People v. Medley

2019 IL App (1st) 170252-U

Opinion

2019 IL App (1st) 170252-U

FIFTH DIVISION Order filed: November 8, 2019

No. 1-17-0252

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 05 CR 21453 ) JAMES MEDLEY, ) Honorable ) Thaddeus L. Wilson, Defendant-Appellant. ) Judge, Presiding.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Delort concurred in the judgment.

ORDER

¶1 Held: We affirm the first-stage summary dismissal of the defendant’s postconviction petition because the defendant failed to make an arguable claim that his trial counsel was ineffective.

¶2 The defendant appeals from the summary dismissal of his petition pursuant to the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)). The defendant’s postconviction

petition alleged, in relevant part, that trial counsel, at the defendant’s second murder trial, was No. 1-17-0252

ineffective for advising the defendant to proceed to a stipulated bench trial, and that trial counsel

was also ineffective for failing to present the testimony of Dr. Macasaet 1, the emergency room

physician who treated the victim. The circuit court dismissed the defendant’s petition as

frivolous and patently without merit. We affirm.

¶3 Following a jury trial, the defendant, James Medley, Jr., was convicted of first degree

murder (720 ILCS 5/9-1(a)(2) (West 2004)) in connection with the death of his girlfriend, Ethel

Adams. The trial court granted the defendant’s motion for a new trial based on a failure to

instruct the jury on involuntary manslaughter. The parties agreed to proceed to a bench trial

where they stipulated to all of the evidence at the original trial. The testimony from an additional

occurrence witness was also presented. The trial court found the defendant guilty of first degree

murder and sentenced him to 39 years’ imprisonment. On appeal, the defendant argued that his

trial attorneys were ineffective for failing to investigate an expert witness, Dr. Shaku Teas, and

call her to testify at trial. We affirmed. People v. Medley, 2015 IL App (1st) 112814-U. The

defendant subsequently filed the postconviction petition, which the circuit court summarily

dismissed. This appeal follows.

¶4 The facts of this case are adequately set forth in our order disposing of the defendant’s

direct appeal. We summarize them here only to the extent necessary for an understanding of the

issues in this appeal.

¶5 At the defendant’s initial jury trial, the State presented evidence that the defendant was

driving a car with Adams as a passenger. Witnesses described seeing the defendant “bang”

Adams’s head into the dashboard. As the car stopped, the defendant was seen pulling Adams,

1 Dr. Macasaet’s first name does not appear in the record.

-2- No. 1-17-0252

who was partially out of the passenger door, back into the car by the collar of her shirt. The

defendant got out of the car as a crowd gathered. People were yelling that Adams was not

breathing, but the defendant said that “she [sic] just drunk and trying to get some attention.” The

defendant attempted to leave as ambulance personnel arrived, but was confronted by several men

in the crowd and knocked unconscious.

¶6 Dr. Claire Cunliffe, an assistant medical examiner for Cook County, testified for the State

as an expert in the field of forensic pathology. Dr. Cunliffe performed external and internal

examinations on Adams’s body as well as a toxicology screening. She also relied on a case

report prepared by an investigator regarding the circumstances surrounding Adams’s death. Dr.

Cunliffe testified that Adams was 5’ 7” tall and weighed 209 pounds. In addition to various

abrasions and bruises on Adams’s head, nose, shoulders, left arm, right wrist, and right knee, Dr.

Cunliffe also observed “faint” bruising around the front, left, and right sides of Adams’s neck.

Dr. Cunliffe’s internal examination revealed hemorrhaging in Adams’s neck muscles and deep

subcutaneous tissue, as well as petechial and sclera hemorrhaging in her right eye. Dr. Cunliffe

also found multiple petechial and subgaleal hemorrhages in Adams’s scalp which is consistent

with Adams’s head having contact with a flat foreign object. Dr. Cunliffe further noted that

Adams had an enlarged heart, weighing about 563 grams, and her left anterior descending artery

and right coronary artery showed 90 percent narrowing. Adams also had metal stints in place and

the myocardial muscle in her heart was thickened. Dr. Cunliffe testified that she did not see any

evidence that Adams died of a heart attack or as a result of heart disease. Finally, the toxicology

report revealed that Adams’s blood-alcohol level was 0.14, over one and-a-half times the legal

-3- No. 1-17-0252

limit for operation of a motor vehicle. Dr. Cunliffe opined that the cause of Adams’s death was

homicide by strangulation.

