Opinion
No. 1-14-3895
07-18-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY SMITH, 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. 14 MC1 206661
Honorable Clarence L. Burch, Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Neville and Mason concurred in the judgment.
ORDER
¶ 1 Held: The evidence was sufficient to prove defendant guilty beyond a reasonable doubt of reckless conduct, and the trial court's rejection of defendant's posttrial claim of ineffective assistance of trial counsel was not manifestly erroneous.
¶ 2 Defendant Terry Smith was found guilty of reckless conduct after a bench trial, and sentenced to one year of supervision. On appeal, Smith challenges the sufficiency of the evidence to convict, arguing that the testimony of the State's eyewitness was uncorroborated and objectively implausible. Smith also contends that his trial counsel was ineffective where he
waived his right to a jury trial in reliance on counsel's erroneous advice that he could only present his alibi witness at a bench trial.
¶ 3 We affirm. Smith's challenge to the sufficiency of the evidence fails as the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish that Smith committed this crime. The trial court was in a superior position to evaluate the credibility and demeanor of Smith and his alibi witness. As to the claim of ineffective assistance of counsel, Smith has failed to make a showing of manifest error.
¶ 4 Background
¶ 5 Smith's conviction arose from an incident that occurred in Chicago on February 2, 2014, for which he was charged with reckless conduct.
¶ 6 At four different pretrial appearances, an assistant public defender indicated either that Smith wanted a jury trial or that the matter was set for a jury trial. On the day of trial, however, the court was tendered a jury waiver and engaged in the following conversation with Smith:
"THE COURT: Mr. Smith, I've been tendered jury waiver. Did you sign this?
THE DEFENDANT: Yes, I did.
THE COURT: When you signed this, you knew you were giving up your right to trial by jury.
THE DEFENDANT: Yes.
THE COURT: You know what jury trial is.
THE DEFENDANT: Yes.
THE COURT: You wish to give up your right to jury by trial?
THE DEFENDANT: Yes.
THE COURT: Swear all the witnesses in."
¶ 7 Lloyd Colbert, a supervisor of highway systems for the Illinois Department of Transportation (IDOT), testified that he knew Smith from work, where Smith was in training, as he had not yet been employed with IDOT for six months. When Colbert was asked about his relationship with Smith and whether they got along, Colbert stated, "There is no relationship. I'm his supervisor and he was a driver. *** He was okay. I even took him out on the road with me, yes." Colbert explained that Smith was going through disciplinary hearings "due to the FTO's [field training officers] with the evaluations" and because Smith "wasn't living up to his part." Colbert denied contacting field training officers to tell them what he thought about Smith, though he admitted sending an email to another IDOT supervisor on September 4, 2013, stating that Smith had a problem comprehending basic instructions, was a danger to himself and everyone around him, and had the driving skills of a 16-year-old. Colbert also acknowledged that during his employment, Smith filed complaints "with EEOC and with Civil Rights" and that he, Colbert, had participated in the investigation of those complaints. Colbert, when asked how he felt about the investigation, stated, "I was glad. *** Because truth would come out about the whole situation." Colbert denied speaking with Smith in a locker room during which he told Smith that he was "going to lose everything" and was "a stupid ass nigger."
¶ 8 Colbert testified that on the morning of February 2, 2014, after his shift had ended, he was working overtime and driving an IDOT truck southbound in the far left lane on the Bishop Ford Freeway. The pavement was wet. About 5:30 a.m., Colbert noticed headlights in his rearview mirror from someone diving close to the back of his truck. He slowed down to in an attempt to get the other car to back up. The car came around to Colbert's passenger side, at
which point Colbert, who was driving 65 to 70 miles per hour, was able to see that the driver and lone occupant was Smith, whom Colbert had not seen in weeks because they were working different shifts. Smith steered his car, a 2005 or 2006 blue Chevrolet Impala, toward Colbert's truck. In response, Colbert veered left and bumped into the cement hump of the "J wall." Colbert testified:
"I hit the brakes. He hit his brakes. I sped up. He sped up, but we was [sic] coming up on other cars. I didn't want to jeopardize other people on there with what was going on with me, so I hit my lights. I have red and blues. My whole truck is lit up. I hit my lights, lit my lights up. He did it again. We were about 131st, 132nd. I went on the radio and told control, 'I have Terry Smith trying to run me into the left J wall.' "
¶ 9 Colbert explained that his speed increased and decreased as he tried to get away from Smith. Although he drove as fast as about 95 miles per hour, Smith stayed next to his truck. Colbert stated that at one point, Smith cut in front of him and slammed his brakes, "trying to get me to hit him." Smith encroached on Colbert three or four times and sometimes came within a foot of his truck.
