People v. Moore , 402 Ill. App. 3d 143 ( 2010 )

No.2-08-0590 Filed: 6-7-10
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 02--CF--1662
)
MICHAEL C. MOORE, ) Honorable
) Steven G. Vecchio,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the opinion of the court:
Michael C. Moore appeals the trial court's order summarily dismissing his petition filed under
the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2006)), contending that
his trial counsel was ineffective for failing to object to the presence of two security officers positioned
behind him at trial and that his appellate counsel was ineffective for failing to raise the issue on direct
appeal. We affirm.
I. BACKGROUND
In 2002, Moore was charged by indictment with three counts of first degree murder, with
count I alleging that Moore committed murder in the course of a residential burglary (720 ILCS
5/9--1(a)(3) (West 2002)), count II alleging that he stabbed Elbert Person, causing his death, while
knowing that his acts created a strong probability of death or great bodily harm (720 ILCS
5/9--2(a)(2) (West 2002)), and count III alleging that his acts created a strong probability of death
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or great bodily harm to a person 60 years of age or older (720 ILCS 5/9--1(a)(2) (West 2002); 730
ILCS 5/5--5--3.2(b)(4)(ii) (West 2002)).
In 2005, a jury trial was held. During trial, two uniformed police officers where positioned
directly behind Moore. The jury found Moore guilty on all counts, and he moved for a new trial,
arguing in part that the presence of the officers gave the jury the impression that Moore was a
security risk. The trial court denied the motion, observing that Moore appeared in street clothes, he
was not shackled or handcuffed, he was brought into the courtroom by the officers when the jury was
not present, and the officers never spoke to Moore or directed him to do anything when the jurors
were present. The court further found that the objection was untimely because it was not raised
during trial. Moore appealed, with representation by different counsel, but did not raise the issue
concerning the presence of the officers and did not allege that his trial counsel was ineffective for
failing to object during trial to the officers' presence. We affirmed. People v. Moore, No.
2--05--0450 (2007) (unpublished order under Supreme Court Rule 23).
In March 2008, Moore filed a pro se postconviction petition, alleging in part that his trial
counsel was ineffective for failing to object during trial to the presence of the officers. He alleged that
the officers were in uniform and were placed directly behind him and that there were no other
uniformed officers in the courtroom. Moore also argued that his appellate counsel was ineffective
for failing to raise the issue of ineffective assistance of trial counsel. The trial court summarily
dismissed the petition, finding that, as it applied to trial counsel, the issue was forfeited because it
could have been raised on direct appeal. The court found that the issue lacked merit as it applied to
appellate counsel. Moore appeals.
II. ANALYSIS
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The Act provides a remedy to criminal defendants who have suffered substantial violations
of their constitutional rights. People v. Barcik, 365 Ill. App. 3d 183, 190 (2006). When the death
penalty is not involved, there are three stages to the proceedings. Barcik, 365 Ill. App. 3d at 190.
During the first stage, the trial court determines whether the defendant's allegations sufficiently
demonstrate a constitutional violation that would necessitate relief. People v. Coleman, 183 Ill. 2d
366, 380 (1998). The trial court may summarily dismiss the petition if it finds that the petition is
"frivolous or is patently without merit." 725 ILCS 5/122--2.1(a)(2) (West 2006). "[A] pro se
petition seeking postconviction relief under the Act for a denial of constitutional rights may be
summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis
either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). "A petition which lacks an
arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory
or a fanciful factual allegation." Hodges, 234 Ill. 2d at 16. "We review de novo the first-stage
dismissal of a postconviction petition." Barcik, 365 Ill. App. 3d at 190.
A. Forfeiture of Ineffective Assistance of Trial Counsel
Moore argues that his claim of ineffective assistance of trial counsel was not forfeited, because
it depended on facts that did not appear on the face of the record, and thus it could not have been
raised on direct appeal. In particular, he argues that the record did not show the nature and extent
of the security measures that were actually employed during trial.
