People v. Harris

2021 IL App (4th) 180522-U

Opinion

NOTICE 2021 IL App (4th) 180522-U FILED This Order was filed under NO. 4-18-0522 February 16, 2021 Supreme Court Rule 23 and is not precedent except in the Carla Bender limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County MALACHI DWAUN HARRIS, ) No. 16CF1253 Defendant-Appellant. ) ) Honorable ) Scott D. Drazewski, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Knecht and Justice Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding the trial court conducted a proper Krankel inquiry into defendant’s posttrial claims of ineffective assistance of counsel. ¶2 In November 2016, defendant, Malachi Dwaun Harris, was charged in an

eight-count indictment with two counts of aggravated possession of a stolen firearm (720 ILCS

5/24-3.9(a)(1) (West 2016)), a Class 1 felony; one count of attempt gunrunning (720 ILCS

5/24-3(A)(a) (West 2016)), a Class 2 felony; and five counts of possession of a stolen firearm

(720 ILCS 5/24-3.8(a) (West 2016)), a Class 2 felony. After a bench trial in January 2018,

defendant was found guilty of count I, aggravated possession of a stolen firearm, and counts

IV-VII, possession of stolen firearms. The trial court found counts IV-VII merged into count I

for purposes of entering a judgment of conviction. After a presentence investigation and report,

defendant was sentenced to eight years in the Illinois Department of Corrections, along with two

-1- years of mandatory supervised release (MSR). Defendant appeals.

¶3 I. BACKGROUND

¶4 Defendant was originally charged by information with one count of aggravated

possession of a stolen firearm, a Class 1 felony; one count of attempt gunrunning, a Class 2

felony; and five counts of possession of a stolen firearm, Class 2 felonies, in November 2016.

Several days later, indictments were returned for the same offenses, and in June 2017, the

McLean County State’s Attorney’s Office initiated extradition proceedings to extradite defendant

from his home state of Indiana.

¶5 Defendant was charged after being named by a codefendant, William McCoy, as

one of three persons involved in the burglary of a sporting goods business in Springfield in

November 2016. Entry into the business was made by driving a vehicle previously stolen in

Indianapolis, Indiana, through the wall of the store and absconding with a number of firearms.

The codefendant, who identified defendant at trial as one of two other persons involved, testified

they left the store in another vehicle, a red Chevrolet Impala, driven by defendant, which was

eventually stopped in McLean County after a police chase. McCoy was the only occupant

arrested at the scene. The Impala, which was ultimately connected to defendant, was likewise

from Indiana and found to contain some of the stolen firearms.

¶6 Defendant waived a jury and proceeded to a bench trial in January 2018, which

was continued in progress to two days in March 2018. At the close of the State’s case, the trial

court granted defense counsel’s motion for a directed finding on counts II and VIII. Defendant

elected not to testify after being twice admonished and given time to discuss the matter with

counsel. At the close of all the evidence, defendant renewed, and the court granted, defendant’s

motion for a directed finding as to count III. The court took the matter under advisement and

-2- ruled two days later, finding defendant guilty of counts I and IV-VII. (the docket sheet

incorrectly indicates counts V-VIII).

¶7 Defendant filed a “Motion for Judgment of Acquittal or in the Alternative Motion

for New Trial” in April 2018, claiming (1) he was not proved guilty beyond a reasonable doubt

and (2) the trial court erred in: (a) denying defendant’s motion in limine prior to trial,

(b) admitting certain identified exhibits over defendant’s objections, (c) admitting expert

testimony from two police witnesses regarding cell phone records and analysis, (d) admitting

opinions regarding identified cell phone records and cell site location testimony, and (e) partially

denying defendant’s oral motion for a directed finding. Defendant’s motion was denied.

¶8 The trial court sentenced defendant to eight years’ imprisonment with two years

of MSR and credit for pretrial detention. Defendant appeals.

¶9 II. ANALYSIS

¶ 10 Defendant contends the trial court erred by failing to conduct an adequate

preliminary Krankel inquiry into what he contends was a posttrial assertion he was denied his

constitutional right to testify. See People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984).

Although defendant frames the issue as an inadequate Krankel, inquiry, the State argues the issue

is, in reality, “whether the trial court insured that defendant’s waiver was unequivocal.” Further,

the State contends this issue, having never been raised in the trial court, is now forfeited.

Defendant’s specific claim of error is with the sufficiency of the trial court’s Krankel inquiry into

defendant’s waiver of his right to testify. For the reasons stated below, we limit our review to

this issue alone.

¶ 11 Whether the trial court conducted a proper Krankel preliminary inquiry presents a

question of law that we review de novo. People v. Jackson, 2020 IL 124112, ¶ 98. If the trial

-3- court’s inquiry was properly conducted and the court decided the merits of defendant’s claim, we

will reverse only if the trial court’s actions constitute manifest error, or error that is clearly

evident, plain, and indisputable. Jackson, 2020 IL 124112, ¶ 98.

