Opinion
No. 1-14-1897
06-14-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ANTWON TYLER, Petitioner-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. 93 CR 21971
The Honorable Maura Slattery Boyle, Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
¶ 1 Held: Petitioner failed to establish sufficient cause and prejudice for his claims of ineffective assistance of trial and appellate counsel and did not demonstrate a Brady violation necessary to justify an evidentiary hearing. Further, petitioner received demonstrably reasonable assistance from his postconviction counsel. Affirmed.
¶ 2 This appeal arises from the trial court's order summarily dismissing petitioner Antwon Tyler's pro se petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2014)). On appeal, petitioner contends that trial counsel was ineffective for failing to object to the defective version of Illinois Pattern Jury Instruction (IPI) Criminal 3rd No. 3.15. Petitioner also contends that the State committed a discovery violation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide a police report that may have been used to impeach a trial witness. In addition, petitioner contends that appellate counsel was ineffective for failing to raise these issues on direct appeal. Further, petitioner contends that his postconviction counsel was ineffective. We disagree and affirm.
¶ 3 I. BACKGROUND
¶ 4 We recite only those facts necessary to understand the issues raised on appeal. On March 28, 1993, Edwin Carlock was shot and killed by petitioner's cohort Marcus Gray. A witness identified petitioner as the getaway driver and the State charged petitioner with first-degree murder, armed robbery, attempt armed robbery and aggravated unlawful restraint.
¶ 5 At trial, Denall Morris testified that on the night of the incident he was working as the showroom manager at a Chuck E. Cheese's establishment. After closing, he immediately headed home to 9952 South Normal Street, arriving at approximately 10:30 p.m. He noticed a grayish Chevy Impala or Caprice double parked on the west side of Normal Street with two passengers. He parked a block down on the east side of Normal Street and began "digging in the glove compartment." A few minutes later, the same grayish vehicle pulled up to the side of Morris's vehicle, a man got out of the passenger side door, and opened up Morris's driver side door pointing a gun at Morris's face. The man said, "give me your shit," and Morris gave the gunman his earring. The driver then exited the vehicle, opened Morris's passenger side door, and began
rummaging through Morris's vehicle. He took the car radio and Morris's wallet. The gunman then told Morris, "lay down or I'll pop you," and hit Morris on the head with the gun. Both men got back into the vehicle and drove away northbound down Normal Street and turned eastbound on 99th Street, which leads to a dead-end. Thus, one would automatically turn southbound on Eggleston, where occurrence witness Taniesheia Harden lived, and then make a westbound turn onto 100th Street. Two to three minutes after the men in the grayish vehicle drove away, Morris heard gunshots. He then observed the men speeding down 100th Street.
¶ 6 Thereafter, the Chicago Police Department (CPD) contacted Morris, and along with occurrence witnesses Harden and Melvin Slaughter, they generated a computer sketch of both the shooter and the driver. Morris recognized petitioner, whom he identified in open court as the driver, as he had seen him at the neighborhood basketball courts. Morris, however, did not make this connection the night of the incident. On August 24, 1993, Slaughter showed Morris photographs from the Chicago Sun-Times of the gunman and the driver. Morris then contacted the CPD and identified the gunman as Gray and the driver as petitioner in a police lineup.
¶ 7 The testimony of several occurrence witnesses revealed the following. At approximately 10:30 p.m., Slaughter was a passenger in Edwin's vehicle driving home from the Home Run Inn. He was with his girlfriend Harden, Sandra Carlock, her son, Edwin, his fiancée Laveta Heffner, and their two children. When they arrived at Harden's house, Harden went inside but Slaughter was called back by Laveta who asked him for his pager number. As Slaughter walked back toward Edwin's vehicle, he noticed another vehicle pull up alongside. A man exited the passenger side door, pointed a gun at Slaughter, and said, "don't move motherfucker." Slaughter "balled up and fell back on the ground," and observed the gunman shoot into Edwins' vehicle. The gunman then walked over by Slaughter, patted him down, and demanded money. When
Slaughter's beeper fell out of his pocket, the gunman grabbed it and jumped back into the vehicle. Slaughter identified the gunman as Gray in a police lineup. On cross-examination, Slaughter testified that he could not identify the driver of the vehicle.
