People v. Saleh

2020 IL App (1st) 172979
No. 1-17-2979
Opinion filed September 30, 2020
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 07 CR 4544
)
ALI SALEH, ) The Honorable
) William T. O’Brien,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Ali Saleh appeals from the second-stage dismissal of his
petition for postconviction relief.
¶2 Defendant, age 52, was convicted after a bench trial of the aggravated
battery of Robert Schmitt, age 33, and sentenced to 30 months of felony
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probation. The charges stemmed from an altercation between defendant, who
was a Chicago taxicab driver, and a group of passengers in his cab who had
been drinking on a Saturday night in Wrigleyville. This court affirmed
defendant’s conviction and sentence on appeal. People v. Saleh, 2011 IL App
(1st) 100853-U.
¶3 Defendant's petition claims that his trial counsel was ineffective for
failing to call defendant’s dentist in support of defendant’s claim of self-
defense. Defendant testified at trial that he did not initiate the conflict, that he
acted in self-defense, and that Schmitt punched defendant in the back of his
head, causing defendant to hit his teeth on the roof of his cab.
¶4 For the following reasons we affirm the trial court’s second-stage
dismissal.
¶5 BACKGROUND
¶6 I. Pretrial Proceedings Regarding the Dentist
¶7 After defendant’s pretrial motion for the passengers’ credit card records
to establish their alcohol consumption and his pretrial motion to quash his arrest
were denied, defendant’s original attorney moved to withdraw, and a second
attorney filed an appearance. It is the effectiveness of this second attorney that
defendant placed at issue on this appeal, and we will refer to him as trial
counsel.
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¶8 On January 20, 2009, when trial counsel first appeared in court, he stated
that he was retained “very recently,” that he had not yet received the file from
the prior attorney, but that he wanted “to move the case to trial as rapidly as
possible.” However, on January 27, 2009, he requested more time in order “to
get subpoenas issued.” After several more continuances, trial counsel informed
the court on September 8, 2009: “I don’t have the subpoena I need for [the]
dentist, who fixed my client’s teeth. I need to be able to get him in.” The
assistant State’s attorney (ASA) replied: “he just informed me of a dentist, and
I don’t have any information on that.”
¶9 On September 28, 2009, the following exchange occurred:
“THE COURT: This is set for a bench trial
TRIAL COUNSEL: Yes, Judge, defense is not ready for trial today.
We’re having some difficulty with our dentist that we need. I’d like to
have a date, so that I could issue a subpoena and make sure he’s here.”
Also on September 28, 2009, trial counsel filed defendant’s answer to discovery
which stated that defendant “intends to call as a witness Dr. M. Salih, [address
and phone number], who will testify regarding his treatment of injuries
sustained by the [d]efendant at the hands of the complaining witnesses.” The
answer further stated that defendant “intends to utilize [d]efendant’s medical
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records from Salih Dental Center, and will provide them to the State as soon as
they are received.”
¶ 10 On October 19, 2009, the ASA informed the trial court:
“Counsel had filed an answer of self-defense and listed a witness, an
individual whose name is [Salih]. We attempted to interview that dentist
and we received a fax in the office indicating that he’s been out of the
country for the past three months due to his wife’s death. And the
individual indicated, ‘I tried to look for the records of the patient, the
defendant, but could not find them, called the doctor overseas, asked him
for it, but, unfortunately, he says he has them in his office which I don’t
have access to.’ ”
¶ 11 The ASA stated he was not provided the dentist’s return date, and trial
counsel asked to set the case for status on November 6, 2009, because: “That
way we can see if he’s back or know when he will be back.” On November 6,
trial counsel moved for a trial date of December 17, 2009. After another
continuance, the case proceeded to a bench trial on January 11, 2010, with both
sides answering that they were ready.
