People v. Alexander ( 2020 )


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    Appellate Court                         Date: 2021.12.09
    11:59:29 -06'00'
    People v. Alexander, 
    2020 IL App (3d) 170829
    Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
    Caption             STANLEY M. ALEXANDER, Defendant-Appellant.
    District & No.      Third District
    No. 3-17-0829
    Filed               December 10, 2020
    Decision Under      Appeal from the Circuit Court of Peoria County, No. 16-CF-758; the
    Review              Hon. Paul P. Gilfillan, Judge, presiding.
    Judgment            Reversed and remanded.
    Counsel on          James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of
    Appeal              State Appellate Defender’s Office, of Ottawa, for appellant.
    Jodi Hoos, State’s Attorney, of Peoria (Patrick Delfino, Thomas D.
    Arado, and Nicholas A. Atwood, of State’s Attorneys Appellate
    Prosecutor’s Office, of counsel), for the People.
    Panel               JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
    Justice Wright concurred in the judgment and opinion.
    Justice Schmidt dissented, with opinion.
    OPINION
    ¶1       Defendant, Stanley M. Alexander, appeals his conviction for aggravated battery. Defendant
    argues that (1) he was deprived of his right to present a defense where two witnesses were not
    permitted to testify that Ricky Alexander (Ricky) told them that he committed the offense
    rather than defendant, (2) defense counsel provided ineffective assistance when he failed to
    seek a continuance to investigate defendant’s report that Ricky confessed to committing the
    offense in a recorded jail call, (3) the prosecutor engaged in misconduct during closing
    argument, and (4) the circuit court committed reversible error during the preliminary Krankel
    inquiry (see People v. Krankel, 
    102 Ill. 2d 181
     (1984)). We reverse and remand.
    ¶2                                        I. BACKGROUND
    ¶3        Defendant was charged with aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2016))
    for shooting Odell Robinson with a handgun.
    ¶4        The State filed a motion in limine requesting that the court prohibit the defense from
    introducing the testimony of Jarita Sampson and Hermanda Alexander (Hermanda) that Ricky
    admitted to them that he was the driver of the vehicle involved in the incident and that he shot
    Robinson. The motion alleged that these statements were inadmissible hearsay. The motion
    stated that the statements were not admissible as statements against interest pursuant to Illinois
    Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011) because there was an insufficient basis for their
    admissibility.
    ¶5        A hearing was held on the State’s motion. The State argued that Sampson’s and
    Hermanda’s testimony should be barred because there was not sufficient evidence
    corroborating the trustworthiness of Ricky’s statements to them. The court ruled that the
    testimony would be excluded unless the defense could later present evidence of the
    trustworthiness of the statements.
    ¶6        The matter proceeded to a jury trial. Robinson testified that on the day of the incident, he
    was talking to Seldrick Carpenter and a few other individuals on a street. A white vehicle
    pulled up to the curb. Robinson approached the vehicle and saw defendant sitting in the
    passenger seat. Defendant was in a relationship with Wendolyn Williams, the mother of
    Robinson’s son. Robinson did not recognize the driver. Robinson greeted defendant and saw
    that defendant had a pistol. The driver also had a gun. Defendant frowned at Robinson and shot
    him in the penis. Robinson then ran up the street to wait for medical assistance. Later that day,
    Robinson identified defendant in a photographic lineup as the person who shot him. Copies of
    the photographic lineup and forms that Robinson had signed before making the identification
    were admitted into evidence. Robinson testified that he had to use a catheter for two months
    as a result of his injuries.
