People v. Dupree

2018 IL 122307
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122307)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TORRENCE D. DUPREE, Appellant.
Opinion filed November 1, 2018.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Garman, Theis, and Neville concurred in
the judgment and opinion.
Justice Thomas specially concurred, with opinion, joined by Justice Kilbride.
OPINION
¶1 After a Lake County jury trial, defendant Torrence Dupree was convicted of
two counts of armed robbery and two counts of aggravated robbery. His
convictions were upheld on direct appeal. 2012 IL App (2d) 101247-U.
Subsequently, defendant filed a postconviction petition. The petition advanced to
the second stage, at which time defendant filed a third-amended petition raising
several claims, including a claim that his trial counsel was ineffective for failing to
call an “exculpatory witness” to testify at trial. The circuit court dismissed the
petition on the State’s motion, finding that defendant failed to make a substantial
showing that his trial counsel was ineffective.
¶2 On appeal, the appellate court affirmed the circuit court’s dismissal of the
postconviction petition in an unpublished order. 2017 IL App (2d) 141013-U.
Unlike the circuit court, however, the appellate court did not consider the
ineffective assistance claim on its merits but held that the postconviction petition
was properly dismissed, as a matter of law, solely because defendant failed to
attach to his petition an affidavit from the proposed witness.
¶3 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar.
15, 2016). For the reasons that follow, we now hold that, under the facts of this
case, defendant’s failure to provide an affidavit was not, by itself, fatal to his claim
of ineffective assistance of counsel. Nonetheless, we affirm the circuit court’s
dismissal of defendant’s postconviction petition because we, like the circuit court,
find that defendant failed to make a substantial showing that his trial counsel was
ineffective.
¶4 BACKGROUND
¶5 Defendant Torrence Dupree (also known as Teko) was charged with two counts
of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and two counts of
aggravated robbery (id. § 18-5 (now codified at 720 ILCS 5/18-1(b)(1) (West
2016))), in connection with the robbery of Matthew Morrison and Kiernan Collins
on February 16, 2010, in Grayslake, Illinois. At a jury trial, evidence established
that on the evening of February 16, 2010, Steven Nowell called Matthew Morrison
to arrange for the purchase of some marijuana. Morrison, accompanied by a friend,
Kiernan Collins, drove to the Grayslake Apartments complex to meet with Nowell.
When Nowell met Morrison in the parking lot of the apartment complex, a man
armed with a gun and wearing a black, hooded sweatshirt with the hood pulled up
over his head pushed his way into the front passenger seat of Morrison’s car,
demanded money from Morrison and Collins, and removed a backpack from the
backseat of Morrison’s car before fleeing. Because the gunman wore a hooded
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sweatshirt, which covered much of his face, and because there was no physical
evidence tying defendant to the robbery, the identification of defendant as the
armed robber was the main issue at trial.
¶6 Steven Nowell was one of two identification witnesses presented by the State.
He testified that on the afternoon of February 16, 2010, he had been with defendant
and three other people—Cedric, “Blue,” and Kramer—at Kramer’s apartment
located in the Grayslake Apartments complex. Later, Nowell, Kramer, and Blue
left the apartment, picked up Nowell’s girlfriend, Kenyana Whiteside, and went to
McDonald’s to purchase some food. Nowell testified that, when they returned from
McDonald’s, he and Whiteside went to her apartment, which was also in the
Grayslake Apartments complex. Nowell then made a phone call to Morrison to
arrange for the purchase of some marijuana.
¶7 According to Nowell, after he called Morrison, defendant came to Whiteside’s
apartment and asked to use her cell phone. Nowell claimed that, when defendant
finished using Whiteside’s phone, defendant asked him if he was going to get some
marijuana from Morrison. Nowell testified that he told defendant “no” because he
didn’t want to share and because he “knew what [defendant] was capable of.”
Nowell said defendant accompanied him when he left Whiteside’s apartment but he
saw defendant walking away from the complex as he continued toward the parking
lot to meet with Morrison.
¶8 Nowell testified that, when he saw Morrison’s car in the parking lot, he got in
and noticed a man he did not know (later identified as Kiernan Collins) sitting in the
rear passenger seat. Morrison then drove out of the parking lot. Shortly thereafter,
Nowell stated, he got a call from Whiteside telling him he forgot his money, so he
asked Morrison to go back. Morrison drove back to the parking lot, and Nowell got
out. Nowell testified that, when he returned to Morrison’s car, a man wearing a
hooded sweatshirt and brandishing a gun came up behind him. Nowell said the
gunman pushed him into the passenger seat of Morrison’s car and then leaned into
the car and asked, “Where’s the stuff?” The gunman then pointed the gun at him
and ordered him to pat down Morrison and Collins and take their cell phones.
Nowell admitted taking Morrison’s cell phone but said that Morrison and Collins
both surrendered their money to the gunman before he could pat them down.
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¶9 Nowell testified that the gunman pushed him out of the car and a struggle then
ensued between Morrison and the gunman as Morrison attempted to start the car.
The gunman reached into the backseat, took Morrison’s backpack, and then fled
from the vehicle as Morrison started the car and drove off. Nowell claimed that,
after the robbery, the gunman started to follow him back toward the apartment
complex but then jumped into a van and took off. Nowell admitted that he kept
Morrison’s cell phone and said that he later threw the phone away rather than return
it to Morrison.
¶ 10 Nowell further testified that the next day, February 17, 2010, after learning that
the police were looking for him, he turned himself in at the Grayslake Police
Department. There he was questioned, intermittently, for approximately 2½ hours
before he was arrested on charges of aggravated robbery and robbery in relation to
this incident. At the police station, Nowell maintained that he was not involved in
the robbery, had not set up Morrison to be robbed, and did not know who the
gunman was. Later, however, when he learned that he was under arrest for his part
in the robbery, he admitted to the police that defendant was the gunman. Nowell
also told the jury that he later had accepted a plea deal whereby he pled guilty to
reduced charges in exchange for his agreement to testify against defendant.