¶ 12 II. Trial
¶ 13 At trial, Robert Schmitt, a high school history teacher, testified that his
younger sister, Katie Schmitt, visited him in Chicago on Saturday, December
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16, 2006, to celebrate her twenty-first birthday. Since Katie shares the same
last name as the victim, we will refer to her as Katie and refer to the victim as
Schmitt. On December 16, Schmitt, Katie, and Schmitt’s then-fiancée and now
wife, Carrie Gilson, departed from his apartment at 8 p.m. and proceeded,
during the course of the evening, to three different establishments where they
consumed both food and alcohol. Schmitt consumed a total of four drinks: two
gin-and-tonics and two beers.
¶ 14 Schmitt testified that, shortly after midnight on December 17, 2006, they
hailed defendant’s yellow taxicab. Schmitt sat behind the front passenger seat,
Gilson sat behind the driver, and Katie sat between them. As the cab
approached the intersection of Ashland and Belmont Avenues, Katie
complained that she felt sick, and Schmitt responded that she would be all right
and they were close to his apartment. However, as the cab crossed Ashland
Avenue, Katie insisted that it pull over because she was going to be sick.
Schmitt asked defendant to pull over, and he did so. When the cab stopped,
Schmitt opened the back passenger-side door and exited the cab. Katie moved
across the back seat and leaned her body outside of the cab to vomit. Although
seated in the back seat, Katie’s arms, legs and head were leaning outside of the
cab. While standing outside of the cab, Schmitt heard defendant speaking in a
heated tone to Gilson, who remained in the cab, but Schmitt could not hear
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No. 1-17-2979
what was said. Katie exited the vehicle and continued vomiting on the
sidewalk, approximately six feet from the cab, while Schmitt stood next to her.
¶ 15 Schmitt testified that he heard Gilson and defendant arguing and, then,
Gilson yelling: “He hit me, he hit me.” Schmitt observed Gilson standing
outside the cab, on the driver’s side, holding her face, with defendant standing
about a foot away from Gilson, facing her. Schmitt ran over and pushed
defendant’s chest with his open palms, to shove defendant away from Gilson.
When pushed, defendant backed up toward the cab door, turned, and then
slapped Schmitt across the left side of Schmitt’s face with his right hand.
Schmitt did not observe a weapon in defendant’s hand, and defendant’s palm
was open.
¶ 16 Schmitt testified that both Gilson and Katie started screaming when they
observed blood pouring down Schmitt’s face. Schmitt had a 3 to 3½ inch open
wound and was losing a significant amount of blood at a fast pace. Defendant
drove away, and Gilson called 911. The police and paramedics arrived, and an
ambulance transported Schmitt to a hospital where he received 38 stitches on
the right side of his face. Schmitt testified that he had a permanent three-inch
scar above his jaw.
¶ 17 Gilson testified that she was also a passenger in defendant’s cab. After
Schmitt and Katie exited the cab, Gilson remained inside. Defendant shouted at
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No. 1-17-2979
Gilson in English and another language that Gilson should exit his cab. When
Gilson told him to “calm down,” defendant’s tone escalated and he used
profanity. As Gilson opened the back driver’s-side door to exit the cab,
defendant also exited the front driver’s-side door. Gilson was standing a foot
away from defendant, outside of the cab, when defendant punched her in the
jaw. Gilson started screaming, and Schmitt ran between her and defendant and
pushed defendant away. Defendant reached back with his right hand and
slapped Schmitt on the left side of Schmitt’s face. Defendant then quickly
drove away. Gilson testified that Schmitt’s “face was gaping open and blood
was just coming out rapidly” and “dropping on his clothes.” Gilson did not
observe a weapon in defendant’s hand. Gilson testified that she called 911
and gave the dispatcher defendant’s taxi number and his physical description.
Later that day, she identified defendant at the police station as the person who
slapped Schmitt.
¶ 18 Officer Martin Walsh testified that he had been a Chicago police officer
for 10 years. On December 17, 2006, he responded to a call of a “person with a
knife,” and he met Schmitt, Gilson and Katie standing on the street. Walsh
observed that Schmitt had a three-inch gash on his cheek, and Gilson had
redness and swelling on the right side of her cheek and a swollen lip. Gilson
did not appear under the influence of alcohol as she provided defendant’s taxi
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No. 1-17-2979
number and description. Walsh testified that Gilson later identified defendant
as the offender at the police station.
