People v. Pierce ( 2022 )

2022 IL App (1st) 201040-UNo. 1-20-1040
Order filed August 15, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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. 10 CR 17433(01)
)
SHAROD PIERCE, ) Honorable
) Diana L. Kenworthy,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justice Pucinski concurred in the judgment.
Justice Coghlan specially concurred.
ORDER
¶1 Held: We grant the Office of the State Appellate Defender’s motion to withdraw and
affirm the judgment of the trial court, finding any suppressible evidence from
Pierce’s arguably unconstitutional arrest would not have affected the outcome of
his trial; therefore, he could not establish prejudice from failing to raise in an earlier
proceeding the argument that investigative alerts are unconstitutional under the
Illinois Constitution.
¶2 The trial court denied Sharod Pierce leave to file a successive post-conviction petition in
which he raised a claim that his warrantless arrest violated the Illinois Constitution based, as it
was, on an investigative alert. On appeal, the Office of the State Appellate Defender (OSAD) has
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moved to withdraw because, in its view, Pierce’s claim “presents no potentially meritorious issues
for review.” We agree, though on a limited basis. The only piece of evidence that could have been
suppressed had Pierce’s constitutional attack on his arrest been successful—an in-person lineup
identification by two witnesses—would have had a negligible impact on his trial.
¶3 Before addressing the motion, we remind OSAD that until the Illinois Supreme Court
decides People v. Dossie, No. 127412 (fully briefed as of June 10, 2022), claiming investigative
alerts are unconstitutional under the Illinois Constitution may be justified, assuming an arguable
case that the unconstitutional arrest led to meaningfully suppressible evidence. With that reminder,
we grant OSAD’s motion.
¶4 Background
¶5 The State charged Sharod Pierce with first degree murder for the shooting death of Anthony
Carter. Chicago police officers had arrested Pierce under the authority of an investigative alert
“with probable cause.” Pierce’s trial counsel did not move to suppress evidence gleaned from his
arrest or challenge the investigative alert procedure leading to his arrest.
¶6 Pierce chose a jury trial, and three eyewitnesses testified. We will use their initials because
they were all juveniles at the time of the offense, and two were juveniles at trial.
¶7 C.C. provided a written statement explaining he was with a group of friends when they
split up so the rest of the group could go down the street to buy marijuana. C.C. heard gunshots.
Though he did not see the shooting, C.C. identified Pierce as a person he saw running with a gun.
At trial, C.C. recanted his written statements, testifying that he was with his girlfriend the night of
the shooting and did not see Pierce the night of the shooting and, indeed, had never met Pierce
before.
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¶8 C.M., the victim, and R.W. were hanging out together on the night of the shooting. They
belonged to a gang and sold marijuana. The group went to get cigarettes when Pierce approached
them. Pierce originally put a gun in R.W.’s face, but when the victim walked over, Pierce shot him
from about five feet away. C.M. talked to the police the next day and identified Pierce in a photo
array; he later identified Pierce in a lineup after Pierce’s arrest.
¶9 R.W., who was 15 at the time, was the victim’s cousin. R.W. explained that, as the group
of friends walked back from a gas station, someone called out to C.M., who crossed the street to
talk with them. R.W. tried to follow until the person who shouted pointed a gun at him. After R.W.
“begged for [his] life,” the victim walked up. R.W. did not see what happened next but heard a
“pow” and then ran as he heard more gunshots.
¶ 10 R.W. also testified that his uncle told him and C.M. that they should identify Pierce as the
shooter. R.W. later identified Pierce in a photo and a lineup. After this testimony, the State
introduced R.W.’s earlier written statement in which he had unequivocally identified Pierce as the
shooter. The parties also stipulated that an investigator retained by Pierce’s counsel to interview
R.W., who never said anything about his uncle prompting him with the identity of the person who
shot the victim.
¶ 11 The State introduced the testimony of several police officers and assistant state’s attorneys.
