People v. Kirklin

Illinois Official Reports
Appellate Court
People v. Kirklin, 2015 IL App (1st) 131420
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption AVERY KIRKLIN, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-13-1420
Filed March 6, 2015
Rehearing denied April 14, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-
Review 11241(01); the Hon. Michele M. Simmons, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Samuel M. Hayman, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and Katarina Durcova, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Avery Kirklin was found guilty after a bench trial of aggravated battery. This
case involved a credibility dispute where the trial court resolved the credibility issue against
defendant. Defendant, age 59, who had no prior criminal history and had been employed for
over 30 years as a truck driver, was sentenced on April 18, 2013, to two years of probation.
On this direct appeal, defendant claims that his trial counsel was ineffective for: (1) failing to
impeach the victim with evidence of the victim’s recent cocaine use; (2) failing to impeach
the victim with prior inconsistent statements about the incident which the victim allegedly
made to his friends; and (3) failing to call character witnesses who would testify to
defendant’s peaceful temperament.
¶2 For the following reasons, we affirm.
¶3 BACKGROUND
¶4 I. Pretrial Proceedings
¶5 On July 15, 2011, defendant, then age 57, and codefendant Samuel Spivey were indicted
for aggravated battery by knowingly causing bodily harm to Carlos Motley on February 12,
2011, by striking Motley about the head with a bat. On October 7, 2011, the State provided a
bill of particulars that stated the offense occurred on February 12, 2011, at 1:37 p.m., at 727
East 153rd Street, Phoenix, Illinois.
¶6 In defendant’s discovery production, filed April 16, 2012, defense counsel listed six
potential defense witnesses: (1) Pamela Herring, (2) “Herman Sarramala,”1 (3) Mary King,
(4) Laurence Hatter, (5) Duane Anderson, and (6) codefendant Samuel Spivey. On April 16,
2012, defense counsel informed the trial court that he had interviewed several of the
witnesses.
¶7 On August 27, 2012, the case was set for a bench trial when the State moved for a
continuance because one of its witnesses, Charlita Riley, had travelled out of state. The
defense witnesses then present in court were: (1) Herman Seremela, (2) Mary King, (3)
Laurence Hatter, and (4) “Mr. Cullum.” The trial court instructed the witnesses to appear
again on October 16, 2012, and continued their subpoenas.
¶8 On October 16, 2012, the trial was reset for November 19, and the court again instructed
the witnesses to appear on the new trial date. The defense witnesses present in court were: (1)
Herman Seremela; (2) Mary King; (3) Laurence Hatter; (4) Cynthia McCullen; and (5)
Leonard Bynum. On November 19, 2012, the trial was reset for January 8, 2013.
¶9 II. The Trial
¶ 10 On January 8, 2013, defendant waived his right to a jury trial, and the bench trial
commenced. The State called: (1) Officer Ricardo Frausto, the arresting officer; (2) Carlos
Motley, the victim; (3) Charlita Riley, an event witness and the godchild of Judy Taylor; and
(4) Judy Taylor, an event witness with whom the victim frequently stayed. The defense
1
Defendant’s April 16, 2012, discovery “Answer” spells this witness’s name as “Herman
Sarramala.” However, in other places in the record, the last name is spelled as “Seremela,” which we
use later.
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called: (1) Pamela Banks, a nurse who treated the victim after the incident; (2) Samuel
Spivey, codefendant; (3) Officer Ricardo Frausto, the arresting officer, who was recalled by
the defense; and (4) defendant. None of the six defense witnesses who were present in court
on prior trial dates testified at the actual trial.
¶ 11 During opening argument, defense counsel stated that this case was an example of how
no good deed goes unpunished. He argued that defendant was trying to break up a fight
between Motley and codefendant Spivey, and that the only person who hit Motley was
Spivey. Counsel told the court:
“[H]e didn’t even attack[ ] the man. You will hear from other witnesses who have
known them all in that community. They are actually–I interviewed countless
witnesses. Everyone is shocked and appalled this man is sitting in the courtroom
because he is not that type of person.”
Despite counsel’s representation in opening argument that the court would “hear from other
witnesses who have known them all in that community” and that counsel had “interviewed
countless” character witnesses, none appeared at trial.
¶ 12 In addition, during opening statement, counsel argued that the victim was a “[c]rack
head”:
“One thing you will know about [the victim is] that on the date he was hit with the
baseball bat he had indulged himself in crack cocaine. You will also learn from him
[that he] indulged in crack cocaine [for] at least five years that he admits to. That’s
who you are dealing with. [A] [c]rack head who basically stole [defendant’s] phone.”
However, the victim denied any cocaine use, and an issue on this appeal is counsel’s attempt
and failure to introduce a hospital report showing cocaine in the victim’s system.
¶ 13 A. The State’s Case
¶ 14 1. Officer Ricardo Frausto
¶ 15 The State’s first witness, Officer Frausto, testified that he was currently employed as a
police officer by the Calumet Park police department but that he had previously worked as a
sergeant for the Phoenix police department, where he had been employed for 4½ years. On
February 12, 2011, he and his partner, Officer Sahloul, responded in two different vehicles to
a call of an aggravated battery occurring at 727 East 153rd Street, in Phoenix, Illinois. When
he arrived at the residence, Carlos Motley and Charlita Riley were outside. Motley was
holding his head, which was bleeding from his ear, and also grabbing his legs.
¶ 16 After speaking with Motley and Riley, Frausto dispatched information over the radio, and
less than three minutes later, Sahloul pulled over a white vehicle traveling down 8th Avenue
toward 153rd Street. Frausto proceeded to that location, which was two blocks away.
Defendant was in the driver’s seat of the white vehicle, and Samuel Spivey was in the right
passenger seat. Frausto placed both men in custody. Frausto testified that, when Spivey
exited the vehicle, Frausto observed “a white aluminum bat” on the floor of “the right
passenger side.”
¶ 17 After placing both defendant and Spivey into his patrol vehicle, Frausto drove back to
727 East 153rd Street and directed defendant to exit the vehicle. Both Motley and Riley then
identified defendant. Motley stated: “That’s him. That’s him. He is the one that hit me.”
Riley stated: “Yes, that’s him. That’s the one that hit–that’s the one that hit him.” After
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defendant returned to the patrol vehicle, Spivey exited, and both Motley and Riley identified
Spivey. Frausto testified that “Motley also identified [Spivey] as the one that also hit him,”
and Riley “[a]lso identified Mr. Spivey as hitting Mr. Motley.”
¶ 18 On cross, Frausto testified that defendant did not try to run after his vehicle was stopped,
that defendant was totally cooperative, and that the bat was located on the front passenger
side of the vehicle where Spivey was sitting.
¶ 19 2. Stipulation
¶ 20 The parties read into the record a stipulation which stated that, if called to testify,
Investigator2 Paul Jimos would testify: that he was an investigator for the Phoenix police
department on February 12, 2011; that he received an assignment to dispatch to the area of
153rd Street and 8th Avenue in Phoenix, Illinois; that he observed a white vehicle, that being
a Beretta, parked on the south side of 153rd Street; that he recovered an aluminum bat from
the vehicle; that he handled the bat with gloves and brought it to the Phoenix police
department, where he inventoried it; that Exhibit 4A is the bag into which he placed the bat
and Exhibit 4B is the bat itself; and that the bat is in the same or substantially same condition
as when he last saw it.
¶ 21 3. Carlos Motley, Victim
¶ 22 a. Direct Examination
¶ 23 Carlos Motley, the victim, testified that on February 12, 2011, at approximately 1 p.m.,
he had an argument with defendant whom Motley knew as “Moochie.” Motley had known
defendant “[b]asically all my life.” The argument occurred as Motley was walking toward
“Miss Taylor’s house,” at 727 East 153rd Street, when Motley was only a few blocks from
Taylor’s house. Another man was present whom Motley could recognize, although Motley
did not know the other man’s name. Defendant told the other man, “there is the guy that stole
my cell phone.” Motley said nothing and “just kept walking.” Motley, who was carrying a
plastic shovel, arrived at Taylor’s house and began shoveling the snow from the end of her
driveway. As he was shoveling, he was facing toward her house.