¶ 19 Sergeant William Brannigan testified that he had been a police officer for
over 15 years. On December 17, 2006, at 12:15 a.m. he received a message that
a victim had been stabbed during a dispute with a taxicab driver. Brannigan
observed the cab with the reported number, as Brannigan was traveling in a
marked police vehicle, and he followed the cab for three blocks. The cab then
pulled into a police station parking lot and parked. Defendant exited the cab
without being told to do so, and Brannigan asked defendant if he had been
involved in a dispute. After defendant replied affirmatively, Brannigan took
him into custody. Later, when Brannigan searched the cab, he did not observe
or smell vomit and he did not find a weapon.
¶ 20 Detective Michael McDonough testified that he had been a Chicago
police officer for 20 years. On February 8, 2007, his sergeant informed him
that defendant’s case was in misdemeanor court, but that the ASA wanted to
upgrade the charge to a felony.1 McDonough went downstairs to misdemeanor
court and waited in the hallway, outside of the courtroom, for defendant to exit.
When defendant entered the hallway, McDonough stopped him and stated that
the police needed to continue their investigation with him upstairs. They went
1
The felony indictment was filed in this case on March 9, 2007, and
indicates that McDonough was the sole witness.
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No. 1-17-2979
upstairs, to an interview room, where defendant chose not to waive his
constitutional rights and exited the room. However, defendant returned
voluntarily, 20 minutes later, to the interview room and knocked on the door.
McDonough again advised defendant of his constitutional rights, and defendant
again exercised his right not to waive them. Defendant then stated that, when
he stopped the cab because Katie was sick, Schmitt and Gilson became angry
and screamed for him to take them home. Schmitt then exited and tried to fight
defendant, and defendant hit Schmitt with his right hand “very slightly, on the
face.” Defendant stated that he probably had his keys in his hand when he
struck Schmitt. McDonough testified that: “The wound to Mr. Schmitt’s face,
in my opinion, would be a razor blade, or box cut, or something along those
lines.”
¶ 21 The State rested, and defendant moved for a directed finding, arguing
that the State had failed to prove, beyond a reasonable doubt, that defendant
was not acting in self-defense. After the trial court denied the motion,
defendant chose to testify on his own behalf.
¶ 22 Defendant testified that he had been a taxi driver for 30 years. Schmitt,
Gilson and Katie hailed his cab at 11:30 p.m. on December 16, 2006. Shortly
after, Katie appeared sick. Defendant told them that he wanted to stop and pull
the cab over, but Schmitt and Gilson insisted that he continue driving. When
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No. 1-17-2979
defendant observed Katie place her hand on her mouth and vomit into her hand,
he pulled the cab over, at the intersection of Belmont and Ashland Avenues.
When he parked, he asked Schmitt to make sure Katie finished vomiting
outside. Defendant told Gilson that, if they had let him stop earlier, Katie
would not have vomited inside his cab. Defendant testified that the “smell,” at
this point, was “getting bad.” Gilson called him insulting names and told him:
“Shut up, go back to your country.” Defendant asked Gilson to leave but she
still wanted him to take them home. When he informed Gilson that he would
not drive them further, Gilson continued to call him insulting names and was
using profanity.
¶ 23 Defendant testified that, because Gilson appeared unwilling to exit, he
opened her door and said: “Please get out of the cab.” As Gilson exited, she
tried to punch him in the mouth, but he blocked her fist by grabbing her hand.
Gilson then screamed: “He hit me, he hit me.” Schmitt ran over, and defendant
told Schmitt that he had not hit Gilson, but Schmitt hit him anyway. When
defendant turned toward his cab, Schmitt punched him with a closed fist on the
back of his head, saying: “You’re a f***ing terrorist.” The blow caused
defendant to hit his teeth on the top of his cab hard enough to loosen a tooth.
