People v. Smallwood

2024 IL App (5th) 240442-U

Opinion

NOTICE 2024 IL App (5th) 240442-U NOTICE Decision filed 12/11/24. The This order was filed under text of this decision may be NO. 5-24-0442 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 18-CF-2336 ) ARTHUR E. SMALLWOOD, ) Honorable ) Kyle A. Napp, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE SHOLAR delivered the judgment of the court. Justices Welch and Barberis concurred in the judgment.

ORDER

¶1 Held: Following a Krankel hearing, the trial court properly found that defendant’s ineffective-assistance claims involved matters of trial strategy. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Following a jury trial, defendant, Arthur E. Smallwood, was found guilty of attempted first

degree murder and sentenced to life in prison. On appeal, this court held that the trial court did not

adequately inquire into defendant’s posttrial allegations that counsel was ineffective. Following

remand, the court appointed new counsel and conducted a hearing on those allegations. Following

the hearing, the court concluded that defendant’s allegations involved strategic considerations and,

accordingly, he could not establish that counsel was ineffective. Defendant again appealed. His

appointed appellate counsel, the Office of the State Appellate Defender (OSAD), concludes that

1 there is no reasonably meritorious argument that the court erred. Accordingly, it has filed a motion

for leave to withdraw as counsel on appeal and a supporting memorandum. See Anders v.

California, 386 U.S. 738 (1967). OSAD has notified defendant of its motion. This court has

provided him with an opportunity to respond but he has not done so. After considering the record

on appeal, OSAD’s motion and supporting memorandum, we agree that there is no issue that could

support an appeal. Accordingly, we grant OSAD leave to withdraw and affirm the trial court’s

judgment.

¶3 BACKGROUND

¶4 Defendant was charged with attempted murder and aggravated battery for a knife attack on

cabdriver Jon-Eric Andersson. The State later dismissed the aggravated battery charge.

¶5 Evidence at trial showed that, around 9:30 p.m. on August 8, 2018, an African American

man between 40 and 50 years old entered Bubby & Sissy’s bar in Alton and asked the bartender

to call a cab for him. The bartender, Jason Brooks, called the cab and the man went outside to wait

for the cab.

¶6 Andersson, a cab driver for Alton’s Best Cabs (ABC), picked up the fare. The passenger

sat in the right rear seat. Andersson did not get a good look at the passenger but described him as

an African American between 40 and 50 years old. The passenger asked to go to 1209 Atwood.

When they arrived, the passenger slid across the seat, grabbed Andersson around the neck from

behind, and told him not to do anything. Andersson instinctively pushed the passenger’s hand

away and the passenger responded by stabbing him.

¶7 Andersson began driving fast and swerving to get the man to stop. The passenger screamed

for Andersson to let him out. Andersson stopped the cab and the passenger ran out. He believed

2 the man wanted to kill him. Andersson called the cab company dispatcher and told him what had

happened. He then drove himself to a hospital.

¶8 Andersson was transferred to Jewish Hospital in St. Louis where the treating physician

identified 15 stab wounds to his back, neck, and shoulders. The cab company manager reported

that he had received an inquiry earlier in the day from “Datwon Smallwood” about cab fares.

Datwon was a nickname associated with defendant.

¶9 Detective Andrew Pierson obtained video from the bar that showed a man wearing a

baseball cap walk in and speak to Brooks. The man’s hat was similar to one found inside the cab.

Pierson showed Brooks a photo lineup that included defendant, and Brooks identified him with

70-80% certainty.

¶ 10 After obtaining the video, Pierson went to the Atwood address and noticed that the house

was empty and under construction. He also learned that defendant’s address was on West 9th

Street. The owner of the Atwood house, Dwight Chavours, confirmed that no one lived there on

August 8, 2018. He noted that defendant had done some construction work there a few days earlier.

Gene Williams said that he had seen defendant at the house a month or two before the incident.

¶ 11 In closing, the State argued that the location and number of stab wounds were evidence of

defendant’s intent to kill Andersson. The State also argued that identity was not in question as

Brooks identified defendant and circumstantial evidence pointed to him. The defense argued that

Brooks was only 70 to 80% certain and that the nature of the wounds did not prove an intent to

kill. The defense argued that the perpetrator only began stabbing Andersson to escape the cab due

to his erratic driving.

