People v. Anderson

2021 IL App (2d) 191054-U

Opinion

2021 IL App (2d) 191054-U No. 2-19-1054 Order filed September 21, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CF-1443 ) JAMES DEVON ANDERSON, ) Honorable ) Joseph G. McGraw, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Bridges and Justice McLaren concurred in the judgment.

ORDER

¶1 Held: The trial court properly dismissed, at the first stage of postconviction review, defendant’s claim that his trial counsel was ineffective for not (1) honoring his request to ask the trial court to instruct the jury on second-degree murder and (2) investigating an alibi defense. First, contrary to defendant’s position, the decision to request a second-degree murder instruction is not the personal right of a defendant. Second, the evidence that defendant wanted counsel to produce at trial would not have supported a defense and, in fact, would have contradicted the alibi testimony that defendant did present.

¶2 Defendant, James Devon Anderson, appeals the summary dismissal of his petition filed

under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). He contends that 2021 IL App (2d) 191054-U

his trial counsel was ineffective for failing to (1) request a jury instruction on second-degree

murder and (2) investigate and call alibi witnesses. We affirm.

¶3 I. BACKGROUND

¶4 Defendant was charged with first-degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) for

the shooting death of Paul Ezop in Rockford in December 2011.

¶5 Before trial, defendant’s initial counsel filed with the trial court on June 8, 2013, a

discovery answer stating that defendant would be relying on an alibi defense, namely that

defendant was with Cheryl Williams, his live-in girlfriend, in Indiana during the shooting. On

July 16, 2013, counsel filed another discovery answer stating that defendant would be presenting

the alibi defense that, during the shooting, he was in Griffith, Indiana, celebrating his nephew’s

birthday. However, defendant’s subsequent counsel told the court that defendant was not claiming

an alibi. Rather, the defense would proceed on the theory that the State’s case was “highly

circumstantial” because there were “no eyewitnesses to the murder.”

¶6 At the July 2015 jury trial, the State presented evidence that defendant shot Ezop near an

auto parts store in Rockford around 6:30 p.m. on December 8, 2011. A witness testified that she

had seen a car that looked like an Oldsmobile speed up and cut in front of a maroon SUV. The

driver of the car was angry, drove erratically, made hand movements, and shouted profanity.

Another witness, who lived near the auto parts store, saw an Oldsmobile follow a dark-colored

SUV at a high rate of speed. The vehicles stopped, and the witness saw one man walk up to the

other and then heard three shots. The witness saw one man fall, and the SUV then quickly fled.

¶7 Thomas Reed, who worked at the auto parts store, testified that he heard four gunshots and

went outside. He saw a car blocking an entryway to the store and a man lying on the ground a few

feet in front of the car. He saw an SUV driving nearby but was unable to describe its color because

-2- 2021 IL App (2d) 191054-U

he was color blind. Yet another witness heard gunshots and saw an SUV flee north. The witness

followed the SUV and later saw it parked at a condo but could not get a license plate number. The

condo was later connected with defendant via his landlord.

¶8 Ezop sustained two gunshot wounds to his left shoulder and left side of his chest. Bullet

fragments were recovered from his back. He died from the gunshot to his chest. He had a blood-

alcohol level of 0.138, which was over the legal limit.

¶9 Police later learned that defendant was in jail on an unrelated matter. Based on monitoring

of defendant’s jail phone calls, the police searched a garage and impounded a maroon SUV. The

police learned that the SUV’s owner had previously authorized defendant to use it. They also

recovered a Glock firearm and ammunition from defendant’s associates. An expert testified that

bullets recovered from Ezop were fired from a Glock. I-Pass records associated with defendant

and the SUV placed the vehicle at Route 173 and I-90 near Rockford at 6:52 p.m. on the day of

the shooting. The vehicle then proceeded east toward Indiana.

¶ 10 Despite defense counsel’s pretrial declaration that defendant would present no alibi

defense, defendant called his nephew Lashawn Rush, who testified that defendant was at a party

in Griffith, Indiana, during the shooting.1 When Rush arrived at the party between 3 p.m. and 4

p.m., defendant was already there with his girlfriend, “Amber.” Rush left the party around 11 p.m.

1 Rush stated that the party was in “Griffin,” Indiana, but defendant’s July 16, 2013,

discovery answer claimed that he was at a party in “Griffith,” Indiana. Also, in his postconviction

affidavit, defendant claimed that he was at a party in Griffith and that he booked a hotel room that

night in nearby Merrillville, Indiana.

-3- 2021 IL App (2d) 191054-U

¶ 11 During closing arguments, defense counsel argued that the State failed to prove that

defendant was the shooter. Counsel stressed the absence of eyewitness testimony linking

defendant to the shooting. Counsel also argued that defendant was in Indiana at the time of the

shooting. At the jury instruction conference, the court asked defendant, “[D]id [counsel] put on

all the evidence that you want them to put on?” Defendant replied, “Yes.”