Schmitt and Gilson then simultaneously attacked him, with Gilson grabbing his
hair and scratching his neck and Schmitt punching and jabbing his knee against
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No. 1-17-2979
defendant’s stomach. Defendant then struck Schmitt’s face with his keys in his
hand. Defendant drove away and called 911 to report the incident. Defendant
pulled into the parking lot of a police station, where he told officers what had
happened and they arrested him. On February 8, 2007, when he spoke to
Detective McDonough, he told the detective that Gilson had called him
insulting names and scratched his throat but he did not inform the detective that
Gilson or Schmitt had hit him or that he had injured his teeth during the
incident.
¶ 24 After the defense rested, the State called Officer Kevin Finnegan in
rebuttal who testified that he had been a Chicago police officer for 14 years.
On December 17, 2006, he processed defendant’s arrest and booking, and he
did not observe any injuries or scratches on defendant. Defendant did not
inform Finnegan that he was injured or had been punched, scratched or had
loose teeth. Officer Finnegan asked defendant whether he had any injuries, and
defendant indicated that he did not. After listening to closing arguments, the
trial judge continued the proceedings for a few days to allow him to review his
notes.
¶ 25 On January 15, 2010, the trial judge announced his findings, observing
that there was “a question of credibility” between Schmitt and his wife on the
one side and defendant on the other. The Schmitts claimed that defendant
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No. 1-17-2979
attacked them, while defendant claimed that he was attacked first and acted in
self-defense. The judge noted that, according to the Schmitts, “the sequence of
events” was that (1) defendant punched Gilson; (2) Schmitt pushed defendant
against the cab; and (3) defendant struck Schmitt. The judge noted that, in
contrast, according to defendant, the sequence of events was that: (1) Gilson
tried to punch defendant who grabbed her arm; and (2) Schmitt ran over and
struck defendant in the back of the head, “forcing defendant’s face into the cab
[and] causing the defendant’s teeth to strike the cab and loosening his teeth.”
¶ 26 The trial court found that “[t]he testimony and the photos clearly
support” the Schmitts’ “version.” For example, Gilson testified that defendant
punched her; and Officer Walsh, the first officer on the scene, testified that he
“noted the injury to her.” In addition, photos taken of her “clearly” showed her
injury, while no injury was noted on defendant. The trial court found that
defendant was “the initial aggressor” and that defendant was not injured.
¶ 27 The trial court observed that, “in the defendant’s own words,” the
“smell” in his cab was “bad.” “Yet minutes after this confrontation,” the
officer who placed defendant under arrest did not observe or smell vomit.
Although defendant claimed that he called 911 and ended the call when he
pulled into the police station, there was no evidence that this 911 call was made.
Regarding the claimed dental injury, the trial court observed:
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No. 1-17-2979
“Even after the defendant’s arrival to the station, he never tells the police
that he was attacked by the Schmitt[s]. He claims that he was injured.
He had loose teeth and scratches to the neck, but the lock-up keeper
Finnegan testified that he had interviewed [defendant], [and] there were
no complaints of any injury or illness and he also examined the booking
photo which does not depict any injury to [defendant’s] neck.”
The trial court then found defendant guilty of aggravated battery to Schmitt,
who was the only victim mentioned in the indictment.
¶ 28 On February 18, 2010, defendant was sentenced to 30 months of felony
probation and, on March 18, 2010, he filed a pro se notice of appeal. On
appeal, defendant claimed that the trial court erred in finding that he possessed
the requisite intent for aggravated battery, where the State failed to prove
beyond a reasonable doubt that he knew that slapping Schmitt with an open
palm would cause great bodily harm or disfigurement. This court found \the
claim unpersuasive in light of his admitted “utilization of the keys” (Saleh,
2011 IL App (1st) 100853-U, ¶ 43); and we affirmed his conviction on appeal
on December 16, 2011. Saleh, 2011 IL App (1st) 100853-U, ¶¶ 44-46.
¶ 29 On June 13, 2012, defendant filed a pro se postconviction petition. After
the petition advanced to the second stage and counsel was appointed, defendant
filed a supplemental petition on July 27, 2016. Defendant alleged that his trial
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No. 1-17-2979
counsel was ineffective for failing to call his dentist at trial to corroborate
defendant’s testimony that he was injured by Schmitt and acted in self-defense.