¶ 12 The jury found defendant guilty. Because he had two prior convictions of Class X felonies,

a natural-life sentence was mandatory. The defense argued, however, that the statute mandating a

3 natural-life sentence was unconstitutional as applied to defendant given his difficult upbringing

and history of mental illness.

¶ 13 In allocution, defendant stated that he was sorry for what happened to Andersson but that

the man responsible for the crime was Antonio Perkins. Defendant claimed that Perkins used his

tablet on August 8, 2018, to request the price for a cab ride, and that Perkins had previously broken

into the Atwood address to steal a flat screen TV. Defendant contended that he and Perkins went

to Bubby & Sissy’s together, but Perkins went back inside to have the bartender call for a cab

while defendant waited outside. After Perkins got into the cab and left, defendant walked towards

Ninth Street. He saw Charles Sanders drive past him as he walked home.

¶ 14 Defendant said that he told his lawyer the story about Perkins and Sanders and that Perkins

used to work at ABC Cab. He also informed counsel that his “roommate,” Katie Hurt, and his

brother, Leon Smallwood, would have provided him with an alibi. However, counsel did not call

any of these witnesses at trial.

¶ 15 The trial court, recognizing that defendant had raised an ineffective-assistance claim,

conducted a Krankel hearing. See People v. Krankel, 102 Ill. 2d 181 (1984). In response to the

court’s queries, defendant reiterated his claims that counsel failed to call potential witnesses or

cross-examine the State’s witnesses. Defendant also said that counsel did not have the cap found

in the cab tested for DNA.

¶ 16 Defendant’s counsel, Tyler Bateman, said that

“ ‘[Defendant] has told me a variety of things, and based on some things he told me I had

my investigator interview certain people and made decisions based on that and also what

the law is in terms of presenting so and so did it, who to call and who not to call. I don’t

know that I necessarily talked to everybody that he mentioned, because maybe what he told

4 me wasn’t going to be relevant one way or the other. But based on the evidence I did the

investigation through my investigator I thought was appropriate. I think he indicated to you

that we talked to Mr. Perkins who he seems to say did the case. And I think he indicated to

you what Mr. Perkins told us, which probably was absolutely no reason for me to subpoena

Mr. Perkins. A variety of other things I probably decided had no relevance as to whether

or not he was the perpetrator. I tried the case in the fashion based on what he told me was

the best fashion to try the case, not necessarily what would have been the best fashion to

try the case, but based on what he told me at various times, I also should say that.’ ” People

v. Smallwood, 2022 IL App (5th) 190416-U, ¶ 39.

The court concluded that defendant’s claims required no further action.

¶ 17 The court found that application of the mandatory sentencing statute was appropriate and

sentenced defendant to natural-life imprisonment. Defendant appealed.

¶ 18 On direct appeal, we rejected defendant’s arguments that the evidence was insufficient, the

State’s closing argument was improper, and counsel should have highlighted certain portions of

the medical records admitted in evidence. However, we held that the trial court’s Krankel hearing

was inadequate and remanded the cause for a further hearing. Id. ¶¶ 88-90.

¶ 19 Following remand, the trial court appointed new counsel who filed a formal motion

presenting defendant’s claims. At a hearing, new counsel questioned Bateman about the witnesses

defendant had identified. Bateman said that his investigator, Keagan Clutter, interviewed the

witnesses, but Bateman concluded that none could have provided any testimony useful to the

defense.

¶ 20 Hurt, defendant’s roommate at the time, told Clutter that defendant called her at home at

10:30 on the night of the offense. Bateman noted that discovery documents showed that the cab

5 company called 9-1-1 at 10:13 p.m., meaning that the offense had been completed by then. Thus,

Hurt could not provide an alibi for the time of the offense.

¶ 21 Chavours told Clutter that he could not provide any information about defendant’s case.

He knew that Perkins was on the run for shooting someone in 2018. But Chavours was aware of

no connection between defendant and Perkins.

