People v. Watt ( 2021 )

2021 IL App (2d) 200030-UNo. 2-20-0030
Order filed September 22, 2021
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
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CF-638
)
TYRONE D. WATT, ) Honorable
) Daniel B. Shanes,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Justices Birkett and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court applied the correct standard for reviewing ineffective assistance
claims at the first stage of postconviction proceedings. Further, the appellate court
on de novo review held defendant’s postconviction petition was properly dismissed
under Strickland v. Washington.
¶2 Following a jury trial, defendant, Tyrone D. Watt, was convicted of one count of home
invasion (720 ILCS 5/12-11(a)(2) (West 2010)), one count of armed robbery (720 ILCS 5/18-
2(a)(2) (West 2010)), and one count of aggravated kidnapping (720 ILCS 5/10-1(a)(1) (West
2010)). The trial court sentenced defendant to concurrent terms of imprisonment of 26 years for
home invasion, 26 years for armed robbery, and 18 years for aggravated kidnapping. On direct
2021 IL App (2d) 200030-Uappeal, this court affirmed defendant’s convictions but modified the mittimus to reduce certain
fines, fees, and costs. See People v. Watt, 2013 IL App (2d) 120183, ¶¶ 51, 54. On July 3, 2019,
defendant, through counsel, filed a postconviction petition, alleging in relevant part that his trial
counsel was ineffective for failing to introduce documentary evidence or testimony at trial
regarding the source of the money found on defendant at the time of his arrest. The trial court
summarily dismissed the petition, finding that the claims were frivolous and patently without
merit. Defendant appeals. We affirm.
¶3 I. BACKGROUND
¶4 The following evidence was adduced at trial. On February 23, 2010, Domonique Kyle lived
at 1030 Lakehurst Drive in Waukegan. She was pregnant. Her boyfriend, Gino Adams, and his
two-year-old daughter often stayed there. At approximately 10 p.m., Adams left the apartment.
Kyle was in bed when Adams returned around midnight, picked up his daughter, and left again. A
short while later, Kyle was awakened by voices outside of her bedroom door. Four masked men—
defendant, George Bates, Roger Golden, and Kevin Martin—had just broken into her apartment.
¶5 Three of the men appeared at her bedroom door and two of them entered her bedroom.
They asked Kyle where the money and the “work” were. According to Kyle, “work” meant drugs.
One of the men had a revolver. That man went through Kyle’s dresser and asked her for jewelry.
The other man went through her armoire. The unarmed man ordered Kyle off the bed and flipped
her mattress. Upon finding nothing under the mattress he stated, “So you going to lie to me, bitch,”
and punched her in the left eye.
¶6 Kyle had between $4000 and $5000 in cash on her dresser, which the men took. The three
men led Kyle into the kitchen where a fourth masked man was standing. While ransacking the
kitchen, the men again asked Kyle where the money and the “work” were. Then, the man who had
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2021 IL App (2d) 200030-Upreviously punched Kyle took her into the bathroom where he used duct tape to bind her wrists
and ankles. He ordered her to the floor. Kyle told him that she was pregnant and pleaded with him
not to hurt her. The man turned off the light and shut the bathroom door. After Kyle heard the men
leave her apartment, she freed herself and called 911. She testified that she was “terrified.”
¶7 A short while later, approximately one block from Kyle’s apartment, police pulled over a
white vehicle driven by defendant and containing his three codefendants. The driver’s door of the
vehicle opened, and defendant fell out onto the road. The vehicle sped away. Two officers pointed
their guns at defendant, who walked away from them. Officer Spiewak testified that there was
money “falling all over.” He said, “I don’t know from [defendant’s] pockets, maybe from—it was
just falling everywhere, blowing around in the wind, just blowing away.” When Spiewak searched
defendant for weapons, he recovered “clumps” and “wads” of money “in every pocket [defendant]
had on his clothing.” The money recovered from defendant totaled $5633.
¶8 Pursuant to a plea agreement with the State, Bates testified that the idea of the robbery
originated with Martin, and Bates was tasked with finding a “ride.” Bates then contacted defendant,
who agreed to participate in the robbery because he needed rent money. Around 8 p.m. on February
23, 2010, defendant picked up Bates in a white vehicle. Defendant had a revolver. They collected
Martin and then went to 1030 Lakehurst Drive. Their target was Adams, whom they believed had
drugs and money.