The supplemental petition further alleged that the dentist “refuses to sign an
affidavit that he signed the [attached] letter dated February 6, 2007 that contains
his opinion [that defendant’s] tooth was traumatized; however, [the dentist]
released his treatment records of [defendant] which are attached as evidence of
treatment.”
¶ 30 The petition was supported by: (1) an affidavit by defendant averring
that the petition is “true and correct” and “made upon personal knowledge and
belief”; (2) a Rule 651(c) (eff. July 1, 2017) certificate by his attorney which
stated, among other things, that she had “interviewed [the dentist], and
examined his dental files of [defendant]; however, [the dentist] refused to sign
an affidavit.”
¶ 31 The petition included a letter apparently signed by the dentist, dated
February 6, 2007, on the dental center’s letterhead stationery. The letter stated,
in relevant part:
“This is to certify that [defendant] presented to my office [a] few
weeks ago with a complaint that ‘somebody hit me in the face and losen
[sic] my teeth in a fight.’
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Upon dental exam it was found that tooth #25 (fron[t] lower tooth) has
been traumatized and very lose [sic], has mobility of +4 which must be
extracted. It was also found that some losening [sic] on upper front
bridge opposing tooth #25.”
Another letter, dated June 20, 2007, also apparently signed by the dentist and
also on the dental center’s letterhead stationery, stated that defendant was “in
need” of certain “treatment as a result of the accident he had and been examined
for on feb. [sic] 6, 2007.” The petition included dental records for defendant
from 2007 through 2011, with the initial date being February 6, 2007.
¶ 32 On July 14, 2017, the State moved to dismiss. The trial judge who heard
the motion was the same trial judge who had presided over defendant’s pretrial,
trial and sentencing proceedings; and on October 20, 2017, he found:
“In reviewing the proceedings and also [I] recall the case, the motion
to dismiss is granted. The Court agrees *** that counsel was not
ineffective for his decision not to call defendant’s dentist as a witness.
*** [B]asically it would not have made a difference, in effect, that the
testimony by the officer and other witnesses contradicted that kind—
those kinds of assertions that [defendant] wanted to make.”
On October 27, 2017, defendant filed a timely notice of appeal, and this appeal
followed.
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¶ 33 ANALYSIS
¶ 34 I. Post-Conviction Hearing Act
¶ 35 Defendant seeks relief under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2018)).
¶ 36 The Act provides a statutory remedy for criminal defendants who claim
their constitutional rights were violated at trial. People v. Edwards, 2012 IL
111711, ¶ 21. It is not a substitute for an appeal, but rather a collateral
proceeding that attacks a final judgment. Edwards, 2012 IL 111711, ¶ 21.
¶ 37 The Act provides for three stages of review by the trial court. People v.
Domagala, 2013 IL 113688, ¶ 32. At the first stage, the trial court may
summarily dismiss a petition only if it is frivolous or patently without merit.
725 ILCS 5/122-2.1(a)(2) (West 2018); Domagala, 2013 IL 113688, ¶ 32.
¶ 38 At the second stage, counsel is appointed if a defendant is indigent. 725
ILCS 5/122-4 (West 2018); Domagala, 2013 IL 113688, ¶ 33. After counsel
determines whether to amend the petition, the State may file either a motion to
dismiss or an answer to the petition. 725 ILCS 5/122-5 (West 2018);
Domagala, 2013 IL 113688, ¶ 33. At the second stage, the trial court must
determine “whether the petition and any accompanying documentation make a
substantial showing of a constitutional violation.” People v. Edwards, 197 Ill.
2d 239, 246 (2001).
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No. 1-17-2979
¶ 39 If the defendant makes a “substantial showing” at the second stage, then
the petition advances to a third-stage evidentiary hearing. Domagala, 2013 IL
113688, ¶ 34. At a third-stage evidentiary hearing, the trial court acts as
factfinder, determines witness credibility and the weight to be given particular
testimony and evidence, and resolves any evidentiary conflicts. Domagala,
2013 IL 113688, ¶ 34.
¶ 40 II. Forfeiture
¶ 41 The State argues that defendant’s claim of ineffective assistance of trial
counsel was forfeited by his failure to raise the issue on direct appeal.