¶ 22 Leon Smallwood affirmed that he did contact defendant via FaceTime that evening.

However, it was after the police had come to his house to investigate the incident.

¶ 23 When Clutter contacted Sanders, the latter essentially denied everything defendant had

said. Specifically, he denied having seen defendant the night of the incident.

¶ 24 Bateman was also asked about the baseball cap found in the cab after the offense. Bateman

believed that “the best way to use that was things not done by the police since the State has the

burden” of proof.

¶ 25 The court questioned Bateman about Perkins. Bateman said that Perkins had been

incarcerated in Minnesota. However, Clutter was able to interview him at the county jail, where

he was awaiting trial for another offense. Perkins denied any involvement in the present offense.

¶ 26 The court found that Bateman had contacted all the proposed witnesses and made strategic

decisions not to call them. His representation of defendant was otherwise zealous. The court thus

denied defendant’s motion. Defendant timely appealed.

¶ 27 ANALYSIS

¶ 28 OSAD concludes that there is no reasonably meritorious argument that the court erred in

denying defendant’s motion following the renewed Krankel hearing. OSAD observes that

Bateman, through Clutter, contacted the proposed witnesses and that their testimony would not

have aided the defense. Thus, his failure to call the witnesses was the result of strategic decisions.

6 ¶ 29 “ ‘To establish that a defendant was deprived of effective assistance of counsel, [he] must

establish both that his attorney’s performance was deficient and that the defendant suffered

prejudice as a result.’ ” People v. Manning, 227 Ill. 2d 403, 412 (2008) (quoting People v. Pugh,

157 Ill. 2d 1, 14 (1993)).

¶ 30 The common law procedure provided in Krankel is triggered when a defendant raises a

pro se posttrial claim of ineffective assistance of trial counsel. People v. Jolly, 2014 IL 117142,

¶ 29 (citing Krankel, 102 Ill. 2d 181). When a defendant raises a claim sufficient to trigger a

Krankel hearing, the court should first examine the claim’s factual basis. Id. “ ‘If the trial court

determines that the claim lacks merit or pertains only to matters of trial strategy, [it] need not

appoint new counsel and may deny the pro se motion. However, if the allegations show possible

neglect of the case, new counsel should be appointed.’ ” People v. Jackson, 2020 IL 124112, ¶ 97.

¶ 31 In conducting this evaluation, the court may inquire into the circumstances of the alleged

ineffective assistance from counsel or defendant. People v. Crutchfield, 2015 IL App (5th) 120371,

¶ 29. The court can base its determination on “its knowledge of the defense counsel’s performance

at trial and the insufficiency of defendant’s allegations on their face.” Id.

¶ 32 There is a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance, and that the challenged action or inaction was the product of

sound trial strategy. Id. ¶ 34 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). Decisions

regarding which witnesses to call and what evidence to present are generally matters of trial

strategy that cannot form the basis of an ineffective assistance of counsel claim. Id.

¶ 33 However, trial counsel is required to “independently investigate any possible defense,” and

the failure to investigate can amount to ineffective assistance. People v. Domagala, 2013 IL

113688, ¶ 38. Counsel is given great deference in his or her investigation decisions, and we judge

7 the decision against a standard of reasonableness. Id. As such, counsel must conduct reasonable

investigations or make a reasonable decision that a particular investigation is unnecessary. Id.

¶ 34 Here, Bateman testified that Clutter spoke with each of the proposed witnesses. Based on

their responses, he concluded that they would not have provided any testimony helpful to the

defense and, thus, made strategic decisions not to call them. He further explained that he believed

the best way to deal with the baseball cap was to argue that the State could have had it tested but

did not. Of course, had the cap been tested and found to contain defendant’s DNA, this would have

helped the State’s case immeasurably. In summary, the court properly found that Bateman

contacted all the proposed witnesses, none of whom would have helped the defense. His decisions

not to call any of the proposed witnesses were thus matters of trial strategy that were virtually

immune from scrutiny.

¶ 35 CONCLUSION

¶ 36 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 37 Motion granted; judgment affirmed.