People v. Marshall

873 N.E.2d 978, 375 Ill. App. 3d 670, 314 Ill. Dec. 48, 2007 Ill. App. LEXIS 846
Appellate Court of Illinois·Decided August 3, 2007·No. 1-05-2083·Published·Cited by 59 cases

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

Defendant Sharon Marshall appeals from the dismissal of her postconviction petition after an evidentiary hearing. Defendant first contends that the circuit court erred in rejecting her argument that her attorney was ineffective in failing to interview or present the testimony of Jimmie Terrell, her codefendant and former husband, at trial. She also argues that this court should reverse the dismissal of her postconviction petition because the attorneys who represented her at the third stage of postconviction review did not comply with Illinois Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), even though her counsel at the second stage of proceedings filed a certificate in accordance with the rule. For the reasons stated below, we affirm.

PROCEDURAL HISTORY

I. Trial and Postconviction Proceedings

In 1994, a jury convicted defendant of six counts of first-degree murder and one count of arson in connection with a December 1979 apartment building fire that killed six people. Defendant was sentenced to concurrent sentences of 60 years for each murder and 7 years for arson. Terrell was convicted in 1981, and both his appeal to this court and his postconviction petitions were unsuccessful. Terrell denied involvement in the crimes and presented an alibi defense at his trial.

At defendant’s trial, Faith Eyas testified that she and defendant were friends. Eyas was about 16 years old at the time of the offense, and defendant was in her early twenties. Eyas said Terrell planned the fire to harm a man with whom Terrell had a disagreement. 1 Defendant, Terrell and Eyas collected a gas can, matches and a gun. Eyas said defendant directed her where to find the gas can, and defendant located the weapon.

Defendant drove the three of them to an apartment building, where they knocked at the intended victim’s door. When no one answered, they left and returned to the building 15 or 20 minutes later, when Terrell set the fire. Eyas testified that someone saw the three of them as they fled the building. Another prosecution witness testified that she saw a man and two women run out of the apartment building. Byas testified that the next day, defendant told her that if questioned by police about the fire, they should say “some Puerto Rican boys” set it. The defense presented no witnesses. We affirmed defendant’s convictions and sentence on direct appeal. People v. Marshall, No. 1 — 94—1853 (1996) (unpublished order under Supreme Court Rule 23).

In March 1997, defendant sought relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 — 1 et seq. (West 1996)), asserting that her trial counsel was ineffective for failing to present evidence that would have established her innocence. The trial court dismissed defendant’s petition as frivolous and patently without merit. This court reversed and remanded for second-stage postconviction proceedings because the trial court did not rule on the petition within 90 days of filing. People v. Marshall, No. 1 — 97—3011 (1998) (unpublished order under Supreme Court Rule 23).

On remand, postconviction counsel was appointed for defendant. Counsel amended the petition to assert that trial counsel was ineffective for failing to present Terrell as a witness. Counsel attached an affidavit of Terrell, who attested that, had he been called to testify in defendant’s case, he would have stated that defendant was not involved in the fire and that he took “the full responsibility on behalf of this matter.” The trial court granted the State’s motion to dismiss defendant’s postconviction claims, stating that Terrell’s alibi defense at his trial contradicted the theory that he could credibly exculpate defendant by now claiming he set the fire.

Defendant appealed the dismissal of her petition at the second stage of postconviction relief, asserting that an evidentiary hearing was required to allow the trial court to determine Terrell’s credibility. This court agreed, concluding that because the defense presented no witnesses at trial, an evidentiary hearing was necessary to allow defense counsel to offer his reasoning for not calling Terrell as a witness at defendant’s trial and to allow the State to cross-examine Terrell regarding his attestation that although defendant drove them to the apartment building, defendant was not involved in setting the fire. Therefore, this court reversed the dismissal of defendant’s petition and remanded for an evidentiary hearing on defendant’s claim that her trial attorney was ineffective, stating that “an evidentiary hearing would *** provide the trial court with sufficient facts to determine whether defendant received ineffective assistance of counsel.” People v. Marshall, No. 1 — 01—3246, slip op. at 12 (2004) (unpublished order under Supreme Court Rule 23).

II. Evidentiary Hearing

At the evidentiary hearing, Terrell testified that he was serving prison time for the murders and arson. Terrell recanted his alibi defense, testifying instead that defendant drove him and Byas to the apartment building and then waited in the car while he and Byas started the fire. Terrell said he did not tell defendant to wait for them. Terrell admitted lying at his own trial but stated that he was now telling the truth because defendant did not participate in the crimes. He said defendant did not ask why they were going to the apartment building.

Defendant’s brother, Hoyle Marshall, and defendant’s trial counsel, Harry Weber, also testified. Marshall testified that when he and other family members met with Weber to retain him to represent defendant, Weber said he would contact Terrell. However, Weber testified that none of defendant’s family members told him to contact or interview Terrell. Weber stated that after reviewing a transcript of Terrell’s trial, he would “never” have called Terrell as a witness because Terrell was “less than credible *** and he would not be believed,” and Terrell’s alibi testimony would not have helped defendant’s case.

At the close of testimony in the evidentiary hearing, the trial court concluded that Weber’s decision not to present Terrell as a witness was reasonable because if Terrell’s original alibi defense was true, Terrell would not have been able to credibly attest to defendant’s participation in the crimes. The court further stated that had Terrell testified, as stated in his affidavit, that he committed the offenses with Byas and without defendant’s direct involvement, Terrell would have been impeached by his trial testimony that he was not involved in the fire. Therefore, the court determined, it could not conclude that the outcome of defendant’s trial would have been different had Terrell testified, and defendant failed to prove a substantial denial of her constitutional rights. The court dismissed defendant’s postconviction petition.

ANALYSIS

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People v. Marshall, 873 N.E.2d 978, 375 Ill. App. 3d 670, 314 Ill. Dec. 48, 2007 Ill. App. LEXIS 846 (Ill. Ct. App. 2007).

873 N.E.2d 978 (People v. Marshall) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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