    ¶7        Carpenter testified that he was speaking with Robinson and several other individuals on a
    street on the day of the incident. A white vehicle drove up and stopped near them. Carpenter
    did not know the person who was driving the vehicle. Defendant was the passenger. Robinson
    approached the vehicle. Defendant exited the vehicle to fight Robinson. Before defendant
    reached the back of the vehicle, shots were fired. Carpenter did not see defendant with a gun,
    and he did not know whether defendant or the driver shot Robinson. Carpenter could not recall
    telling a police officer on the day of the incident that the driver reclined in his seat and that
    -2-
    defendant shot past the driver and hit Robinson. Carpenter acknowledged that he had
    “insinuated” to defense counsel the day before the trial that the driver must have been the
    shooter because defendant was outside the vehicle when the shooting started. Carpenter
    maintained that he did not see who the shooter was. Carpenter acknowledged that he had
    previously selected defendant out of a photographic lineup.
    ¶8         Detective Craig Williams testified that Robinson selected defendant as the shooter from a
    photographic lineup on the day of the shooting. Williams presented the photographic lineup to
    Robinson while he was being treated at the hospital. The presentation of the photographic
    lineup was video and audio recorded. The State labeled the recording as exhibit No. 3 and
    moved to admit it. Defense counsel did not object to the admission of the video, and it was
    played for the jury. While the video was being played, defense counsel requested to approach
    the bench, and the video was paused. A discussion between counsel and the court was held off
    the record. The court then stated:
    “[T]he objection of the defendant is overruled. The purpose of this video is for
    foundational purposes to prior State Exhibits regarding a photo I.D. lineup. This is the
    video of that. Coincidently there is some treatment going on as you can see which is
    previously been identified to by Mr. Robinson himself. So—and I’m told it’s not
    graphic and I’m told it’s not extensive, the treatment side of it.
    So we’ll allow the video to be played from this point forward. Go ahead.”
    The video then continued to play.
    ¶9         In the video, Robinson was lying shirtless in a hospital bed. He was visible from the chest
    up. Detective Williams discussed the photographic lineup with Robinson, and Robinson made
    a selection. The photographic lineup itself was not visible in the video. At one point, a medical
    provider entered the room and told Robinson that they would need to insert a catheter.
    Robinson appeared to be reluctant. The provider told Robinson that he had to insert the catheter
    to make sure that Robinson’s urethra would be okay. The provider said that if he did not insert
    the catheter and Robinson’s urethra was injured, Robinson could have lifelong problems. The
    provider said that if they did not take care of the problem now, Robinson might have to have a
    metal rod inserted into his penis in the future. Robinson had tears in his eyes. At certain points
    in the video, medical workers could be seen walking behind Robinson’s bed.
    ¶ 10       Detective Clint Rezac testified that he obtained surveillance video footage from a nearby
    car wash for the day and time of the shooting. The video recording showed the vehicle involved
    in the incident was visible in the distance in the corner of the screen. Rezac testified that a
    person was visible running away from the vehicle. This occurred in the distance and was
    difficult to discern from viewing the video.
    ¶ 11       Rezac interviewed Carpenter in connection with the shooting. A video recording of Rezac’s
    interview with Carpenter was admitted into evidence and played for the jury. In the video,
    Carpenter said that the driver and passenger both had guns. Carpenter said he did not know
    which one shot first. Carpenter then said the passenger was attempting to exit the car and fired
    the first shot. Rezac asked if the passenger shot over the driver, and Carpenter said yes.
    ¶ 12       Defense counsel requested that the court revisit its ruling that Sampson and Hermanda
    would not be able to testify as to Ricky’s out-of-court statements indicating that he was the
    shooter. Defense counsel argued that evidence had been presented during the State’s case-in-
    chief that both defendant and the driver had guns, which corroborated the hearsay statements
    -3-
    that Ricky shot Robinson. Defense counsel also noted that Carpenter admitted that he had told
    defense counsel that the driver must have been the shooter. The court adhered to its initial
    ruling.
    ¶ 13        The jury found defendant guilty of aggravated battery.
    ¶ 14        Defendant filed a pro se motion for a new trial alleging that he received ineffective
    assistance of counsel. Defendant also filed a motion for a new trial through counsel.