¶ 24 Motley testified that, as he was shoveling, the “passenger that was with *** Moochie
jumped out of the car and hit me in the leg with a baseball bat.” Moochie stated: “I think his
name is Samuel.” Motley did not notice “Samuel” approaching until he hit Motley on the leg.
They both then fell on the snow, and Motley dropped his shovel. Then, “Moochie grabbed
the bat I believe and grabbed me and pulled me up and hit me up side of the head several
times.” As defendant was hitting Motley, Motley observed “Charlita” passing by; and Motley
yelled “help,” “Charlita,” and “call the police”; and Charlita stopped. Then Judy Taylor
exited her home, and defendant and “Samuel” entered their vehicle and drove off. Defendant
entered the driver’s side and the other man entered the passenger side.
¶ 25 Motley later learned that the other man’s name was Samuel. After Motley dropped his
shovel, he was unable to pick it up. After being hit in the head, Motley was covered with
blood. Defendant drove off in a white Beretta, heading east on 153rd Street. When the police
arrived, Motley pointed in the direction in which defendant had driven. The police later
2
By the time that he testified at trial, he was a lieutenant.
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returned and asked Motley to identify defendant, and Motley stated that defendant was the
“one that hit me in the head.” Motley went to the hospital and received seven staples in his
head. Also, his ear was cut and his left leg was swollen. Samuel hit Motley twice in the leg,
and defendant hit Motley twice in the head, specifically by his left ear and the left back part
of his head. After defendant hit Motley once, defendant held Motley by the collar and swung
again.
¶ 26 b. Cross-Examination
¶ 27 Since counsel’s effectiveness in impeaching Motley, the victim, is an issue on appeal, we
provide a detailed description of counsel’s cross-examination of Motley.
¶ 28 On cross, Motley testified that he was treated at Oak Forest Hospital approximately an
hour after he was injured and that hospital personnel asked him what happened and he told
them. Counsel then asked: “Is it true, sir, when you were asked by hospital personnel you
told them that three people assaulted you?” The State objected on the ground that “there is no
way for counsel to proof up [sic]” because he did not have “someone under subpoena.”
Defense counsel replied that he had “a certified medical record,” which was
“[s]elf-authenticating.” The following exchange then occurred:
“THE COURT: Counsel, you answered ready. Do you [have] a witness prepared
to impeach?
DEFENSE COUNSEL: Judge, this is certified. Under court order that was sent to
both parties.
THE COURT: I know what it is. Not admissible evidence. Not certified from the
State or governing body. Medical records are not admissible. You know that. You
need a witness. Do you have some one to perfect this?
DEFENSE COUNSEL: Not under subpoena.
THE COURT: Sustained.”
¶ 29 Defense counsel next tried to ask the victim about his drug use, and the following
exchange occurred:
“DEFENSE COUNSEL: At the hospital you were asked about prior drug usage?
Is that correct?
ASSISTANT STATE’S ATTORNEY [ASA]: Objection.
DEFENSE COUNSEL: Goes to the–
THE COURT: Overruled.
DEFNSE COUNSEL: Isn’t it true, sir, when you were asked by hospital
personnel you admitted to using crack cocaine?
ASA: Objection.
THE COURT: Sustained. Counsel, unless you are going down a road to impeach–
DEFENSE COUNSEL: I would ask enter and continue to bring the witness.
THE COURT: Denied. The witness is on the witness stand. Proceed.
DEFENSE COUNSEL: We are trying to get to the truth. That’s what the
courtroom is about. Trying to get to the truth.
THE COURT: *** [Y]ou know as well as I do how to try a case. If you are
attempting to impeach a witness you need to perfect your impeachment.
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DEFENSE COUNSEL: It depends on his answer whether or not impeachment is
necessary. He has not answered the question. He has to be allowed to answer the
question.
THE COURT: I’ll allow it.
DEFENSE COUNSEL: Isn’t it true you told the hospital at Oak Forest that you
were using crack cocaine for five years? Is that correct?
MOTLEY: No.
DEFENSE COUNSEL: Isn’t it true you had crack cocaine in your system when
[they] drew blood from you?
ASA: Objection.
THE COURT: One second.
MOTLEY: No.
THE COURT: Last question[,] objection sustained. With regards to the next
question [about] crack cocaine[,] let me hear the question.
DEFENSE COUNSEL: Sir, on February 11, 2011[,3] you used crack cocaine
prior to the incident?
ASA: Objection.
MOTLEY: No.
THE COURT: Objection overruled.
ASA: Relevance.
THE COURT: Has he used crack cocaine on this date?
DEFENSE COUNSEL: That’s correct.
THE COURT: You may answer.
MOTELY: No.
DEFENSE COUNSEL: So you are telling this Judge [there was] no crack cocaine
in your system [on] February 11, 2011?
ASA: Objection.
THE COURT: That’s a different question. What–objection is going to be
sustained. That’s a different question.”
¶ 30 Motley agreed that his first encounter with defendant and Spivey was four blocks away
from Judy Taylor’s house. Motley walked to her house and did not observe them again until
he was at her house. Motley did observe them drive away. Counsel asked: “[W]hen you were
interviewed by Sergeant Frausto on February 11, 2011[,4] at the scene[,] isn’t it fair to say
you never told them about this alleged argument that took place four blocks earlier.” Motley
replied: “I don’t remember.” When asked whether he told Investigator Jimos about the
alleged argument, Motley replied: “They didn’t ask.” When asked again whether he told
“them,” Motley again replied: “I don’t remember that.”
¶ 31 Next counsel asked Motley about his relationship with Judy Taylor:
3
Defense counsel asked about February 11, 2011, which was the day before the offense.
4
Defense counsel asked about February 11, although the offense occurred on February 12.
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“DEFENSE COUNSEL: You told them [you were] shoveling snow in front of
Judy Taylor’s [house]? Is that correct?
MOTLEY: Yes.
DEFENSE COUNSEL: In fact, you lived with Judy Taylor; didn’t you?
MOTLEY: Not really.
DEFENSE COUNSEL: What does not really mean, sir?
MOTLEY: I had not officially moved with her.
DEFENSE COUNSEL: In fact, she was your girlfriend?
MOTLEY: No.”
¶ 32 Motley testified that, when he and Spivey fell to the ground, Spivey let go of the bat and
the bat was on the ground. Then Motley agreed that, when a police officer arrived, the officer
asked what happened and Motley told him. Then the following exchange occurred:
“DEFENSE COUNSEL: You told this Judge the bat fell to the ground? Right?
Right?
MOTLEY: I don’t remember.
DEFENSE COUNSEL: Well, isn’t it true you told Officer Frausto on the scene
that Spivey handed [the] bat to [defendant] after he whacked you on the leg? Isn’t that
true?
MOTLEY: No.”
¶ 33 Next, Motley was questioned about defendant’s actions during the altercation:
“DEFENSE COUNSEL: You [t]old the Judge that [defendant] picked you up
with his hands and [was] whacking you with the bat. You remember telling the Judge
that?
MOTLEY: Yeah.
DEFENSE COUNSEL: Which hand did he allegedly pick you up with?
MOTLEY: With his left. Grabbed me like this.
DEFENSE COUNSEL: And, what were you wearing at the time?
MOTLEY: I don’t remember. A coat.
***
DEFENSE COUNSEL: He grabbed you with his left hand and he had the bat with
his right hand?
MOTLEY: Yeah.
DEFENSE COUNSEL: Is that true?
