition, the court found he had waived those points by failing to raise them on direct appeal. ¶ 28 On November 29, 2011, defendant filed a pro se petition for rehearing arguing, inter alia, that his petition presented an arguable claim and he was unable to obtain affidavits from Jones and Williams because they moved to another state. Defendant attached three additional affidavits from Steven Cochran, Edward Barkaliskas and Brian Young, who averred that they were inmates at Lawrence Correctional Center on July 19, 2011, and witnessed the exchange between defendant and Barker in the prison barbershop. Each man recounted the conversation consistently with the account described by defendant in his affidavit attached to his petition. On January 4, 2012, the circuit court denied defendant's petition for rehearing. Defendant now appeals. ¶ 29 The Act provides a means for a defendant to challenge a conviction or sentence based on an alleged violation of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). At the first stage of postconviction review, the circuit court independently reviews the petition to determine whether it is "frivolous or is patently without merit" and dismisses the petition if it finds that to be the case. 725 ILCS 5/122-2.1(a)(2) (West 2010). To avoid dismissal at this stage, the petitioner need only present the gist of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244 (2001). Additionally, at this point in the proceedings, all well-pleaded allegations in the petition are taken as true and liberally construed in favor of the petitioner. People v. Brooks, 233 Ill. 2d 146, 153 (2009). The summary dismissal of a postconviction petition at the first stage is reviewed de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010). ¶ 30 A petition may be dismissed at the first stage only if it has no arguable basis either in law or in fact. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition has no arguable basis in law or fact if it is based on an indisputably meritless legal theory or a fanciful factual allegation. Id. at 16. To establish the ineffectiveness of trial counsel at the first stage of postconviction proceedings, defendant must show that it is arguable that counsel's performance fell below an objective standard of reasonableness and also that it is arguable that defendant was prejudiced by counsel's deficient representation. People v. Harmon, 2013 IL App (2d) 120439, ¶ 24. ¶ 31 On appeal, defendant first asserts that his trial counsel provided ineffective assistance for failing to call Jones and James Williams as defense witnesses because they would have testified that Graham and Barker attempted to rob defendant "prior to the offense" and would counter the State's theory that defendant carried a gun and shot Graham as they struggled. Defendant argues that he could not attach affidavits from Jones or Williams because they moved to another state after trial and defendant was unable to locate their current addresses because defendant is "incarcerated and indigent." ¶ 32 The requirement of supporting attachments to a postconviction petition is codified in section 122-2 of the Act, which requires that the petitioner either provide "affidavits, records, or other evidence" to support the petition's allegations or explain the absence of such documentation. 725 ILCS 5/122-2 (West 2010). The failure to meet either of those requirements justifies the petition's summary dismissal. 725 ILCS 5/122-2 (West 2010); People v. Delton, 227 Ill. 2d 247, 255 (2008). The purpose of requiring such materials is to ensure the allegations in the petition are capable of objective or independent corroboration. Id. at 254. ¶ 33 More precisely, our supreme court has held that a postconviction claim that trial counsel failed to investigate and call a witness must be supported by an affidavit from the proposed witness. People v. Harris, 224 Ill. 2d 115, 142 (2007) (citing People v. Enis, 194 Ill. 2d 361, 380 (2000)). That requirement reflects the increased reliability and trustworthiness of a sworn statement. People v. De Avila, 333 Ill. App. 3d 321, 327 (2002). In the absence of such an affidavit, the reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary. People v. Jones, 399 Ill. App. 3d 341, 371 (2010) (citing Enis, 194 Ill. 2d at 380). ¶ 34 Defendant contends he could not obtain affidavits from Jones or Williams due to his own incarceration and because those men moved to a different state after defendant's trial. This court has recognized that in some situations, incarceration may excuse a defendant's failure to provide supporting materials in a postconviction petition. People v. Washington, 38 Ill. 2d 446, 451 (1967). However, incarceration, in and of itself, cannot be grounds for relaxing the Act's affidavit requirement because postconviction relief is limited to incarcerated individuals (see 725 ILCS 5/122-1(a) (West 2010)), and the ability to excuse the affidavit requirement based on a petitioner's status as a prisoner would effectively negate that provision of the Act. Therefore, the absence of supporting affidavits from the two potential witnesses warrants the petition's summary dismissal. Delton, 227 Ill. 2d at 255; Harris, 224 Ill. 2d at 142; Jones, 399 Ill. App. 3d at 371. ¶ 35 Even if this court assumes arguendo that defendant presented affidavits from Jones and Williams, the determination of what witnesses to call at trial is a matter of trial strategy left to counsel's discretion. See Enis, 194 Ill. 2d at 378. Defendant stated in his petition that he told his trial attorney about both men and their willingness to testify to a robbery attempt by Graham and Barker. Defendant asserted his counsel did not call Jones after it was clear that the State would not present Jones as a witness. Defendant further stated in his petition that his counsel