¶ 8 Sandra testified that she was seated behind her brother Edwin in the back passenger seat with her son on her lap. Sandra's two-year-old nephew, who was standing on the backseat, made a comment about a man with a gun behind Edwin's vehicle. Sandra then "grabbed [her] nephew, pulled him down [and] screamed to [her] brother to drive off." She also noticed a vehicle with a driver parked next to Edwin's vehicle, but she could not see the driver's face. The man fired the gun through the driver side window and said, "take that motherfuckers." Sandra then jumped over the seat and grabbed the wheel because the car was veering into a steel railing. Edwin was slumped over with blood pouring out of his head. The assailant's vehicle looked like a greenish or grayish Chevy Impala. She identified Gray as the gunman during a police lineup.
¶ 9 Heffner testified that she was sitting in the front passenger seat with her seven-month-old son when she observed a "dark-skinned" man dressed in all black clothing with a gun. She ducked her head and heard a gunshot. Heffner's son started crying and was covered with blood and glass in his face. She saw another vehicle behind the shooter and a "light-skinned person with short hair" in the driver's seat. During a police lineup and in open court, Heffner noted that there was "a possibility" that petitioner was the driver, "but [she] wasn't sure because [she] only [saw] the person from the right side."
¶ 10 Harden testified that upon entering her house the street was illuminated by a street light and her front porch light. She walked about 10 steps toward the couch and heard a gunshot. She then ran to the front window with a direct view of the assailants' vehicle. She observed Slaughter lying on the street and a man holding a gun to Slaughter's head. Harden also saw a
"greenish grayish" vehicle with another man in the driver's seat. He was initially "looking forward, then he was looking to the side." When the vehicle's door opened and a light switched on, Harden was able to see the driver's face. Harden then ducked down by the bottom of the window because the driver was staring right at her. She identified Gray as the gunman and petitioner as the driver in a police lineup. Harden also made this identification in open court.
¶ 11 On cross-examination, Harden testified that she went to Julian High School (Julian) her freshman year for two months and knew petitioner, who was "probably a senior at the time," from "seeing him around." Harden never gave petitioner's name to the CPD or disclosed that she knew petitioner from Julian. On redirect examination, Harden noted that she did not recognize petitioner at the time of the incident, but while reviewing police photographs, she recalled "he looked familiar." She did not know petitioner by name, only recalled seeing him around at Julian before transferring to another high school.
¶ 12 In petitioner's case in chief, CPD Officer Alfred Schultz testified that he spoke with three or four occurrence witnesses at the scene, who recalled seeing the male assailants from the neighborhood but did not know their names. CPD Officer Charles Williams also testified that he conducted the line up where his police report suggested that Heffner identified petitioner as the gunman and Gray as the driver. On cross-examination, however, Officer Williams testified that his report was inaccurate because Heffner identified petitioner as the driver and Gray as the gunman.
¶ 13 Subsequently, the jury found petitioner guilty of first-degree murder and armed robbery. Along with a motion for a new trial, petitioner filed a 2-1401 motion based on a police report concerning an incident that occurred on January 1, 1992 (the police report). The report stated that gun shots were fired at a New Year's Eve party after petitioner got into an argument with
another man. The report also alleged that petitioner damaged several car windows and a garage door with a baseball bat, and identified petitioner's physical description and home address. Further, the report named Harden as one of three witnesses. Defense counsel argued that Harden perjured herself on the stand when she testified that she only recognized petitioner from Julian. The trial court, however, disagreed and denied the motion. The trial court noted that petitioner failed to practice due diligence in bringing the police report to defense counsel's attention until after trial. In addition, "[t]here [was] no way to know how much [was] contributed by [Harden], whether there [was] specific information contributed by [Harden] as to the role defendant played. We don't know where she was in connection to anything." Therefore, the trial court determined Harden's trial testimony did not constitute perjury. Defense counsel suggested that he could file a separate appeal regarding the issue, but the trial court allowed counsel to incorporate the issue into its motion for a new trial. At sentencing, although petitioner was eligible for the death penalty, due to a murder conviction in a separate matter, the trial court sentenced him to natural life in prison. Petitioner then filed a direct appeal challenging his conviction and sentencing, which the trial court denied. People v. Tyler, No. 1-98-4088.
