Opinion
Case No. 98 C 0055
June 8, 2000
MEMORANDUM OPINION AND ORDER
At about 6:00 p.m. on October 3, 1992, Kimberly Collins was driving her car on Damen near 68th Street in the City of Chicago. With her in the car were her best friend Dana Irvin, Irvin's children Travis and Teniya, and Collins' daughter Tiara; they were driving from Collins' home to a nearby White Castle restaurant for dinner and then planned to take the kids to a movie. As they passed an alley between 68th and 69th Streets, Collins heard seven or eight gunshots and noticed that the rear passenger side window had been shot out. Collins' daughter screamed that Teniya was bleeding, and Collins turned around in her seat to see Teniya's face covered in blood. She immediately drove to Holy Cross Hospital to get medical treatment for Teniya; once at the hospital, Collins noticed a bullet hole in the rear driver's side door of her car. As a result of the bullet passing through her head, Teniya was permanently blinded.
Kenneth Jaudon, who lives with his grandmother on Damen near 68th Street and was home on the evening of October 3, 1992, saw Donte Quinn with a group of about ten to fifteen others on the corner of 69th and Damen. Some time after 5:30 p.m., Jaudon saw Quinn pull a silver handgun and point it north (the direction from which Collins' car would have been coming); he then heard one shot and saw Quinn run away through the alley. Jaudon could not say that Quinn actually fired that shot, because he was too far away to see whether Quinn pulled the trigger on the gun he was pointing. Jaudon heard seven or eight more shots and saw the rest of the boys flee the scene. One of the last seven or eight shots came through Jaudon's front window, so he called the police, who retrieved the bullet and found it to be consistent with the one that hit Teniya, suggesting that the bullet that hit Teniya could not have come from Quinn's gun.
On November 5, 1992, the grand jury returned a seven-count indictment charging Quinn with attempted first-degree murder, armed violence, aggravated battery with a firearm, aggravated discharge of a firearm, aggravated battery causing great bodily harm, aggravated battery causing permanent disfigurement, and aggravated battery causing permanent disability. Quinn's case was tried to Judge Thomas F. Dwyer of the Circuit Court of Cook County, and both Collins and Jaudon testified against Quinn. Quinn's attorney moved for a directed finding, arguing that the state had failed to prove a case against Quinn. The judge denied the motion, and the defense rested without putting on any evidence. In closing, the prosecutor admitted that the state had failed to show that Quinn actually shot Teniya. But, he argued, the evidence showed that Quinn
attached himself to a group bent on lawless and homicidal actions. As a result, whether or not he is the one who fired the shot that hit Teniya Booker or whether or not he fired a shot at the car he is accountable for whoever did so and he is accountable for the actions of that group. Transcript of Bench Trial at C-26 (July 27, 1993).
Judge Dwyer found Quinn guilty on all counts based on an accountability theory, though he entered judgment only on the attempted murder count and merged the remaining counts into that finding. Judge Dwyer sentenced Quinn, who was sixteen at the time of the incident, to 30 years imprisonment (half of what the state requested).
Quinn appealed his conviction to the Illinois Appellate Court, though his attorney represented to the court that there were no meritorious issues on appeal and asked for permission to withdraw from the case under Anders v. California, 386 U.S. 738 (1967). Quinn opposed the motion to withdraw, arguing that he was entitled to a different appointed lawyer on appeal; his due process rights were violated because he was charged as a principal, yet convicted on an accountability theory; and the state's evidence was insufficient to prove him guilty beyond a reasonable doubt of the crimes charged. The Illinois Appellate Court agreed that Quinn's case presented no appealable issues, granted his attorney's motion to withdraw, and affirmed Quinn's conviction. People v. Quinn, No. 1-93-3939 (III. App. Aug. 17, 1995). Quinn then filed a petition for leave to appeal to the Illinois Supreme Court, raising the same issues; the Supreme Court denied his petition.
Having exhausted his direct appeal remedies, Quinn filed a petition for post-conviction relief arguing that his trial and appellate attorneys were ineffective. The Cook County Circuit Court dismissed his petition, and Quinn appealed. Quinn's appellate counsel again moved to withdraw, this time under Pennsylvania v. Finley, 481 U.S. 551 (1987), because of a lack of appealable issues; Quinn again objected, and the court again granted the motion to withdraw. The Illinois Appellate Court affirmed the denial of post-conviction relief, and Quinn filed a petition for leave to appeal to the Illinois Supreme Court, which was denied.
With no further avenues of relief available in state court, Quinn filed a pro se habeas corpus petition in this Court. In his petition, Quinn raises the same five claims he raised in the state court proceedings: (1) he was denied due process because he was charged as a principal yet tried and convicted on the theory of accountability; (2) he was denied due process because the state's evidence was insufficient to prove him guilty beyond a reasonable doubt; (3) the court should have appointed a new lawyer to represent him on direct appeal; (4) he was denied effective assistance of appellate counsel in violation of the Sixth Amendment; and (5) he was denied effective assistance of trial counsel in violation of the Sixth Amendment.