¶7 On cross-examination, Dr. Cunliffe explained the difference between manual

strangulation and ligature strangulation. Manual strangulation involves the use of hands, while

“ligature” strangulation occurs when a person is strangled with clothing or some other article. Dr.

Cunliffe testified she could not determine whether Adams was manually strangled or strangled

with some sort of ligature. Dr. Cunliffe stated that she was given a v-neck shirt that Adams was

wearing and that the injuries to Adams’s neck are consistent with someone pulling the back of a

v-neck shirt. She said that there are anecdotal reports of people dying from strangulation in a

matter of seconds, but there are no studies to pinpoint how long it takes to strangle someone to

death. Dr. Cunliffe testified that, if someone pulled hard enough on Adams’s v-neck shirt, it

could cause strangulation. Dr. Cunliffe further testified that Adams’s neck cartilage and hyoid

bone were intact, but explained that an intact hyoid bone does not necessarily mean Adams did

not die of strangulation because the hyoid bone can remain flexible and certain methods of

strangulation do not result in a broken hyoid bone. Dr. Cunliffe did not find any evidence that

Adams had been held by her hair or that her hair had been pulled back and forth.

¶8 The defendant moved for a directed verdict, and the trial court denied the motion.

¶9 The defendant testified that he and Adams were in a dating relationship. On the day she

died, they were drinking wine and driving in his car. Both were intoxicated. The defendant

testified that he and Adams argued about ten dollars that she was “holding for us.” The money

“came up missing,” and Adams did not know what happened to it. As they argued, Adams

became hysterical and said she was going to jump from the car, which was travelling at 15 to 20

-4- No. 1-17-0252

miles per hour. When Adams opened the door and tried to jump, the defendant grabbed her by

her shirt collar. The defendant stopped the car, and Adams broke his grip and stepped out of the

car. She stepped out of the car, fell back on her knee, and slumped over the seat. The defendant

testified he could not remember grabbing Adams by her hair. He denied “bashing” her face into

the dashboard, placing his hands around her neck, or strangling her.

¶ 10 Following closing arguments, the jury found the defendant guilty of first degree murder.

¶ 11 The defendant, through new counsel, filed a post-trial motion asserting that the trial court

erred in failing to tender an involuntary manslaughter jury instruction. The trial court granted the

defendant’s post-trial motion, vacated the defendant’s conviction for first degree murder, and

ordered a new trial.

¶ 12 The defendant’s second trial commenced on March 9, 2009. The defendant waived his

right to a jury trial, and the parties stipulated to the testimony presented at the first trial,

including the defendant’s own testimony. The State also presented the testimony of Antoinette

Brown.

¶ 13 Brown testified to a similar sequence of events as the occurrence witnesses from the

defendant’s first trial. However, she added that, after the vehicle came to a stop, she observed the

defendant choking the passenger by placing both of his hands around her neck for two to five

minutes. After Brown testified, the parties stipulated that Brown had called 911 and reported that

a man was choking and severely beating a woman.

¶ 14 In closing argument, the State argued that it proved the defendant guilty of first degree

murder beyond a reasonable doubt because the evidence established that he used his hands to

“[choke] the last breath out of [Adams] until she died.” The defense argued that the evidence

-5- No. 1-17-0252

showed that Adams’s death was an accident and urged the trial court to find the defendant not

guilty. Alternatively, defense counsel asserted the defendant’s attempt to pull Adams into the

vehicle was reckless conduct warranting a finding of involuntary manslaughter.

¶ 15 After hearing arguments, the trial court found the defendant guilty of first degree murder.

¶ 16 The defendant hired a new attorney to handle his posttrial proceedings. Posttrial counsel

filed a motion for a new trial alleging, inter alia, that the defendant was deprived of effective

assistance of counsel at his second trial where his attorneys failed to properly investigate and

present expert testimony that Adams was not strangled to death but, rather, died of heart disease

precipitated by the stress of the altercation.