    ¶ 15        Defendant filed an amended pro se motion for a new trial, which included numerous
    claims. The motion included several claims of ineffective assistance of counsel, including
    claims that counsel was ineffective for failing to object to Robinson’s video-recorded
    statement, move for a mistrial due to the prejudicial nature of Robinson’s video-recorded
    statement at the hospital, and introduce a recording of a phone call between defendant and
    Ricky where Ricky admitted to committing the offense.
    ¶ 16        The court conducted a preliminary inquiry into defendant’s pro se claims of ineffective
    assistance of counsel pursuant to Krankel, 
    102 Ill. 2d 181
    , and its progeny. Regarding
    defendant’s claim that defense counsel should have objected to the admission of Robinson’s
    video-recorded statement, the court stated: “That video statement was fully vetted ahead of
    time, admitted appropriately, and it was admissible evidence. That’s denied.” With regard to
    the claim that counsel should have moved for a mistrial based on the prejudicial nature of the
    video recording of Robinson’s hospital interview, the court stated: “This is actually a legitimate
    argument to make.” Defendant stated that he did not believe there was any need for the video
    and that it prejudiced the jury in favor of Robinson. The court replied: “No question it
    prejudiced the jury. The question is whether it was appropriately admitted, and I found that it
    was.”
    ¶ 17        The court proceeded to address defendant’s claim that defense counsel was ineffective for
    failing to present a recorded jail call between defendant and Ricky in which Ricky confessed
    to shooting Robinson. The court asked defense counsel if defendant had told him that Ricky
    confessed to defendant over the phone. Defense counsel stated: “I believe so. I believe it was
    late. Didn’t want to continue it.” Defense counsel stated that the audio recording would have
    had the same admissibility issues as the hearsay statements Ricky allegedly made to Hermanda
    and Sampson.
    ¶ 18        The court asked whether there would be a difference between a recording of Ricky
    confessing to the offense and the testimony of Hermanda and Sampson that he confessed to
    them. The court asked the State if it believed that this was similar to the argument that it had
    ruled upon during the trial concerning Sampson’s and Hermanda’s testimony. The prosecutor
    stated:
    “[I]t’s the same whether or not his statement was given to the defendant or whether it’s
    given to a third person. It’s still hearsay. The character of the statement by Ricky
    doesn’t change because it’s made to the defendant versus one of the other ladies. Still
    hearsay. So, still objectionable.”
    ¶ 19        The court asked whether the fact that the call was recorded would constitute corroborating
    circumstances. Defense counsel stated that he believed the corroboration concerned the
    underlying information in the statement, not the fact that the statement was made. The court
    stated: “All right. On that basis, it being a closer call than many of the others we heard here
    -4-
    today, I’m going to deny that. Let [defendant] know his record is protected on appeal if it gets
    to appeal on that particular claim.”
    ¶ 20       The court sentenced defendant to 12 years’ imprisonment.
    ¶ 21                                           II. ANALYSIS
    ¶ 22        We first address defendant’s argument that the matter should be remanded for the
    appointment of new counsel and further posttrial proceedings because defendant showed
    defense counsel’s possible neglect of the case with regard to his claims that counsel was
    ineffective for failing to investigate the recorded jail call in which Ricky allegedly confessed
    to the offense and for failing to object to the admission of the video recording of Robinson’s
    interview at the hospital. We find that defendant has shown possible neglect of the case.
    ¶ 23        A common law procedure for considering pro se posttrial claims of ineffective assistance
    of counsel has developed from our supreme court’s decision in Krankel and its progeny. See
    People v. Jackson, 
    2020 IL 124112
    , ¶¶ 95-97. When a defendant raises a pro se posttrial claim
    of ineffective assistance of counsel, the circuit court is to conduct an inquiry into the factual
    basis of the claim. Id. ¶ 97. If the court determines that the claim “lacks merit or pertains only
    to matters of trial strategy,” it may dismiss the motion without appointing new counsel. Id.
    However, if the defendant’s allegations show possible neglect of the case, new counsel should
    be appointed to represent the defendant on his or her claims of ineffective assistance of counsel.
    Id.
