People v. Alexander

NOTICE
2021 IL App (5th) 170300-UNOTICE
Decision filed 04/28/21. The
This order was filed under
text of this decision may be NO. 5-17-0300 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Williamson County.
)
v. ) No. 00-CF-200
)
CHRISTOPHER L. ALEXANDER, ) Honorable
) Jeffrey A. Goffinet,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Barberis and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s dismissal of the defendant’s pro se amended postconviction
petition at the second stage of the postconviction proceedings is affirmed
where he failed to make a substantial showing that his appellate counsel was
ineffective.
¶2 At a jury trial in the circuit court of Williamson County, the defendant, Christopher
Alexander, was found guilty of first degree felony murder for participating in the
underlying offense of armed robbery that led to the death of Maxine McKenzie, a 78-year-
old widow. McKenzie was brutally murdered and sexually assaulted on June 24 or 25,
2000, after being robbed in her own home. The defendant was sentenced to 60 years’
imprisonment. This court affirmed the conviction and sentence. People v. Alexander, No.
1
5-04-0322 (2006) (unpublished order under Illinois Supreme Court Rule 23).
Subsequently, the defendant filed an amended pro se petition for postconviction relief
pursuant to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
(West 2016)), which was dismissed by the trial court at the second stage of the
postconviction proceedings. On appeal, the defendant argues that the court erred in
dismissing his postconviction petition in that it made a substantial showing of a
constitutional violation, i.e., that his appellate counsel was ineffective. For the following
reasons, we affirm.
¶3 I. BACKGROUND
¶4 On June 25, 2000, the defendant arranged a meeting with Orien Drew, the chief of
police of Carterville, Illinois, to speak with Drew about events he witnessed the night
before. During their discussion, the defendant told Drew that he had witnessed a murder
the previous night. Drew then suggested that they speak at the police station, to which the
defendant agreed. The defendant was not in custody at this time, and he voluntarily rode
to the police station with Drew. When they arrived at the station, the defendant was given
Miranda warnings, and he signed a waiver of his rights. Drew and Eric Frattini, a detective
with the Williamson County Sheriff’s Department, began to interview the defendant at 5:08
p.m. The defendant stated that he witnessed a murder in Hurst and that he knew where to
find the murder weapon, a gun. The defendant then directed the officers to a creek where
he indicated that the murder weapon had been discarded. He indicated that he took the gun
and threw it into the creek. A gun was subsequently found at this location.
2
¶5 After returning to the police station at approximately 8:30 p.m., the defendant
consented to a taped statement and was given his Miranda rights again. At around 9 p.m.,
during the course of the interview, Frattini noticed that the tape recorder was not working
properly, and they had to stop the interview to get a new recorder. A new recorder and
new tape were retrieved, and the defendant was given his Miranda rights before the
interview resumed. This interview ended at 9:30 p.m.
¶6 During the initial taped interview, the defendant told Drew and Frattini that at
approximately 4:30 p.m. on June 24, 2000, he was at home when Larry Reid walked by.
They talked, and the defendant agreed to buy some alcohol with Reid’s $50, since Reid
was underage. On the way to the store, they were joined by David Hernandez and Lucas
Duvall. When they arrived at the store, the defendant and Hernandez went inside while
Reid and Duvall stayed outside. They bought four 12-packs of beer and walked back to
the defendant’s home, where they drank beer and played cards. Shortly after 8 p.m., the
four men decided to go to Hernandez’s residence. Along the way, they saw a police car
and hid in a corn field, but they eventually made it to Hernandez’s garage. While there,
they drank beer and “huffed” some paint. Reid had cannabis, but an argument ensued over
it, and Reid left for the evening, taking his cannabis with him.
¶7 At some point, Hernandez went into the residence and obtained a .22-caliber
revolver. He said he wanted to rob someone. All three men handled the revolver, and
Hernandez told the defendant he could shoot it, so the defendant fired a shot toward the
back of the garage.
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¶8 The three men left the garage and walked to a nearby Mini Mart. Hernandez carried
the revolver in his waistband. When they arrived at the closed convenience store, someone
kicked in the glass door. The defendant and Hernandez went in and stole a case of beer.
The alarm sounded, and they saw a police car, so the three split up and went different
directions. The defendant made his way back to Hernandez’s garage.