MOTLEY: Yeah.”
Motley testified that defendant pulled Motley up from the snow and hit Motley’s head twice.
¶ 34 Motley did not know whether he had told Sergeant Frausto that defendant had pulled him
up from the snow or that Spivey had knocked him down to the ground. Motley also did not
remember telling the ASA, whom he met after he was released from the hospital, that
defendant picked him up off the ground. Defendant never hit Motley while Motley was on
the ground. Defendant never had a pipe or shovel in his hands.
¶ 35 Motley testified that he had known Laurence Hatter for over 30 years. However, he
denied having a conversation with Hatter about this incident during the summer of 2011.
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Motley stated that he spoke to Hatter “[a]ll the time,” but he never spoke to Hatter about this
incident. Defense counsel then asked “isn’t it true” that, during a conversation at Gibson’s
gas station on 152nd Place and Halsted Avenue, Motley told Hatter that defendant never hit
Motley in the head. When the ASA objected, defense counsel replied that he was “laying a
foundation for impeachment.” The court asked, “This witness is here?” and defense counsel
replied “yes.” The court then overruled the State’s objection, and Motley denied telling
Hatter that.
¶ 36 On cross, Motley testified that he also knew Bernard Bynum because they all “hang [at]
the same yard they fix cars at,” but that Motley “barely” spoke to Bynum and that he “never
talked to Bernard about this case.” Defense counsel asked if Motley knew Mike Fuller and a
man named Calvin, and Motley stated that he knew Mike Fuller and that he “kn[e]w a lot of
Calvins.” Counsel’s alleged failure to subsequently call Hatter, Bynum, Fuller and “Calvin”
in the defense case is an issue on appeal.
¶ 37 Concerning his connection to Judy Taylor, Motley testified:
“DEFENSE COUNSEL: Judy Taylor, you said you sometimes live with her? ***
MOTLEY: I didn’t say that.
DEFENSE COUNSEL: What did you say?
MOTLEY: I said at times incidents happen. I was not staying with her. Fully. So
that means that sometimes [I] spent the night over there. That doesn’t mean we had a
relationship. We don’t. She is like a sister to me.”
Motley and Taylor discussed the case several times and rode to court together. “[B]asically”
all they said during the ride is that they would be glad when the case was over.
¶ 38 Motley testified that he had known Charlita Riley, the State’s next witness, “[s]ince she
was a baby,” but that they never discussed the case.
¶ 39 4. Charlita Riley
¶ 40 a. Direct Examination
¶ 41 Charlita Riley, 36 years old, testified that on February 12, 2011, at approximately 1:30
p.m., she was driving east on 153rd Street in the town of Phoenix, when her attention was
caught by someone hollering in the 700 block of 153rd Street, where Judy Taylor lives. Riley
recognized the voice as belonging to the victim, Carlos Motley, who was yelling “help
Charlita.” When Riley looked toward the voice, she observed Motley being hit in the head
with a bat by defendant, whom she knew as “Moochie” and whom she had known “a long
time.” Riley then made a U-turn in the middle of 153rd Street and 4th Avenue, and pulled in
front of Judy Taylor’s house, in back of a white Beretta. After Riley exited her vehicle, she
observed that Motley was bleeding and she called 911. As Riley walked from her vehicle
toward the men, Motley walked toward the porch and defendant told another man who was
with him: “Let’s go man.” Riley had not observed the other man prior to that day. Defendant
and the other man then entered their vehicle and drove away. As the two men entered the
vehicle, Riley observed the bat in defendant’s hand. Motley was bleeding from his ear and
from the top of his head. Judy Taylor exited her home but Riley did not recall exactly when
that occurred. The police arrived 10 minutes later and Riley told them what she had
observed, but she did not recall how many officers arrived. The police departed and returned
soon afterwards with defendant, and Riley identified defendant as the person who “[h]it
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Carlos in the head with a bat.”
¶ 42 b. Cross-Examination
¶ 43 Since trial counsel’s effectiveness is an issue on this appeal, we provide below a detailed
description of counsel’s cross-examination which led the trial court, as fact finder, to
conclude that Riley was “not the most credible witness.”
¶ 44 On cross, Riley testified that her driver’s side window was half-way down because it was
warm outside, even though it was February. She did not recall whether there was snow on the
ground. Defendant had both of his hands on the bat and he hit Motley twice “sideways on his
head,” but she did not recall whether the other man also hit Motley. She never observed a
shovel in defendant’s hand. After the incident, a Phoenix police officer asked her what
happened and she told him. Defense counsel then asked her the following questions:
“DEFENSE COUNSEL: Isn’t it true you told Officer Frausto you saw
[defendant] and [an] unknown black male hitting Motley while on the ground
repeatedly? Isn’t it true that’s what you told the officer?
RILEY: No, it is not.
DEFENSE COUNSEL: Okay. And, isn’t it also true you told that same officer
that you saw the unknown male black holding the guy back?
RILEY: No.
DEFENSE COUNSEL: Isn’t it true you also told the officer that [defendant] was
holding what looked like a shovel with a wooden handle? Isn’t it true you told the
officer that?
RILEY: No, I did not.”
¶ 45 On cross, Riley testified that, although she did not live in Phoenix on February 11, 2011,
her grandmother, aunt and brother lived there. At first, Riley denied that Motley lived at Judy
Taylor’s house, although she admitted that he did a lot of handyman work there and “spen[t]
nights over there.” Then the following exchange occurred between her and defense counsel:
“DEFENSE COUNSEL: On June 29, 2011[,] you have a handwritten statement to
a Cook County State’s Attorney Jessie McGuire as well as Cook County Investigator
Joseph Thomas? Is that correct? June 29, 2011? Is that correct?
RILEY: Yes, he do a lot.
***
DEFENSE COUNSEL: All right. And, isn’t it true, Ma’am, in your statement
where you signed every page you stated Carlos Motley lived with Judy Taylor?
RILEY: Yes, I did say that.
DEFENSE COUNSEL: But, that was a lie? Right?
RILEY: He spends nights there.”
¶ 46 On cross, Riley testified that Judy Taylor was her godmother. Riley denied discussing the
case with Taylor but stated that she had discussed it with Motley twice.
¶ 47 On cross, defense counsel asked Riley whether she recognized her prior signed statement
to police and at first she said no. Then the court asked her and she changed her answer
stating: “Yes, I recognize the document. I signed it.” Counsel then confronted her with the
portion of her statement in which she stated that she looked out her driver’s side window and
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observed a man, not defendant, hitting Motley with a bat, and she then made a U-turn.
However, in court, Riley testified: “It never was the man. It was always Moochie.” Riley
admitted that the statement contained what she stated in June 2011; however, she stated it
was not correct:
“DEFENSE COUNSEL: That’s what you said back in June of 2011? Is that
correct?
RILEY: Yes.
DEFENSE COUNSEL: ’Cause that’s what you saw? Right?
RILEY: I seen Moochie.
DEFENSE COUNSEL: My question[:] that’s what you saw on February 11,
2011? The other man beating him with the bat? Correct? Correct?
RILEY: No. That’s not correct.
DEFENSE COUNSEL: You didn’t see that. So you’re lying on this piece of
paper? Are you lying on this paper?
RILEY: No, I’m not. I seen Moochie.”
¶ 48 On cross, Riley was questioned about her prior testimony that defendant had swung
“sideways” at Motley:
“DEFENSE COUNSEL: Well, isn’t it true, Ma’am, in your statement in June of
2011 you stated when Moochie hit Carlos [Motley] he held a bat over his head and
swung down? ***
RILEY: I don’t remember.
***
DEFENSE COUNSEL: Read that for the Court when–
***
RILEY: When Moochie hit Carlos he held the bat over his head and swung down.
DEFENSE COUNSEL: You never said sideways in your statement; did you?