¶ 11 On cross-examination, Nowell reiterated that he initially told the police he
could not identify the gunman and even said that defendant could not have been the
gunman because he was too short. However, when he learned that he was being
charged, he told the police—as he testified at trial—that, while he never saw the
gunman’s face, he knew it was defendant because of his voice and the clothes he
was wearing. Nowell also testified that between the evening of February 16, when
the robbery took place, and February 17, when he turned himself in, defendant
called him several times, threatening him not to reveal defendant’s identity.
¶ 12 The other identification witness was Kiernan Collins, who had been sitting in
the backseat of Morrison’s car at the time of the robbery. Collins’s rendition of the
robbery was similar to Nowell’s, except that he cast Nowell more as a willing
participant. Collins testified that, when Nowell first entered Morrison’s car and
they drove out of the parking lot, Nowell claimed he got a call from his girlfriend
but Collins never heard the phone ring. Collins testified that they returned to the
parking lot and Nowell got out but, almost immediately, Nowell came back to the
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car, followed closely by the gunman in the hooded sweatshirt. Also, Collins
testified that, for much of the time during the robbery, Nowell simply stood outside
Morrison’s car. The gunman pushed Nowell out of the way, kneeled on the
passenger seat, took money from him and Morrison, and then took Morrison’s
backpack before fleeing.
¶ 13 Collins admitted that he did not get a good look at the gunman because the
robbery took place in the evening and it was dark. In addition, the gunman had a
hooded sweatshirt pulled tightly around his head, which covered most of his face.
Collins also testified that during the robbery, which only lasted a short time, he was
mainly focused on the gun and was fearful of looking at the gunman directly.
Nonetheless, Collins gave a description of the gunman to police and selected
defendant’s photo out of a six-man photo array. Collins admitted on
cross-examination that he described the gunman as being six feet to six feet, two
inches tall and that defendant apparently is only about five feet, eight inches or five
feet, nine inches tall. Also, Collins admitted that, when he selected defendant’s
photo from the array, he told the police that, of the pictures in the array, defendant’s
picture “most resembled the gunman.” Collins estimated that he was 70% sure that
defendant was the gunman.
¶ 14 Lastly, Collins testified that on July 23, 2010, which was three days before trial
was scheduled to begin, he received a collect phone call from the Lake County jail,
where defendant was being held. When Collins learned the call was from
“Torrence,” he did not accept the call.
¶ 15 No physical evidence was presented at trial. Although latent fingerprints were
lifted from the exterior of Morrison’s vehicle, they were found either to be
unsuitable for comparison or of such poor quality that comparison to defendant’s
prints was inconclusive. However, the State offered into evidence two recordings
of phone calls defendant made from jail to his cousin, Leon Hudson. In one call,
defendant told Hudson to “put the word out on the street” that Nowell had been
released on probation and that defendant wanted his “head on a platter.”
¶ 16 The State also called as a witness Nowell’s girlfriend, Kenyana Whiteside. She
testified that on the evening of February 16, 2010, she received a phone call from
Nowell, who told her that “Teko,” whom she knew and identified at trial as
defendant, had just robbed somebody.
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¶ 17 The only defense witness was defendant’s cousin, Leon Hudson, who testified
that defendant was between five feet, seven inches and five feet, eight inches tall.
¶ 18 After deliberations, the jury found defendant guilty of the armed robbery and
aggravated robbery of Morrison and Collins. Those convictions were upheld on
direct appeal. 2012 IL App (2d) 101247-U.
¶ 19 Defendant subsequently filed a postconviction petition in which he raised a
number of claims alleging constitutional deprivations. In support of these claims,
defendant attached to the petition more than 160 pages of the record. In one of the
claims, defendant alleged he received ineffective assistance because trial counsel
failed to call Morrison to testify at trial. Defendant did not attach an affidavit from
Morrison to his petition. However, in lieu of an affidavit, he submitted three signed,
handwritten statements that Morrison had given to the police in the course of their
investigation of the robbery, as well as the police summary reports of their
questioning of Morrison. These documents showed that Morrison reported the
robbery to police shortly after it occurred and, in the course of the investigation,
gave the police three different versions of how the robbery occurred.
¶ 20 In the first statement, Morrison said he was robbed by two black men as he was
leaving a friend’s apartment in the Grayslake Apartments complex. In the second
statement, Morrison admitted knowing Nowell and said he went to the Grayslake
Apartments to “help him out” but, when Nowell came to his car, he was with a
gunman who robbed him. In the third statement, Morrison admitted going to the
apartment complex with Kiernan Collins to sell marijuana to Nowell. The rest of
this statement was very similar to Collins’s testimony about the robbery, except
that Morrison stated that he saw Nowell and the gunman walk back to the
apartments together, talking and laughing and giving each other “high fives.”
¶ 21 Morrison consistently described the gunman to police as “tall,” anywhere from
six feet up to six feet, three inches in height. Further, Morrison did not identify
defendant as the gunman when shown photos in a photo array on at least two
occasions. In fact, the police reports show that Morrison selected the photo of
someone other than defendant and indicated that he was sure that this other person
was the gunman.
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¶ 22 Defendant contended that, given the foregoing, it was unreasonable for counsel
not to call Morrison. According to defendant, Morrison’s statements to police were
exculpatory, and by calling Morrison to testify, defendant would have been able to
get them before the jury. In addition, defendant maintained he would have been
able to question the police about Morrison’s statements, something defendant had
been prevented from doing at trial because, without Morrison testifying, the
statements were inadmissible hearsay. Thus, defendant believed that the documents
he attached to his petition constituted substantial evidence that his counsel had been
ineffective.