All of whom corroborated the provenance of the eyewitnesses’ previous statements identifying
Pierce as the shooter.
¶ 12 After the jury found Pierce guilty, the trial court sentenced him to 60 years in prison. We
affirmed Pierce’s conviction and sentence on direct appeal. People v. Pierce, 2014 IL App (1st)
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131806-U. Pierce then filed an initial post-conviction petition raising several claims irrelevant for
our purposes.
¶ 13 Pierce filed a successive post-conviction petition, the subject of this appeal, in which he
claimed that officers unlawfully arrested him based on an investigative alert. Pierce relied on our
then-published opinion in People v. Bass, 2019 IL App (1st) 160640, affirmed in part and vacated
in part, 2021 IL 125434. The trial court agreed that Pierce established cause for failing to raise his
claim sooner. But, relying on People v. Braswell, 2019 IL App (1st) 172810, which disagreed with
our analysis of investigative alerts in Bass, the court found Pierce had failed to establish prejudice.
Pierce appealed, and his appellate counsel has now moved to withdraw.
¶ 14 Analysis
¶ 15 The Post-Conviction Hearing Act provides criminal defendants with a remedy for
violations of their constitutional rights at their original trial. People v. Pitsonbarger, 205 Ill. 2d
444, 455 (2002). Absent exceptions, “the Act contemplates the filing of only one post-conviction
petition.” Id. at 456. Yet, we may relax the bar on successive post-conviction petitions where “a
petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-
conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2020).
To show cause, a petitioner must identify an objective factor impeding their ability to bring their
claim in initial post-conviction proceedings. Id. A petitioner can show prejudice by showing that
failure to bring the claim earlier “so infected the trial that the resulting conviction *** violated due
process.” Id. We review the trial court’s denial of leave to file a successive post-conviction petition
de novo. Pitsonbarger, 205 Ill. 2d at 456.
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¶ 16 Pierce’s counsel agrees, correctly we think, that there is at least an argument to be made
that Pierce satisfied cause for failing to raise his constitutional challenge to investigative alerts
sooner. See People v. Tripp, 407 Ill. App. 3d 813, 816 (2011) (development in law, occurring after
filing of initial collateral proceedings, can satisfy defendant’s burden to show cause under cause-
and-prejudice test). Pierce filed his first post-conviction petition in 2015, and we did not issue our
original decision in Bass until four years later.
¶ 17 According to Pierce’s counsel, she cannot ethically advance Pierce’s claim that he suffered
prejudice from his inability to rely on Bass in his initial post-conviction proceedings. Counsel
gives three reasons: (i) “Bass has been overturned but [the cases disagreeing with it] remain good
law,” (ii) the officers who arrested Pierce would be able to rely on the good faith exception because
Pierce’s arrest was supported by independent probable cause, (iii) the only evidence subject to
exclusion were Pierce’s claim successful would not have impacted the outcome of his trial. We
agree only with counsel’s third point.
¶ 18 That our original opinion in Bass has been vacated and panels of the appellate court have
disagreed with Bass carries no weight. Counsel’s obligation to withdraw is triggered by her ethical
obligations of candor to the tribunal, not her assessment of the likelihood of success of her
argument on appeal. See People v. Meeks, 2016 IL App (2d) 140509, ¶ 9 (discussing counsel’s
ethical obligations not to raise issues of no arguable merit on appeal) (emphasis added). But the
same ethical rule requiring counsel to withdraw countenances proper arguments made even in what
may seem like the face of overwhelming contrary authority. See id. (discussing Ill. R. Prof.
Conduct (2010) R. 3.1 (eff. Jan. 1, 2010) (allowing arguments that have “basis in law” even if
those arguments require claims that existing law should be modified or reversed).