RILEY: I’m–I don’t remember.
***
DEFENSE COUNSEL: Swinging sideways is no where in your statement; is it?
RILEY: No, it is not.”
¶ 49 Next on cross, Riley was questioned about her prior testimony that defendant had both
his hands on the bat, which contradicted Motley’s testimony that defendant pulled Motley up
from the snow with his left hand and swung the bat at Motley with his right hand:
“DEFENSE COUNSEL: So when [defendant] held the bat with both hands as you
told the judge earlier[,] did he ever drop one of the hands and grab Carlos *** pulling
him towards him? Did he do that?
RILEY: I don’t remember.
DEFENSE COUNSEL: Did you ever see [defendant] hold–grab a hold of Carlos
with both hands? Did you see that?
RILEY: So much going on I don’t remember. I don’t remember.
***
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DEFENSE COUNSEL: You never told that officer that you ever saw [defendant]
grab a hold of– *** You never [t]old that officer that; did you?
RILEY: No I did not.
***
DEFENSE COUNSEL: You–let’s go back to the June 29, 2011[, interview]
[w]here you were here in this building and spoke to a prosecutor and investigator. In
that statement to them, you never [t]old them and you never included in your
statement that you ever saw [defendant], the person you call Moochie, put his hands
or grab[ ] a hold of Carlos Motley; did you[?]
RILEY: No, I did not.
DEFENSE COUNSEL: ’Cause you never saw him do that; did you?
RILEY: No. I did not see [defendant] grab [Motley].
DEFENSE COUNSEL: You never saw [defendant] grab a hold of Carlos and pick
him up off the ground and then start beating him with a bat? You never saw that; did
you?
RILEY: No, I didn’t.”
¶ 50 After Riley’s testimony, a discussion was held off the record, and the trial was then
continued until February 7, 2014. Defense counsel asked on the record for the trial court to
continue the writ5 for codefendant Spivey until February 7, which the court did. Defense
counsel did not ask on the record to continue witness subpoenas, but the record does not
disclose whether this was handled during the off-the-record discussion.
¶ 51 5. Judy Taylor, Riley’s Godmother
¶ 52 a. Direct Examination
¶ 53 The State’s case resumed a month later on February 7, 2013, with the testimony of
61-year-old Judy Taylor, with whom the victim frequently stayed and who was the
godmother of Riley, a prior witness.
¶ 54 Taylor testified that she lived at 727 East 153rd Street in Phoenix, Illinois, and was
currently retired after having worked as an “IT specialist” for Blue Cross Blue Shield for 40
years. She had lived her whole life in the town of Phoenix, and on February 12, 2011, at 1:30
p.m., she was at home with her grandson. She was ill and upstairs in her bedroom, and she
did not pay attention at first when her grandson related that he heard arguing. However, when
he said it again, she lowered the volume on the television and heard a commotion, so she
went downstairs and opened the door. She observed Carlos Motley, whom she had known for
over 40 years, kneeling on the ground and holding his head. Motley was in her driveway,
about 30 feet from her door, and “blood was everywhere.”
¶ 55 Taylor also observed defendant, whom she knew as “Moochie,” and another man, whom
she did not know beforehand. Taylor had known defendant for over 40 years, and he “had a
pipe or something to that manner” in his hand and was “standing over” Motley. The object
that defendant held was white and about two feet long. Defendant was “just standing there
5
Although the record does not disclose whether Spivey was in custody after pleading guilty in this
case, the court and counsel stated “writ,” not “subpoena.”
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with it in his hand,” while the other man had nothing in his hands. Taylor told defendant
“Moochie[,] I’m gonna call 911” and she did. After she informed defendant that she was
going to call 911, defendant and the other man “fled,” driving away in a white Beretta.
Explaining her use of the word “fled,” Taylor testified: “[T]hey walked fast, quickly; they
didn’t run, they walked.” Defendant took the white object with him when the two men left.
¶ 56 Taylor testified that the white Beretta traveled east on 153rd Street, with defendant in the
driver’s seat and the other man in the passenger seat. After Motley stated he did not want to
enter the house, Taylor brought out towels because Motley was “bleeding profusely,” and
Motley held his head with the towels until the ambulance arrived. When Taylor was shown
the bat in People’s Exhibit 4B, she admitted that it was red and beige.6
¶ 57 b. Cross-Examination
¶ 58 On cross, Taylor testified that she had the flu but she had not taken cold medication.
Taylor admitted that, in addition to being red and beige, the bat was also black. The police
arrived in five minutes or less, and she spoke with the officer who arrived at the scene. In
addition, “a couple months” or “a few weeks” later, she went several times to the Phoenix
police station. At that time, she said that the object in defendant’s hands was white. The
officer did not show her the bat, and she never identified the bat as the object which she
observed in defendant’s hands. She told the officers that defendant had a pipe in his hand,
similar to that used in plumbing.
¶ 59 On cross, Taylor testified that, as she walked downstairs, she could still hear arguing
outside. Taylor admitted that she never observed anyone strike Motley and she never
observed the bat which was Exhibit 4B:
“DEFENSE COUNSEL: At no point while you were looking, did you ever see
[defendant] strike Carlos Motley, did you?
TAYLOR: I did not.
DEFENSE COUNSEL: And at no point did you ever see this other young man[,]
or whoever the other man was, strike Carlos Motley, did you?
TAYLOR: No, I did not.
DEFENSE COUNSEL: And at no point did you ever see a bat, other than this
pipe you’re talking about, you never saw that bat in [defendant’s] hands, did you?
TAYLOR: I saw a white pipe.
DEFENSE COUNSEL: That’s not my question. You never saw that bat in his
hand, did you?
TAYLOR: No.
THE COURT: For you record, you’re pointing at People’s [Exhibit] 4B.
DEFENSE COUNSEL: That is correct.
***
DEFENSE COUNSEL: My question is this; People’s [Exhibit] 4B, you never saw
that out there that whole time you looked, did you?
TAYLOR: No.
6
Officer Frausto had testified that the bat was white and aluminum.
- 12 -
***
DEFENSE COUNSEL: In fact, you never saw a shovel outside either, did you?
TAYLOR: I don’t recall seeing a shovel.”
¶ 60 After Taylor’s testimony, the State moved its exhibits into evidence and rested. The
defense then moved for a directed finding, which was denied.
¶ 61 B. The Defense Case
¶ 62 1. Pamela Banks, Triage Nurse
¶ 63 The defense’s first witness was Pamela Banks, a registered nurse for 33 years. On
February 12, 2011, she was working in the emergency room of Oak Forest Hospital as a
triage nurse. Banks explained that “triage” is the initial assessment of a patient conducted
when the patient first enters the emergency room. She conducted the triage for Carlos
Motley, who entered the hospital with a head injury. As part of the triage, she interviewed
Motley and asked him questions concerning his past medical history, including drug use.
During this conversation, Motley informed Banks that he had a five-year history of cocaine
use.
¶ 64 On cross, the parties stipulated that Banks had written in her triage assessment form that
Motley was oriented and alert.
¶ 65 At the conclusion of the trial, during the trial court’s recitation of the evidence, the trial
court stated: “On cross examination, [Banks] stated she was never given a date of crack
cocaine usage with a time frame.” On cross, Banks explained how she ascertained the dates
of a patient’s medical problem: instead of asking for a specific year she inquired when the
problem began:
“BANKS: I asked him–not a specific date, I asked him how long–if an answer
is yes, I will follow that with, for example, if I say do you have any medical
history, and if he says asthma, I’ll say when did it first start or something of that
nature. I don’t ask him an actual date, he’ll say probably when I was five, and
then I’ll subtract five from his present age.”
¶ 66 Below we provide the questions related to the trial court’s conclusion:
“ASA: Now when you asked Mr. Motley about substance abuse history, he gave
you no year period of time, isn’t that true?
