Opinion
NO. 5-10-0103
10-31-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY L. SCHAUF, JR., Defendant-Appellant.
NOTICE
Decision filed 10/31/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
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
Appeal from the
Circuit Court of
Williamson County.
No. 08-CF-458
Honorable
Phillip G. Palmer,
Judge, presiding.
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Spomer and Justice Chapman concurred in the judgment.
ORDER
¶ 1 Held: Defendant was not denied effective assistance of trial counsel, nor was he denied his rights to a speedy trial. ¶ 2 Defendant, Harry L. Schauf, Jr., was found guilty after a jury trial of two counts of aggravated battery with a firearm. He also pled guilty to unlawful use of a weapon by a felon. The circuit court of Williamson County sentenced defendant to 15 years on the first count of aggravated battery, 30 years on the second count, and 5 years for unlawful use of weapons by a felon, in connection with the guilty plea. Each was to run consecutively, for a total sentence of 50 years. Defendant appeals claiming he was denied both effective assistance of trial counsel and a speedy trial. We affirm. ¶ 3 The evidence presented at trial revealed that during the morning of September 29, 2008, defendant and his wife, Tina Pickens, were arguing. They had been arguing the night before, and upon waking, the argument continued. Tina also had been drinking and was already intoxicated. At some point that morning, Tina received two gunshot wounds, one to her neck and one to her arm. She did not recall how she was shot, but believed she may have received the wound to her arm from the police as she was fleeing defendant's house. ¶ 4 Tina's mother testified that after speaking with her daughter twice on the morning of September 29, she knew her daughter had been drinking and was in an agitated state. Because she was at work, she called both her own brother and her sister to check on Tina and defendant. Her sister Margaret drove to the house and heard Tina and defendant arguing inside. She honked the horn of her vehicle to let them know she was outside the house. Tina ran out onto the front porch. Margaret then saw defendant catch Tina and put a gun to her neck. She heard defendant tell Tina that she was not going anywhere. Margaret told defendant to put the gun down. When he did not do so, she told them she was going to get the police. She started driving off when she heard a gunshot. She stopped her vehicle and backed up to the front of the house. She saw Tina lying on the front porch. Defendant was on the porch steps, bending over holding his stomach. The gun was still in his hand. She started crying out that defendant had shot Tina and then drove to her own daughter's house to tell someone what had happened. While there, she heard 14 or 15 more gunshots. She next went to pick up her sister, Tina's mother, from work. When they arrived back at the house, the police had the house surrounded. They were not able to get to the front of the house, but they witnessed Tina running down the street away from the house. ¶ 5 The brother, who was traveling by bike and had not yet reached defendant's house, saw his sister drive up to the house. He then heard a gunshot and watched his sister back up her vehicle. The brother called Tina's mother to tell her that defendant had shot Tina. The brother further testified that while calling 9-1-1, he moved to the front of the house. He spotted Tina and defendant sitting on the porch steps. He noted that defendant had a gun in his hand, but he never saw defendant point the gun at Tina. Neither of the two was yelling at the other, and defendant was sitting with his back to Tina. At that point the police arrived at the house, and he was no longer able to see what was happening. He heard gunshots and then saw Tina running from around the house. ¶ 6 Various neighbors testified to having heard numerous gunshots at or near defendant's house that morning. One neighbor witnessed defendant walking down the front steps of the house, tapping a gun on the side of his head, and appearing pretty distraught. He heard defendant saying something to the effect of "what have I done" or "what did I do." Tina was sitting on the steps of the house. The neighbor ran back into his own house and called the police. Looking out his living room window, he watched defendant, who was then back up on the porch steps, trying to drag Tina into the house. By that point, the police had arrived, and he observed defendant shooting the gun without looking where he was firing. He next saw Tina run toward the street. ¶ 7 Marion police officer Steven Cannon testified that on the morning of September 29, 2008, he heard a dispatch for shots being fired in connection with a domestic situation. He was five blocks away from defendant's house at the time and was the