¶9 According to Bates, upon discovering that the front door of the apartment building was
locked, defendant called Golden to help them gain entry. Defendant drove the threesome to pick
up Golden. The foursome then drove to a few more locations where they obtained “burglary
tools”—hammers and screwdrivers. The foursome returned to the apartment building and
defendant and Golden pried open the exterior door. A car came by, and the four men hid in the
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2021 IL App (2d) 200030-Ubushes and watched Adams enter the building. Adams exited the building a few minutes later with
his daughter and drove away. Bates voiced a reservation about going through with the robbery, but
defendant wanted to proceed.
¶ 10 Bates testified that the foursome entered the building and went to the second floor. They
had on masks and gloves. Upon reaching the second floor, Bates placed duct tape over the
peepholes of the apartment doors “[s]o no one could see out.” Defendant forced open Kyle’s
apartment door and the foursome entered. Defendant, Bates, and Golden went to Kyle’s bedroom.
Defendant asked Kyle where the money was, and when she told him, he grabbed something from
where she was pointing and put it in his pocket. Then defendant told Kyle to get off the bed, flipped
the mattress, and hit her in her eye. After the men brought Kyle into the kitchen, defendant took
her into the bathroom. When defendant emerged from the bathroom, the foursome left the
apartment. Bates took several of Kyle’s items.
¶ 11 Bates testified that when they were a short distance from the apartment building a police
car began following them, so defendant pulled the white vehicle over. At that moment, Martin,
who was in the front passenger seat, grabbed the steering wheel, put his foot on the gas, and fought
defendant for the gear shift. Martin then “knocked” defendant out of the car. Martin took over
driving and a chase ensued. A short while later, the vehicle flipped over and crashed. Bates and
Martin escaped and Golden remained inside. Bates and Martin ran into a field. While they were
running, Martin passed Bates money. All four men were captured by the police.
¶ 12 From the snow outside the overturned vehicle, the police recovered a loaded revolver, two
hammers, a black hat, a black glove, and items belonging to Kyle, including her identification card,
credit cards, and handbag. After the State rested, the court denied the defense’s motion for a
directed verdict. The defense did not present any witnesses.
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2021 IL App (2d) 200030-U¶ 13 Following the guilty verdicts and direct appeal, on July 3, 2019, defendant, through
counsel, filed a postconviction petition in which he raised multiple issues, including ineffective
assistance of counsel. Specifically, defendant contended that trial counsel was ineffective for
failing to call his then fiancé, Kelly Littlejohn, to testify at trial, or introduce other evidence
regarding the source of the $5633 that was found on defendant when he was arrested. In support
of this claim, defendant attached to his petition his own affidavit as well as an affidavit from
Littlejohn. In their affidavits, defendant and Littlejohn averred that the $5633 came from a personal
injury settlement that Littlejohn had received. Defendant also attached a letter dated February 9,
2010, and a release form substantiating Littlejohn’s $10,000 settlement. Defendant maintained that
this evidence would have been exculpatory.
¶ 14 On December 4, 2019, the trial court summarily dismissed defendant’s petition as frivolous
and patently without merit. Addressing defendant’s argument regarding the source of the money,
the trial court explained in part in a written order that “even taking, as this court must do,
Defendant’s allegations concerning the source of the cash as true, no reasonable probability exists
that the presentation of this evidence would change the result of the trial.” The trial court noted
that on direct appeal the appellate court found that the evidence against defendant was not closely
balanced. The trial court also determined that, “Defendant’s explanation regarding the source of
the money fails to overcome the other evidence of his participation in these offenses” and
“Defendant cannot show prejudice with this claim.”
¶ 15 II. ANALYSIS
¶ 16 Defendant raises two arguments on appeal regarding the source of the $5633. He first
contends that the trial court “fundamentally misunderstood the analysis to be undertaken”
regarding his ineffective-assistance claim in first-stage postconviction proceedings. He maintains
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2021 IL App (2d) 200030-Uthat the trial court instead analyzed the claim under a heightened standard appropriate only for
second-stage proceedings. He next argues that the trial court erred in summarily dismissing his
postconviction petition, because his claim regarding the source of the $5633 met the appropriate
standard. Thus, he requests that this court reverse the judgment summarily dismissing his
postconviction petition and remand the case for second-stage proceedings. We address each
argument in turn.