¶ 12 The jury found defendant guilty, and the trial court denied his motion for a new trial. At

sentencing, defense counsel presented a witness who testified that defendant was “not a killer”

and did not kill Ezop. Defendant also made a statement in which he maintained his innocence.

Defense counsel presented no evidence concerning provocation; counsel argued instead that

defendant did not commit the crime. In discussing the statutory factors in mitigation, the trial

court found that defendant did not act under a strong provocation. The court stated that any

provocation of defendant was no greater than what is experienced daily in an urban environment,

“where someone cuts us off or flips us off or gestures or yells at us.” The court also found that

the conduct was not induced or facilitated by another person. In that light, the court sentenced

defendant to 60 years’ incarceration. Defense counsel moved to reconsider the sentence, alleging

that it was excessive. Counsel did not argue that the court failed to consider provocation as

mitigation. The court denied the motion.

¶ 13 Also at sentencing, defendant addressed the court and asserted that his trial counsel was

ineffective. He claimed that counsel did not review discovery materials with him and instead

relied on notes from prior counsel. He said, “I didn’t get a chance to know what was in the

discovery.” He also argued that counsel “failed to abide by my decisions concerning objectives

of my representation.” Defendant provided some examples but did not claim that he asked counsel

to request a second-degree murder instruction or that counsel failed to investigate alibi witnesses.

-4- 2021 IL App (2d) 191054-U

When asked if there was anything else, defendant said, “No, sir. That’s it.” The court found that

defendant’s ineffective-assistance claims lacked merit.

¶ 14 Defendant appealed, arguing that the trial court erred by determining at sentencing that

defendant was not under a strong provocation when he committed the shooting. We affirmed,

holding that the trial court did not err. People v. Anderson, 2018 IL App (2d) 151217-U.

¶ 15 On November 11, 2019, defendant filed a pro se postconviction petition, alleging, among

other things, that his trial counsel was ineffective for failing to (1) honor his request to ask the

trial court for a second-degree murder instruction and (2) investigate alibi witnesses. He alleged

that he was entitled to a jury instruction on second-degree murder because the evidence showed

that Ezop initiated the aggression, thus provoking the shooting. He also alleged that he told

counsel that he was at a hotel in Merrillville, Indiana, with Williams on the day of the shooting.

However, counsel failed to send an investigator to the hotel or contact Williams. Defendant

alleged that he could not get an affidavit from Williams because he was incarcerated, indigent,

and could not locate her without assistance from the court. Defendant included with his petition

the June 8, 2013, discovery answer in which his initial counsel stated that defendant would rely

on the defense that he was with Williams in Griffith, Indiana, during the offense. Defendant also

included an affidavit stating that, on the day of the shooting, he left his apartment early in the

morning and drove to Indiana for a party in Griffith; Williams remained at the apartment because

she had errands to run. They agreed to meet later in Indiana. Williams traveled separately and met

defendant at the party in Griffith around 9 p.m. They left the party together around 11 p.m. and

rented a hotel room. Defendant averred that he gave trial counsel information about Williams and

the hotel, but counsel failed to investigate.

-5- 2021 IL App (2d) 191054-U

¶ 16 The trial court summarily dismissed the petition as frivolous and patently without merit.

Defendant appeals.

¶ 17 II. ANALYSIS

¶ 18 Defendant contends that he stated an arguably meritorious claim that his trial counsel was

ineffective for failing to (1) honor his request to ask the trial court for a second-degree murder

instruction and (2) investigate his claim that he was with Williams at a hotel in Indiana during the

shooting.

¶ 19 The Act provides a remedy to defendants who have suffered substantial violations of their

constitutional rights. See 725 ILCS 5/122-1 (West 2018); People v. Edwards, 197 Ill. 2d 239, 243-

44 (2001); People v. Ramirez, 162 Ill. 2d 235, 238-39 (1994). There are three stages to proceedings

under the Act. Edwards, 197 Ill. 2d at 244. At the first stage, a defendant needs to present only

limited detail in the petition. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The trial court

independently reviews the petition within 90 days of its filing and determines whether the petition

is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018); Edwards, 197 Ill.2d

at 244. If the petition is not dismissed at this stage, it advances to the second stage for the

appointment of counsel. People v. Mauro, 362 Ill. App. 3d 440, 441 (2005). At the second stage,

counsel may amend the petition, and the State may file a motion to dismiss or an answer. Id. If the

trial court does not dismiss or deny the petition at the second stage, the proceeding advances to the

final stage, where the trial court conducts an evidentiary hearing. Id. at 441-42.