¶ 42 “Issues that were decided on direct appeal are barred by the doctrine of
res judicata, and issues that could have been raised on direct appeal, but were
not, are deemed waived.” People v. Enis, 194 Ill. 2d 361, 375 (2000).
¶ 43 In response, defendant argues that he could not have raised this claim on
direct appeal because the dentist’s papers, which are now attached to his
petition, were not part of the court record. It is well-established that “[w]aiver is
not implicated *** where a defendant’s post conviction claim relies on evidence
dehors the record.” Enis, 194 Ill. 2d at 375-76. By the record, the Act means “
‘the court file of the proceeding *** and any transcripts of such proceeding. ’ ”
People v. Sanders, 2016 IL 118123, ¶ 43 (quoting 725 ILCS 5/122-2.1(c) (West
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No. 1-17-2979
2014)). See also People v. Robinson, 2020 IL 123849, ¶ 45 (“the trial record”).
Thus, we do not find the State’s argument persuasive.
¶ 44 In addition, an appellate court always has an independent duty to
consider whether it has jurisdiction to review a case, and we find that we do for
the reasons discussed below. See 725 ILCS 5/122-1(a) (West 2018) (any person
serving a sentence may institute a proceeding under the Act). Since the
sentencing occurred on February 18, 2010, it appears that defendant’s sentence
of 30 months’ probation had not yet run before he filed his pro se
postconviction petition on June 13, 2012, approximately 28 months after his
sentencing.2 In his pro se petition, defendant alleged that he was “a couple of
months away from successfully completing [his] probation.” The State does not
argue that we lack jurisdiction to hear his petition because his sentence was
complete prior to the filing of his pro se petition. Thus, we find that we have
jurisdiction to hear this appeal.
¶ 45 III. The Second Stage
¶ 46 Defendant’s petition was dismissed at the second stage. The issue at the
second stage is whether the petitioner made a substantial showing such that an
2
Neither the presentencing report nor the trial judge at the sentencing
hearing indicated that defendant was to receive any credit for time prior to
sentencing. In the case at bar, defendant was out on bond prior to his conviction
on January 15, 2010. After the trial court’s finding of guilt, the State asked that
bond be revoked, but the trial court denied the motion, finding that “[b]ond will
stand.”
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No. 1-17-2979
evidentiary hearing is warranted. People v. Sanders, 2016 IL 118123, ¶ 37. At
the second stage, the allegations in the petition are “liberally construed in favor
of the petitioner.” Sanders, 2016 IL 118123, ¶ 30. “All well-pleaded factual
allegations must be taken as true.” Sanders, 2016 IL 118123, ¶ 37. “[T]here
are no factual issues” at the second stage. Sanders, 2016 IL 118123, ¶ 31.
“Credibility determinations may be made only at a third-stage evidentiary
hearing.” Sanders, 2016 IL 118123, ¶ 42.
¶ 47 At the second stage, a court considers only the proofs attached by
defendant to his petition and the record of his original trial proceedings.
Sanders, 2016 IL 118123, ¶¶ 45, 48. The Act specifically requires the
petitioner to attach to his petition “affidavits, records or other evidence
supporting the petition’s allegations or state why the same are not attached.”
Sanders, 2016 IL 118123, ¶ 45 (citing 725 ILCS 5/122-2 (West 2014)). The
court must accept as true both the petition’s allegations and its supporting
evidence “unless they are positively rebutted by the record of the original trial
proceedings.” Sanders, 2016 IL 118123, ¶ 48.
¶ 48 When no evidentiary hearing is held, a reviewing court’s standard of
review is de novo. Sanders, 2016 IL 118123, ¶ 31 (a second-stage dismissal is
reviewed de novo). De novo consideration means that we perform the same
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No. 1-17-2979
analysis that a trial judge would perform. People v. Carrasquillo, 2020 IL App
(1st) 180534, ¶ 107.