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¶ 19 For a brief period after we decided Bass, a number of panels in this district and outside of
it rejected its analysis of the unconstitutionality of investigative alerts. People v. Harris, 2022 IL
App (3d) 200234, ¶ 12; People v. Butler, 2021 IL App (1st) 171400, ¶ 55; People v. Little, 2021
IL App (1st) 181984, ¶ 63 (collecting remaining four cases from the First District). But some
members of this court still believe Bass was correctly decided. See People v. Smith, 2022 IL App
(1st) 190691, ¶¶ 55-99 (opinion of Pucinski, J., joined by Hyman, P.J.) (explaining and re-adopting
the reasoning of Bass). And critically, our supreme court has not weighed in on Bass’s substantive
constitutional analysis of investigative alerts. See Bass, 2021 IL 125434, ¶ 31; but see People v.
Dossie, 2021 IL App (1st) 201050-U, leave to appeal allowed, No. 127412 (Ill. Sep. 29, 2021)
(briefing concluded June 10, 2022).
¶ 20 So, at this point, counsel may not have a high statistical likelihood of success in arguing
prejudice from failure to raise the unconstitutionality of investigative alerts in an earlier
proceeding. But until our supreme court decides Dossie, nothing prevents making the argument.
¶ 21 We also reject withdrawal for the reason that the State might raise some sort of good faith
defense to applying the exclusionary rule. Counsel points out that officers had independent
probable cause, separate from the investigative alert, so the officers acted in good faith despite the
investigative alert. We think this argument is premature. The State cannot participate at the leave-
to-file stage of successive post-conviction proceedings. People v. Lusby, 2020 IL 124046, ¶ 29.
And the State is not required to argue the good faith exception to the exclusionary rule. See 725
ILCS 5/114-12(b)(1) (West 2014) (State “may urge” officer’s conduct was done in good faith).
Indeed, the State can forfeit an argument based on good faith by failing to raise it (or at least, it
would not be unethical for counsel to so argue). See People v. Davis, 2021 IL App (3d) 180146,
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¶ 103 (McDade, P.J. specially concurring). Because reliance on the good faith exception to the
exclusionary rule would be speculative at this stage, we reject it as grounds on which to grant
counsel’s motion to withdraw.
¶ 22 We agree with counsel that Pierce cannot establish prejudice given the small quantum of
evidence that could have been suppressed even if a hypothetical motion to suppress had been
granted. Counsel argues, and our review of the record confirms, that the sole evidence officers
obtained based on Pierce’s arrest were the live lineup identifications made by R.W. and C.M. But,
R.W. and C.C. had already identified Pierce as the shooter in photo arrays and had given written
statements saying Pierce was the shooter. We recognize that R.W. and C.C. eventually recanted
their written statements, but the State brought in a host of other evidence verifying them. To the
extent there is a credibility contest about the veracity of the written statements, that contest is no
weaker or stronger for the lack of the in-person lineup identifications (assuming they had been
suppressed). Indeed, we described the evidence against Pierce as “overwhelming” on direct appeal.
Pierce, 2014 IL App (1st) 131806-U, ¶¶ 58, 62.
¶ 23 We grant OSAD’s motion to withdraw. Though we do not share counsel’s pessimism about
Bass—and reject it as a basis to grant the motion—we agree the evidence against Pierce was strong
enough that any suppressible evidence taken out of the State’s case could not have affected the
outcome of his trial.
¶ 24 Motion granted.
¶ 25 Judgment affirmed.
¶ 26 JUSTICE COGHLAN, specially concurring:
¶ 27 Although I agree with the majority’s conclusion that the Office of the State Appellate
Defender’s motion to withdraw as counsel on appeal should be granted, I disagree with the
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majority’s reasoning in reaching that conclusion. For all of the reasons set forth in the State
Appellate Defender’s motion to withdraw and supporting memorandum, this appeal presents no
potentially meritorious issues for review. Therefore, the State Appellate Defender should be
permitted to withdraw as counsel on appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551(1987). In my view, no further analysis is warranted.
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