¶ 17 The circuit court held an evidentiary hearing on the defendant’s claim of ineffective

assistance of counsel. At that hearing, the defendant called Dr. Shaku Teas, a forensic

pathologist. Dr. Teas testified that she reviewed Adams’s medical records, the autopsy report,

photos, histology slides, police and EMS reports, as well as Dr. Cunliffe’s testimony. Dr. Teas

stated that she did not find enough evidence of strangulation and opined that Adams died from

“coronary atherosclerosis combined with hypertensive cardiovascular disease precipitated by the

stress of the altercation.” Dr. Teas further testified that she shared her findings with Steven

Greenberg, the defendant’s attorney from the first trial. Dr. Teas had several phone conversations

with Greenberg in which she said she would testify that Adams’s heart disease played a

significant role in her death and that evidence of strangulation was lacking. However, Greenberg

indicated that he could get that information out of the State’s medical examiner, and he did not

need Dr. Teas to testify at trial. Dr. Teas also testified that she spoke with Scott Frankel, one of

-6- No. 1-17-0252

the defendant’s attorneys from the second trial, and she reiterated her opinion that Adams died of

heart disease under the stress of the altercation.

¶ 18 Frankel testified that he learned about Dr. Teas through conversations he had with

Greenberg. Frankel then spoke with Dr. Teas on the phone, and Dr. Teas said that Adams

suffered from heart disease which contributed to her death. After speaking with Dr. Teas,

Frankel reviewed the trial transcripts, including Greenberg’s cross-examination of Dr. Cunliffe,

and discussed Dr. Teas’s proposed testimony with co-counsel, Stanley Hill. Frankel and Hill

both agreed that Dr. Teas proposed testimony would not help the defense’s case.

¶ 19 Hill testified that he never spoke with Dr. Teas because he was aware that Frankel spoke

with Dr. Teas and Greenberg regarding Dr. Teas’s proposed testimony. Hill stated that, based on

his conversations with Frankel, Dr. Teas’s proposed testimony would not add anything to the

defense’s case. Hill explained that the defense’s theory was that the defendant’s conduct—

attempting to pull Adams into the vehicle by grabbing the back of her shirt—was accidental at

best, reckless at worst. Hill believed that Dr. Cunliffe’s testimony supported this theory of the

case because she testified that strangulation could occur in a matter of seconds and that Adams

may have died from a ligature strangulation—i.e., her v-neck shirt being pulled around her neck.

Hill stated, “we agreed to take a stipulated bench trial because we wanted the evidence to come

in the same way that it had come in the first trial.” Hill also noted that Dr. Teas’s testimony

would not help the defendant because “[y]ou take your victim like you found them,” and,

regardless of whether the defendant strangled Adams or caused her to suffer a heart attack, the

outcome would be the same because his unlawful conduct caused Adams’s death.

-7- No. 1-17-0252

¶ 20 After hearing the evidence, the trial court found the defendant was not denied effective

assistance of counsel at his second trial and denied his motion for a new trial. The court

sentenced the defendant to 39 years’ imprisonment. The defendant appealed.

¶ 21 On appeal, the defendant argued that he was denied his right to the effective assistance of

counsel where his trial attorneys failed to investigate and call Dr. Teas as an expert witness to

rebut the State’s evidence that Adams died from strangulation, not heart disease. We held that

counsels’ actions did not fall below prevailing professional norms and that their investigation of

Dr. Teas was “ ‘well within the range of professionally reasonable judgments.’ ” Medley, 2015

IL App (1st) 112814-U, ¶ 29 (quoting Strickland v. Washington, 466 U.S. 668, 699 (1984)). We

further held that the defendant could not establish prejudice noting, in part: “Nor do we find any

reasonable probability that the trier of fact would have credited the defendant’s argument that

Adams heart disease showed that his conduct was reckless as opposed to intentional.” Id. ¶ 30.

¶ 22 In October, 2016, the defendant, with the assistance of counsel, filed a petition for

postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 122-1 et seq. (West

2016)). The petition contended, as relevant here, trial counsel was ineffective for advising the

defendant to proceed to a stipulated bench trial, and the defendant was denied the effective

assistance of counsel when trial and post-trial counsels failed to present the testimony of Dr.