interviewed Williams, who told counsel he did not see or hear anything before hearing a shot was fired. Thus, the record affirmatively indicates that defense counsel was aware of the potential testimony of both men. ¶ 36 In defendant's remaining contention on appeal, he asserts his petition states a claim of newly discovered evidence that the key State witness (Barker) admitted that he perjured himself at defendant's trial. To support this allegation, defendant attached to his petition his own affidavit recounting a conversation between himself and Barker while in the prison barbershop. Defendant maintained that Barker admitted he lied at trial when he depicted defendant as the aggressor and that Barker acknowledged he and Graham were trying to rob defendant. Defendant further averred Barker said he never would have let defendant take the gun away from him as Graham did. ¶ 37 Defendant attached to his postconviction petition an affidavit from Drew, a fellow prison inmate who averred that he overheard the conversation and whose account supported defendant's version of the conversation. In addition, to his petition for rehearing from the summary dismissal of his postconviction petition, defendant attached affidavits from three other prison inmates who essentially mirrored defendant's version of Barker's comments in the barbershop. ¶ 38 The State responds that because defendant's claim regarding Barker's prison barbershop admission was not stated in the postconviction petition, that assertion cannot now be considered on appeal. Indeed, the Act provides that any claim not raised in defendant's original petition or in an amended petition is waived (725 ILCS 5/122-3 (West 2008)), and our supreme court has held that a claim that was not included in the postconviction petition cannot be raised for the first time on appeal. People v. Pendleton, 223 Ill. 2d 458, 475 (2006); People v. Jones, 213 Ill. 2d 498, 507-08 (2004); see also People v. Rossi, 387 Ill. App. 3d 1054, 1059-60 (2009) (citing People v. Mallett, 45 Ill. 2d 388, 397-98 (1970)). A review of defendant's petition reveals that he did not include the claim regarding the barbershop conversation in the petition itself. Although defendant made general references to perjury in his petition and attached to his petition his own affidavit about Barker's statements in the prison barbershop and the petition of Drew, defendant did not describe a perjury claim as to Barker within the petition. ¶ 39 As to this first stage of postconviction proceedings, our supreme court has observed a low threshold for survival of a petitioner's claims, noting that most petitions at this juncture are drafted by defendants with little legal knowledge. People v. Torres, 228 Ill. 2d 382, 394 (2008). Therefore, it is necessary to liberally construe the provisions of the Act as they relate to defendant's filing and accompanying affidavits and, also, to liberally construe the petition's allegations. See People v. Brown, 236 Ill. 2d 175, 193 (2010); People v. Cruz, 2013 IL App (1st) 091944, ¶ 48. Because defendant included the argument relating to Barker in his affidavit attached to his petition and attached the affidavits of his fellow prison inmates to his petition for rehearing, we find his claim was presented to the circuit court. We therefore consider defendant's contention and the affidavits to be properly before this court. ¶ 40 However, the State asserts, and we agree, that the affidavits of defendant, Drew and the other prison inmates contain hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is therefore dependent for its value on the credibility of the out-of-court declarant. People v. Caffey, 205 Ill. 2d 52, 88 (2001); People v. Crowe, 327 Ill. App. 3d 930, 937 (2002). In contrast to hearsay, it is not hearsay to use an out-of-court statement for the purpose of establishing whether or not the statement was made, i.e. to show a person's knowledge or awareness of a circumstance, and not for the truth of the matter asserted in the statement. See, e.g., People v. Prather, 2012 Il App (2d) 111104, ¶ 11 (evidence of result of home pregnancy test result was admissible as proof that defendant was aware of victim's condition when he allegedly struck her). ¶ 41 The affidavits presented by defendant describe statements that Barker allegedly made in the presence of the other witnesses. The contents of the affidavits are hearsay because Barker's statements are being offered for their truth, i.e., that Barker was truthful in saying in the prison barbershop that he falsely testified at defendant's trial when he said defendant initiated violence against Graham. Hearsay affidavits are insufficient to support a postconviction claim. People v. Gray, 2011 IL App (1st) 091689, ¶ 16; People v. Morales, 339 Ill. App. 3d 554, 565 (2003). Therefore, defendant's contention on this point is rejected. ¶ 42 In summary, defendant's postconviction claim that his trial counsel was ineffective for failing to call two witnesses as part of his defense must fail because he did not attach to his petition affidavits from those men describing their potential testimony. Moreover, the affidavits attached to defendant's filing and petition for rehearing that set out Barker's prison statements are hearsay, which cannot support a postconviction claim. ¶ 43 Accordingly, the judgment of the circuit court is affirmed. ¶ 44 Affirmed.
Under Lynch, a defendant who properly raises a theory of self-defense may offer evidence of the victim's violent and aggressive character for one or both of these two reasons: (1) to show that the defendant's knowledge of the victim's violent tendencies affected his perception and reaction to the victim's behavior, and (2) to support the defendant's version of the facts where there are conflicting accounts of what happened. Lynch, 104 Ill. 2d at 200.