¶ 12 Defendant’s brief accurately recited a portion of a lengthy and detailed colloquy

between defendant and the trial court regarding defendant’s right to testify, ultimately claiming

“the record in this case does not establish that he unequivocally waived his right to testify.”

Defendant failed to mention this colloquy took place after an earlier admonition to defendant

about his right to elect whether to testify or not. This admonition was preceded by comments by

the court as follows:

“So in order to anticipate what options would be available to the

defendant as to whether or not he wishes to present any evidence,

first let me indicate to you, [defendant], that as it relates to any

other witness, Mr. Lewis makes the determination on whether he

wishes to call any such witness as part of your defense. That is not

true, however, when it relates to whether you would elect or

choose to testify as a witness in your case. Basically there are

certain decisions that belong solely to an individual charged with a

crime in a case, and that includes not only what plea to enter,

whether to waive a jury trial, and then the next issue is whether to

testify on your own behalf. So although I am not asking you for an

election at this point in time, I do want to have a preliminary

discussion with you to encourage you to have additional

discussions with your attorney, Mr. Lewis, before the time would

-4- arise as early as this afternoon as to whether or not you would elect

or chose to testify as a witness in your case.” (Emphasis added.)

¶ 13 It was only after these preliminary remarks that the trial court then gave its

admonishment:

“So you do have a right to testify, but you may elect not to testify.

If you decide that you wish to testify then you will be giving up

your constitutional rights against self-incrimination and you will

subject yourself to cross-examination by the prosecuting attorney

at the conclusion of your direct testimony. If you decide not to

testify then your election will not be considered by the Court in

any way in deciding upon its verdict. You should discuss your

rights concerning testifying with your attorney, and although he

has an obligation to give you legal advice on the subject, ultimately

it is your decision to make as to whether to testify or not. So please

take those matters into consideration and follow up with additional

questions that you may have of Mr. Lewis before the time would

arise later today as to whether you wish to testify or not.”

(Emphases added.)

¶ 14 The court then recessed for the lunch hour, allowing defendant substantial time

for discussion with his attorney. Afterwards, once defense counsel indicated the defense was

presenting no evidence, the trial court initiated a conversation with defendant, again omitted

from defendant’s brief:

“THE COURT: Mr. Lewis has indicated that it is his

-5- intention not to call any witnesses as part of your defense. As a

matter of trial strategy he makes the determination on whether or

not he would wish to call either of the potential witnesses that had

been disclosed earlier, Diana Pittman [spelled out by the court], or

Diane Illucens, Killches [spelled out], hyphen, Riley [spelled].

However, that does not apply with respect to whether you wish to

testify as a witness in your own case. Have you taken into

consideration the matters that I asked you to consider between then

and now as to whether or not you wish to testify, [defendant]?

DEFENDANT: Yes.

THE COURT: Okay. Let me be more specific. You’ve

considered whether or not you wish to testify as a witness in your

case; is that correct?

DEFENDANT: Yeah, I don’t want to testify.

THE COURT: You’re going to have to speak up.

DEFENDANT: No, I don’t want to testify.

THE COURT: We’re working towards that. I need to ask

you a few more questions to make sure that that is a knowing and

voluntary decision on your part. You understand that ultimately

it’s your decision to make regardless of whatever recommendation

Mr. Lewis may provide to you?

THE COURT: So this is a personal decision on your part;

-6- do you understand that?

THE COURT: Did you have adequate opportunity in your

own mind in order to discuss this issue with Mr. Lewis?

THE COURT: Did he answer your questions for you?

THE COURT: Without telling me what his advice was, did

he give you a recommendation.?

DEFENDANT: A recommendation?

THE COURT: Did he tell you what in his opinion he

thought you should do?

THE COURT: Did you take that into consideration in your

decision?

DEFENDANT: Yes, in my decision, yes.

THE COURT: But ultimately you understand that it’s your

decision to make?

DEFENDANT: Correct.

THE COURT: Were there any additional questions, not at

this time in the open or in public, but any additional questions that

you need to ask Mr. Lewis before you would make this a final and

irrevocable decision not to testify as a witness in your case?

-7- DEFENDANT: Yeah.

THE COURT: Okay. I’m not saying it’s a wrong answer

but it’s not a good answer for purposes of the record. Did you need

additional time to talk to Mr. Lewis about this decision?

DEFENDANT: Oh, no, no.

THE COURT: So you’re comfortable that at this time the

court will accept then your decision as final and irrevocable, you

can’t change your mind at a later point in time?

DEFENDANT: Yes.” (Emphases added.)

The court then found defendant’s decision was “knowing and voluntary and personal.”