first officer on the scene. When he arrived, he observed defendant gripping Tina by her left wrist and trying to pull her up onto the front porch. Defendant had a gun in his right hand. Officer Cannon exited his vehicle, along with another officer who had also arrived on the scene, and approached the house. He ordered defendant to drop the gun. When defendant did not respond, the officers took cover behind a gold car sitting nearby. Defendant released Tina and then turned toward the officers. According to Cannon, defendant leveled his gun and shot at him. The first shot struck him in his hand and on the left side of his face, simultaneously. He dropped down and heard several other gunshots. One shot struck the back glass of the car where he had taken cover. Cannon started toward his squad car and heard another officer yell that the suspect was down. Cannon never fired his service weapon. The miniature flashlight attached below the muzzle of his gun was damaged, however, when he was shot. Cannon testified that part of the projectile that went through his finger landed in the back part of his jaw. ¶ 8 Officer Molitor testified he heard the radio dispatch for shots fired in the block where defendant's house was located. He drove to the scene, and one of the officers told him the suspect was on the front porch. Molitor drew his service weapon and started making his way to the house. As he approached the house, he heard two or three shots and observed a female running toward him. He noticed blood coming from her neck. The woman was crying that she had been shot. He told her to keep running in the direction of some of the other officers behind him and continued moving toward the front of the house. He observed defendant standing inside his doorway, leaning out and pointing a gun. After seeing and hearing gunshots fired in the direction of Cannon, he took aim and fired at defendant. Defendant immediately fell to the ground. He announced that the suspect was down and then requested an ambulance. At that point, Molitor heard Cannon report that he had been shot. ¶ 9 Eight spent shell casings that had been fired from the gun defendant had used were recovered from the scene. One spent shell casing was found matching that of Molitor's service weapon. Defendant received three gunshot wounds, including one to his head. Tina received two, one to her neck and the other to her arm. ¶ 10 Defendant was interviewed at the hospital a week later while he was in custody. Defendant reported he did not remember any shooting and stated that it did not sound like something he would do because he considered Officer Cannon to be a friend. He did remember arguing with Tina and that she was intoxicated at the time. He further reported that not only did Tina have a bad temper but also that she had physically attacked him in the past. ¶ 11 Defendant first argues on appeal that he was denied a fair trial because he did not have effective assistance of counsel. He believes counsel failed to present any theory of defense to the jury and failed to effectively represent him. Defendant points out that three people were injured and that he himself received three gunshot wounds, only one of which was accounted for as coming from Molitor's service weapon. Additionally, the State alleged that defendant intentionally shot Tina two times. There were no eyewitnesses to that allegation nor was there any forensic evidence to support the allegation. Defendant contends his counsel's conduct was so unprofessional that it clearly did not meet an objective standard of reasonableness and was unfair to his defense. According to defendant, relying on People v. Bell, 152 Ill. App. 3d 1007, 505 N.E.2d 365 (1987), even if a single instance of unprofessional conduct would not justify reversal of his conviction, the accumulation of all the errors in this instance do. We disagree. ¶ 12 One of the first instances defendant points to of ineffective assistance of counsel was counsel's failure to file a pretrial motion to suppress defendant's bedside statement. According to defendant, no pretrial determination was made as to the voluntariness of his statement before it was used against him. The statement resulted from the interrogation conducted at defendant's hospital bed seven days after he had suffered a gunshot wound to the back of his head. Defendant points out that the interviewing officers made their own determination as to defendant's mental capacity and his ability to understand his rights. No one consulted with his treating physician to determine his level of medication and the effects such medication may have had on defendant's mental capacity. Additionally, he did not write his own statement because he did not have his glasses with him in the hospital. Defendant further asserts that even though the officers had access to recording equipment, they chose not to record their