    ¶ 24        At the preliminary Krankel inquiry, the circuit court may consider the legal merits of the
    claim as well as the factual basis for the claim. People v. Roddis, 
    2020 IL 124352
    , ¶ 61. The
    court may “ ‘base its evaluation of the defendant’s pro se allegations of ineffective assistance
    on its knowledge of defense counsel’s performance at trial and the insufficiency of the
    defendant’s allegations on their face.’ ” Id. ¶ 56 (quoting People v. Moore, 
    207 Ill. 2d 68
    , 79
    (2003)).
    ¶ 25        “A court’s determination that a defendant’s claim does not demonstrate a possible neglect
    of the case will be reversed where that decision is manifestly erroneous.” People v. Maya, 
    2019 IL App (3d) 180275
    , ¶ 17. Manifest error occurs when an error is clearly evident, plain, and
    indisputable. 
    Id.
    ¶ 26        Here, manifest error occurred when the court determined that defendant did not show
    possible neglect of the case regarding his claim that defense counsel failed to investigate the
    jail call between him and Ricky. It was not clear on the face of defendant’s allegations or from
    defense counsel’s statements at the Krankel inquiry that this claim lacked merit or that
    counsel’s actions were the result of sound trial strategy. Defense counsel acknowledged that
    defendant had told him about the call and that he failed to investigate it. Defense counsel
    explained that he did not investigate the call because he did not want to continue the case and
    he did not believe the call would be admissible. However, a recording of another individual
    confessing to the offense would have been an important piece of evidence, and it was
    unreasonable for counsel not to seek a continuance to attempt to obtain it. Also, it was not clear
    on the face of defendant’s motion that the call would have been inadmissible. Defense counsel
    argued before and during the trial that other hearsay statements from Ricky were admissible,
    and appellate counsel argues in this appeal that these statements should have been admitted. A
    recording of Ricky confessing to the offense may have affected the court’s analysis as to
    whether any or all of Ricky’s hearsay statements were sufficiently corroborated in order to be
    -5-
    admissible. To be clear, we make no determination as to whether the recorded phone call would
    ultimately be admissible. We merely hold that defendant has established possible neglect such
    that he should be permitted to present this claim with the assistance of new counsel.
    ¶ 27       We reject the State’s argument that defense counsel stated at the Krankel inquiry that
    defendant did not want to continue the case for counsel to investigate the call, not that counsel
    did not want to continue the case. Defense counsel’s statement, “[d]idn’t want to continue it,”
    was arguably ambiguous. However, we interpret it to mean that defense counsel did not want
    to continue the case. Defendant’s pro se motion indicated that he wanted counsel to introduce
    the call into evidence at trial. It was not clear based on counsel’s statement at the Krankel
    hearing that defendant was unwilling to continue the case to attempt to accomplish this.
    ¶ 28       The dissent asserts that the record makes it apparent that defendant, not counsel, was the
    one unwilling to agree to a continuance. The dissent quotes an excerpt from the proceedings
    on the day the trial was set to commence. Infra ¶ 41. In that excerpt, defense counsel indicated
    that he would likely need a continuance to investigate an important potential witness that he
    discovered when reading a report he had misplaced, but defendant did not agree to continuing
    the matter for two months. The record indicates that the witness at issue was Sampson. The
    court told defense counsel to attempt to subpoena her that day. The record shows that a
    subpoena was issued and served upon Sampson that day. The court later ruled that Sampson
    would not be permitted to testify regarding Ricky’s hearsay statements.
    ¶ 29       We do not believe that the excerpt cited by the dissent shows that defendant would not
    have agreed to a continuance to obtain the recorded jail calls. The excerpt involved an entirely
    different situation. It is speculative to assume that defendant’s reluctance to agree to a
    continuance to secure Sampson as a witness shows that he was unwilling to agree to a
    continuance to obtain the recorded jail calls. Also, while defendant stated he did not “agree
    with that long continuing stuff,” he did not ultimately have to choose between securing
    Sampson’s appearance and continuing the case. It is unclear whether he would have objected
    to a continuance if Sampson had not been subpoenaed that day.