¶ 14 Consequently, on October 16, 2001, petitioner filed a pro se petition for postconviction relief alleging, in pertinent part, that (1) Harden perjured herself on the witness stand; (2) the State committed a Brady violation by failing to disclose favorable evidence, namely the police report; and (3) appellate counsel was ineffective for failing to raise these issues on direct appeal. On December 28, 2004, the trial court appointed Assistant Public Defender Thomas Herres to represent petitioner, who then filed a supplemental pro se petition arguing that it was prejudicial error to give IPI 3.15 to the jury in light of People v. Gonzalez, 326 Ill. App. 3d 629 (2001). On August 3, 2011, Herres filed a second supplemental pro se postconviction petition, incorporating
any and all previous arguments set forth by petitioner. After Herres's retirement, on March 14, 2013, newly assigned appellate counsel filed an amended supplemental postconviction petition, including a Rule 651(c) certificate, contending that (1) IPI 3.15 was erroneous; (2) ineffective assistance of trial counsel for failing to object to IPI 3.15; (3) ineffective assistance of appellate counsel for failing to raise the jury instruction issue on direct appeal; and (4) newly discovered evidence in the form of the police report. The petition also incorporated any and all previous arguments set forth by petitioner. The State then filed a motion to dismiss petitioner's postconviction petition and the trial court granted the State's request. Petitioner now appeals.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the Act allows review of a petitioner's claim where there was a "substantial denial of his * * * rights" under either, or both, the Illinois Constitution or United States Constitution in the proceedings that resulted in his conviction. 725 ILCS 5/122-1(a)(1) (West 2014). Any issues that could have been raised on direct appeal, but were not, are procedurally defaulted, and any issues that have previously been decided by a reviewing court are barred by res judicata. People v. Harris, 224 Ill. 2d 115, 124-25 (2007). At the first stage, the trial court, without input from the State, examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2014); People v. Sawczenko, 328 Ill. App. 3d 888, 892 (2002). If the petition is not dismissed at the first stage, it proceeds to stage two, where section 122-4 of the Act provides for the appointment of counsel for an indigent defendant. 725 ILCS 5/122-4 (West 2014). At the second stage, the State has an opportunity to either answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2014). The trial court then determines whether the petition makes a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). If the petition is not dismissed at the second stage, it
proceeds to the third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2014). This case presents an appeal from the dismissal of a petition at the second stage of the postconviction process which we review de novo. Coleman, 183 Ill. 2d at 388-89.
¶ 17 Petitioner initially contends that trial counsel was ineffective for failing to object to the defective version of IPI 3.15. To show that counsel was ineffective, a petitioner must demonstrate both that counsel's performance was deficient and that, as a result, the defendant was prejudiced. People v. Bailey, 232 Ill. 2d 285, 289 (2009) (citing Strickland v. Washington, 466 U.S. 668 (1984)). The failure to satisfy either prong precludes finding that counsel was ineffective. People v. Colon, 225 Ill. 2d 125, 135 (2007). In order to establish deficient performance, the defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327 (2011). We find trial counsel was not in error.
¶ 18 Petitioner cites Gonzalez, 326 Ill. App. 3d at 639-40, which determined that IPI 3.15 erroneously used "or" in separating the five eyewitness identification factors and therefore misstated the law. The court reasoned that "[t]he phrase preceding the five factors, stating that 'all facts and circumstances in evidence' are to be considered, does not obviate the erroneous wording of the jury instruction." Id. at 640. Thereafter, the supreme court held that such an instruction constitutes plain error. People v. Herron, 215 Ill. 2d 167, 191 (2005). Since Gonzalez and Herron, however, this court has held that "the improper use of the word 'or' between the listed factors in IPI *** 3.15 occurring before November 26, 2001, may not be raised in postconviction petitions." People v. Oliver, 2013 IL App (1st) 120793, ¶ 24.