¶ 49 IV. Ineffective Assistance of Counsel
¶ 50 Defendant’s sole claim is that his trial counsel was ineffective. To prevail
on a claim of ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance was deficient, and that this deficient performance
prejudiced the defendant. Domagala, 2013 IL 113688, ¶ 36. Specifically, at the
second stage, a defendant must make a substantial showing: (1) that counsel’s
performance was objectively unreasonable under prevailing professional norms;
and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
See Domagala, 2013 IL 113688, ¶ 36. “The failure to satisfy either the
deficiency prong or the prejudice prong of the Strickland test precludes a
finding of ineffective assistance of counsel.” Enis, 194 Ill. 2d at 377.
¶ 51 “A reasonable probability is a probability sufficient to undermine
confidence in the outcome, namely, that counsel’s deficient performance
rendered the result of the trial unreliable or the proceeding fundamentally
unfair.” Enis, 194 Ill. 2d at 376.
¶ 52 Specifically, defendant claims that his counsel was ineffective for failing
to call his dentist as a witness. Generally, “decisions concerning whether to call
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No. 1-17-2979
certain witnesses on a defendant’s behalf are matters of trial strategy, reserved
to the discretion of trial counsel.” Enis, 194 Ill. 2d at 378. “Such decisions
enjoy a strong presumption that they reflect sound trial strategy, rather than
incompetence [citation], and are, therefore generally immune from claims of
ineffective assistance of counsel.” Enis, 194 Ill. 2d at 378. However, “this is
not the case *** where counsel’s strategy was so unsound that no meaningful
adversarial testing was conducted.” Enis, 194 Ill. 2d at 378.
¶ 53 Defendant makes his ineffectiveness claim without a supporting affidavit
from the dentist himself. The Act provides that a petition “shall” attach
supporting affidavits “or other evidence,” “or shall state why the same are not
attached.” 725 ILCS 5/122-2 (West 2018). In the case at bar, defendant
provided a Rule 651(c) certificate from his attorney explaining why an affidavit
from the dentist was not attached, namely, because the dentist refused to sign
one.
¶ 54 Generally, “[a] claim that trial counsel failed to investigate and call a
witness must be supported by an affidavit from the proposed witness.” Enis,
194 Ill. 2d at 379. This is because, in the absence of such an affidavit, a
reviewing court cannot usually “determine whether the proposed witness could
have provided testimony or information favorable to the defendant” and, thus,
“further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 379.
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¶ 55 In Enis, the defendant failed to provide an affidavit from the witness, and
our supreme court stated that “even if” it considered an “investigation note,[3] in
lieu of an affidavit,” the defendant’s claim would fail. Enis, 194 Ill. 2d at 379.
This dicta in Enis suggests that there may be exceptional circumstances where a
reviewing court may consider another document “in lieu of an affidavit.” Enis,
194 Ill. 2d at 379.
¶ 56 Even if we were to consider the dentist’s letters and records, we do not
know whether the dentist would testify or in some way verify that defendant’s
injured teeth could or might be the result of an injury at the time of this
incident. Thus, we cannot find that defendant has made a substantial showing
of a reasonable probability that, but for trial counsel’s decision not to call the
dentist, the outcome would have been different.
¶ 57 In the case at bar, the victim of the aggravated battery charge, namely,
Schmitt, admitted that he shoved defendant toward the cab before defendant
laid a hand on Schmitt. Defendant argues that the dental records establish that
Schmitt’s shove was really a punch that was forceful enough to damage
defendant’s teeth, and that this act, in conjunction with other acts by the
Schmitts, was sufficient to justify defendant’s acting in self-defense.
3
The Enis opinion does not specify whether the investigation note was a
police note or the note of a defense investigator. Enis, 194 Ill. 2d at 379-80 (“an
unsigned, unsworn untitled report that defendant identifies as investigation notes
from ‘Consolidated Investigation *** Services.’ ”
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No. 1-17-2979
¶ 58 The first problem with this argument is that it ignores the police
testimony and other evidence that contradicted defendant’s account of events.