¶ 23 The circuit court dismissed defendant’s petition at the second stage of
postconviction proceedings, upon the State’s motion. Although the circuit court
agreed that Morrison’s testimony would have been helpful to the defense, the
circuit court found that defendant had not made a substantial showing of prejudice
resulting from the failure to call Morrison.
¶ 24 On appeal, the appellate court affirmed the circuit court’s dismissal of the
petition. However, as to the claim of ineffective assistance based on counsel’s
failure to call Morrison as a witness, the appellate court held that no review on the
merits was necessary because defendant failed to attach Morrison’s affidavit to his
petition. The appellate court held that, without Morrison’s affidavit, the petition did
not comply with section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-2 (West 2014)) and was properly dismissed for that reason alone.
¶ 25 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar.
15, 2016).
¶ 26 ANALYSIS
¶ 27 The issue in this case is whether defendant’s postconviction petition was
properly dismissed at the second stage without an evidentiary hearing. Although
the petition defendant filed in the circuit court alleged several constitutional
deprivations, before this court he has abandoned all claims except his claim of
ineffective assistance of counsel based on counsel’s failure to call Morrison as a
witness at trial. Defendant asks this court to reverse the dismissal of his petition and
to remand for third-stage postconviction proceedings on this claim.
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¶ 28 The Act (725 ILCS 5/121-1 et seq. (West 2014)) provides a remedy to a
criminal defendant whose federal or state constitutional rights were substantially
violated at trial or sentencing. People v. Pitsonbarger, 205 Ill. 2d 444 (2002). If the
postconviction petition is not dismissed at the first stage as frivolous or patently
without merit, it advances to the second stage. 725 ILCS 5/122-5 (West 2014). At
the second stage, the State may either answer the petition or move to dismiss it.
People v. Domagala, 2013 IL 113688, ¶ 33. If the State moves to dismiss the
petition, the circuit court must decide whether to grant the State’s motion or
advance the petition to the third stage for an evidentiary hearing. People v.
Edwards, 197 Ill. 2d 239, 246 (2001). A postconviction petitioner is entitled to an
evidentiary hearing only when the allegations in the petition supported by
“affidavits, records, or other evidence” (725 ILCS 5/122-2 (West 2014)) make a
substantial showing of a deprivation of rights under either the United States or
Illinois Constitutions or both. Pitsonbarger, 205 Ill. 2d at 455; Domagala, 2013 IL
113688, ¶ 33.
¶ 29 At the second stage, “[t]he inquiry into whether a post-conviction petition
contains sufficient allegations of constitutional deprivations does not require the
circuit court to engage in any fact-finding or credibility determinations.” People v.
Coleman, 183 Ill. 2d 366, 385 (1998). The Act contemplates that such
determinations will be made at the evidentiary stage, not the dismissal stage, of the
litigation. Id. In addition, at the second stage, the circuit court examines a
postconviction petition to determine its legal sufficiency and any allegations not
affirmatively refuted by the record must be taken as true. Domagala, 2013 IL
113688, ¶ 35. Thus, the substantial showing of a constitutional violation that must
be made at the second stage is “a measure of the legal sufficiency of the petition’s
well-pled allegations of a constitutional violation, which if proven at an evidentiary
hearing, would entitle petitioner to relief.” (Emphasis omitted.) Id. Where, as here,
the circuit court dismisses a defendant’s postconviction petition at the second stage
after finding no substantial showing of a constitutional deprivation has been made,
review of the dismissal is de novo. People v. Cotto, 2016 IL 119006, ¶ 24.
¶ 30 In this case, the appellate court affirmed the circuit court’s dismissal of
defendant’s petition but refused to consider the ineffectiveness claim at issue here
on its merits. Instead, the appellate court ruled, as a matter of law, that defendant’s
petition was not in conformance with the requirements of section 122-2 of the Act
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because defendant did not attach to his postconviction petition an affidavit from the
proposed witness (Morrison) and the lack of an affidavit was fatal to his claim of
ineffective assistance of counsel. We disagree.
¶ 31 First, we find no statutory support for the appellate court’s holding. Section
122-2 of the Act provides that a postconviction petitioner must “clearly set forth the
respects in which petitioner’s constitutional rights were violated” and “shall have
attached thereto affidavits, records, or other evidence supporting its allegations or
shall state why the same are not attached.” 725 ILCS 5/122-2 (West 2014). It is
axiomatic that, when construing a statute, the primary objective is to ascertain and
give effect to the intent of the legislature. In re Detention of Powell, 217 Ill. 2d 123
(2005). The best evidence of legislative intent is the language used in the statute
itself, which must be given its plain and ordinary meaning. Roselle Police Pension
Board v. Village of Roselle, 232 Ill. 2d 546, 552 (2009). Moreover, when
interpreting a statute, a court must not depart from the plain language or read into
it exceptions, limitations, or conditions that the legislature did not express. People
v. Shinaul, 2017 IL 120162, ¶ 17.
¶ 32 Construing section 122-2 of the Act according to its plain language, the Act
permits a petitioner to make a substantial showing of a constitutional deprivation
using any suitable evidence and does not limit a petitioner solely to the use of
affidavits. The provision unambiguously provides that an allegation of a
constitutional violation in a postconviction petition must be supported by
“affidavits, records, or other evidence.” The conjunction “or” signifies that the
things that it connects are alternatives or choices. See Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/or (last visited Sept. 7,
2018). Nowhere does the language of the statute limit a postconviction petitioner to
the use of affidavits to advance a claim of ineffective assistance of counsel or, for
that matter, any alleged constitutional deprivation raised in a postconviction
petition. The only requirement is that the supporting evidence sufficiently
demonstrate the alleged constitutional deprivation.