BANKS: I’m sorry, would you repeat the question?
ASA: *** When you asked Mr. Motley about his substance abuse history, he gave
you no period of time, no year period of time?
DEFENSE COUNSEL: Objection; vague.
THE COURT: Objection is overruled. Do you understand the question?
BANKS: I don’t ***.
ASA: He didn’t tell you when this alleged use of crack began, isn’t that true?
BANKS: If I wrote it down there, he–he meant–he told me when it began.
***
ASA: *** [D]id Mr. Motley, Carlos Motley give you a date?
BANKS: He gave me a time frame.
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ASA: My question was did he give you a date.
BANKS: No, ma’am.
ASA: As so you never asked him when this alleged crack use began, correct?
BANKS: Did I ask him when the crack use began[?] I asked him approximately
when did the drug use began, yes, ma’am.
***
ASA: It’s not in your report, isn’t that true?
BANKS: It’s in my report for five years.”
Banks did not ask Motley whether he was under the influence of crack cocaine while at the
hospital on February 12, 2011, and he did not inform her whether he was.
¶ 67 On redirect, defense counsel tried to ask Banks about the victim’s lab report, and his
failure to introduce the lab report is an issue on appeal:
“DEFENSE COUNSEL: Isn’t it true he did, in fact, was sent to have a lab done
and he tested positive for cocaine?
ASA: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: [The ASA] asked about the report, we gon’ [sic] talk
about the whole report.
THE COURT: Sustained. She asked about the triage report, objection is sustained.
DEFENSE COUNSEL: She did not say triage the first time, Judge, you can have
the court reporter read it back, she said the report.
THE COURT: Sustained [as] to any lab report.”
¶ 68 2. Samuel Spivey, Codefendant
¶ 69 The defense’s next witness was Samuel Spivey, codefendant. Spivey testified that he was
51 years old and that he was a friend of defendant, whom he had known for 25 or 30 years.
On the afternoon of February 12, 2011, Spivey and defendant left Spivey’s house in Harvey,
Illinois, to drive to Spivey’s sister’s house in Phoenix, so that Spivey could receive money
from defendant’s sister for work they had done fixing her plumbing. Defendant was in the
driver’s seat, and Spivey was in the front passenger seat. While they were in the vehicle,
defendant remarked “that’s Carlos,” referring to a person walking on the street, and
defendant pulled the vehicle over. Spivey told Motley to tell the truth, which was a reference
to defendant’s cell phone, and Motley replied: “[M]ind yo’ business bitch ass old man.”
Spivey responded that he “wasn’t gon’ be na’re ’nother bitch,” and exited the vehicle. Motley
was standing on the passenger side of the vehicle and hit Spivey with a shovel. Spivey
testified:
“I went to step toward Mr. Carlos, tell him I’m not gonna be non’ his bitch old man,
and he swung and hit me with a shovel. He went to hit me across my head, but he
missed and hit me ’cross my shoulder.”
¶ 70 After Motley hit him, Spivey returned to the vehicle to retrieve a pipe wrench but he
observed a bat in the backseat of defendant’s vehicle under some clothes and he grabbed that
instead. He then hit Motley in the head with the bat. During this time, defendant was standing
between Motley and Spivey, trying to break it up and saying “don’t do this.” After Spivey hit
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Motley with the bat, defendant pushed them apart. Then defendant and Spivey entered
defendant’s vehicle and drove back to Spivey’s house in Harvey. They returned to Phoenix,
so that Spivey could obtain money from defendant’s sister for fixing the pipes in her house.
¶ 71 Spivey testified that the sole reason why he hit Motley with the bat was because Motley
had hit him with the shovel. When asked if there was any other reason, Spivey replied: “No,
that’s it. He hit me with the shovel, I hit him with the bat, self defense.” Spivey pled guilty,
but he did not say to precisely what. Spivey exited defendant’s vehicle because “he called me
a bitch ass old man.” Defendant never told Spivey to hit Motley; defendant never had
possession of the bat; and Spivey never observed a woman make a U-turn and park behind
defendant’s vehicle or a woman exit the house.7
¶ 72 On cross, Spivey testified that he was convicted for hitting Motley in the head with the
bat which he identified in People’s Exhibit 4. Spivey exited defendant’s vehicle because
Motley “disrespected” him. When Spivey and defendant drove away, “Carlos [Motley] was
standing on the side of the curb,” and Spivey “didn’t see no blood at all.” After his arrest, he
told the police that Motley had hit him with a shovel and he showed the officers where the
shovel had bruised his shoulder. At the time of the incident, defendant and Spivey owned a
landscaping business together.
¶ 73 On redirect, Spivey testified that he had called defendant’s phone “all night long,” and
the next day someone called him at 6 a.m. asking who this was. Spivey then asked where
defendant was. The voice he heard on the phone was not the same voice that he heard when
he later encountered Motley.
¶ 74 At the conclusion of the trial, when the trial court reviewed the evidence, it did not find
Spivey’s testimony credible, stating: “Some of Mr. Spivey’s testimony, I do not believe. I do
not believe Samuel Spivey’s testimony. I do not believe he struck Mr. Motley in the head
with this and [defendant] had nothing to do with it. I do not believe that.”
¶ 75 After Spivey’s testimony, defense counsel sought a continuance because Officer Frausto
was not available. Counsel informed the court that he had only two more witnesses. One was
Frausto; and defendant also later testified. Thus, apparently on February 7, 2013, counsel did
not intend to call character witnesses or other impeachment witnesses. The trial was
continued to March 13, 2014.
¶ 76 3. Officer Frausto
¶ 77 On March 13, 2013, Officer Frausto8 was recalled as an impeachment witness by defense
counsel. Frausto testified that, on February 12, 2012, he responded to a call concerning a man
with a head injury and he traveled to 737 East 153rd Street in Phoenix. There he interviewed
Charlita Riley at 1:45 p.m. and she informed him that she had observed everything, that she
had observed an unknown black male hitting Motley repeatedly while Motley was on the
ground, that this unknown male held a white bat, and that defendant held a shovel with a
7
Taylor testified that she was in the doorway when defendant and Spivey were there, but she did not
exit the house at that time.
8
When Officer Frausto first testified on January 8, 2013, he spelled his name for the record and the
transcript states it was spelled “F-R-A-U-S-T-O.” However, on March 13, 2013, he was again asked to
spell his name and the transcript states it was spelled “F-r-a-u-s-t-o-s.” For the sake of consistency, we
have spelled his name as “Frausto” when describing both dates of testimony.
- 15 -
wooden handle. Riley never told Frausto that she observed defendant holding a bat or hitting
Motley.
¶ 78 Frausto testified that he interviewed Motley the same day, almost contemporaneous to his
interview with Riley. Motley did not tell Frausto that he had an argument four blocks away
from the incident. Motley stated that the unknown black male handed the white bat to
defendant and that defendant and the unknown black male took turns hitting him while he
was on the ground.
¶ 79 4. Defendant
¶ 80 Defendant testified that he was currently employed as a truck driver with Sheply
Trucking Company, where he had worked for seven years. He had worked as a truck driver
for 33 years, while also doing construction jobs on the side, such as working on sidewalks,
patios and driveways. During the morning of February 12, 2011, he was at a “family
property” in Phoenix fixing the plumbing, when he realized he needed help, so he drove in
his white 1995 Chevy Beretta to Samuel Spivey’s house. From there, defendant and Spivey
drove to the True Value Hardware on Chicago Road in Dolton, Illinois. Then they returned to
the first building and finished fixing the plumbing. Then they drove to defendant’s sister’s
house so his sister could pay Spivey. After they left his sister’s house, defendant observed
Carlos Motley shoveling snow in front of Judy Taylor’s house in Phoenix. Defendant pulled
to the curb facing east, so that the passenger side of his vehicle was closer to Motley than the
driver’s side. Defendant told Motley that defendant “had been at Sprint the day before for 4
hours,” and that Motley “won’t get [defendant’s] phone no more because [Motley] won’t
never get back in [defendant’s] car again.” Then Spivey told Motley: “Man, why don’t you
just tell the man that you smoked the phone up–sold [the] phone and smoked it up.”