Postconviction proceedings involve a review only of matters that have not been, and could
not have been, previously adjudicated. People v. Erickson, 183 Ill. 2d 213, 222 (1998). Such a
petition is a collateral attack on a prior conviction and sentence, not a substitute for or an addendum
to a direct appeal. People v. West, 187 Ill. 2d 418, 425 (1999). Accordingly, issues that could have
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been raised on direct appeal, but were not, are considered forfeited and, therefore, barred from
consideration in a postconviction proceeding. People v. Blair, 215 Ill. 2d 427, 443-44 (2005); People
v. Miller, 203 Ill. 2d 433, 437 (2002).
"The forfeiture rule applies only where it was possible to raise an issue on direct appeal; thus,
a postconviction claim that depends on matters outside the record is not ordinarily forfeited, because
matters outside the record may not be raised on direct appeal." People v. Youngblood, 389 Ill. App.
3d 209, 214 (2009). Even when a claim could have been raised, however, "it is well established that
a postconviction claim will not be forfeited where the alleged forfeiture stems from the incompetence
of appellate counsel." Youngblood, 389 Ill. App. 3d at 214-15.
Here, Moore argues that his claim could not have been raised on direct appeal because it
involved matters outside the record, such as the nature and extent of courtroom security. Although
his petition did include additional details, the trial court largely described the nature and extent of the
security when it denied the posttrial motion. In any event, because Moore's petition raised a claim
of ineffective assistance of appellate counsel, the claim as to trial counsel is not forfeited.
Accordingly, we address the trial counsel claim under the rubric of the appellate counsel claim.
B. Ineffective Assistance of Appellate Counsel
Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),
a defendant arguing ineffective assistance of counsel must show not only that his or her counsel's
performance was deficient but that the defendant suffered prejudice as a result. People v. Houston,
226 Ill. 2d 135, 143 (2007). Under the two-prong Strickland test, "a defendant must show that (1)
his counsel's performance was deficient in that it fell below an objective standard of reasonableness,
and (2) the deficient performance prejudiced the defendant in that, but for counsel's deficient
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performance, there is a reasonable probability that the result of the proceeding would have been
different." Houston, 226 Ill. 2d at 144. "At the first stage of postconviction proceedings under the
Act, a petition alleging ineffective assistance may not be summarily dismissed 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." Hodges, 234 Ill. 2d at 17.
A claim of ineffective assistance of appellate counsel is governed by the same rules that apply
to claims of ineffective assistance of trial counsel. People v. Childress, 191 Ill. 2d 168, 175 (2000).
The defendant must show that appellate counsel's failure to raise a particular issue on direct appeal
was objectively unreasonable and that the defendant was prejudiced by that failure. In order to show
prejudice, the defendant must show that the underlying issue had merit. Childress, 191 Ill. 2d at 175.
"A defendant's right to a fair trial is a fundamental liberty interest secured by the sixth and
fourteenth amendments to the United States Constitution." People v. Peeples, 205 Ill. 2d 480, 527
(2002), citing Holbrook v. Flynn, 475 U.S. 560, 567, 89 L. Ed. 2d 525, 533, 106 S. Ct. 1340, 1345
(1986). " 'The presumption of innocence, although not articulated in the Constitution, is a basic
component of a fair trial under our system of criminal justice.' " Peeples, 205 Ill. 2d at 527-28,
quoting Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 130, 96 S. Ct. 1691, 1692 (1976).
To safeguard that presumption, " 'courts must be alert to factors that may undermine the fairness of
the fact-finding process' and must 'carefully guard against dilution of the principle that guilt is to be
established by probative evidence and beyond a reasonable doubt.' " Peeples, 205 Ill. 2d at 528,
quoting Estelle, 425 U.S. at 503, 48 L. Ed. 2d at 130, 96 S. Ct. at 1693.