¶ 20 Because defendant’s petition was dismissed at the first stage of the postconviction process,

we must determine whether the petition was frivolous or patently without merit. 725 ILCS 5/122-

2.1(a)(2) (West 2016); Ramirez, 162 Ill.2d at 239-40. A petition is frivolous or patently without

merit if it “has no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 16. “A petition

-6- 2021 IL App (2d) 191054-U

which lacks an arguable basis either in law or in fact is one which is based on an indisputably

meritless legal theory or a fanciful factual allegation.” Id. At this stage, the court treats allegations

of fact as true so long as those allegations are not affirmatively rebutted by the record. People v.

Thomas, 2014 IL App (2d) 121001, ¶ 47. A petitioner needs to state only the gist of a meritorious

claim to survive first-stage dismissal. Edwards, 197 Ill. 2d at 244. We review the summary

dismissal of a petition de novo. Hodges, 234 Ill. 2d at 9.

¶ 21 Under the two-prong test in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), a

defendant’s ineffective-assistance claim must show that his counsel’s performance “fell below an

objective standard of reasonableness” and that the deficient performance was prejudicial in that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”

“Counsel’s performance is measured by an objective standard of competence under

prevailing professional norms. Further, 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. Matters of trial strategy are generally

immune from claims of ineffective assistance of counsel.” (Internal quotation marks and

citations omitted.) People v. Manning, 241 Ill. 2d 319, 327 (2011).

Because the defendant must satisfy both prongs of the Strickland test, the failure to establish either

is fatal to an ineffectiveness claim. People v. Jackson, 2020 IL 124112, ¶ 90.

¶ 22 The State initially contends that defendant forfeited his ineffectiveness claims, or that they

are rebutted by the record, because he did not raise them in the trial court when given the

opportunity. The State notes that defendant did not mention a second-degree murder instruction at

the instruction conference and did not mention Williams when the trial court performed a

-7- 2021 IL App (2d) 191054-U

preliminary Krankel inquiry during sentencing. However, “[a]n omission or absence of an

assertion at trial is not a positive rebuttal of an averment in a postconviction proceeding.” People

v. McGee, 2021 IL App (2d) 190040, ¶ 41. Also, a defendant does not forfeit issues not raised at a

Krankel inquiry. Id. Moreover, since defendant was represented by counsel at the jury instruction

conference, it would not be surprising if defendant chose not to speak even if he believed that a

second-degree murder instruction was appropriate. Further, at the Krankel inquiry, defendant

claimed that counsel “failed to abide by my decision concerning objectives of my representation.”

Defendant specifically alleged that his trial counsel did not review discovery materials with him.

Significantly, those materials would have reminded trial counsel and defendant that his initial

counsel planned to present an alibi defense involving Williams. We move to the merits of

defendant’s ineffectiveness claims.

¶ 23 Defendant first contends that he presented an arguable claim of ineffectiveness based on

trial counsel’s failure to honor defendant’s request to seek a second-degree murder instruction on

the theory that the shooting was the result of serious provocation. He contends that, under People

v. Brocksmith, 162 Ill. 2d 224 (1994), he had an absolute right to decide whether such an instruction

should be submitted. Defendant is mistaken.

¶ 24 A defendant can be found guilty of second-degree murder only if the State first proves all

elements of first-degree murder. People v. Neasom, 2017 IL App (1st) 143875, ¶ 39 (citing 720

ILCS 5/9-2(a), (c) (West 2010)). The defendant then has the burden of proving a mitigating factor

by a preponderance of the evidence. Id. (citing 720 ILCS 5/9-2(c) (West 2010)). There are two

possible mitigating factors: (1) an unreasonable belief that self-defense is justified, or (2) the

presence of an intense passion resulting from serious provocation by the victim. Id. (citing 720

ILCS 5/9-2(a)(1), (a)(2) (West 2010)). “[S]erious provocation may arise from substantial physical

-8- 2021 IL App (2d) 191054-U

injury or substantial physical assault, mutual quarrel or combat, illegal arrest, and adultery with

the offender’s spouse.” Id.

¶ 25 “Included in the rights belonging exclusively to the defendant is the right to decide whether

to submit an instruction on a lesser-included offense.” People v. Zareski, 2017 IL App (1st)

150836, ¶ 78 (citing Brocksmith, 162 Ill. 2d at 229). We previously held in People v. DuPree, 397

Ill. App. 3d 719, 734-35 (2010) that Brocksmith applied to the decision to request a second-degree

murder instruction. However, our supreme court has since distinguished Brocksmith and held that

it does not apply to a second-degree murder instruction, because second-degree murder is not a

lesser-included offense of first-degree murder. People v. Wilmington, 2013 IL 112938, ¶ 48.