¶ 81 Defendant testified that Motley said to Spivey: “F you, B A old man.” Then counsel
asked defendant to state exactly what Motley had said, and defendant stated: “I am not used
to this. So he said, fuck you, bitch ass, old man–just like that.” Spivey exited the vehicle and
approached Motley. Defendant then exited on the driver’s side and walked around in order
“to stop Carlos [Motley], because I know he has a bad attitude.” Defendant observed Motley
but not Spivey, and defendant stated to Motley: “Well, Carlos, you were the one in the car.
You’re the only one that could have got the phone.” Then, three to five seconds later, Spivey
hit Motley in the head with the bat. Defendant did not observe Spivey until he hit Motley.
Defendant was standing 2½ to 3 feet from Motley and directly in front of him, when Spivey
came from behind defendant. Defendant then stood in between them and “broke it up.”
Defendant “told Sammy to get back in the car,” and “Carlos to get out of here.”
¶ 82 Then defendant and Spivey drove to Spivey’s house to drop off Spivey’s tools, and they
returned to Phoenix because defendant wanted to check on Motley. When defendant drove up
to Taylor’s house again, Motley was on the porch with a towel on his head. However, Motley
was “at an outrage” so defendant drove away and that is when the police stopped him. The
police then returned defendant to Taylor’s house. Defendant testified that he never told
Spivey to attack Motley; that he never hit Motley with a bat, shovel or pipe; and that he never
hit Motley at any point.
¶ 83 On cross, defendant testified that he believed that Motley stole his phone and that he was
at the Sprint store because his phone was missing. All defendant wanted was to tell Motley
that he was not happy about his missing phone and that Motley was not entering his vehicle
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again. At that time, Spivey did not know Motley. There was a bat in defendant’s vehicle on
February 12, 2011, but defendant did not know if Exhibit 4B was that particular bat or not. A
bat had been in his vehicle for approximately three weeks, and it belonged to Spivey.
Defendant had done “a clean out job” after a “lady’s husband” died and “he was over the
baseball team.” Spivey and defendant always worked together, and Spivey placed the bat in
defendant’s vehicle.
¶ 84 On cross, when asked why he “did not pick up the phone” after the altercation, defendant
replied: “I didn’t have a phone.” Defendant and Spivey arrived back at Taylor’s house
approximately 35 to 40 minutes after Spivey struck Motley in the head; however, defendant
does not recall the time. Defendant did not observe an officer at the house when he arrived
back, and defendant was not present when an ambulance arrived. Motley was sitting on the
step, and defendant did not approach him. Defendant also did not observe either Judy Taylor
or Charlita Riley at the moment when he arrived back.
¶ 85 On redirect, defendant testified that he was stopped by the police just two minutes after
he left Taylor’s house the second time. After defendant testified, the defense rested.
¶ 86 At the close of evidence, when the trial court made its factual findings, the court stated
that it found “unbelievable” defendant’s testimony that he did not observe Spivey retrieve the
bat from defendant’s vehicle. The court found:
“THE COURT: *** [The bat] is in his car. But he says he doesn’t see Mr. Spivey
get this weapon. He doesn’t see him come around him.
He just sees Mr. Spivey all of a sudden strike Mr. Motley over the head with this
baseball bat. The Court does not believe that. I don’t believe he did not see this.”
¶ 87 C. The State’s Rebuttal Case
¶ 88 After the defense rested, the State called Lieutenant Paul Jimos, about whom the parties
had previously entered a stipulation. Jimos testified that he had been a member of the
Phoenix police force for over three years. On February 12, 2011, he was not a lieutenant but
an officer assigned to an investigation. On February 13, 2011, at 2:30 p.m. Jimos interviewed
Spivey at the police station. Jimos asked Spivey to remove his shirt, and Jimos looked at
Spivey’s right shoulder, right upper arm, right lower arm, left shoulder, left upper arm and
left lower arm, and Jimos did not observe any injuries. Spivey stated that he had been struck
by a shovel, but he did not complain of any injuries.
¶ 89 On cross, Jimos stated that Spivey told him that Spivey had been struck in the shoulder
with a shovel. On redirect, Jimos testified that he did not observe any bruises, cuts or nicks
on Spivey. The State then rested in its rebuttal case.
¶ 90 D. Defense Exhibits; Failure to Impeach
¶ 91 After the State rested, the court acknowledged that defendant had two exhibits, a report
and a handwritten statement, but it did not state that these exhibits were admitted.
¶ 92 The State then moved to strike certain testimony of the victim, Carlos Motley, where
defense counsel had asked him about conversations with various individuals, such as
Laurence Hatter and Bernard Bynum, who did not testify. Defense counsel stated that he was
not arguing the motion because:
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“DEFENSE COUNSEL: It’s not evidence. Because [Motley] denied everything.
So I did not perfect an impeachment. So therefore, it’s not evidence. There is no need
to strike.”
¶ 93 The trial court then stated that, since this was a bench trial, it knew “what is admissible
and what is not,” and “what has been perfected and what has not been perfected,” and the
parties proceeded to closing argument.
¶ 94 III. Argument, Conviction and Sentencing
¶ 95 During closing argument, defense counsel stated: “He has all of these people in the
courtroom supporting him.” The State objected to the statement, and the trial court sustained
the objection.
¶ 96 After argument, the trial court, as the fact finder, reviewed the evidence and made factual
findings. The trial court stated that it did not believe either defendant or Spivey, that Riley
“was not the most credible witness”; and that “Judy Taylor was the most credible witness to
this Court.” The court found:
“Ms. Taylor who had no interest in any of this, who just happened to look out the
window and saw what occurred. There was no impeachment, certainly of any
significance on M[s]. Taylor.
She sees [defendant]. What she can’t see is a bat, but a white object right over Mr.
Motley. And this is Mr. Motley bleeding from the head. And Mr. Motley tells the
Court that it was [defendant] who struck him.
Based on that testimony, the Court makes the following finding: With regard to
Count I, aggravated battery, causing bodily harm to Carlos Motley while using a
deadly weapon, [without] discharge of a firearm, alleging he struck Carlos Motley
about [the] head with a bat ***. There is a finding of guilty entered on Count I.”
¶ 97 The probation report indicated that defendant had no prior criminal convictions and had
worked as a truck driver for over 30 years. Defendant was sentenced on April 18, 2013, to
two years of probation, with a scheduled termination date of April 17, 2015. At sentencing,
defense counsel informed the court that he had spoken with “all of those witnesses,” without
identifying them by name or stating whether they were impeachment or character witnesses.
Counsel stated that he “didn’t think some of them could withstand cross examination based
on their limited education” and that he had “talked to over 15 people in that community.”
¶ 98 On April 18, 2013, defense counsel also filed a motion for reconsideration or for a new
trial on the grounds that the State had failed to prove defendant guilty beyond a reasonable
doubt and that the trial court erred in giving too much weight to the testimony of Judy Taylor
when she did not witness the event.
¶ 99 Included with the motion were letters, all from April 2013, from eight individuals
including: (1) Duane Anderson, a former employer, who was listed as a potential witness in
defendant’s answer to the State’s request for discovery; (2) Mary King, who was listed as a
potential witness and who appeared in court on both August 27, 2012, and October 16, 2012;
and (3) Herman Seremela, who was listed as a potential witness and who appeared on both
August 27 and October 16. The trial court denied defendant’s motion for a new trial or
reconsideration.
- 18 -
¶ 100 A timely notice of appeal was filed, and this appeal followed.