¶9 The defendant noted that Hernandez and Duvall were not in the garage when he
returned to Hernandez’s house. When he exited the garage, he could see Hernandez and
Duvall knocking on the door of the McKenzie residence, which was next door to the
Hernandez residence. The defendant saw a woman come to the door, and Hernandez
pointed a gun at her. Hernandez and Duvall then entered the McKenzie residence. They
were inside for 20 minutes, while the defendant stayed where he was until he moved over
to look in the back door of the McKenzie’s house. After Hernandez, Duvall, and McKenzie
exited the house, Hernandez shot McKenzie while she stood on her steps. McKenzie
begged them not to kill her. Duvall then took the weapon and shot her, at which time she
fell onto the steps. Next, either Duvall or Hernandez told the other that they needed to
“finish her off” so there would not be a witness. Hernandez raped her on the steps, and
then Duvall did the same. Then, two or three more shots were fired into her head at point-
blank range. They then dropped the gun, stole the victim’s car, drove down the street, and
turned into a yard, where the vehicle became stuck. Hernandez and Duvall exited the car
and ran away.
¶ 10 The defendant then picked up the gun that had been dropped near the body and
entered the McKenzie residence to see if anyone else was dead. He saw that the victim’s
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dog had been killed. He saw a purse, with its contents strewn about the bedroom, and a
broken window in the kitchen entry door. The defendant left the house without trying to
help McKenzie. He did not call an ambulance or the police.
¶ 11 Sometime during the early morning hours of June 25, 2000, as the defendant’s
girlfriend was driving him toward Carterville, the defendant had her stop, and while
urinating, he tossed the gun into a creek crossing under the country road. He said that he
disposed of the gun because, earlier that night, he had touched it and fired it, and he did not
know if his fingerprints were still on it; he was afraid that Hernandez and Duvall would
say that he committed the murder. He then had his girlfriend take him to his great-aunt’s
house where he slept for approximately one hour. He left his great-aunt’s house at
approximately 10 a.m. He then went to his friend’s house and told his friend that he had
just witnessed a murder and asked advice on what to do. He eventually decided to speak
with a Williamson County investigator about what he saw; he met with Drew shortly before
5 p.m.
¶ 12 After this initial statement, Drew spoke with Hernandez and Duvall. Upon learning
that the defendant may have been more involved than he previously indicated, Drew
returned to the defendant to discuss what Hernandez and Duvall had said; it was
approximately 3 to 3½ hours before the officers returned to talk with the defendant again.
They talked to the defendant for about 1½ hours, and he agreed to make a recorded
statement. In his second statement, which began at 2:44 a.m., the defendant said that
everything he previously stated was accurate up to the point where he returned to
Hernandez’s house after leaving the Mini Mart. Instead of being separated, the three
5
returned together. The defendant then admitted he had been a “watch out” while the other
two were in the house and that he was the one who had driven the victim’s car in an attempt
to get away. After the car got stuck, they attempted to push it out, but were unsuccessful,
so they left it there and split up. He admitted accepting about $40 from the residence. The
defendant further admitted that he agreed to dispose of the gun after the car got stuck. In
this second statement, the defendant made no mention of entering the victim’s home. The
defendant was then arrested.
¶ 13 Duvall and Hernandez pled guilty to first degree felony murder, intentional murder,
and felony murder based on aggravated criminal sexual assault. At the defendant’s jury
trial, the State’s theory of the case was that Hernandez and Duvall were the principals and
that the defendant was accountable for their actions. In his defense, the defendant claimed
that he witnessed the offenses but did not knowingly or willingly participate. Both of the
defendant’s statements were replayed for the jury in their entirety. John Rother, a crime
scene investigator with the Illinois State Police (ISP), testified that a .22-caliber revolver
was recovered from the creek that the defendant identified as the location where he
disposed of the murder weapon. John Nagle, a former crime scene investigator with the
ISP, testified that he processed the outside of the victim’s vehicle and lifted latent prints on
the passenger side of the vehicle’s hood and front fender. Michael Cooper, a forensic
scientist with the ISP Southern Illinois Forensic Science Center, testified that he could not
say that the bullet fragments that were recovered from the victim’s body were fired from
the gun recovered from the creek; he also testified that he could not eliminate the gun as
the source of the fragments. Bruce Warren, a latent fingerprint examination specialist with
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the ISP, testified that two out of the three latent prints discovered on the exterior of the
victim’s vehicle matched the defendant’s palm print. After hearing the evidence, the jury
found the defendant guilty of first degree felony murder. The trial court sentenced him to
60 years’ imprisonment.