¶ 19 Here, petitioner's conviction was decided in 1998, followed by his direct appeal, well before this court decided Gonzalez, thereby foreclosing his ability to raise the issue in a
postconviction petition. As Oliver states, a claim of ineffective assistance of counsel cannot "be based on counsel's failure to invoke a ruling that had not yet occurred." Id. (citing People v. Chatman, 357 Ill. App. 3d 695, 700 (2005)). Requiring counsel to predict "future appellate court holdings would render 'effective assistance' an impossible standard to meet and would, we believe, render nearly all Illinois attorneys incompetent." Chatman, 357 Ill. App. 3d at 700. Nonetheless, petitioner cannot establish prejudice because the evidence of his guilt was substantial and he has not demonstrated how giving the instruction in the conjunctive ("and"), rather than the disjunctive ("or"), would have had an impact on the jury's deliberation. Consequently, petitioner's claim of ineffective assistance of trial counsel cannot succeed. Additionally, it follows that we cannot find petitioner's appellate counsel ineffective for having abstained from making a meritless ineffective assistance of trial counsel argument in regards to the jury instruction at issue. See People v. Caballero, 126 Ill. 2d 248, 270 (1989) (on appeal "[n]o one's sentence or conviction will be reversed merely because counsel omits frivolous issues; reversal requires that the defendant raise some meritorious issue").
¶ 20 Petitioner next contends that the State violated his due process rights when it allowed Harden to perjure herself at trial. Specifically, petitioner argues that the State committed a Brady violation because it failed to disclose the police report which may have allowed defense counsel to impeach Harden's testimony. We agree with the State's position that petitioner failed to raise these claims on direct appeal, and thus, these issues have been forfeited. See People v. Moore, 402 Ill. App. 3d 143, 145-46 (2010) ("issues that could have been raised on direct appeal, but were not, are considered forfeited and, therefore, barred from consideration in a postconviction proceeding"). Petitioner, however, seeks to avoid the bar of forfeiture by arguing ineffectiveness of appellate counsel in failing to raise these claims on direct appeal.
¶ 21 We also review a claim of ineffective assistance of appellate counsel under the two-prong test set forth in Strickland, 466 U.S. 668 (1984). To prevail on such a claim, petitioner "must show that counsel's failure to raise the issue on appeal was objectively unreasonable and that this decision prejudiced him." People v. Jones, 219 Ill. 2d 1, 23 (2006). "Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." People v. Easley, 192 Ill. 2d 307, 329 (2000). Consequently, unless the underlying issues are meritorious, petitioner has suffered no prejudice from counsel's failure to raise them on appeal. People v. Childress, 191 Ill. 2d 168, 175 (2000).
¶ 22 Under Brady, the State has an affirmative duty to disclose any evidence that is favorable to the accused and material to either guilt or punishment. Brady, 373 U.S. at 87. A Brady claim requires a showing that the undisclosed evidence is favorable to the accused because "it is exculpatory or impeaching, the evidence was suppressed by the State either willfully or inadvertently, and the accused was prejudiced because the evidence is material to guilt." People v. Jarrett, 399 Ill. App. 3d 715, 727-28 (2010) (citing People v. Burt, 205 Ill. 2d 28, 47 (2001)). A Brady claim may arise in the following three circumstances: "(1) where previously undisclosed evidence reveals the prosecution introduced trial testimony it knew or should have known was perjured; (2) where the State fails to comply with a defense request for disclosure of some specific exculpatory evidence; and (3) where the State fails to voluntarily give the defense exculpatory evidence never requested or requested only in a general manner." People v. Snow, 2012 IL App (4th) 110415, ¶ 35. Evidence is material if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed." People v. Harris, 206 Ill. 2d 293, 311 (2002).