¶ 10 Finally, Smith exited at Dolton Road heading west, and Colbert exited heading east. Colbert testified that he immediately got back on the freeway heading north and drove to a Chicago police station. On cross-examination, Colbert confirmed that Smith never actually hit him, and that there was no damage to his IDOT truck.
¶ 11 Illinois State Police trooper Kozmik-Stekala testified that she was assigned to handle Smith's case. As part of her investigation, she spoke with Colbert and gathered information about the incident. She then met with Smith, read him his Miranda rights, and asked him
questions regarding his whereabouts around 6 a.m. on February 2. Smith reported that he was not on the Bishop Ford Freeway at that time, but rather, was at a female friend's house. He stated that the incident described by Colbert never took place. Smith acknowledged that he owned a blue Chevrolet Impala, and further indicated that he was employed with and had filed a complaint against IDOT, but he did not go into details with the trooper.
¶ 12 At the close of the State's case, Smith moved for a directed finding, which was denied.
¶ 13 Lynetta Avery testified that on February 2, Smith, who was her boyfriend, stayed overnight at her house in Dolton, IL. About 5 a.m., she was watching television when Smith came downstairs and asked her to take him to a friend's house. She drove Smith in her black Dodge Journey north on I-94 to 69th Street, dropped Smith off at his friend's house, and waited for him in her car. After about an hour, she texted him that she was tired of waiting, and he came out and got in the car. Avery did not get into any kind of accident that morning with an IDOT vehicle or any other car, and she did not let Smith drive her car.
¶ 14 Smith testified that he started working for IDOT on August 1, 2013, and Lloyd Colbert was one of his supervisors. Smith described his relationship with Colbert as "Bad. *** Because I was constantly being harassed and discriminated against." For example, Smith stated that in October 2013, a "controller" gave him an incorrect location to report to, and although he arrived at the incorrect location on time, Colbert was upset, told him to go home, and docked him two hours of pay. As a result, Smith filed a complaint against Colbert with management and with his union to get his pay back. Smith testified that at one point he filed an EEOC complaint, and, in December 2013, he filed a civil rights complaint with IDOT. Both complaints were based on Colbert's behavior. When asked how he would characterize his work environment after filing the
complaints, Smith described it as hostile. In January 2014, Colbert approached him in the locker room and "told me I was going to lose everything that I own, my house, my car, and that I was a stupid ass nigger." But, according to Smith, Colbert's statements "didn't make me dislike him. That's him. That's his character." Smith stated he had no animosity toward Colbert.
¶ 15 On the morning of February 2, Smith was at Avery's house. About 5 a.m., Avery gave him a ride in her car to a friend's house so he could borrow money from the friend. Smith did not see Colbert or his vehicle that day. He also stated that he did not learn that IDOT had terminated his employment until after February 2. Smith slept through the ride to his friend's house and did not know what route Avery took to get there. On cross-examination, however, Smith clarified that it was on the ride back to Avery's from his friend's that he fell asleep.
¶ 16 The trial court found Smith guilty of reckless conduct and sentenced him to one year of supervision.
¶ 17 About two weeks later, after defense counsel filed a posttrial motion, Smith filed a pro se motion to remove the public defender. In court, Smith explained that his reason for the motion was "misrepresentation, breakdown of communication, during trial." After confirming that the public defender would withdraw, the trial court granted the pro se motion. The trial court and Smith then engaged in a lengthy discussion regarding his representation. When Smith related that he wished to continue pro se, the trial court explained the challenges he would face by doing so. Smith indicated that despite being indigent, he did not want another public defender because she "out of spite filed a motion to reconsider without my knowledge," and reiterated that he was misrepresented and that there had been a breakdown in communication. The trial court opined that the public defender who had been representing Smith was "perhaps one of the best attorneys
in this courtroom," adding, "I want the record to reflect I think she did an excellent job during the trial." Nevertheless, the trial court allowed Smith 10 days to hire new counsel.