¶ 17 A. Ineffective Assistance Claims in First-Stage Postconviction Proceedings
¶ 18 Defendant argues that the trial court erred in its analysis in two respects. He argues that it
was “inappropriate for the trial court to dismiss the decision not to call Kelly Littlejohn to testify
as trial strategy.” He also argues that it was “inappropriate” for the trial court to require that
defendant “prove” prejudice at the first stage.
¶ 19 The State responds generally that the court acknowledged the appropriate legal standard
for first-stage postconviction petition dismissals as applied to ineffective-assistance claims.
Moreover, the State contends, even if the court applied the incorrect standard, the standard of
review on appeal is de novo. Specifically, with respect to defendant’s trial strategy argument, the
State explains that the court’s discussion of trial strategy was not directed to counsel’s decision
not to call Littlejohn as a witness but rather to defendant’s claim (not argued on appeal) that
counsel was ineffective for failing to advise defendant to testify. Regarding defendant’s claim of
prejudice, the State urges that evidence of defendant’s guilt was overwhelming.
¶ 20 In its written order, the trial court clearly articulated the correct standard for ineffective-
assistance claims in first-stage postconviction proceedings: “At the first stage of post-conviction
proceedings, an ineffective-assistance-of-counsel claim may not be dismissed if it is arguable both
that (1) counsel’s performance fell below an objective standard of reasonableness (performance
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2021 IL App (2d) 200030-Uprong), and (2) the defendant was prejudiced (prejudice prong).” (Emphasis in original.) More
specifically, with regard to the prejudice prong the court noted, “To evaluate the prejudice prong,
the court considers ‘whether there is an arguable basis to conclude that there exists a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been different.’
Hernandez, 2014 IL App (2d) 131082, ¶ 12.” The court also explained, “Further, even taking, as
this court must do, Defendant’s allegations concerning the source of the cash as true, no reasonable
probability exists that the presentation of this evidence would change the result of the trial. As the
appellate court held on direct appeal, the evidence against Defendant was not closely balanced.
See Watt, 2013 IL App (2d) 120183, ¶ 37. Defendant’s explanation regarding the source of the
money fails to overcome the other evidence of his participation in these offenses.” Here, the trial
court’s remarks must be taken in the context of its lengthy, detailed, and accurate recitation of the
trial court’s determination at the first stage of a postconviction review of an ineffective assistance
claim, regardless of whether the court here used the word “arguable” in its assessment. Even if we
were to assume that the trial court applied the incorrect standard, our review of a first-stage
dismissal of a postconviction petition is de novo. People v. Hodges, 234 Ill. 2d. 1, 9 (2009)
¶ 21 B. The $5633
¶ 22 We now turn to the substantive issue in this case, whether the trial court erred in dismissing
defendant’s postconviction petition regarding his ineffective assistance claim as to the source of
the $5633. Defendant maintains that Littlejohn’s testimony and documentary evidence regarding
the source of the money would have supported his “otherwise uncorroborated defense,”
undermined the State’s reliance on the money as “proof” of his guilt, and disputed Bates’s claim
that defendant needed rent money. Therefore, defendant concludes that his trial counsel rendered
ineffective assistance for failing to investigate and present this evidence.
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2021 IL App (2d) 200030-U¶ 23 The State responds that evidence of defendant’s guilt was overwhelming. Thus, it is not
arguable that defendant was prejudiced by trial counsel’s failure to call Littlejohn to testify or to
introduce documents pertaining to the source of the money. We agree.
¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) “provides
a remedy to criminal defendants who have had substantial violations of their constitutional rights
during their criminal trial.” People v. Vernon, 276 Ill. App. 3d 386, 391 (1995). A postconviction
proceeding “is a collateral attack on a final judgment.” People v. Lester, 261 Ill. App. 3d 1075,
1077 (1994). “To survive dismissal at this [first] stage, a petition need only present the gist of a
constitutional claim.” People v. Gaultney, 174 Ill. 2d 410, 418 (1996). This is a low threshold.
Gaultney, 174 Ill. 2d at 418. A petition may be summarily dismissed as frivolous or patently
without merit only if it has no arguable basis in either law or fact. Hodges, 234 Ill. 2d. at 11-12.