¶ 33 The real problem here is that the appellate court misconstrued defendant’s
ineffectiveness claim. The appellate court held that, in all cases where a
postconviction petitioner raises a claim of ineffective assistance based on counsel’s
failure to investigate and call a witness, the claim “must” be supported by an
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affidavit from the proposed witness. 2017 IL App (2d) 141013-U, ¶ 54. The State
agrees and, in support, cites four of our opinions: People v. Enis, 194 Ill. 2d 361
(2000), People v. Johnson, 183 Ill. 2d 176 (1998), People v. Guest, 166 Ill. 2d 381
(1995), and People v. Thompkins, 161 Ill. 2d 148 (1994). We find, however, that
reliance on these cases is misplaced. Not only are these cases factually
distinguishable from the case at bar, they do not stand for the proposition that the
State espouses.
¶ 34 In none of the cases cited by the State did this court create a bright-line rule or
refuse to consider whether a postconviction petitioner had made a substantial
showing of ineffective assistance of counsel simply because no affidavit from the
proposed witness was attached to the petition. Rather, this court has always held
that dismissal is proper when the record or other evidence attached to the petition
does not support the petitioner’s claim. In cases where a postconviction petitioner
raises a claim of ineffective assistance based on counsel’s failure to call a witness,
an affidavit from the proposed witness will be required if it is essential for the
postconviction petitioner to make the necessary “substantial showing” to support a
claim of ineffective assistance. It may be true that in most cases where this type of
claim is raised, without an affidavit, there can be no way to assess whether the
proposed witness could have provided evidence that would have been helpful to the
defense. However, to interpret our case law as requiring an affidavit in all instances
where this type of claim is raised is simply incorrect.
¶ 35 For example, in Thompkins, when considering the defendant’s appeal from the
second-stage dismissal of his postconviction petition, we addressed his claim that
his defense counsel had been ineffective for failing to interview or call as a witness
a codefendant, Pamela. An affidavit from Pamela was not attached to the petition.
However, the defendant stated in his own affidavit that Pamela had recanted a
statement she had given to police in which she had implicated him. Johnson
apparently believed that the recantation was evidence that Pamela would have
provided favorable testimony if she had been called as a defense witness.
Thompkins, 161 Ill. 2d at 160-61. When assessing this claim, we quoted Strickland
v. Washington, 466 U.S. 668 (1984), stating: “ ‘In any ineffectiveness case, a
particular decision not to investigate [or call someone as a witness] must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.’ ” Thompkins, 161 Ill. 2d at 161 (quoting
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Strickland, 466 U.S. at 691). We then reviewed the record and discovered that
Pamela had recanted her recantation and, therefore, the record did not support the
defendant’s claim that Pamela would have provided favorable testimony.
Accordingly, we affirmed the dismissal of this claim, finding that the defendant
failed to make a substantial showing that his counsel was ineffective for failing to
call Pamela. Id. at 162-63.
¶ 36 A second claim of ineffective assistance of counsel in Thompkins was based on
counsel’s alleged failure to investigate two potential alibi witnesses, Tina Pitts and
Karen Hayes. Again, no affidavits from these women were attached to the petition,
but the defendant claimed in his own affidavit that he had been with these women
on the day of the murder and they could have provided helpful alibi testimony to
counter a portion of the prosecution’s case. We held that dismissal of the claim was
proper, finding that the defendant’s failure to submit the affidavits of these two
women precluded us from considering whether counsel had been ineffective. Id. at
163. However, what precluded our review was the fact that there was nothing in the
record to support the defendant’s assertion that counsel had not spoken to these
women or that the women, if called at trial, would have testified that they were with
Thompkins at the pertinent time. Moreover, the defendant’s assertion that he was
with these women could not be taken as true because it ran counter to evidence that
was presented at trial. Thus, without affidavits from these two women, it was
impossible to determine whether the failure to call these proposed witnesses was
evidence of ineffective assistance or simply trial strategy.
¶ 37 The same was true in Guest. Guest also involved a second-stage dismissal of a
postconviction petition. In that case, one of the claims in the defendant’s petition
was that counsel had been ineffective because he failed to investigate five alibi
witnesses. The defendant did not provide affidavits from three of the proposed
witnesses but averred in his own affidavit that, before trial, he gave counsel the
names of these alibi witnesses yet counsel never interviewed them or called them to
testify. We found this claim was properly dismissed because defendant failed to
introduce affidavits from those individuals, stating what they would have testified.
Guest, 166 Ill. 2d at 401-02. The key point, however, was not the lack of affidavits
but that, without their affidavits, it was impossible to determine whether the
proposed witnesses could have provided any information or testimony favorable to
defendant. Id. at 402. As Guest makes clear, there can be no substantial showing of
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ineffective assistance of counsel for failure to investigate or call a witness if there is
no evidence that the exculpatory evidence actually exists.
¶ 38 Similarly, in Johnson, the defendant argued in his postconviction petition that
his trial counsel was ineffective for failing to present the testimony of a proposed
alibi witness. The proposed witness had died subsequent to the defendant’s trial,
and therefore, the defendant was unable to obtain his affidavit. Instead, the
defendant attached to his petition the affidavit of the proposed witness’s sister, who
averred that her brother had been with her on the day of the murder and, therefore,
would have testified to the same facts that she testified to at trial. Johnson, 183 Ill.
2d at 192. We cited Guest for the proposition that an affidavit from the individual
who would have testified is necessary to support a claim of ineffectiveness based
on the failure to investigate and call a witness. Id. (citing Guest, 166 Ill. 2d at 402).
However, we then considered whether the sister’s affidavit—provided in lieu of the
proposed witness’s affidavit—supported the claim. We found it to be insufficient
because it showed that the proposed witness’s testimony, at best, would have been
cumulative and therefore did not constitute substantial evidence of ineffective
assistance. Id.