"When assessing the use of various practices or procedures in the courtroom, '[c]ourts must
do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle,
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and common human experience.' " Peeples, 205 Ill. 2d at 528, quoting Estelle, 425 U.S. at 504, 48
L. Ed. 2d at 130, 96 S. Ct. at 1693. However, not every courtroom practice that tends to single out
a defendant from everyone else in the courtroom constitutes a violation of a defendant's constitutional
rights. Peeples, 205 Ill. 2d at 528; see Holbrook, 475 U.S. at 567, 89 L. Ed. 2d at 533, 106 S. Ct.
at 1345. In regard to the presence of security, " 'jurors are quite aware that the defendant appearing
before them did not arrive there by choice or happenstance.' " Peeples, 205 Ill. 2d at 528, quoting
Holbrook, 475 U.S. at 567, 89 L. Ed. 2d at 533-34, 106 S. Ct. at 1345. Jurors also may reasonably
draw a wide range of inferences from the presence of security personnel in the courtroom, because
the presence of uniformed guards is a common courtroom practice. Peeples, 205 Ill. 2d at 530.
Further, not " 'every reminder that the State has chosen to marshal its resources against a defendant
to punish him for allegedly criminal conduct' " can be eliminated from the proceedings. Peeples, 205
Ill. 2d at 529, quoting Holbrook, 475 U.S. at 567, 89 L. Ed. 2d at 533-34, 106 S. Ct. at 1345. Thus,
the mere presence of security guards in a courtroom is not inherently prejudicial and, in view of the
variety of ways in which such guards can be deployed, a case-by-case approach is used to determine
if they caused prejudice. Peeples, 205 Ill. 2d at 530; see Holbrook, 475 U.S. at 569, 89 L. Ed. 2d
at 535, 106 S. Ct. at 1346. If security measures, which are squarely within the discretion of the trial
court, are not inherently prejudicial, the defendant bears the burden of affirmatively demonstrating
actual prejudice. See Peeples, 205 Ill. 2d at 531; see Holbrook, 475 U.S. at 572, 89 L. Ed. 2d at 537,
106 S. Ct. at 1347-48.
Generally, defendants who were subjected to in-court security measures similar to those
employed during Moore's trial have not suffered prejudice as a result of those measures. See, e.g.,
Peeples, 205 Ill. 2d at 530 (two uniformed officers were seated behind the defendant and an officer
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escorted him to the witness stand to testify, stood behind him while he testified, and escorted him
back to the defense table); People v. Fields, 322 Ill. App. 3d 1029, 1031, 1034-35 (2001) (one
uniformed guard was stationed behind the defense table, one guard was stationed at each entrance
to the courtroom, and a group of guards were seated in the front row of the spectators' seats); People
v. Johnson, 54 Ill. App. 3d 970, 972 (1977) (two uniformed officers of the Department of Corrections
were seated behind the defendant throughout his trial); People v. Glasco, 66 Ill. App. 2d 445, 448-49
(1966) (an officer was positioned near the defendant rather than in the spectator section).
Here, Moore attempts to distinguish the circumstances of his case, arguing that the record is
not adequately developed. But, as noted, when the trial court denied his posttrial motion, it largely
described the nature and extent of the security measures, none of which were abnormal or inherently
prejudicial. Moore's additional allegations do not distinguish the facts of his case from others where
prejudice was not shown. Thus, because the presence of the guards was not inherently prejudicial,
and Moore did not allege facts to show that their presence resulted in actual prejudice, Moore did not
show that he was prejudiced by trial counsel's failure to timely object. As a result, the underlying
issue had no merit, and Moore suffered no prejudice due to his appellate counsel's decision not to
pursue the matter on appeal. Accordingly, the trial court correctly summarily dismissed Moore's
postconviction petition.
III. CONCLUSION
The trial court properly summarily dismissed Moore's postconviction petition. The judgment
of the circuit court of Winnebago County is affirmed.
Affirmed.
O'MALLEY and BURKE, JJ., concur.
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