Macasaet, which would have supported the argument that Adams died as the result of heart

disease. The petition did not include an affidavit of Dr. Macasaet detailing his proposed

testimony. In the petition, the defendant acknowledged that appellate counsel raised “this issue”

on appeal, but argued that the issue was not barred by res judicata because a police report and

-8- No. 1-17-0252

medical reports by Dr. Macasaet were attached to the petition and constituted newly discovered

evidence because they were not present in the trial record.

¶ 23 The circuit court, in a written order, held that the defendant’s claims were frivolous and

patently without merit because, inter alia, they were barred by res judicata and because the

defendant could not establish prejudice where the proposed testimony was unlikely to change the

outcome of the trial. This appeal follows.

¶ 24 The Act provides an avenue by which a criminal defendant may challenge his conviction

or sentence for violations of his federal or state constitutional rights. People v. Whitfield, 217 Ill.

2d 177, 183 (2005). The scope of postconviction proceedings is limited to constitutional matters

that have not been, and could not have been, previously adjudicated. Id. A postconviction

proceeding has three stages. People v. Tate, 2012 IL 112214, ¶ 9. During the first stage, as in the

case before us, the circuit court acts in an administrative capacity and screens out those petitions

which lack legal substance of are obviously without merit. See Id. “The court makes an

independent assessment as to whether the allegations in the petition, liberally construed and

taken as true, set forth a constitutional claim for relief.” People v. Hommerson, 2014 IL 115638,

¶ 7 (citing, People v. Boclair, 202 Ill. 2d 89, 99 (2002)). We review de novo the first-stage

dismissal of a postconviction petition. Id. ¶ 6.

¶ 25 The defendant’s claims are based on ineffective assistance of trial and appellate counsel.

The assistance of both trial and appellate counsel is judged against the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). See People v. Harris, 206 Ill. 2d 1, 34 (2002).

To establish ineffective assistance under Strickland, a defendant must show that counsel’s

performance fell below an objective standard of reasonableness and that there is a reasonable

-9- No. 1-17-0252

probability that but for counsel’s unprofessional errors the result of the proceeding would have

been different. People v. Manning, 241 Ill. 2d 319, 326 (2011) (citing Strickland, 466 U.S. at

688, 694). In a first-stage postconviction setting, a defendant need only set forth the “gist” of a

claim and the petition survives summary dismissal if: “(i) it is arguable that counsel’s

performance fell below an objective standard of reasonableness and (ii) it is arguable that the

defendant was prejudiced.” People v. Hodges, 234 Ill. 2d 1, 17 (2009).

¶ 26 The defendant first contends that he was denied the effective assistance of trial counsel

because trial counsel advised him to proceed with a “stipulated” bench trial and appellate counsel

was ineffective for failing to raise the issue on direct appeal. We find that we need not determine

whether the decision to advise the defendant to proceed by way of a bench trial constituted

deficient performance. The defendant was obligated to allege arguable prejudice as a result of the

allegedly deficient performance, and his petition does not do so. The defendant’s petition alleges

only that the outcome of the trial would have been different if he had elected a jury trial and

presented additional evidence. The petition states, in relevant part:

“By proceeding in front of Judge Salone, [the defendant’s] attorney essentially waived

their primary defense of involuntary manslaughter. Had they proceeding [sic] in front of a

jury and called Dr. Teas and the treating ER doctor, on the other hand, Medley had a

viable defense. Notably, the jury at the first trial struggled to reach a verdict and

specifically sent a note asking about a lesser included offense. [Citation] Given that Dr.

Teas and Dr. Macasaet both would have testified Adams died from heart problems, it is

questionable if [the defendant’s] testimony would have been necessary.”

- 10 - No. 1-17-0252

This allegation identifies nothing, in the decision to proceed by way of a bench trial, which, by

itself, resulted in prejudice, and instead conflates the issue with the failure to call additional

witnesses (which we address infra).