¶ 39 Finally, in Enis, the defendant claimed his postconviction petition should not
have been dismissed because he made a substantial showing that his counsel was
ineffective for failing to investigate or present testimony of several proposed
witnesses. In some instances, no affidavit of the proposed witness was attached to
the petition. Enis, 194 Ill. 2d at 378-80. Citing Johnson and Thompkins, we
reiterated that such claims must be supported by an affidavit from the proposed
witness because, in the absence of an affidavit, a reviewing court cannot determine
whether the proposed witness could have provided testimony or information
favorable to the defendant. Id. at 380 (citing Johnson, 183 Ill. 2d at 192, and
Thompkins, 161 Ill. 2d at 163). Even though we stated that, without an affidavit,
further review of the claim was unnecessary, we still considered, as to each
proposed witness, whether the record or any evidence presented in lieu of an
affidavit sufficiently demonstrated that counsel had been ineffective. Finding none,
we rejected the claim on its merits. Id.
¶ 40 In all of the cases cited above, the claims of ineffective assistance were based
on counsel’s failure to discover and introduce new witness testimony, i.e., new
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evidence, which the defendants believed would have altered the outcome of their
trials. Because the proposed witnesses that trial counsel allegedly failed to
investigate or call to testify were generally the only source of this new evidence,
without their affidavits, there was no proof that such evidence actually existed or
that it would have been helpful to the defense. Where proof other than an affidavit
was offered to show what the proposed witness would have testified, we considered
that evidence and determined it was insufficient to make a substantial showing of
ineffective assistance. Thus, our case law demonstrates that, when a defendant
raises a claim of ineffective assistance of counsel in a postconviction petition based
on counsel’s failure to investigate or call a witness to testify, the petition may
properly be dismissed at the second stage—whether an affidavit is attached or
not—if the evidence presented in support of the claim does not make a substantial
showing that counsel was ineffective. As such, our case law is in accord with the
plain language of section 122-2 of the Act, which provides that allegations in a
postconviction petition may be supported by “affidavits, records, or other
evidence.”
¶ 41 Critically, under the facts of the case now before us, an affidavit from the
proposed witness is not necessary to advance defendant’s claim of ineffectiveness.
In this case, defendant contends that his counsel was ineffective because the failure
to call Morrison denied him the opportunity to bring exculpatory evidence to the
attention of the jury. In support of this allegation, defendant attached three signed
statements from Morrison. This documentation showed that Morrison had not
identified defendant as the gunman and, instead, had identified someone else.
Defendant alleged that, by not calling Morrison to the stand, he was prevented from
getting this evidence to the jury.
¶ 42 Thus, in this case, unlike the typical case, defendant did not hope to introduce
new evidence that could only be verified by an affidavit from the proposed witness.
Instead, defendant wanted to introduce evidence that already existed: Morrison’s
statements to the police, Morrison’s failure to identify defendant from photo
lineups, and Morrison’s identification of someone other than defendant as the
gunman. All of this evidence was inadmissible hearsay unless Morrison testified.
Under these circumstances, anything that Morrison might say if called to testify at
an evidentiary hearing is irrelevant to defendant’s claim. Consequently, under the
facts of this case, an affidavit from Morrison was not necessary, and it was
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appropriate for defendant to support the allegation of ineffectiveness with portions
of the record and exhibits.
¶ 43 Given our finding that the absence of an affidavit from Morrison was not, by
itself, a sufficient basis for dismissing defendant’s postconviction petition, we find
that the appellate court erred in so holding. Therefore, we must now consider
whether defendant’s petition was properly dismissed because he failed to make a
substantial showing that his counsel was ineffective for failing to call Morrison as a
witness.
¶ 44 Claims of ineffective assistance of counsel are judged under the two-pronged
standard set forth in Strickland and adopted by this court in People v.
Albanese, 104 Ill. 2d 504 (1984). Under this standard, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 688,
694. To satisfy the deficient performance prong of Strickland, a defendant must
show that his counsel’s performance was so inadequate “that counsel was not
functioning as the ‘counsel’ guaranteed by the sixth amendment” and, also, must
overcome the strong presumption that any challenged action or inaction may have
been the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93
(1999); People v. Griffin, 178 Ill. 2d 65, 73-74 (1997). This is a high bar to clear
since matters of trial strategy are generally immune from claims
of ineffective assistance of counsel. People v. West, 187 Ill. 2d 418 (1999); People
v. Smith, 195 Ill. 2d 179, 188 (2000). In addition, even when a defendant can show
deficient performance, the second prong requires the defendant to show that he was
prejudiced as a result. That is, a defendant must show that counsel’s deficiency was
so serious that it deprived him of a fair trial. Smith, 195 Ill. 2d at 188.
¶ 45 Defendant contends that he made a substantial showing of ineffective
assistance. He argues that the State’s case against him was weak because no
physical evidence linked him to the offense, he never made any statements
incriminating himself, and the identification testimony provided by the State’s
main witnesses, Collins and Nowell, was not convincing. In light of the above,
defendant concludes that trial counsel was deficient for not calling Morrison and,
thereby, introducing Morrison’s exculpatory statements to the police. Defendant
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further asserts that, if Morrison had been called as a witness, there is a reasonable
probability that the outcome of his trial would have been different. He concludes,
therefore, that he made a substantial showing that he was prejudiced by the failure
to call Morrison.