¶ 15 It is against this backdrop appellate counsel contends the trial court failed to

conduct a proper Krankel inquiry when, during defendant’s statement in allocution, he said,

“[a]nd, again, I’d like to say I didn’t get a chance to prove my innocence. I didn’t get the chance

to really speak.” Appellate counsel interprets this comment as a complaint by defendant he did

not get to testify at his trial. Counsel acknowledges the trial court “properly interpreted

[defendant’s] complaint as an ineffective assistance of counsel claim” but contends further

inquiry was needed. By taking snippets of testimony from different parts of the trial, defendant

patches together a claim he was perhaps confused, intimidated, or misunderstood when being

admonished about his right to testify.

¶ 16 Further, defendant failed to object or raise this issue before the trial court. For an

issue to be preserved for review on appeal, the record must show (1) a contemporaneous

objection to the trial court’s error was timely made and (2) the issue was contained in a written

posttrial motion. See People v. Denson, 2014 IL 116231, ¶ 11, 21 N.E.3d 398. Our supreme

-8- court went further in Denson, explaining “[t]his court’s forfeiture rules exist to encourage

defendants to raise issues in the trial court, thereby ensuring both that the trial court has an

opportunity to correct any errors prior to appeal and that the defendant does not obtain a reversal

through his or her own inaction.” Denson, 2014 IL 116231, ¶ 13. Although it is true that

forfeiture is only a bar on the parties and not a limitation on the court (In re Madison H., 215 Ill.

2d 364, 371, 830 N.E.2d 498, 503 (2005)), as the Third District noted, this “oft-cited proposition

does not abrogate standard waiver and forfeiture principals and ‘should not be a catchall that

confers upon reviewing courts unfettered authority to consider forfeited issues at will.’ ” People

v. Pellegrini, 2019 IL App (3d) 170827, ¶ 48, 137 N.E3d 182 (quoting Jackson v. Board of

Election Commissioners, 2012 IL 111928, ¶ 33, 975 N.E.2d 583). In this instance, we elect to

address the adequacy of the trial court’s preliminary Krankel inquiry as it relates to defendant’s

claimed denial of his right to testify since it can be resolved simply by looking at the transcript.

By doing so, we find defendant’s election against testifying was unequivocal.

¶ 17 In response to defendant’s assertion, “I didn’t get a chance to prove my

innocence. I didn’t get a chance to really speak,” the trial court pointed out how the transcript of

the proceedings stood in direct contradiction to his claim.

¶ 18 Under a Krankel analysis, when a defendant makes a claim of ineffective

assistance, the trial court should first examine the factual basis of the defendant’s claim and

determine whether the claim lacks merit or pertains only to matters of trial strategy before

assessing the need to appoint new counsel. If the allegation shows possible neglect of the case,

the court should then appoint new counsel; otherwise, it can deny the pro se motion. People v.

Roddis, 2020 IL 124352, ¶ 35. In Roddis, our supreme court repeated their oft-quoted language,

explaining how such a hearing should proceed: “ ‘some interchange between the trial court and

-9- trial counsel regarding the facts and circumstances surrounding the allegedly ineffective

representation is *** usually necessary in assessing what further action, if any, is warranted on a

defendant’s claim.’ ” Roddis, 2020 IL 124352, ¶ 53 (quoting People v. Moore, 207 Ill. 2d 68, 78,

797 N.E.2d 631, 638 (2003)). Additionally, the Roddis court said, the trial court may “ ‘base its

evaluation of the defendant’s pro se allegations of ineffective assistance on its knowledge of

defense counsel’s performance at trial and the insufficiency of the defendant’s allegations on

their face.’ ” Roddis, 2020 IL 124352, ¶ 53 (quoting Moore, 207 Ill. 2d at 79).

¶ 19 The trial court did that here, noting in response to defendant’s comment:

“you were offered the opportunity by the Court to testify during

the course of the trial. And that you had an opportunity to discuss

with your attorney about that decision and the options that you had

and further recognized that it was your decision to make. And that

you made a decision that you elected not to testify as a witness in

your case. So the record on that particular component of the issue

also is something that is contradicted directly by the transcript of

these proceedings as well as the record of these proceedings.”

¶ 20 As a result, the claim defendant was deprived of the opportunity to testify is

unsupported in the record. With a certain touch of irony, defendant cited People v. Palmer, 2017

IL App (4th) 150020, ¶ 23, 74 N.E.3d 1198, in recognition that the record can rebut such a claim.

In Palmer, this trial court conducted a substantially similar inquiry, which we found sufficient to

rebut defendant’s claim his right to testify was refused. We do so again.

¶ 21 III. CONCLUSION

¶ 22 For the reasons set forth above, we find the trial court’s preliminary Krankel

- 10 - inquiry was adequate and the record does not support defendant’s claim he was deprived of his

right to testify. The judgment of the trial court is affirmed.

¶ 23 Affirmed.

- 11 -