    ¶ 30       Defendant has also shown possible neglect concerning his pro se claim that counsel was
    ineffective for failing to object to the admission of Robinson’s hospital video. While the record
    indicates that defense counsel objected to some portion of the video off the record, counsel did
    not object to the admission of the video on the basis that its probative value was substantially
    outweighed by the danger of unfair prejudice. Illinois Rule of Evidence 403 (eff. Jan. 1, 2011)
    provides: “Although relevant, evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
    or by considerations of undue delay, waste of time, or needless presentation of cumulative
    evidence.”
    ¶ 31       The hospital video had very little probative value. The video showed Williams explaining
    the photographic lineup to Robinson and Robinson writing. However, both Robinson and
    Williams had already testified that Robinson selected defendant out of a photographic lineup,
    and the photographic lineup had already been admitted into evidence. The video did not
    actually show the photograph that Robinson circled. As the circuit court acknowledged, the
    video was prejudicial to defendant. The video showed Robinson in a hospital bed. A medical
    provider explained to Robinson why he would need a catheter, and Robinson had tears in his
    eyes.
    -6-
    ¶ 32       While decisions regarding what matters to object to are generally matters of trial strategy
    (People v. Perry, 
    224 Ill. 2d 312
    , 344 (2007)), we can think of no sound trial strategy for not
    objecting to the admission of the video. Also, it was not clear on the face of defendant’s
    allegations that his claim lacked merit. Accordingly, the circuit court’s finding that defendant
    did not demonstrate possible neglect regarding this claim was manifestly erroneous.
    ¶ 33       Because defendant has shown possible neglect of the case concerning his claims that
    defense counsel was ineffective for failing to investigate the jail call between him and Ricky
    and object to the hospital video, remand is required for the appointment of counsel and further
    posttrial proceedings. Accordingly, we need not address defendant’s alternative arguments that
    the matter should be remanded for a new preliminary Krankel inquiry based on the circuit’s
    court’s application of an improper standard or the State’s improper participation at the first
    Krankel inquiry.
    ¶ 34       The dissent asserts that defendant’s claim related to the hospital video was limited to the
    question of whether the circuit court applied the incorrect standard at the Krankel inquiry. We
    disagree. We acknowledge that, in defendant’s brief, the subheading for this argument merely
    stated: “The circuit court applied the wrong standard during the Krankel inquiry.” However,
    substantively, defendant raised two distinct, alternative arguments. First, defendant argued that
    the circuit court applied the incorrect standard at the Krankel inquiry by requiring him to
    conclusively establish his claims of ineffective assistance of counsel. Second, defendant argued
    that he satisfied the correct Krankel standard—i.e., established possible neglect of the case—
    with regard to his claims that defense counsel was ineffective for failing to investigate the jail
    calls or object to the hospital video. A finding that defendant showed possible neglect of the
    case would warrant remand for the appointment of counsel and further posttrial proceedings,
    whereas a finding that the court applied the wrong standard would merely warrant remand for
    a new preliminary Krankel inquiry. Defendant requested both of these alternative forms of
    relief, depending on our findings. Again, because we have remanded the matter for the
    appointment of counsel upon finding that defendant established possible neglect, we need not
    consider whether defendant should receive a new preliminary Krankel inquiry based on the
    court’s alleged application of an incorrect standard at the first Krankel inquiry.
    ¶ 35       Because we have remanded the matter for the appointment of counsel and further
    proceedings on defendant’s posttrial motion, we do not address the three other issues raised in
    this appeal—namely, whether (1) the court deprived defendant of his constitutional right to
    present a defense by refusing to admit Sampson’s and Hermanda’s testimony that Ricky told
    them that he committed the offense rather than defendant, (2) defense counsel was ineffective
    for failing to seek a continuance to investigate the recorded jail call in which Ricky allegedly
    confessed to defendant, and (3) the prosecutor committed misconduct during closing
    argument. The outcome of these issues may be affected by the outcome on the proceedings on
    remand. If the court does not grant defendant a new trial following the posttrial proceedings
    on remand, defendant may still appeal to this court based on his posttrial claims of ineffective
    assistance of counsel or the other issues raised in the instant appeal that we have not addressed.