A petitioner is entitled to habeas corpus relief only if the challenged decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(1), (2). For purposes of habeas review, the Court presumes the state court's factual findings are correct, unless the petitioner can rebut that presumption with clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1). We review de novo the state court's legal determinations and mixed questions of law and fact. See Long v. Krenke, 138 F.3d 1160, 1163 (7th Cir. 1998).
Quinn first argues that he was denied due process because he was charged as a principal but convicted based on an accountability theory. In his reply Quinn seems to concede that he has no claim with respect to this issue. See Petitioner's Reply in Opposition to Respondents Answer to Petition for Writ of Habeas Corpus, p. 7 ("Petitioner contends that the Appellate Court was right in its assumption that Petitioner had no claim in regards to this subissue."). And rightfully so. Since 1846, "it has been the rule in Illinois that a person charged as a principal can be convicted upon evidence showing that he was in fact only an aider or abetter." People v. Doss, 99 Ill. App.3d 1026, 1029, 426 N.E.2d 324, 327 (1981) (citations omitted). This is so because "accountability is not a separate offense but merely an alternative manner of proving a defendant guilty of the substantive offense." Id. See also People v. Hicks, 181 Ill.2d 541, 547, 693 N.E.2d 373, 376 (1998) (accountability is not in and of itself a crime; rather the statute is a mechanism through which a criminal conviction may be reached). Thus, the fact that Quinn's indictment did not mention the possibility of liability based on an accountability theory did not result in a denial of due process; Quinn had fair notice that Illinois law permitted his conviction on that theory. He is not entitled to habeas corpus relief on this basis.
Quinn next argues that the state's evidence was insufficient to prove him guilty beyond a reasonable doubt. In determining whether the evidence supported a finding of guilt beyond a reasonable doubt, a federal court reviewing a state conviction on habeas review must view the evidence "in the light most favorable to the prosecution" and then decide whether "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, 319 (1979). Before looking at the facts, we consider what is required to prove attempted first-degree murder under an accountability theory in Illinois. "An individual commits the offense of attempted murder when, with specific intent to kill, he does any act which constitutes a substantial step toward the commission of murder." People v. Hill, 276 Ill. App.3d 683, 687, 658 N.E.2d 1294, 1297 (1995); 720 ILCS 5/8-4. "[S]pecific intent to kill may be shown by surrounding circumstances, including the character of the assault and the use of a deadly weapon," and "[s]uch intent may he inferred if one willfully does an act, the direct and natural tendency of which is to destroy another's life." Hill, 276 Ill. App.3d at 688, 658 N.E.2d at 1298. A person may be criminally liable under an accountability theory when "either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5-2(c). Mere presence at the scene is not enough to sustain a conviction under an accountability theory, but accountability may be inferred from a defendant's "approving presence at the scene" and conduct showing "a design . . . to aid in the offense." People v. Roppo, 234 Ill. App.3d 116, 599 N.E.2d 974, 981 (1992).
The evidence introduced at trial established that Quinn was on the corner where Teniya Booker was shot; that he was hanging out there with a group of ten to fifteen other boys, several of whom had guns; that Quinn brandished a gun and pointed it in the direction of the car in which Teniya was riding; that a shot then rang out, Quinn tucked his gun in his waistband and ran away; that at least seven more shots were fired; that after the shots were fired, the rest of the boys fled the scene; that one of the last seven or eight shots entered Kenneth Jaudon's house; that one of the shots smashed through Kimberly Collins' car window, hit Teniya and lodged in the car door; that the bullet recovered from Jaudon's house was consistent with the bullet recovered from Collins' car; and that, as a result of being shot, Teniya, then two years old, was permanently blinded. Whether or not Quinn fired the shot that hit Teniya — and the evidence strongly suggests that he did not — this evidence, taken in the light most favorable to the prosecution, is sufficient to support a finding that Quinn had the specific intent to kill and that his conduct showed a design to aid or attempt to aid the other boys on the street in committing an act that constituted a substantial step toward murder.
In considering Quinn's sufficiency-of-the-evidence claim, the Illinois Appellate Court concluded that the evidence supported a finding that Quinn was guilty of attempted first-degree murder under an accountability theory: "[t]he evidence established that defendant was on the street with a gun when numerous shots were fired. It does not matter whether the bullet [that struck Teniya was that of defendant or not." This was not an unreasonable application of the Jackson standard. See Williams v. Taylor. 120 S.Ct. 1495, 1522 (2000) (to obtain habeas corpus relief, petitioner must show state court's application of law to facts was objectively unreasonable). Accordingly, the Court finds that Quinn is not entitled to relief based on his sufficiency-of-the-evidence claim.