¶ 25 Under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), to succeed on
a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel’s
performance was deficient and (2) the deficient performance prejudiced the defendant. Strickland,
466 U.S. at 687. “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. Here, evidence of defendant’s guilt was so
overwhelming such that defendant cannot demonstrate that he was arguably prejudiced by trial
counsel’s decision not to introduce evidence or elicit testimony regarding the source of the $5633.
¶ 26 The evidence showed that defendant picked up his codefendants in his vehicle and drove
them around to pick up burglary tools. Defendant had a revolver with him. Defendant arranged for
Golden to assist in breaking into Kyle’s apartment building. Defendant then forced Kyle’s
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2021 IL App (2d) 200030-Uapartment door open. Bates saw defendant put something recovered from Kyle’s dresser in his
pocket before defendant flipped Kyle’s mattress and punched her in the left eye. Later, defendant
took Kyle into the bathroom where he bound her wrists and ankles while she pleaded with him,
informing him that she was pregnant. Defendant left her in the dark and closed the door before
driving his codefendants away from the scene. A short while later, a police officer saw defendant
fall out of the driver’s door of the getaway vehicle in which the codefendants were riding. The
recorded video shows defendant looking at the police over his shoulder and sauntering away.
Officer Spiewak saw money blowing around by defendant, and when defendant was searched,
“clumps” and “wads” of money were found in every pocket on his person. A total of $5633 was
recovered from defendant. Items recovered in the snow outside of the overturned getaway car
included a loaded revolver, two hammers, a black hat and glove, and Kyle’s purse, credit cards,
and identification.
¶ 27 Defendant cites cases that are distinguishable. In People v. Ramirez-Lucas, 2017 IL App
(2d) 150156, the appellate court held that it was arguable that trial counsel was ineffective for
failing to call three occurrence witnesses whose testimony would have supported the defendant’s
otherwise uncorroborated self-defense theory. Ramirez-Lucas, 2017 IL App (2d) 150156, ¶ 44.
“[T]he witnesses stated that the defendant (1) yelled, ‘Don’t touch me’; (2) shot at the floor in
response to being pushed and having a bottle thrown at him; (3) was hit in the head with a pool
cue; and (4) tried to get away but a group of men jumped him and took him toward the kitchen.”
Ramirez-Lucas, 2017 IL App (2d) 150156, ¶ 50. People v. Brown, 336 Ill. App. 3d 711 (2002)
involved the affidavits of two alibi witnesses who averred that the defendant was out of town at
the time of the offense. Brown, 336 Ill. App. 3d at 718. Both cases differ from the present case
because they involve witnesses who could provide exculpatory testimony.
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2021 IL App (2d) 200030-U¶ 28 Here, Littlejohn was not an occurrence witness, nor could she supply an alibi for defendant.
Even if Littlejohn testified that she received a personal injury settlement, there is no way to tell if
the money found on defendant was from the settlement proceeds or the robbery. Defendant chose
not to testify. Thus, there would have been no connection established. Therefore, Littlejohn’s
testimony could not support the defense theory that the money was not his own, let alone exonerate
defendant. It could be inferred that defendant simply brought Littlejohn’s money with him while
he and his codefendants committed a home invasion and a robbery, during which a pregnant
woman was punched in the face and left bound in a dark bathroom. Littlejohn could only testify
that she had received a monetary settlement four days prior to the robbery and that she gave some
of the money to defendant. This testimony and supporting documents would be of no arguable
consequence given the overwhelming evidence implicating defendant. As previously noted, he
procured the burglary tools, forced Kyle’s apartment door open, brought a loaded revolver to her
apartment before punching her in the face and leaving her bound in a dark bathroom, and he
provided and drove the getaway car.
¶ 29 Because defendant cannot establish that he was arguably prejudiced, we need not examine
whether trial counsel’s performance was arguably unreasonable. See Strickland, 466 U.S. at 697(a court need not “address both components of the inquiry if the defendant makes an insufficient
showing on one”); People v. Cherry, 2016 IL 118728, ¶ 24 (failure to satisfy either prong defeats
the ineffectiveness claim). Accordingly, the trial court properly dismissed defendant’s
postconviction petition.
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, we affirm.
¶ 32 Affirmed.
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