    See Krankel, 
    102 Ill. 2d at 189
    .
    -7-
    ¶ 36                                      III. CONCLUSION
    ¶ 37       The judgment of the circuit court of Peoria County is reversed. The matter is remanded for
    the appointment of counsel to assist defendant in advancing his pro se claims of ineffective
    assistance of counsel.
    ¶ 38      Reversed and remanded.
    ¶ 39       JUSTICE SCHMIDT, dissenting:
    ¶ 40       The majority holds that defendant has shown possible neglect of his case by counsel with
    regard to two of his claims of ineffective assistance of counsel raised at a preliminary Krankel
    inquiry. I disagree and therefore respectfully dissent.
    ¶ 41       As to the first claim, concerning the alleged recorded confession, I agree with the State that
    when viewing counsel’s actions within the context of the record, it becomes apparent that it
    was defendant who was unwilling to endure the length of any required continuance to obtain
    the recorded confession, not counsel. The following exchange is telling.
    “MR. ROSE [(DEFENSE ATTORNEY)]: Judge, the situation is such that I’m
    looking to continue the matter briefly. The problem that I foresee is the State says they
    have things set.
    THE COURT: They have what?
    MR. ROSE: Other matters set in the near future which creates the problem. What
    occurred is I discovered over the weekend a report that was misplaced. I don’t know
    what we want to call it.
    Anyhow I found it in a location where I didn’t expect to that includes a potential
    witness that I think is extremely important to the Defense. As a result of that, I would
    be asking to continue it.
    Mr. Alexander’s been in custody a long time. If the Court recalls, Mr. Smith had
    the matter for—for a period of time, and the missed report is my fault for not finding it
    clearly.
    I don’t have any problem with absorbing that responsibility, but Mr. Alexander
    certainly doesn’t want to continue it into December which I think is what the State is
    looking at so that’s where we are, and I would be asking.
    THE COURT: Ms. Straub?
    MS. STRAUB [(ASSISTANT STATE’S ATTORNEY)]: Well, Judge, the State’s
    ready for trial. I understand Mr. Rose took this over from Mr. Smith, but we have
    witnesses ready and able to go forward today as it’s scheduled.
    I have reviewed my calendar with Mr. Rose when he said that this was possible,
    and there is no way that I could do this before the normal trial setting in this court which
    would be—I think it’s December 18. We have several in custodies week after week
    that are pressing.
    THE COURT: Okay. Well, Mr. Rose, you’ve discovered a name, and your client—
    well, you’ve talked with your client about that, and you’re saying that, and you’re
    saying that this is an important witness for the Defense?
    -8-
    MR. ROSE: No question about that.
    THE COURT: Okay.
    MR. ROSE: I think Stanley agrees with that; true?
    THE DEFENDANT: Yeah, I do, but I don’t—
    ***
    THE DEFENDANT: I don’t agree with that long continuing stuff.
    THE COURT: Wait a minute. I didn’t—did you want—I didn’t hear it. Did you
    want me to hear that, Mr. Rose?
    MR. ROSE: It’s fine. What he—what he said is he agrees it’s an important witness.
    He doesn’t agree with a long continuance or that long of a continuance.”
    ¶ 42       The majority interprets what they deem an “arguably ambiguous” statement to find counsel
    refused to continue the case to obtain the recorded confession. Supra ¶ 27. I believe it is evident
    from the above that defendant was not amenable to the continuance required to retrieve either
    the recorded confession or the in-person testimony of an “important witness.” Even if
    defendant’s statements are less than unequivocal, I interpret his statement to the court to mean
    that he consented to foregoing the continuance required to obtain the recording. Accordingly,
    it would be manifestly unfair to allow a second trial upon the basis of error that defendant
    injected into the proceedings. In re Detention of Swope, 
    213 Ill. 2d 210
    , 217 (2004).