Quinn next argues that the Illinois Appellate Court violated his constitutional right to appellate counsel on direct appeal when it granted his attorney's motion to withdraw without appointing another attorney to represent him. To win on this claim, Quinn must show that the court's decision "was contrary to, or involved an unreasonable application of' the United States Supreme Court's decision in Anders v. California, 368 U.S. 738 (1967). See 28 U.S.C. § 2254 (d)(1). Although it is true that the state must provide counsel for an indigent criminal defendant on his first appeal as of right, see Douglas v. California, 372 U.S. 353, 357 (1963); Griffin v. Illinois, 351 U.s. 12, 18 (1956), the defendant's right to direct his appeal once counsel is appointed is limited. See Jones v. Barnes, 463 U.S. 745, 751 (1983). A defendant has no right to compel his appointed attorney to press arguments he or she deems to be meritless. Indeed, that is the whole point of Anders; in that case, the Supreme Court held that an attorney need not be required to serve in a case he or she finds to be utterly without merit: "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." 386 U.S. at 744. Anders requires the attorney to file a brief with his or her motion to withdraw pointing to anything in the record that could even arguably support an appeal; after considering the brief, along with the defendant's response thereto, and the entire record, the appellate court decides whether the case is indeed wholly frivolous, and, if it is, the court may grant the motion to withdraw. Id. The Illinois Appellate Court applied this standard to a tee in Quinn's case: Quinn's attorney swore that he had carefully searched the record and found no meritorious issues on appeal, and he wrote to Quinn explaining the Anders procedure and offering to answer any questions Quinn had. Quinn responded to his attorney's motion to withdraw, and the appellate court considered both submissions, as well as the record of proceedings, before concluding that Quinn's attorney was right in his assessment of the case. We cannot say that this conclusion was objectively unreasonable.
Finally, we address Quinn's ineffective assistance of counsel claims. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." To establish a claim of ineffective assistance of counsel, a petitioner must show both (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). On the first prong, petitioner must show that his attorney was grossly incompetent and that that incompetence resulted in petitioner being denied a fair trial. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996), cert. denied, 520 U.S. 1172 (1997). On the second prong, petitioner must show that counsel's conduct undermined confidence in the outcome of the trial, essentially rendering the verdict suspect. Strickland, 466 U.S. at 694; Kimmelman, 477 U.S. at 374. Quinn fails to satisfy either prong of this standard as to his trial counsel or his appellate counsel.
Quinn claims that his trial counsel was ineffective because he "fail[ed] to prepare a defense for trial; told [Quinn] not to testify . . .; failed to review the case and the charges with [Quinn]; failed to conduct any attorney-client interviews or pretrial conferences with [Quinn]; and failed to advise [Quinn] of his possible defense to the charges, as well as any possible affirmative defenses, which, when combined, created a reasonable probability that the result of the proceedings would have been different had these omissions not occurred." Pet. for Writ of Habeas Corpus, p. 6(c). An attorney's decision not to present a defense or not to put his client on the stand does not necessarily amount to ineffective assistance of counsel. See United States v. Ramsey, 785 F.2d 184, 194 (7th Cir. 1986) (decision not to present defense), cert. denied, 476 U.S. 1186 (1986); United States v. Muehlbauer, 892 F.2d 664, 669 (7th Cir. 1990) (decision not to put client on the stand). Additionally, the Court notes that Quinn does not allege that his attorney prevented him from putting on witnesses or taking the stand despite his express wish to do so; on the contrary, based on the colloquy between Judge Dwyer and Quinn, it appears that Quinn made an informed and voluntary decision not to take the stand or otherwise present evidence in his defense. See Transcript of Bench Trial at C-20 — C-23 (July 27, 1993).
Moreover, Quinn has not shown how the outcome of his trial would have been affected had his attorney done what Quinn claims he failed to do. Quinn fails to identify any exculpatory evidence that his attorney should have put on but did not; he fails to explain what he would have said on his own behalf had he testified; he fails to explain what his attorney would have learned had he interviewed Quinn or conducted pretrial conferences; and he fails to explain what he would have done differently had his attorney reviewed the charges with him or advised him of any possible defense to the charges.
Quinn also claims that his appellate counsel was ineffective because he failed to argue on direct appeal that: (1) Quinn was denied due process because he was charged as a principal yet convicted on an accountability theory; (2) Quinn was denied due process because the state's evidence was insufficient to prove him guilty beyond a reasonable doubt; and (3) Quinn's trial counsel was ineffective. The Court's analysis above concerning the accountability and sufficiency of the evidence claims demonstrates that the failure to raise these claims on direct appeal was not objectively unreasonable. And having concluded that Quinn's underlying ineffective assistance of trial counsel claim was meritless, we cannot say that appellate defense counsel was constitutionally ineffective in failing to raise it on direct appeal. See Schaff v. Snyder, 190 F.3d 513, 527 (7th Cir. 1999). In short, Quinn has failed to show that either his trial counsel or his appellate counsel was constitutionally deficient.
Petitioner Quinn's petition for a writ of habeas corpus is dismissed. Judgment will enter in favor of respondent.