People v. Bernardo

525 N.E.2d 857, 171 Ill. App. 3d 652, 121 Ill. Dec. 550, 1988 Ill. App. LEXIS 325
CourtAppellate Court of Illinois
DecidedMarch 17, 1988
Docket84-3030
StatusPublished
Cited by10 cases

This text of 525 N.E.2d 857 (People v. Bernardo) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bernardo, 525 N.E.2d 857, 171 Ill. App. 3d 652, 121 Ill. Dec. 550, 1988 Ill. App. LEXIS 325 (Ill. Ct. App. 1988).

Opinion

JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, defendant, Thomas Bernardo, was convicted of attempted murder and aggravated battery (Ill. Rev. Stat. 1975, ch. 38, pars. 8 — 4, 12 — 4) and sentenced to eight years’ imprisonment. On direct appeal, this court vacated his conviction for aggravated battery and affirmed his conviction for attempted murder. (101 Ill. App. 3d 1195 (opinion pursuant to Supreme Court Rule 23).) While the appeal was pending, defendant filed a petition for relief under the Illinois Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) arguing that he was entitled to a new trial because he had been denied effective assistance of counsel. The trial court denied defendant’s petition without an evidentiary hearing and he appeals.

We affirm.

Background

Defendant was convicted of attempted murder for the shooting of Willie Fuller (Fuller) in an apartment building courtway in the late evening hours of November 27, 1976. Evidence presented by the State established that on that day, Fuller was visiting Mae Webb (Webb), his former girlfriend, at her apartment. Fuller had driven Webb home from the hospital where her year-old baby had been admitted with multiple bruises. While Fuller was at Webb’s apartment, a man entered the front door, ordered Fuller to leave, pulled out a gun, kicked Fuller in the chest, and ran out the front entrance. Shortly thereafter, Fuller also left the apartment. When he reached the courtway, the man with the gun appeared from behind the bushes and fired three shots before running away. Two shots grazed Fuller’s head and neck; a third penetrated through his leg. Thereafter officers of the Chicago police department arrived at the scene and transported Fuller to a hospital. Chicago police officers arrested defendant approximately two weeks after the incident. Defendant was in a car with Webb when he was arrested.

Defendant denied that he shot Fuller. Defense evidence showed that on the evening in question, Fuller was at Webb’s apartment, but had not driven her from the hospital to her home. At Webb’s apartment, Webb told him that certain persons, including the defendant, may have been responsible for the injuries to Webb’s child who was in the hospital. Webb testified that although Fuller was not the natural father of the child, he liked to think of the child as his. Fuller became angry when he learned of the child’s injuries. Shortly thereafter, defendant and Rita Johnson (Johnson) appeared at the door of Webb’s apartment. Fuller grabbed defendant, inquired who he was, and accused defendant of being Webb’s “new boyfriend.” Fuller then chased defendant down the stairs and outside the building. Meanwhile, Webb took from her apartment a gun that Fuller had previously given her and chased after the two men. As she was following them, she tripped on the sidewalk and her gun accidentally discharged several times, striking Fuller in the leg once.

The defense introduced evidence that Webb filed a criminal complaint against Fuller approximately a week after defendant was arrested. A few months after Webb filed her complaint against Fuller, Fuller offered to drop charges against defendant in exchange for Webb’s dropping of the charges against Fuller. Webb agreed.

Thereafter, Webb, Fuller, and defendant’s mother spoke in person to the partner of the assistant State’s Attorney who was assigned to prosecute the defendant’s case. According to Webb, Fuller told the assistant State’s Attorney that Fuller was drunk on the night of the incident and that he wanted to withdraw his statement that defendant had shot him. Webb also testified that Fuller made this same retraction to defendant’s attorney, Stan Hill (Hill), a month after Fuller’s visit to the State’s Attorney’s office. Then Webb, Fuller, and Hill appeared before Judge Howard Miller, and Hill informed the judge of Fuller’s recent disclosures and intention to have the charges dropped. During earlier cross-examination, Fuller denied having indicated to Webb and defense counsel that he wanted to retract his accusations and denied having appeared with them before Judge Miller.

Webb was the first defense witness. After her testimony, Hill withdrew from the case in order to become a defense witness regarding Fuller’s alleged attempt to withdraw his accusations of defendant. A second attorney, W. Maudlin Smith, filed an appearance on defendant’s behalf and represented him during the remainder of the trial.

In rebuttal to the defendant’s evidence, the State presented the testimony of an assistant State’s Attorney, who had appeared on behalf of the State at the hearing wherein Hill represented to the court that Fuller intended to retract his accusations against defendant. The assistant State’s Attorney testified that the person who appeared before Judge Miller and identified himself as Fuller was not the same person who had testified on behalf of the State in defendant’s trial.

The State also presented rebuttal evidence to show that Webb had originally explained the incident to the police as an argument between Fuller and defendant during which defendant displayed a gun. State rebuttal evidence also indicated that Webb had told certain persons that she was afraid of defendant and that she felt or had been threatened by him. In surrebuttal, Webb testified that she was afraid of defendant because she had initially lied to the police about his involvement in the shooting. She also stated that her fear of losing custody of her children caused her to persist in her initial story about defendant’s involvement.

The trial court found defendant guilty of attempted murder and aggravated battery. On direct appeal, his conviction for aggravated battery was reversed by this court, and his conviction for attempted murder was affirmed. While the appeal was pending, defendant filed a petition for post-conviction relief. As ultimately amended, defendant argued in his post-conviction petition that he received ineffective representation from Smith and that his conviction had been based on perjured testimony. In support of his petition, defendant submitted the opinion of the Illinois Supreme Court ordering Smith’s disbarment (In re Smith (1979), 75 Ill. 2d 134, 387 N.E.2d 316), Hill’s affidavit, and a transcript of Judge Miller’s pretrial hearing wherein Hill told the judge that Fuller, also present in court at the time, wanted to withdraw his statements against defendant.

Defendant also submitted Smith’s affidavit in which Smith stated that during his representation of defendant, he was “suffering from mental illness, including blackouts and depression” that “seriously impaired [his] legal and professional judgment.” In addition to mental illness, Smith stated that he suffered “severe mental and emotional strain because of pending disbarment proceedings, which have since culminated in disbarment.” He stated that because of these problems, he was unable to “formulate an effective defense.” Defendant also argued that Smith was under a psychiatrist’s care at the time of defendant’s trial, that he “had been involved with the possession and use of certain narcotic drugs *** [a]nd had certain cases pending against him” during the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Simon
2014 IL App (1st) 130567 (Appellate Court of Illinois, 2014)
People v. Gilbert
2013 IL App (1st) 103055 (Appellate Court of Illinois, 2013)
People v. Gamino
2012 IL App (1st) 101077 (Appellate Court of Illinois, 2012)
Adkins v. State
930 So. 2d 524 (Court of Criminal Appeals of Alabama, 2004)
People v. Williams
589 N.E.2d 695 (Appellate Court of Illinois, 1992)
People v. Allen
580 N.E.2d 1291 (Appellate Court of Illinois, 1991)
People v. Long
567 N.E.2d 514 (Appellate Court of Illinois, 1990)
Amin v. State
774 P.2d 597 (Wyoming Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
525 N.E.2d 857, 171 Ill. App. 3d 652, 121 Ill. Dec. 550, 1988 Ill. App. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bernardo-illappct-1988.