¶ 101 ANALYSIS
¶ 102 Defendant claims that defense counsel was ineffective for: (1) failing to impeach the
victim with evidence of the victim’s recent cocaine use; (2) failing to impeach the victim
with prior inconsistent statements about the incident which he allegedly made to his friends;
and (3) failing to call character witnesses who would testify to defendant’s peaceful
temperament.
¶ 103 I. Standard of Review
¶ 104 Since defense counsel obviously did not argue his own ineffectiveness to the trial court,
the trial court never made a ruling on the question which we must address now: whether he
was ineffective. Where there is no ruling below for us to review, our legal consideration is
made on a blank slate or de novo. Wagner v. Eagle Food Centers, Inc., 398 Ill. App. 3d 354,
358 (2010) (a court does not proceed on a blank slate where there is a prior order); People v.
Wilson, 392 Ill. App. 3d 189, 197 (2009) (appellate court reviewed ineffectiveness claim de
novo where there was no trial court ruling to review). De novo consideration means that we
perform the same analysis as the trial judge would have performed. Khan v. BDO Seidman,
LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 105 II. Ineffective Assistance
¶ 106 Defendant’s claims on appeal all concern his counsel’s alleged ineffective assistance.
¶ 107 Every Illinois defendant has a constitutional right to the effective assistance of counsel
under the sixth amendment to the United States Constitution and the Illinois state
constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Domagala,
2013 IL 113688, ¶ 36. Claims of ineffective assistance are judged against the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36
(citing People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland for Illinois)). To
prevail on a claim of ineffective assistance, a defendant must show both: (1) that counsel’s
performance was deficient; and (2) that this deficient performance prejudiced defendant.
Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).
¶ 108 To establish the first prong, that counsel’s performance was deficient, a defendant must
show “that counsel’s performance was objectively unreasonable under prevailing
professional norms.” Domagala, 2013 IL 113688, ¶ 36. To establish the second prong, that
this deficient performance prejudiced the defendant, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland,
466 U.S. at 694). “[A] reasonable probability that the result would have been different is a
probability sufficient to undermine confidence in the outcome–or put another way, that
counsel’s deficient performance rendered the result of the trial unreliable or fundamentally
unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135
(2007).
¶ 109 Although the Strickland test is a two-prong test, our analysis may proceed in any order.
Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a trial
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court may dismiss the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264, 283
(1992). Thus, if a court finds that defendant was not prejudiced by the alleged error, it may
dismiss on that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476
(2003); People v. Albanese, 104 Ill. 2d 504, 527 (1984).
¶ 110 III. Failure to Introduce Lab Report
¶ 111 Defendant argues, first, that counsel was ineffective on cross-examination because he
tried and failed to introduce a lab report showing that Motley had cocaine in his system on
the day of the incident, and because counsel later called the wrong hospital witness during
the defense case in an attempt to prove up the impeachment of the victim’s denial of cocaine
use on the day of the incident.
¶ 112 However, defense counsel did call a nurse who testified that the victim admitted to her
that he had used crack cocaine for five years, although the trial court misrecalled the
impeachment.
¶ 113 Defendant argues that the lab report of recent cocaine use would have undermined
Motley’s account of what he perceived that day.
¶ 114 Defendant’s argument overlooks the fact that a claim of ineffectiveness must be
evaluated based on the entire record, and defense counsel did a thorough job of exposing the
weaknesses and contradictions in the State’s case through cross-examination. People v.
Dobrino, 227 Ill. App. 3d 920, 934 (1992) (“Counsel’s performance must be evaluated based
on the entire record and not on isolated instances of alleged incompetence called into
question by defendant.” (citing People v. Flores, 128 Ill. 2d 66, 107 (1989))). Motley, the
victim, claimed on cross that the 57-year-old defendant pulled Motley up and off the ground
with just one hand and swung the bat at Motley’s head one-handed. Motley claimed that
defendant never hit Motley while Motley was on the ground.
¶ 115 By contrast, Riley testified on cross that defendant had both his hands on the bat and that
she never observed defendant grab Motley and lift him off the ground. Riley, who is the
godchild of Judy Taylor with whom Motley frequently stays, testified that she observed only
defendant hitting Motley. However, she acknowledged on cross that, in June 2011, she told
the police that she had observed a man, who was not defendant, hitting Motley with a bat.
Riley also testified that defendant swung “sideways” with the bat at Motley’s head. However,
she admitted that swinging sideways does not appear in her prior statement, and she read into
the record the portion of her prior signed statement in which she stated that “[w]hen Moochie
hit Carlos he held the bat over his head and swung down.”
¶ 116 Defense counsel did such an effective job of cross-examining Riley that the trial court
found that “she was not the most credible witness.” Concerning counsel’s effective
impeachment of Riley, the trial court observed: “There were things she was impeached on
that she should not have been. So the Court does have some suspicions with regard to what
she saw and what [she] did not see.” The court further found that defense counsel “perfected”
his impeachment of Riley by recalling Officer Frausto to testify about Riley’s prior statement
of what she “saw and did not see.”
¶ 117 While an attorney should know how to introduce a medical record into evidence at trial, it
is not reasonably probable that this one omission would have changed the result at trial where
the trial judge, as the fact finder, relied primarily on the testimony of another event witness,
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namely, Judy Taylor, and relied on Motley’s testimony principally for the limited fact that
defendant, whom Motley had known his whole life, was the one swinging the bat at him.
Domagala, 2013 IL 113688, ¶ 36 (the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different (citing Strickland, 466 U.S. at 694)).
¶ 118 Defendant argues that the “report would have undermined Motley’s account of what he
perceived on that day,” namely, whether it was Spivey who was hitting him on the head with
a bat and not defendant. Even if defense counsel had successfully introduced the lab report
showing recent cocaine use,9 it is not reasonably probable that this evidence would have
changed the outcome at trial, in light of the fact that the nurse at the hospital testified that,
even after receiving a head injury, Motley was still alert, oriented and able to provide a
rational and responsive answer to her question about drug use.
¶ 119 Thus, we do not find persuasive defendant’s claim that his attorney’s failure to introduce
evidence of recent cocaine use had a reasonable probability of changing the outcome at trial.
¶ 120 IV. Failure to Call Impeaching Witnesses
¶ 121 Defendant’s second claim is that defense counsel failed to call witnesses to perfect his
impeachment of the victim.
¶ 122 First, during cross, counsel asked Motley whether he had talked to either Laurence Hatter
or Bernard Bynum about this case and defendant denied it. Counsel also asked Motley
whether he knew Mike Fuller or a man named Calvin, and Motley stated that he knew Mike
Fuller and “a lot of Calvins.” Defendant claims that counsel was ineffective for failing to call
these friends of the victim in order to impeach him.
¶ 123 Second, counsel asked Motley: “Is it true, sir, when you were asked by hospital personnel
you told them that three people assaulted you?” However, the court sustained the objection to
this question because counsel failed to perfect the impeachment by failing to subpoena
hospital personnel who could substantiate this prior inconsistent statement.
¶ 124 A. Victim’s Friends
¶ 125 Defendant claims that counsel should have called four of the victim’s friends to testify
about the victim’s conversations with them about the incident: (1) Laurence Hatter; (2)
Bernard Bynum; (3) Mike Fuller; and (4) “Calvin.” Defendant’s only support for the fact that
there were prior conversations is counsel’s questions about them. However, with respect to
Mike Fuller and Calvin, counsel asked only if the victim knew them; he did not ask about
prior conversations. Thus, there is no support in the record that there were prior inconsistent
statements by the victim to Fuller and Calvin.
¶ 126 With respect to Laurence Hatter and Bernard Bynum, the record establishes that counsel
did subpoena them to testify and they appeared in court on scheduled trial dates. Both Hatter
and Bynum acknowledged in open court on October 16, 2012, in response to specific
questions by the judge, that they had been subpoenaed by defense counsel to testify at trial.