¶ 46 We believe that defendant overstates the value of Morrison’s statements to the
police. While it is true that the materials defendant attached to his petition establish
that Morrison did not identify defendant as the gunman and selected someone other
than defendant from a photo array, believing him to be the gunman, the materials
also show that Morrison’s description of the gunman was substantially similar to
Collins’s description. The jury was well aware of the fact Collins’s identification of
defendant was uncertain because of the conditions that existed at the time of the
robbery—the robbery was at night, the gunman was wearing a hooded sweatshirt
tightly pulled over his head, and his focus was on the gun, which was pointed at
them during the brief time that the robbery took place. In addition to these factors,
Morrison was also concentrating on starting the car and escaping from the situation.
These are all reasons why Morrison’s identification of someone other than
defendant could be called into question.
¶ 47 We also disagree that the identification evidence, as a whole, was weak.
Although Collins was only 70% sure of his identification of defendant, Nowell
unequivocally identified defendant as the gunman. The jury could have relied
heavily on his testimony because the evidence strongly suggested that Nowell and
defendant had planned the robbery together. In addition, other evidence tended to
corroborate Nowell’s identification of defendant. For example, Whiteside testified
that Nowell called her shortly after the robbery and told her that “Teko robbed
somebody.” This testimony also dispelled the notion that Nowell’s identification of
defendant was fabricated later at the police station.
¶ 48 Even if we were to agree with defendant that counsel’s failure to call Morrison
was some evidence of deficient performance, we do not believe that defendant can
overcome the presumption that counsel’s decision was the product of sound trial
strategy. As noted above, to satisfy the deficient performance prong of Strickland,
a defendant must show that his counsel’s performance was so inadequate “that
counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment”
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and, also, must overcome the strong presumption that any challenged action or
inaction may have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93.
¶ 49 As the State points out in its brief, there are a number of reasons why defense
counsel might have chosen not to call Morrison. Morrison gave the police three
different statements about the manner in which the robbery occurred. These
statements, as well as other materials defendant attached to his postconviction
petition, showed that Morrison believed that Nowell was an active participant in the
robbery. Morrison told the police that, after the robbery as he drove away from the
parking lot, he saw defendant and Nowell walking back to Nowell’s apartment,
laughing and giving each other “high fives.” Morrison’s statements to the police, if
presented to the jury, could have solidified Nowell’s role in the robbery and given
his identification of defendant even more credibility.
¶ 50 Also, Morrison told police that during the robbery Nowell told him to cooperate
because the gunman “had just gotten out of jail.” Apparently, prior to the robbery,
defendant had, in fact, been recently released from jail. Defense counsel might not
have wanted to call Morrison and risk this information getting to the jury.
¶ 51 Defendant argues that it was important to get Morrison’s statements to the
police introduced at trial because, in those statements, he consistently described the
armed robber as being between six feet, one inch and six feet, three inches tall,
while defendant is apparently only five feet, eight inches or five feet, nine inches in
height. However, both Collins and Nowell described the gunman as being over six
feet tall, and the record shows that defense counsel was able to press this point with
the jury by questioning them and other witnesses at length about this discrepancy in
height. In fact, defense counsel was able to bring out Morrison’s description of the
gunman’s height during his cross-examination of Officer Joe Manges of the
Grayslake Police Department. Thus, even if Morrison’s statements to the police
had been introduced at trial, this evidence would have simply corroborated the
other witnesses on this point. Accordingly, this evidence would have been
cumulative. Trial counsel’s performance cannot be considered deficient because of
a failure to present cumulative evidence. People v. Henderson, 171 Ill. 2d 124, 155
(1996); People v. Brisbon, 164 Ill. 2d 236, 248 (1995).
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¶ 52 CONCLUSION
¶ 53 For the reasons stated above, we find that defendant has not presented
substantial evidence that he received ineffective assistance of counsel at his trial.
Accordingly, we affirm the dismissal of defendant’s postconviction petition at the
second stage, without an evidentiary hearing.
¶ 54 Affirmed.
¶ 55 JUSTICE THOMAS, specially concurring:
¶ 56 I agree with my colleagues in the majority that defendant’s postconviction
petition was properly dismissed, and therefore I concur in the judgment. Unlike the
majority, however, I believe that the appellate court correctly upheld the dismissal
on the basis of defendant’s failure to provide an affidavit from Morrison, and
therefore I cannot join the majority opinion.
¶ 57 The majority asserts that this court never “create[d] a bright-line rule or
refuse[d] to consider whether a postconviction petitioner had made a substantial
showing of ineffective assistance of counsel simply because no affidavit from the
proposed witness was attached to the petition.” Supra ¶ 34. In fact, that is exactly
what this court has done. The majority claims that what this court has “always held”
instead is that when a petitioner raises a claim of ineffective assistance of counsel
for failure to call a witness, an affidavit will be required only in those cases where
an affidavit is necessary for the petitioner to make the necessary “substantial
showing” to support a claim of ineffective assistance. Supra ¶ 34. Our cases say
nothing of the kind. The majority cites not a single case that says this and simply
ignores what this court’s cases actually say. One would think that, if this court has
“always held” something, it would be possible to find at least one case that actually
says that thing.
¶ 58 The majority relies on four decisions—Enis, Johnson, Guest, and
Thompkins—to make its case that this court has not created a bright-line rule that an
affidavit from a potential witness is required to support a postconviction claim that
counsel was ineffective for failing to call that witness and that this court has instead
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“always held” only that such an affidavit may be required. Here is what those cases
actually say. In Enis, 194 Ill. 2d at 380, this court stated:
“A claim that trial counsel failed to investigate and call a witness must be
supported by an affidavit from the proposed witness. [Citations.] In the absence
of such an affidavit, a reviewing court cannot determine whether the proposed
witness could have provided testimony or information favorable to the
defendant, and further review of the claim is unnecessary.” (Emphasis added.)
Enis also referred to affidavits as being a necessity. See id. at 382-83 (“Defendant
has failed to support this claim with the necessary affidavit from Burton.”), 387
(“Defendant has failed to support this claim with the necessary affidavit from
Norvell.”).