Instead, it is a “lesser-mitigated” offense. (Emphasis omitted.) Id. Wilmington distinguished first-

and second-degree murder from the principle underlying Brocksmith, stating:

“While a defendant who tenders a lesser-included offense instruction exposes himself to

potential criminal liability, which he otherwise might avoid if neither the trial judge nor

the prosecutor seeks the pertinent instruction, that is not the case with the tender of a

second-degree murder instruction, as a defendant can only be found guilty of second-

degree murder if the State has first proven all the elements of first[-]degree murder.”

(Internal quotation marks and citation omitted). Id.

“Defendants who ask for a lesser-included instruction are exposing themselves to additional risk,

akin to other risk-taking decisions like whether to take a plea or testify at trial.” Zareski, 2017 IL

App (1st) 150836, ¶ 78. “The decision is a personal one. But for second-degree murder, there is

no additional risk, and that puts this decision in the much bigger category of strategic choices to

be made by the defense attorney.” Id.

-9- 2021 IL App (2d) 191054-U

¶ 26 Here, neither party discusses Wilmington, but it controls. Defendant did not have the

personal right to decide whether he wanted a second-degree murder instruction. Instead, the matter

was one of trial strategy. In that regard, defendant never claimed that he shot Ezop because of

serious provocation. Instead, his two-fold defense theory was that he was in Indiana during the

offense and that, in any event, the State presented inadequate evidence identifying him as the

shooter. A second-degree murder instruction based on provocation would have been incompatible

with that defense theory. Notably, defendant does not argue that counsel’s choice of defense was

poor strategy. He merely argues that he had an absolute right to request the second-degree murder

instruction. He did not. Thus, counsel did not provide deficient representation by declining to seek

a second-degree murder instruction.

¶ 27 Defendant next contends that counsel’s representation was deficient in that counsel failed

to investigate his claim that he was with Williams at a hotel in Indiana during the shooting.

¶ 28 “It is well-established that the choice on what witnesses to call ‘is a matter of trial strategy,

left to the discretion of counsel after consultation with the defendant.’ ” People v. Simmons, 2020

IL App (1st) 170650, ¶ 42 (quoting People v. Peterson, 2017 IL 120331, ¶ 80). “However, trial

counsel has a duty to conduct reasonable investigations into possible defenses.” Id. “The failure to

interview known witnesses can indicate incompetence when their testimony could be

exonerating.” Id. A decision not to investigate is directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgment. Id.

¶ 29 Even if trial counsel’s representation was deficient for failing to investigate as defendant

alleges he should have, defendant’s claim would still fail if that omission did not cause prejudice.

To determine whether counsel’s failure to investigate prejudiced the defendant, we must look at

the evidence presented at his trial. Id. ¶ 44. “ ‘Prejudice is demonstrated if there is a reasonable

- 10 - 2021 IL App (2d) 191054-U

probability that, but for counsel’s deficient performance, the result of the proceeding would have

been different.’ ” Id. (quoting People v. Makiel, 358 Ill. App. 3d 102, 105-06 (2005)). “ ‘Whether

the failure to investigate constitutes ineffective assistance of counsel is determined by the value of

the evidence not presented at trial and the closeness of the evidence that was presented at trial.’ ”

Id. (quoting People v. Harmon, 2013 IL App (2d) 120439, ¶ 26).

¶ 30 Here, the testimony from Williams and evidence about the hotel stay would not be

exonerating, and thus defendant cannot show prejudice. Defendant could well have committed the

crime in Rockford at 6:30 p.m. and traveled to Griffith, Indiana, in time for Williams to see him at

the party when she arrived around 9 p.m. Defendant argues that the alleged testimony from

Williams would have corroborated Rush’s testimony, but that is false. Rush testified that, when he

arrived at the party between 3 p.m. and 4 p.m., defendant was there with his girlfriend “Amber.”

Rush was at the party until 11 p.m., but he did not mention Williams, defendant’s supposed

girlfriend at the time, who allegedly would have testified that she arrived at the party around 9

p.m. Also, the fact that defendant and Williams checked into a Merrillville hotel at 11 p.m. is

irrelevant to whether defendant was in Rockford at 6:30 p.m. Thus, even if Williams and hotel

employees testified consistently with defendant’s affidavit, their testimony would not have

accounted for defendant’s location at the time of the crime but in fact would have contradicted

Rush, the only alibi witness, as to whom defendant was with at the party. Accordingly, defendant

cannot show ineffective assistance of counsel on this issue.

¶ 31 III. CONCLUSION

¶ 32 The trial court did not err in summarily dismissing defendant’s postconviction petition.

Accordingly, we affirm the judgment of the circuit court of Winnebago County.

¶ 33 Affirmed.

- 11 -