¶ 27 In his opening brief, the defendant simply concludes that if he had not proceeded by way

of a bench trial, “the outcome of the second trial would have been different.” As the State notes,

the defendant “does not explain in any way why the outcome of the trial would have been

different.” In his reply brief, the defendant adds that if he had not opted for a bench trial, “Judge

Salone would have given the manslaughter instruction and there is reasonable likelihood that [the

defendant] would have been convicted of manslaughter instead of murder.” We simply note that

Judge Salone was equally capable of finding defendant guilty of the lesser included offense of

manslaughter. The defendant has identified no error in Judge Salone’s reasoning or deficiency in

the evidence submitted at the bench trial. The defendant is apparently relying solely on the hope

that a jury, as the trier of fact, would have been more lenient than the judge who decided the

case. However, it is well established that a defendant has no entitlement to rely on the luck of a

lawless decision maker. See Strickland, 466 U.S. at 694-95 (“An assessment of the likelihood of

a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy,

caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless

decisionmaker, even if a lawless decision cannot be reviewed.”)

¶ 28 Here, the defendant has not alleged any prejudice as a result of the allegedly deficient

decision to proceed by way of a bench trial. We conclude that the petition failed to make an

arguable claim of prejudice, and the circuit court did not err when it found this claim to be

frivolous and patently without merit.

- 11 - No. 1-17-0252

¶ 29 The defendant also contends that trial counsel was ineffective for failing to call Dr. Teas

and Dr. Macasaet to testify that Adams died of a heart attack and not strangulation. Although the

defendant attempts to conflate his arguments regarding these two separate witnesses, we find that

our analysis requires considering each witness separately.

¶ 30 First, with respect to the testimony of Dr. Teas, this contention is clearly barred by res

judicata. “The doctrine of res judicata bars consideration of issues that were previously raised

and decided on direct appeal.” People v. Blair, 215 Ill. 2d 427, 443 (2005). Here, the defendant

raised the issue of Dr. Teas’s testimony in his posttrial motion. The issue was fully developed,

including an evidentiary hearing, and rejected by the circuit court. The defendant raised the issue

on appeal, and we decided it on its merits, noting, in part, “the defendant cannot overcome the

strong presumption that counsels’ decision not to call Teas as a witness was objectively

reasonable.” Medley, 2015 IL App (1st) 112814-U, ¶ 26. We further noted, “Moreover, Teas

testimony would have likely had no effect on the outcome of trial.” This issue was raised on

direct appeal and decided, on its merits, against the defendant. Res judicata prevents him from

raising it again.

¶ 31 The issue of Dr. Macasaet’s testimony was not raised on direct appeal, but we need not

address it on its merits because the defendant’s petition fails to adequately plead the failure to

present a witness because the defendant did not attach an affidavit from Dr. Macasaet detailing

his proposed testimony. Section 122-2 of the Act requires that a defendant support his allegations

with “affidavits, records, or other evidence.” 735 ILCS 5/122-2 (West 2016). We acknowledge

that our supreme court has recently held that an affidavit from a proposed witness is not always

required to support a postconviction petition. See People v. Dupree, 2018 IL 122307, ¶ 34 (“[T]o

- 12 - No. 1-17-0252

interpret our case law as requiring an affidavit in all instances where this type of claim is raised

is simply incorrect.”). However, in this case, an affidavit was required, because the other

evidence the defendant attached to his petition sheds no light on whether Dr. Macasaet would

have provided testimony helpful to the defendant.

¶ 32 The defendant notes that a police report stated that Dr. Macasaet stated that Adams was

in “full cardiac arrest upon arrival” at the hospital. The defendant further notes that Adams was

given “bicarb” and “atropine” and argues that these are drugs used to treat individuals suffering

from heart attacks. The defendant fails to recognize that none of this evidence supports his

conclusion that Dr. Macasaet’s testimony would have supported Dr. Teas’s opinion regarding

what caused Adams’s heart to stop. It is undisputed that Adams’s heart stopped beating and that

the paramedics and Dr. Macasaet unsuccessfully attempted to revive her. However, without an

affidavit from Dr. Macasaet, we cannot determine whether he would have agreed with Dr. Teas’s

opinion that Adams died as the result of heart disease rather than strangulation. Therefore, we

find that this evidence, by itself, is inadequate to support a claim that trial counsel was

ineffective for failing to call Dr. Macasaet as a witness. Accordingly, we conclude that circuit

court did not err when it dismissed the defendant’s petition as frivolous and patently without

merit.

¶ 33 For the foregoing reasons the judgment of the circuit court of Cook County is affirmed.

¶ 34 Affirmed.

- 13 -