¶ 59 In Johnson, 183 Ill. 2d at 192, this court stated:
“In order to support a claim of failure to investigate and call a witness, a
defendant must tender an affidavit from the individual who would have
testified. Without such an affidavit, a reviewing court cannot determine
whether the proposed witness could have provided any information or
testimony favorable to defendant. [Citations.] Because defendant has failed to
provide an affidavit from Dennis Taylor, further consideration of his purported
testimony is unnecessary.” (Emphases added.)
¶ 60 In Guest, 166 Ill. 2d at 402, this court stated:
“To support a claim of failure to investigate and call witnesses, a defendant
must introduce affidavits from those individuals who would have testified.
Without affidavits, this court cannot determine whether these witnesses could
have provided any information or testimony favorable to defendant. [Citation.]
Defendant has provided no affidavits from Kathy Wilson, Dorothy Johnson, or
Albert Johnson. Because defendant has failed to submit affidavits from these
proposed witnesses, we will not consider them further.” (Emphases added.)
¶ 61 Finally, in Thompkins, 161 Ill. 2d at 163, this court stated:
“The defendant next contends that defense counsel was ineffective because
he did not investigate two potential alibi witnesses, Tina Pitts and Karen Hayes.
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In the affidavit the defendant submitted with his post-conviction petition, he
states that he was with those two women during the period when other evidence
showed that he was meeting with Keith Culbreath prior to the offenses. The
defendant believes that Pitts and Hayes therefore could have provided helpful
alibi testimony to counter a portion of the prosecution’s case. The defendant has
failed to submit affidavits from Pitts and Hayes themselves, however, and thus
we are precluded from considering this issue further.” (Emphasis added.)
And these are the cases the majority cites in support of its position. If this is what it
means for cases to support an argument, one wonders what it would mean for them
to soundly defeat it.
¶ 62 The above cases demonstrate that, contrary to the majority’s position, this court
has always held that an affidavit is required to support a postconviction claim of
counsel’s failure to investigate and call a particular witness. This court has never
held only that an affidavit may be necessary. See supra ¶ 34. The majority claims
that this court never created a “bright-line rule” that an affidavit is required. Supra
¶ 34. If words like “must” and “necessary” and phrases like “thus we are precluded
from considering the issue further” do not create a bright-line rule, it is difficult to
imagine what a bright-line rule would look like. This court has never stated that an
affidavit “may” be required, is “usually” required, or is “often” required. Rather,
this court has clearly and unequivocally stated that an affidavit must be provided,
that such an affidavit is necessary, and that without such an affidavit the court is
precluded from considering the issue further. And the rule has always been stated
in general—rather than case-specific—terms. The court has spoken about what a
defendant must do when he or she raises this type of claim. Indeed, this court has
been so strict about the affidavit rule that it enforced it even with respect to a
potential witness who was dead and thus could not possibly provide an affidavit.
See Johnson, 183 Ill. 2d at 191-92. This court has also held than an affidavit that
lacks a signature provides no support for a petition’s allegations. See Guest, 166 Ill.
2d at 402. The majority has not cited a single case in which this court held that a
postconviction claim of ineffective assistance for failure to call a witness can
survive second-stage proceedings without an affidavit from the proposed witness.
¶ 63 The majority claims that, despite what the above cases say, this court has been
willing to consider whether supporting material that a defendant supplied in lieu of
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an affidavit was sufficient to support a postconviction claim of failure to call a
particular witness. Once again, the majority is able to make this claim only by
failing to disclose what our cases actually say. When this court “considered”
material provided in lieu of an affidavit from the witness, the court did so on an
“even if” basis. In Johnson, for instance, this court clearly set forth the affidavit
requirement and stated that further consideration of the witness’s purported
testimony was unnecessary because no affidavit was provided. Johnson, 183 Ill. 2d
at 192. The court then stated that, “[e]ven assuming defendant’s allegation was
sufficiently supported, Dennis’s testimony was apparently to be cumulative.”
(Emphasis added.) Id. Similarly, in Enis, this court stated the affidavit requirement
in no uncertain terms. Enis, 194 Ill. 2d at 380. With respect to potential witness
Moselle Williams, this court held that defendant had failed to support the claim
with an affidavit and then stated that, “[e]ven if we considered the February 4,
1998, investigation note, in lieu of an affidavit, defendant has failed to demonstrate
that there is a reasonable probability that the outcome of defendant’s trial would
have been different had counsel presented Williams’ testimony.” (Emphasis
added.) Id. Similarly, with respect to witness Roy Norvell, the court stated that the
defendant had failed to support his claim with the “necessary” affidavit. Id. at 387.
The court then listed the documents that defendant had supplied in lieu of an
affidavit and stated, “[e]ven if we consider these documents in lieu of an affidavit
from Norvell, none of the documents support defendant’s contention that Norvell’s
testimony would have rebutted Burk’s testimony.” (Emphasis added.) Id. If what
the majority says is correct, then there would have been no reason to word the
analysis in this manner. The court would have simply considered the material that
the defendant provided. Instead, the court rejected the claims based on the lack of
an affidavit and then said what the result would be “even if” it considered the
material that the defendant attached. This point, more so than any other,
conclusively establishes the error of the majority’s analysis. The majority cannot
(and therefore does not) explain this court’s use of the “even if” analysis in these
cases.
¶ 64 In People v. Spivey, 2017 IL App (2d) 140941, the defendant interpreted Enis in
the manner that the majority does today. The defendant argued that Enis “ ‘was
willing to consider the claim on its merits without affidavits to support it.’ ” Id.