¶ 18 Within 30 days of trial, Smith, through a private attorney, filed a new posttrial motion alleging, among other things, that he had received ineffective assistance of trial counsel. Specifically, the motion asserted that Smith was deprived of his right to a jury trial where trial counsel inaccurately advised him that because Lynetta Avery had not been disclosed to the prosecution, he could present her as an alibi witness at a bench trial, but not a jury trial.
¶ 19 The trial court conducted a hearing on the motion. Both Smith and Avery testified.
¶ 20 Avery testified that before trial, one of Smith's Public Defenders approached her in the hallway and said that no one knew about her being a witness for Smith. Avery testified that although she thought she was coming to court for a jury trial, counsel told her Smith was taking a bench trial. Then, after the trial concluded and everyone was standing in the hallway talking about the case, Smith indicated he should have had a jury trial," and counsel replied, "[N]o, because if you would have took [sic] a jury trial, you wouldn't be able to use Lynetta for your witness."
¶ 21 Smith testified that before trial, more than once, he told his Public Defender that he wanted a jury. But, just before trial commenced, he met for the first time the Public Defender that Avery mentioned, who approached him in the hallway and said he would not be able to "use [his] witnesses or the evidence" if he took a jury trial. Although Smith still wanted a jury trial, he decided to proceed to a bench trial because of what he had been told about presenting Avery as an alibi witness.
¶ 22 The trial court denied Smith's posttrial motion. This appeal followed.
¶ 23 Analysis
¶ 24 Smith first challenges the sufficiency of the evidence to convict, arguing that Colbert's uncorroborated, astonishing, and incredible testimony did not prove beyond a reasonable doubt that he committed reckless conduct. Smith argues that it is objectively implausible that he somehow located Colbert on the freeway at 5:30 a.m. on a Sunday while Colbert worked an unscheduled shift; that Smith doggedly followed Colbert through traffic, repeatedly swerved toward him, cut him off, encroached within inches of his IDOT truck, and caused him to drive over the lower part of the center dividing wall; that Colbert was able to identify him in the dark from another lane of traffic; that Colbert maintained complete control of his truck and avoided any impact with the dividing wall or Smith's car, even though they were driving at speeds ranging from 65 to 95 miles per hour on a wet roadway; and that Colbert drove away without even a scratch on his truck. Smith maintains that Colbert's version of events is too fantastical to prove him guilty beyond a reasonable doubt, especially in light of his plausible alibi defense that he was with his girlfriend that morning, and given Colbert's motive to retaliate against Smith for naming him in multiple civil rights complaints.
¶ 25 When reviewing the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The credibility of the witnesses, the weight to be given their testimony, and the resolution of any conflicts in the evidence are within the province of the trier of fact, and a reviewing court will not substitute its judgment for that of the trier of fact on these matters. People v. Brooks, 187 Ill. 2d 91, 131 (1999). The testimony of a single witness, if
positive and credible, is sufficient to convict. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). A reviewing court will not reverse a conviction simply because the defendant claims that a witness was not credible. Id. Reversal is justified only where the evidence is "so unsatisfactory, improbable or implausible" that it raises a reasonable doubt as to the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).
¶ 26 Here, the trial court was well aware of Smith's objections to Colbert's version of events. In closing arguments, defense counsel characterized Colbert's testimony as fantastic, improbable, ridiculous, and "the stuff out of movies." Counsel also questioned how Smith could have known when and where to locate Colbert, how Colbert could have recognized Smith, and how Colbert could have engaged in his various evasive maneuvers at high speed without even scratching his truck. Nevertheless, the trial court chose to believe Colbert over Smith and Avery, which was its prerogative in its role as the trier of fact. See People v. Moody, 2016 IL App (1st) 130071, ¶ 52. The trier of fact may believe part of a witness's testimony without believing all of it (People v. Sanchez, 105 Ill. App. 3d 488, 493 (1982)) and is not required to accept alibi testimony over positive identification of an accused, especially where the alibi testimony is provided by biased witnesses (People v. Johnson, 2013 IL App (1st) 111317, ¶ 63).