    ¶ 43       Further, the majority declines to opine on the admissibility of the alleged recorded
    confession. This is not surprising in-and-of-itself; however, if the confession was not
    admissible as trial counsel believed, the decision not to present inadmissible evidence at trial
    would undoubtedly fall within the category of trial strategy. See Jackson, 
    2020 IL 124112
    ,
    ¶ 97 (noting if the circuit court determines that the claim pertains only to matters of trial
    strategy, then the court need not appoint new counsel and may deny the pro se motion). Of
    course, we have no way of knowing whether the confession is admissible or whether it would
    be sufficient corroboration to change the lower court’s evidentiary ruling as it is not before us.
    See supra ¶ 26 (majority states recording may have impacted evidentiary rulings). We are not
    even certain the recording exists.
    ¶ 44       Moving on to the second claim, defendant alleges the court failed to follow proper
    procedure when conducting the initial Krankel hearing. Citing a case from the Fourth District,
    defendant argues the circuit court was barred from reaching the merits of his ineffective
    assistance of counsel claims. See People v. Roddis, 
    2018 IL App (4th) 170605
    . The Illinois
    Supreme Court has since found that the notion a court is precluded from ruling on the merits
    of an ineffective assistance claim at an initial Krankel hearing erroneous. See Roddis, 
    2020 IL 124352
    , ¶ 48.
    ¶ 45       Here, defendant’s argument to this court only relates to whether the circuit court applied
    “the wrong standard” at the initial Krankel hearing. This notwithstanding, the majority recasts
    the contention as an argument that defendant showed possible neglect on the part of counsel
    regarding the hospital video. “Our adversary system is designed around the premise that the
    parties know what is best for them, and are responsible for advancing the facts and arguments
    entitling them to relief.” Castro v. United States, 
    540 U.S. 375
    , 386 (2003) (Scalia, J.,
    concurring in part and concurring in the judgment, joined by Thomas, J.). The majority asserts
    that defendant presented an alternative argument of possible neglect under the heading
    explicitly arguing the “wrong standard” was used. I disagree. I would address this meritless
    -9-
    argument regarding the “standard” used as defendant presents it instead of recharacterizing it
    as an additional claim of possible neglect on the part of counsel.
    ¶ 46        Moreover, as acknowledged above, counsel objected to the video off the record. No one
    knows the contents of this objection. We also do not know at what point in the video he made
    this objection. However, my colleagues fault counsel for not objecting pursuant to Rule 403
    prior to its admission. Supra ¶ 30. Without knowing at what point in the video counsel made
    the objection and the substance of the objection, I am not as willing to find neglect.
    ¶ 47        I believe postconviction proceedings are a more appropriate avenue for defendant’s claims
    of ineffective assistance of counsel. See People v. Veach, 
    2017 IL 120649
    , ¶ 46 (ineffective
    assistance of counsel claims may sometimes be better suited to collateral proceedings when
    the record is incomplete or inadequate for resolving the claim); accord People v. Parker, 
    344 Ill. App. 3d 728
    , 737 (2003). There, defendant can form a record that would remove the need
    for interpretation and conjecture as to what was said as well as confirm the existence and
    contents of the alleged recorded confession.
    ¶ 48        “Manifest error occurs when an error is clearly evident, plain, and indisputable.” Supra
    ¶ 25 (citing Maya, 
    2019 IL App (3d) 180275
    , ¶ 17). The majority’s speculation and
    interpretation in order to reach the end result in this matter evidences that any error is not
    clearly evident, plain, or beyond dispute. It is for those reasons I dissent from the conclusion
    that this matter requires remand for the appointment of new counsel and further Krankel
    proceedings.
    - 10 -
    

Document Info

Docket Number: 3-17-0829

Filed Date: 12/10/2020

Precedential Status: Precedential

Modified Date: 7/30/2024