¶ 14 On direct appeal, the defendant made the following four arguments: (1) he was not
proven guilty beyond a reasonable doubt; (2) he was denied a fair trial because the State
presented highly prejudicial other-crimes evidence, the court admitted into evidence a
weapon that was not tied to the offense, and the State made an improper closing argument;
(3) his sentence of 60 years’ imprisonment was excessive; and (4) the compulsory
extraction of his blood and the storing of his DNA profile violated his fourth amendment
right to be free from an unreasonable search and seizure. This court affirmed his conviction
and sentence. People v. Alexander, No. 5-04-0322 (2006) (unpublished order under Illinois
Supreme Court Rule 23).
¶ 15 On June 13, 2007, the defendant filed a pro se petition for postconviction relief,
claiming, inter alia, that his right against self-incrimination was violated where his
statements were obtained without a knowing and voluntary waiver of his Miranda rights.
On July 21, 2016, the defendant’s appointed counsel filed an amended postconviction
petition, asserting that the defendant’s right against self-incrimination was violated where
his confession was taken without a valid waiver of his Miranda rights and his confession
was the product of coercion and undue influence, and he was denied his right to a fair trial
by an impartial jury due to pretrial publicity after his motion for change of place of trial
was denied. The petition also alleged that the defendant was denied effective assistance of
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appellate counsel where counsel failed to raise these issues on direct appeal. Counsel filed
a certificate in compliance with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).
¶ 16 On October 31, 2016, the trial court granted the defendant’s counsel leave to
withdraw pursuant to the defendant’s request. The defendant was allowed to proceed
pro se. On February 10, 2017, the defendant filed a pro se amended petition for
postconviction relief, contending, inter alia, that he was denied due process when his
confession was taken without a valid waiver of his Miranda rights, and he was denied his
right against self-incrimination and right to remain silent when his confession was the
product of coercion and undue influence. Specifically, he argued that he suffered from
impaired brain function, had a low IQ, had an extensive history of mental illness, and was
sleep deprived and under the influence of intoxicating substances at the time that he made
the incriminating statements, which made it impossible for him to knowingly and
voluntarily waive his Miranda rights. In support of this argument, he points to testimony
from Dr. Michael Gelbort, 1 a clinical neuropsychologist, who had examined him and
opined on his ability to understand the rights and meaning of the Miranda warnings. The
defendant argued that he was denied effective assistance of appellate counsel because his
counsel did not raise these issues on direct appeal. He also asserted that he was denied
effective assistance of appellate counsel because his counsel did not argue that the trial
court erred in denying his motion for change of place of trial due to pretrial publicity. 2
1
Dr. Gelbort testified at the hearing on the defendant’s motion to suppress his incriminating
statements as well as at the defendant’s trial. We will go into the necessary detail about Dr. Gelbort’s
testimony later in this decision.
2
We will discuss the motion for change of place of trial in further detail below.
8
¶ 17 On May 19, 2017, the State filed a motion to dismiss the defendant’s pro se
amended postconviction petition. In the motion, the State argued that the amended petition
failed to make a substantial showing of a constitutional violation where there was more
than sufficient evidence to show a knowing and voluntary waiver of the defendant’s
Miranda rights. The State also contended that the defendant’s claims that his trial was
unfair and that he did not have an impartial jury were not supported by the record where
each selected juror said that they could set aside anything they may have read or heard
about the case, had not already formed an opinion on the case, and could be fair and
impartial. The State also asserted that these issues were forfeited because they could have
been raised on direct appeal. As for the ineffective assistance of counsel claims, the State
argued that the defendant could not show that he suffered any prejudice from the alleged
errors and that none of his appellate counsel’s actions fell below an objective standard of
reasonableness.
¶ 18 On July 3, 2017, the defendant filed a pro se objection to the State’s motion to
dismiss. In the objection, the defendant contended that he made a substantial showing that
he received ineffective assistance of appellate counsel.
¶ 19 On July 13, 2017, the trial court entered a written order, dismissing the defendant’s
pro se amended postconviction petition. In the order, the court found, inter alia, that the
defendant failed to make a substantial showing that his waiver of his Miranda rights was
not knowing and voluntary in that the Miranda warnings were administered to him on four
occasions, and on each occasion, the record evidenced his consent. The court also found
that the defendant failed to make a substantial showing that he did not receive a trial by an
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impartial jury as a result of pretrial publicity where the pretrial reports did not involve
matters that were inadmissible, the court and counsel questioned each potential juror
individually so as to not contaminate the jury pool with misinformation, and the chosen
jurors each indicated an ability to decide the matter solely on the evidence presented at
trial. The court acknowledged that the potential jurors had been exposed to “some degree
of pretrial publicity,” but each chosen juror expressed the ability to be fair and impartial.
The defendant appeals.