Defendant denied punching Gilson, but Officer Walsh, the first officer on the
scene, testified that Gilson appeared to be injured, with redness and swelling to
the right side of her cheek and a swollen lip; and photos of Gilson’s face further
substantiated her and Walsh’s testimony. In addition, defendant testified that
the vomit in his cab smelled “bad,” but another officer, Sergeant Brannigan,
testified that, when he searched the cab shortly after the incident, he did not
observe or smell any vomit. Although defendant testified that Gilson scratched
his neck while Schmitt punched him, Officer Finnegan, the booking officer, did
not observe any injuries or scratches on defendant. The same judge who
presided over both defendant’s bench trial and postconviction proceedings
found that testimony from the dentist would not have made a difference in light
of the police testimony and other evidence. Performing a de novo review, we
agree.
¶ 59 Second, even if we presumed that the dentist would have testified in
accord with the documents that defendant now presents, those documents
contradict each other. The first letter, dated February 6, 2007, states: “This is to
certify that [defendant] presented to my office few weeks ago [sic] with a
complaint that ‘somebody hit me in the face and lo[o]sen my teeth in a fight.’ ”
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However, a second letter, dated June 20, 2007, states: “This is to certif[y] that
[defendant] is in need of the following treatment as a result of the accident that
he had and been examined for on [F]eb. 6[,] 2007.” The first letter mentions a
fight, while the second letter mentions an accident. The first letter indicates that
defendant “presented” to the dentist’s office a few weeks prior to February 6,
2007, while the second letter and all the attached dental charts indicate that the
earliest examination date was actually February 6, 2007, almost two months
after the offense. By relating these facts, we are not engaging in a credibility
determination; rather, without his affidavit, we are left to guess as to which
version the dentist would testify to. One version would aid defendant by
showing a more immediate outcry, while one would undercut his trial testimony
by showing an unexplained gap in time of almost two months.
¶ 60 Third, it is hard to ignore the fact that the first entries made by the dentist
in his dental charts are dated February 6, 2007, almost two months after the
altercation, but only two days before defendant appeared in misdemeanor court
when the charges were shortly changed to felony charges.
¶ 61 Lastly, we cannot find that trial counsel acted below the norms of
professional conduct when he made the apparently strategic decision not to call
a witness who so consistently avoided any sworn statement. On September 28,
2009, trial counsel informed the court that he was “having some difficulty with
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No. 1-17-2979
our dentist.” On October 19, 2009, the ASA informed the court that the State
had also tried to interview the dentist and obtain records from him without
success. Defendant’s supplemental postconviction petition states that the
dentist refused to sign an affidavit confirming that he actually signed the letter,
dated February 6, 2007, which mentioned a fight and trauma to a tooth.
Postconviction counsel’s Rule 651(c) certificate states that she interviewed the
dentist but he refused to sign any affidavit. As our supreme court has observed
before, uncooperative witnesses do not always make the best witnesses. E.g.,
People v. Lewis, 105 Ill. 2d 226, 248 (1984) (where the ineffectiveness alleged
by a postconviction petition is counsel’s failure to call certain “uncooperative”
witnesses, “the tactical decision not to have them testify was reasonable and
could have been in defendant’s best interest”).
¶ 62 For all the foregoing reasons, we cannot find either: (1) that counsel’s
performance was objectively unreasonable under prevailing professional norms;
or (2) that there is a reasonable probability that, but for counsel’s alleged errors,
the result of the proceeding would have been different. See Domagala, 2013 IL
113688, ¶ 36.
¶ 63 CONCLUSION
¶ 64 For the foregoing reasons, we affirm the trial court’s second-stage
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dismissal of defendant’s postconviction petition.
¶ 65 Affirmed.
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No. 1-17-2979
No. 1-17-2979
Cite as: People v. Saleh, 2020 IL App (1st) 172979
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07 CR 4544;
the Hon. William T. O’Brien, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Elizabeth Cook, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, John E. Nowak, and Noah Montague, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
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