In response to the subpoena, Hatter appeared in court on both August 27, 2012, and October
9
As noted, defense counsel did introduce evidence of Motley’s five-year cocaine use which lent
support to Spivey’s comment that Motley had “smoked the phone up.”
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16, 2012, which were dates scheduled for trial, as well as on January 8, 2013, the first day of
trial. Bynum appeared in court on October 16.
¶ 127 The record does not disclose why Hatter and Bynum did not testify at trial: whether
defense counsel failed to continue their subpoenas for the presentation of the defense case on
February 7 and March 13, 2013; whether counsel made a strategic decision not to call them
after further investigation; whether they simply tired of appearing without being called; or
whether there is some another explanation. Dobrino, 227 Ill. App. 3d at 934 (“a matter of
defense strategy will not support a claim of ineffective representation” (citing People v.
Madej, 106 Ill. 2d 201, 214 (1985))). The State argues that the record on appeal was not
developed for the purpose of answering this question and that this question would be better
resolved at a collateral proceeding. We agree. This court has repeatedly held that, when the
basis of defendant’s ineffectiveness claim relies on matters not of record, the claim is better
brought in a collateral proceeding. People v. Minniefield, 2014 IL App (1st) 130535, ¶ 3;
People v. Brown, 2014 IL App (1st) 122549, ¶ 41 (when a claim relies on matters outside of
the record, it may not be brought on direct appeal and the rule of forfeiture is relaxed in a
collateral proceeding). A collateral proceeding is generally a better forum for adjudication of
ineffective assistance claims. People v. Flores, 231 Ill. App. 3d 813, 827-28 (1992) (without
an explanation from trial counsel, a reviewing court cannot determine whether counsel’s
omissions involved the exercise of judgment, discretion or trial tactics).
¶ 128 B. Statement to Hospital Personnel
¶ 129 Defendant also claims that counsel was ineffective for failing to subpoena hospital
personnel who could have substantiated an allegedly prior inconsistent statement made to
them by Motley that three people had assaulted him. The State argues that the record is
insufficient for answering this question and thus would be better resolved at a collateral
proceeding.
¶ 130 First, there is no evidence of this statement in the record on direct appeal, other than
counsel’s question which Motley denied. Second, the record does not disclose the name of
the person to whom this statement was allegedly made. If the statement had been made to
Pamela Banks, the triage nurse, then counsel may have made a strategic decision not to
inquire further about it, in light of the fact that it contradicts the testimony of every event
witness, both State and defense. Dobrino, 227 Ill. App. 3d at 934 (“a matter of defense
strategy will not support a claim of ineffective representation” (citing Madej, 106 Ill. 2d at
214)). As we observed before, matters not supported by the trial record are not appropriately
raised on direct appeal. Brown, 2014 IL App (1st) 122549, ¶ 41 (when a claim relies on
matters outside of the record, it may not be brought on direct appeal).
¶ 131 V. Failure to Call Character Witnesses
¶ 132 Defendant’s third claim is that defense counsel failed to call witnesses, as promised
during his opening, who would testify concerning defendant’s peaceful nature and
impeccable reputation in the community. People v. Bryant, 391 Ill. App. 3d 228, 238 (2009)
(counsel may be deemed ineffective if he promises a particular witness during his opening
statement but does not provide the promised testimony (citing People v. Ligon, 365 Ill. App.
3d 109, 119-20 (2006))); but see People v. Wilborn, 2011 IL App (1st) 092802, ¶ 80
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(counsel’s “decision not to provide promised testimony may be warranted by unexpected
events”).
¶ 133 In the case at bar, the trial judge found that Charlita Riley was impeached and that Judy
Taylor never observed defendant strike the victim. Thus, the trial was a credibility dispute
between the victim on one hand, and defendant and Spivey on the other, as to whether Spivey
alone struck the victim or whether defendant struck him as well. On appeal, defendant claims
that there is a reasonable probability that the testimony of character witnesses would have
tipped this credibility dispute in his favor.
¶ 134 The record indicates that defense counsel did, in fact, investigate and subpoena numerous
witnesses who appeared in the courtroom on scheduled trial dates. First, the record contains
defendant’s April 16, 2012, answer to the State’s motion for discovery, which listed six
potential defense witnesses, only one of whom actually testified. Second, on August 27,
2012, when the case was originally set for trial, four defense witnesses appeared in court. We
know that defense counsel had served each one of them with a subpoena because the court
asked, “You were all subpoenaed by [defense counsel] today?” and each one replied “[y]es.”
The trial court then continued the subpoenas and instructed the witnesses to appear again on
October 16, 2012, the new trial date. However, none of these four witnesses testified at the
actual trial.
¶ 135 Third, on October 16, 2012, three of the defense witnesses who had appeared on the prior
date were again present in court, as well as two additional witnesses. After the trial date was
again continued, defense counsel informed the judge that his “subpoenaed witnesses” were
here, and the judge replied that she had “figured as much” because she had heard “all” of
them “blowing in the back of [her] courtroom” after the date was continued. The court then
directed the witnesses to approach the bench and state their names, and then she inquired
whether “[a]ll of you were subpoenaed by [defense counsel] for the case of [defendant]” and
they all replied affirmatively. The court then continued the subpoenas and instructed the
witnesses to appear again on November 19, which the court stated would be “the final
continuance date.” However, on November 19, the trial was again continued to January 8,
2013. Defense counsel informed the court that, since the State had notified him of a problem,
he had “called off [his] witnesses.” As a result, the trial court did not instruct the defense
witnesses in open court about the actual trial date.
¶ 136 Fourth, although the defense witnesses were not instructed in open court about the actual
trial date, we know that at least one of them was in court then. On January 8, 2013, defense
counsel was trying to impeach Motley with prior statements that he had made to Laurence
Hatter, and the court inquired whether “[t]his witness is here” and defense counsel replied
“yes.”
¶ 137 However, a month later, on February 7, 2013, when the defense case began, and again on
March 13, 2013, when the defense case continued, Hatter was not called as a witness, nor
were any of the other witnesses who had appeared on prior court dates. The record before us
does not disclose the reasons for their absence. We do not know whether defense counsel
failed to continue their subpoenas for the dates of the defense case, whether he decided not to
call them after further investigation, or whether there is some other explanation. While an
attorney may force a witness to appear on repeated dates through the use of a subpoena, a
peeved witness may not make the best character witness. The State argues that we lack a
sufficient record on direct appeal, and we agree.
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¶ 138 “A defense counsel’s failure to provide testimony promised during opening statements is
not ineffective assistance of counsel per se.” Wilborn, 2011 IL App (1st) 092802, ¶ 80.
Although a defense “counsel’s assistance may be ineffective if he or she promises” during
opening that “a particular witness will testify” and the witness is not called at trial, “we have
also recognized that counsel’s decision to abandon a trial strategy during trial may be
reasonable under the circumstances and that the decision not to provide promised testimony
may be warranted by unexpected events.” Wilborn, 2011 IL App (1st) 092802, ¶ 80. Since
the record on appeal was not developed to establish either the reasons of the trial attorney or
the motives of the witnesses, this issue cannot be resolved on direct appeal. Brown, 2014 IL
App (1st) 122549, ¶ 41 (when a claim relies on matters outside of the record, it may not be
brought on direct appeal); Flores, 231 Ill. App. 3d at 827-28 (without an explanation from
trial counsel, a reviewing court cannot determine whether counsel’s omissions involved the
exercise of judgment, discretion or trial tactics).
¶ 139 CONCLUSION
¶ 140 For the foregoing reasons, we are not persuaded by defendant’s claim on this appeal that
his trial counsel was ineffective, and we affirm his conviction and sentence.
¶ 141 Affirmed.
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