interrogation, claiming that it was not part of police procedure. Defendant believes that, but for the jury hearing the contents of his bedside statement, he may have had a good chance of an acquittal. Defendant also finds fault with counsel's reserving his opening statement at the beginning of the trial and then failing to make a meaningful statement when the opportunity arose. He further questions counsel's style of cross-examining witnesses as well as counsel's failure to object, in general, to testimony from the State's numerous witnesses that defendant considered hearsay, speculative, and cumulative. ¶ 13 To establish a valid claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that such deficient performance prejudiced him or her to the extent that, absent counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See People v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939, 953 (2004). If the defendant fails to satisfy either prong of this test, the claim of ineffective assistance of counsel must fail. Consequently, we need not determine whether counsel's performance was deficient if we first decide that defendant suffered no prejudice from the alleged errors. People v. Foster, 168 Ill. 2d 465, 475, 660 N.E.2d 951, 956 (1995). We also recognize that there is a strong presumption that defense counsel's actions were the result of trial strategy rather than incompetence. We, therefore, sitting as a court of review, will not second-guess decisions which involve discretion or strategy. People v. Humphries, 257 Ill. App. 3d 1034, 1041, 630 N.E.2d 104, 109 (1994). As often noted, a defendant is entitled to a fair trial, not a perfect one. People v. Rooney, 16 Ill. App. 3d 901, 907-08, 307 N.E.2d 216, 221 (1974). Under the circumstances presented here, we conclude defendant cannot meet the burden of establishing ineffective assistance of trial counsel to justify reversal of his conviction in this instance. ¶ 14 Turning to defendant's first contention on appeal that counsel was ineffective for failing to file a motion to suppress his bedside statement, we find no error. Defendant claims that his written statement is inadmissible because it was not recorded pursuant to section 103-2.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-2.1 (West 2008)). Section 103-2.1, however, only applies to homicides and to statements made in police stations. Consequently, the fact that defendant's statement was not recorded does not make it presumptively inadmissible. More importantly, the record reveals that defendant's statement was voluntary. Defendant had already been released from one hospital for treatment and, at the time of the interview, was undergoing rehabilitation at a different hospital. The officers had confirmed from hospital staff that he was alert and coherent before entering his room, and both interviewing officers testified that defendant appeared coherent and did not appear to be under the influence of medication. Defendant was first read his Miranda warnings, which he stated he understood. Once the statement was completed, defendant read the statement, made some corrections, and added notes in his own hand. He also stated to the officers that the statement was accurate when finished. Given that the statement was knowing and voluntary, a motion to suppress would have been denied. Defense counsel is not required to make losing motions or objections in order to provide effective legal assistance. See People v. Lewis, 88 Ill. 2d 129, 156, 430 N.E.2d 1346, 1359 (1981). Additionally, defendant's statement was more helpful than harmful; therefore it was reasonable for counsel not to want to have it suppressed. Defendant's claim of self-defense came from this statement. Defendant had an injury to his chest that was never explained. Defendant stated that Tina had a bad temper and had attacked him in the past. He further related that just prior to the shooting, she was standing behind him on the front porch steps as they yelled at each other. He then remembered his midsection hurting a lot. Counsel claimed that defendant was defending himself from Tina when she was shot in the neck. It was therefore valid trial strategy not to move to suppress the interview statement. ¶ 15 We also find no fault with respect to defense counsel's reserving his opening statement. Defense counsel's decision to reserve, or even ultimately forego, opening statement is purely a matter of trial strategy. Humphries, 257 Ill. App. 3d at 1042, 630 N.E.2d at 110. Defense counsel could have reasonably concluded that, in this instance, the best strategy was to reserve opening statement and make a brief opening later. This flexibility allowed him to avoid variances between opening statements and the evidence ultimately presented at trial. By the time counsel had the opportunity to give an opening statement, the trial already had lasted numerous