¶ 15. The appellate court correctly rejected this argument. The court noted that this
court “did not equivocate about the necessity for affidavits from proposed
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witnesses” and viewed the lack of an affidavit as an independent reason for
rejecting the defendant’s ineffective assistance claim. Id. Thus, the appellate court
correctly observed that “in the absence of the requisite affidavit, [Enis’s] claim
would not have survived even if meritorious.” Id.
¶ 65 The Seventh Circuit has similarly read Illinois case law as imposing an affidavit
requirement. In Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016), the defendant
argued in a habeas proceeding that his attorney had been ineffective for failing to
call his codefendant as a witness. The Seventh Circuit noted that the defendant had
raised this same claim in an Illinois postconviction proceeding. The trial court had
dismissed the petition, and the appellate court affirmed on the basis that the
defendant had failed to attach an affidavit from his codefendant. Id. at 459. The
appellate court held that the defendant was required to attach an affidavit from his
codefendant stating both that he was willing to testify and what the subject of the
testimony would have been. Id. at 461. The appellate court stated that the failure to
attach the affidavit was alone sufficient to justify the dismissal but went on to
explain that defendant could not satisfy the Strickland test in any event. Id. at 459.
The first question that the federal court had to answer was whether the state court
had found the Strickland claim to be procedurally defaulted. The court held that it
had been, as the Illinois appellate court held that the lack of an affidavit alone
justified the dismissal. The Seventh Circuit explained that “Illinois courts regularly
enforce the affidavit rule.” Id. at 461. Thus, it appears that the Illinois Supreme
Court is the only court that does not believe that the Illinois Supreme Court’s cases
mean what they say.
¶ 66 The majority tries to argue that this case is somehow different from other ones
in which this court has required an affidavit. The majority claims that defendant
simply wanted to introduce evidence that already existed (Morrison’s statements to
the police, his failure to identify defendant in a photo lineup, and his identification
of someone else as the gunman) and that Morrison’s testimony is irrelevant to
defendant’s claim. That is certainly interesting, given that defendant pleaded in his
postconviction petition that, “[i]n the case at bar, there was no reasonable strategic
purpose in failing to call Matt Morrison as a witness. Without the exculpatory
testimony of Morrison, the jury was left only with the State’s version of events.”
(Emphasis added.) And, again, we do not have an affidavit from Morrison, so we
do not know if he was willing to testify and what his testimony would have been.
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The majority claims that the “real problem here is that the appellate court
misconstrued defendant’s ineffectiveness claim.” Supra ¶ 33. Defendant’s petition
proves that it is actually the majority that has misconstrued defendant’s
ineffectiveness claim.
¶ 67 There is in fact nothing remarkable about the claim before us, and it is strikingly
similar to a claim for which we required an affidavit in Enis. With respect to
prospective witness Roy Norvell, the defendant argued that, if called, Norvell
would testify that he saw a man wearing white sunglasses in the victim’s parking
lot and that he had identified someone other than the defendant as the man wearing
the white sunglasses. Enis, 194 Ill. 2d at 386-87. The defendant did not provide an
affidavit from Norvell but instead relied on police reports and interviews with
Norvell. Id. at 387. These documents were sufficient for this court to review the
substance of the defendant’s claim, but the court still rejected the claim on the basis
that the defendant had “failed to support this claim with the necessary affidavit
from Norvell.” Id. Thus, the present case is on all fours with Enis, and if an affidavit
was necessary in Enis, it is also necessary here. Given the similarity between the
present case and Enis, it will be impossible for the appellate court to discern when
an affidavit is required and when it is not, and this problem is a direct result of the
majority’s refusal to acknowledge what our cases actually say.
¶ 68 The majority claims that its holding that an affidavit is not always required to
support this type of claim is in accord with the plain language of the statute, which
merely requires that a petition have attached to it “ ‘affidavits, records, or other
evidence’ ” supporting its allegations. Supra ¶ 40. The majority claims that there is
“no statutory support for the appellate court’s holding.” Supra ¶ 31. The problem
with this statement is that this court has interpreted the statute as meaning that,
when the claim raised in a postconviction petition is ineffective assistance of
counsel based on the failure to call a particular witness, the supporting document
must be an affidavit. The appellate court is not free to ignore this court’s holdings.
The statute generically lists what kinds of supporting documents may be used in
support of postconviction claims, but this court has clarified which type must be
used in support of a particular postconviction claim and has explained why this is
so. When this court has interpreted a statute, that interpretation becomes part of the
statute itself unless and until the legislature amends it to the contrary. People v.
Woodard, 175 Ill. 2d 435, 444 (1997). Thus, this court’s clear unequivocal
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statement in cases such as Guest, Enis, and Johnson that the type of supporting
documentation in cases such as this must be an affidavit is now considered part of
the statute itself. This court has consistently expressed that rule for decades, and the
legislature has not amended the statute in response. The majority clearly errs in
ignoring what our cases actually say and treating the issue before us as one of first
impression.
¶ 69 If the majority believes this court’s cases are in error, it needs to overrule them.
If it believes that the court made a mistake, then it should own the mistake rather
than claiming that our cases say something other than what they clearly say.
However, this would require a discussion of why departure from stare decisis is
appropriate, which may be difficult. Stare decisis considerations are at their apex in
matters of statutory construction. People v. Espinoza, 2015 IL 118218, ¶ 29. This
court has construed the statute as requiring an affidavit when the claim is
ineffective assistance for failure to call a particular witness. This interpretation has
been clearly stated and consistently applied by this court and the appellate court for
decades. Likely realizing the difficulty it faces here, the majority instead tries to
argue that our cases say something other than what they actually do and criticizes
the appellate court for failing to discern the hidden meaning in those cases. I cannot
go along with such an analysis. The appellate court’s holding has a sound basis in
this court’s case law, and I would affirm its decision for the reasons stated in its
opinion.
¶ 70 JUSTICE KILBRIDE joins in this special concurrence.
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