¶ 27 We have reviewed Colbert's, Smith's, and Avery's testimony and find no basis to reverse the credibility finding of the trial judge, who saw and heard the witnesses testify. A person commits reckless conduct when he or she recklessly performs an act or acts that cause bodily harm to or endanger the safely of another person. 720 ILCS 5/12-5(a)(1) (West 2014). We find that the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish that Smith committed this crime. The evidence was not "so unsatisfactory, improbable
or implausible" to raise a reasonable doubt as to Smith's guilt. Slim, 127 Ill. 2d at 307. Accordingly, Smith's challenge to the sufficiency of the evidence fails.
¶ 28 Next Smith contends that his trial counsel was ineffective where he waived his right to a jury trial in reliance on counsel's erroneous advice that he could only present Avery as an alibi witness at a bench trial. Smith argues that throughout his pretrial proceedings, he consistently indicated that he wanted a jury trial. He asserts that he changed his mind at the last minute and waived his constitutional right to a jury solely due to counsel's legally erroneous and professionally unreasonable advice, that his jury waiver was uninformed and undesired, and that it is "practically certain" he would not have waived his right to a jury trial in the absence of counsel's erroneous advice.
¶ 29 To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced him or her. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where a defendant raises a posttrial claim of ineffective assistance and the trial court reaches a determination on the merits of the claim, this court will reverse only if the trial court's action was manifestly erroneous. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. "'Manifest error' is error that is clearly plain, evident, and indisputable." Id.
¶ 30 We cannot find manifest error. While the trial court did not explain its reasons for denying Smith's claim of ineffective assistance of trial counsel, it is apparent from its decision that it made a credibility determination and rejected Smith's and Avery's testimony regarding the public defender's alleged statements that an alibi witness could only be presented at a bench trial,
as well as Smith's assertion that although he still wanted a jury trial, he acquiesced to a bench trial solely based on the public defender's erroneous advice.
¶ 31 The same judge handled Smith's bench trial, the proceedings on Smith's motion to remove the Public Defender on October 10, 2014, and the hearing on the posttrial motion on November 10, 2014. On October 10, when Smith explained his motivation for wanting the Public Defender removed from his case, he was not shy in expressing the reasons for his dissatisfaction. When the trial court asked Smith why he wanted the Public Defender removed, Smith answered, "My reason is for misrepresentation, breakdown of communication, during trial on September 22nd." He also made the following statement:
"I don't want another Public Defender, your Honor, with all due respect. I'm indigent right now. When I asked the Public Defender about the motion to reconsider, my Public Defender got upset with me and out of spite filed a motion to reconsider without my knowledge. And within three days, she told me that I had to go [to] trial. I asked her did she have the transcript in order to do the motion to reconsider and she told me no. So I have been misrepresented during the trial on September 22nd, and there is a breakdown in communication between the Public Defender and I."
¶ 32 Tellingly, Smith had ample opportunity to raise this issue with the court, but did not. Smith said nothing about the Public Defender advising him to waive his right to a jury against his wishes, or that the Public Defender had said Avery could only testify at a bench trial due to not having been disclosed as an alibi witness. Rather, the allegation first appeared in the posttrial motion drafted by Smith's newly-retained counsel, and then was repeated by Smith and Avery in their testimony at the hearing on that posttrial motion.
¶ 33 Whether a defendant's posttrial claims of ineffective assistance of counsel are meritorious presents a question that is necessarily grounded in the specific facts of the case. People v. McCarter, 385 Ill. App. 3d 919, 941 (2008). Accordingly, this court may give deference to the trial court's findings on the issue (id.) and, as explained, we will not overturn those factual findings unless they are against the manifest weight of the evidence (Tolefree, 2011 IL App (1st) 100689, ¶ 25).
¶ 34 The trial court was familiar with Smith and his demeanor, as well as the Public Defender's performance throughout the trial. The trial court was in a superior position to evaluate the credibility of Smith's and Avery's assertions and demeanor, and trial counsel's actions during all the various proceedings. We are not persuaded that this case involves error that is clearly plain, evident, and indisputable. See Tolefree, 2011 IL App (1st) 100689, ¶ 25. So, we defer to the trial court's credibility determinations and affirm the denial of Smith's posttrial claim of ineffective assistance of counsel. See People v. Evans, 54 Ill. App. 3d 883, 886 (1977) (where question presented is one of credibility of witnesses who testified at hearing on posttrial motion, function of trial court to determine witnesses' credibility and appellate court may not substitute its judgment for that of trier of fact).
¶ 35 Affirmed.