¶ 23 In the case sub judice, the record is devoid of any evidence that the prosecutors possessed the police report or even had knowledge of its existence. See People v. Morissette, 150 Ill. App. 3d 431, 441 (1986) ("[i]t is axiomatic that, as a practical matter, the failure of the prosecutor to disclose allegedly exculpatory evidence not in his possession does not violate due process, since under such circumstances, nothing has been suppressed"). Further, as a whole, the record fails to demonstrate that the police report contained favorable evidence that would have changed the result of petitioner's trial. See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (favorable evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"). Contrary to petitioner's assertion, Harden did not testify that she only knew petitioner from Julian. Harden testified that she attended Julian for two months during her freshman year and recognized petitioner as a senior-year classmate. Harden observed that petitioner "looked familiar" while she was reviewing police photographs but did not recall his name. In addition, the police report named several witnesses, and thus, it was unclear as to which witness gave police petitioner's description. Furthermore, absolutely nothing in the record indicates that Harden made a connection between the two events or that she had any motive to falsely testify against petitioner. Therefore, the police report in no way unequivocally establishes that Harden committed perjury. See People v. Roman, 2016 IL App (1st) 141740, ¶18 (citing Strickler v. Greene, 527 U.S. 263, 281 (1999)) ("[s]trictly speaking, there is never a real Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict"). Moreover, the record supports a substantial showing of evidence against defendant and there is not a reasonable probability that the result of the proceeding would have been different had the police report been disclosed. Accordingly, we cannot say that
appellate council's decision to refrain from raising these issues below was unreasonable, and therefore, prejudicial to petitioner. See Harris, 206 Ill. 2d at 37 ("because this underlying claim lacks merit, it was not incompetence on the part of appellate counsel to refrain from raising this issue on direct appeal").
¶ 24 Finally, petitioner contends that he was denied reasonable assistance from his postconviction counsel. The right to counsel in postconviction proceedings is wholly statutory and a petitioner is entitled only to the "reasonable" level of assistance required by the Act. People v. Lander, 215 Ill. 2d 577, 583. (2005). Under Supreme Court Rule 651(c) (eff. Feb. 6, 2013), postconviction counsel must (1) consult with the petitioner either by mail or in person to ascertain the contentions of deprivation of constitutional rights; (2) examine the record of the trial court proceedings; and (3) make any amendments to the pro se petition necessary for an adequate presentation of the petitioner's contentions. People v. Perkins, 229 Ill. 2d 34, 42 (2007). This court has consistently held that remand is required where postconviction counsel fails to complete any one of the above duties, regardless of whether the claims raised in the petition had merit. People v. Suarez, 224 Ill. 2d 37, 47 (2007). The filing of a Rule 651(c) certificate gives rise to a presumption that postconviction counsel provided reasonable assistance during second stage proceedings under the Act, namely adequately investigated, amended and properly presented claims. People v. Jones, 2011 IL App (1st) 092529, ¶ 23. Petitioner bears the burden of demonstrating that his attorney failed to comply with the duties mandated in Rule 651(c).
¶ 25 Here, although the certificate was unsigned, the record demonstrates that postconviction counsel met all of the requirements under Rule 651(c), with petitioner receiving reasonable assistance. For the sake of completeness, we note that postconviction counsel executed the 651(c) certificate, reviewed the proceedings below, consulted with petitioner on several
occasions, and conducted his own investigation into petitioner's claims. Thus, petitioner did receive more than adequate representation statutorily available to him. See People v.Rossi, 387 Ill. App. 3d 1054, 1060 (2009) (upon the filing of a certificate in accordance with Rule 651(c), the presumption exists that postconviction counsel adequately consulted with petitioner and presented petitioner's desired claims).
¶ 26 Additionally, petitioner contends that postconviction counsel should have cited additional authority, such as the legislature's committee notes, to bolster petitioner's argument that IPI 3.15 was inapplicable at the time of petitioner's trial. As we have already stated at length, this court previously determined that Gonzales and Herron do not apply retroactively. See Oliver, 2013 IL App (1st) 120793, ¶ 24. Further, petitioner argues that postconviction counsel failed to assert his pro se claim that the State committed a Brady violation relating to the police report, and instead, characterized the report as newly discovered evidence. The record, however, demonstrates that postconviction counsel did assert petitioner's Brady claim and also argued the police report constituted newly discovered evidence. Furthermore, there was no basis for postconviction counsel to argue that appellate counsel was ineffective for failing to file a separate notice of appeal for the trial court's denial of his 2-1401 motion, which was in actuality incorporated by the trial court into petitioner's motion for a new trial before sentencing. See Lozman v. Putnam, 328 Ill. App. 3d 761, 767 (2002) (only final judgments are appealable.) Consequently, postconviction counsel was not in error and defendant again received reasonable assistance. Accordingly, the trial court properly dismissed defendant's postconviciton petition without an evidentiary hearing.
¶ 27 CONCLUSION
¶ 28 Based on the foregoing, we affirm the judgment of the circuit court of Cook County.
¶ 29 Affirmed.