days. Counsel was only going to call one witness on behalf of defendant which would result in closing argument being given the next day. Counsel could have reasonably concluded that, at that point, it was better strategy to make a strong closing argument than to prolong the trial any further. See Foster, 168 Ill. 2d at 482-83, 660 N.E.2d at 959; Humphries, 257 Ill. App. 3d at 1042, 630 N.E.2d at 110. In the closing argument, defense counsel argued self-defense, pointed out Tina's prior attacks on defendant, and pointed out defendant's unexplained injuries. He noted that Tina thought the injury to her arm was caused by the police and that she wanted the charges against defendant dropped. Counsel also argued recklessness as to Officer Cannon's injury, pointing out that not only did one of the State's own witnesses testify that defendant turned his head away when he fired the gun, but also that Cannon's injury could have been caused by one of several ricochet bullets. As pointed out by this court in People v. Rooney, 16 Ill. App. 3d 901, 307 N.E.2d 216 (1974), "choosing to make or waive an opening statement in behalf of a defendant is simply a question of judgment in strategy, and if counsel chooses to forego making such a statement it certainly cannot be said to be a reflection on his professional competence." Rooney, 16 Ill. App. 3d at 908, 307 N.E.2d at 221-22. ¶ 16 Defendant next claims that counsel should have filed a motion for appointment of a special prosecutor and should have hired a private investigator but these claims have no merit. Defendant's argument that the State's Attorney's office had a conflict of interest in the case because the police who were involved work regularly with the State's Attorney's office would make it impossible for the State's Attorney to prosecute virtually any case. Additionally, all of the items a private investigator allegedly would have done for defendant if hired would have been either redundant or speculative. Given that defendant cannot show actual prejudice, defendant cannot show ineffective assistance of trial counsel. ¶ 17 Defendant also argues that his counsel was ineffective because there were numerous instances when counsel should have objected at trial. Besides the fact that defendant fails to identify most of the instances of which he complains, those that are specifically identified did not constitute inadmissible hearsay or, at most, were harmless error. For example, out-of-court statements used to show the effect on the listener's state of mind or explain the listener's subsequent actions are not hearsay. See, e.g., People v. Hammonds, 957 N.E.2d 386, 401 (2011). Other complained-of statements fell within the excited utterance exception and therefore were admissible as well. See, e.g., People v. Stiff, 391 Ill. App. 3d 494, 502, 904 N.E.2d 1174, 1181 (2009). As for the alleged cumulativeness of some of the testimony, much of it was necessary for a better understanding of the overall facts and, therefore, cumulative. This incident involved numerous people viewing differing parts of the events from several different locations. Some of the facts, such as who inflicted some of the gunshot wounds received by both defendant and Tina, are still unexplained. Accordingly, it was not error for the prosecutor to elicit first a general explanation of a witness's actions or observations, and then have the same witness point out, either through photos, diagrams, or videotapes, where he or she was and what else they observed or did in relationship to their position. Consequently, it did not constitute ineffective assistance for defense counsel to not object to such testimony. ¶ 18 Defendant also finds fault with counsel's style or manner of cross-examining witnesses. How to conduct cross-examination, however, is a matter of trial strategy and tactics. See People v. Clendenin, 238 Ill. 2d 302, 319, 939 N.E.2d 310, 320 (2010). The technique used here, which often began with "if I understand you correctly," also drew out evidence favorable to defendant, established impeachment of a witness, or undermined the testimony of other witnesses. Defense counsel was able to bring out several contradictions in the testimonies of several witnesses in this manner, was able to reinforce testimony that defendant was not aiming while shooting at the officers, and was able to show various different relations between defendant and Tina while on the front porch. Counsels' style of questioning was not just reiteration of direct examination as defendant claims, and often was effectively used to challenge the State's witnesses. Again, we find no ineffective assistance of counsel in this area. ¶ 19 Finally, defendant finds fault with counsel's failure to present available witness testimony in support of his various defense theories. He particularly finds fault with counsel's failure to present a single witness at trial to support his claim of self-defense and Tina's prior violent attacks. He also contends no competent defense attorney would have advised him not to testify in his own defense. Besides not furnishing the identity of such available defense witnesses, defendant's theories were presented to the jury. For example, the existence of defendant's contentious relationship with Tina was brought out both through direct testimony and cross-examination. For defendant not testifying himself, the decision to testify is one of the few decisions a defendant makes totally on his own. People v. Segoviano, 189 Ill. 2d 228, 240, 725 N.E.2d 1275, 1280-81 (2000). The court discussed defendant's choice directly with him to ensure it was his decision, and his decision alone. Defendant confirmed that no one was forcing him not to testify, and that the decision was freely and voluntarily made of his own free will. ¶ 20 Given the overwhelming evidence against defendant, none of defendant's claims of ineffective assistance of counsel could have prejudiced defendant to the extent he is entitled to a new trial. Shots were fired at or near defendant's house before police arrived. Defendant was observed on his front porch with Tina and with a gun in his hand. Tina's aunt, who was requested to go to the home, saw defendant put a gun to Tina's neck as Tina tried to leave the house. Tina's aunt started to drive back to get help, but heard shots fired. She backed up her vehicle and saw Tina lying on the porch. When the first police car arrived, Tina was still lying on the porch. Moments later, she ran from the house, bleeding from the neck. Defendant was next observed firing several times in the direction of the police. Cannon was hit almost immediately after taking cover, before Molitor fired the shot that brought defendant down. Defendant's allegations of ineffectiveness could not affect the outcome of the trial. With no prejudice, defendant's claim of ineffectiveness of counsel fails. In closing, we note that the State's case against defendant was very strong. Attributing defendant's conviction to incompetence of counsel, whether or not defense counsel's representation was the best it could have been, simply is not justified in this instance. ¶ 21 Defendant's second claim on appeal, that he was denied his right to a speedy trial, also lacks merit. Defendant was tried within the statutory time frame and the continuances requested by defense counsel were all reasonable. ¶ 22 The speedy-trial statute provides that every person in custody for an alleged offense must be tried within 120 days from the date that person was taken into custody unless delay is occasioned by the defendant. 725 ILCS 5/103-5(a) (West 2008). A defendant not tried within the statutory period must be discharged from custody, and the charges must be dismissed. 725 ILCS 5/103-5(d) (West 2008). Here, defendant was arrested on October 6, 2008. On November 19, defense counsel filed a motion for a psychological exam which tolled the running of the speedy-trial statute. At this point, defendant had been in custody only 45 days. On January 7, 2009, defense counsel filed a motion to continue because he had not yet received the psychological report. The motion was granted, over the objection of the State, thereby continuing the case. The next three scheduled status hearings were requested to be reset by defendant, thereby tolling the speedy-trial days once again. On May 18, 2009, the case was set for trial on August 18 by agreement. An agreed-upon continuance is also attributed to the defendant. 725 ILCS 5/103-5(a) (West 2008); People v. Woodrum, 223 Ill. 2d 286, 299, 860 N.E.2d 259, 269 (2006). On August 13, this time the State requested a continuance until September 15. This delay was attributable to the State. The trial started September 15, after another 34 days. The total days not attributable to defendant between his arrest and his trial therefore were 79 days, far below the statutory maximum. ¶ 23 We conclude that defense counsel's decision to wait until obtaining the psychologist's report to determine whether defendant was sane at the time of the shooting was reasonable. It was also reasonable to continue the case while productive plea negotiations were ongoing. Moreover, when asked by the court if he understood defense counsel's motions, defendant told the court that he was asking for the continuance and no one was forcing him to agree to it. The court explained his right to a speedy trial and further explained that the speedy trial stopped running until the trial would be rescheduled. Defendant told the court he accepted the delay. Under the circumstances, defense counsel was not ineffective for continuing defendant's case, and defendant was not denied his right to a speedy trial. ¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Williamson County. ¶ 25 Affirmed.