¶ 20 II. ANALYSIS
¶ 21 A. Standard of Review
¶ 22 The Act (725 ILCS 5/122-1 et seq. (West 2016)) provides a mechanism for criminal
defendants to challenge their convictions or sentences based on a substantial violation of
their rights under the federal or state constitutions. People v. Morris, 236 Ill. 2d 345, 354
(2010). A proceeding under the Act is a collateral attack on the trial court proceedings and
not an appeal from defendant’s conviction and sentence. People v. English, 2013 IL
112890, ¶ 21. To be entitled to postconviction relief, defendant must show that he suffered
a substantial deprivation of his federal or state constitutional rights. Id. The Act establishes
a three-stage process for adjudicating a postconviction petition. Morris, 236 Ill. 2d at 354.
At the first stage, the trial court must review the postconviction petition and determine
whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2)
(West 2016). If the petition is not dismissed at the first stage, it advances to
the second stage. Id. § 122-2.1(b).
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¶ 23 At the second stage, the trial court may appoint counsel who may amend
the petition to ensure defendant’s contentions are adequately presented. People v.
Pendleton, 223 Ill. 2d 458, 472 (2006). Also, at the second stage, the State may file an
answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2016). If the State files
a motion to dismiss, the court must rule on the legal sufficiency of defendant’s allegations,
taking all well-pleaded facts as true. People v. Johnson, 205 Ill. 2d 381, 389 (2002).
A petition may be dismissed at the second stage only when the allegations in the petition,
liberally construed in light of the trial record, fail to make a substantial showing of a
constitutional violation. People v. Hall, 217 Ill. 2d 324, 334 (2005). If a substantial
showing of a constitutional violation is established, the postconviction petition proceeds to
the third stage for an evidentiary hearing where the credibility of the witnesses can be
assessed, and factual disputes raised by the pleadings can be resolved. People v. Coleman,
183 Ill. 2d 366, 380-82 (1998). In this case, the State filed a motion to dismiss, and the
trial court granted the motion. The dismissal of a petition without an evidentiary hearing
is subject to de novo review. Hall, 217 Ill. 2d at 334.
¶ 24 B. Ineffective Assistance of Appellate Counsel
¶ 25 Ineffective assistance of appellate counsel is determined under the same standard as
a claim of ineffective assistance of trial counsel. People v. Golden, 229 Ill. 2d 277, 283
(2008). To determine whether a defendant was denied his right to effective assistance
of counsel, a court must apply the two-prong test set forth in Strickland v. Washington, 466
U.S. 668 (1984), and adopted in Illinois by People v. Albanese, 104 Ill. 2d 504 (1984).
Golden, 229 Ill. 2d at 283. Under Strickland, a defendant must prove both (1) appellate
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counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s
deficient performance resulted in prejudice. People v. King, 316 Ill. App. 3d 901, 913
(2000). A defendant is prejudiced by counsel’s deficient performance if there is a
reasonable probability that the outcome of the proceeding would have been different but
for counsel’s deficiency. People v. Colon, 225 Ill. 2d 125, 135 (2007). To prevail,
defendant must satisfy both prongs of the Strickland test. People v. Evans, 209 Ill. 2d 194,
220 (2004). The failure to satisfy either the deficiency prong or the prejudice prong
precludes an ineffective assistance of counsel finding. People v. Enis, 194 Ill. 2d 361, 377
(2000).
¶ 26 Appellate counsel is not required to raise every conceivable issue on appeal (People
v. Collins, 153 Ill. 2d 130, 140 (1992)), and counsel’s decisions regarding what issues to
raise on appeal are normally entitled to substantial deference (People v. Mack, 167 Ill. 2d
525, 532 (1995)). Appellate counsel will be deemed ineffective for failing to raise a
meritorious issue that could have resulted in relief for defendant. People v. Moore, 177 Ill.
2d 421, 428 (1997). Counsel’s decision as to what issues to raise on appeal will not be
questioned unless the decision was patently erroneous. People v. Richardson, 189 Ill. 2d
401, 412 (2000).
¶ 27 C. Motion to Suppress
¶ 28 The defendant’s first contention is that his pro se postconviction petition made a
substantial showing that his appellate counsel was ineffective for failing to argue that his
waiver of his Miranda rights was not knowing and voluntary due to being sleep deprived,
12
being under the influence of intoxicating substances, and his emotional and/or mental
problems or illnesses. We disagree.
¶ 29 On November 30, 2001, the defendant filed a motion to suppress the statements that
he made to Drew and Frattini about his involvement in the murder. In the motion, the
defendant acknowledged that his Miranda rights were read to him but contended that, at
the times that he waived those rights, he was under the influence of intoxicating substances,
was sleep deprived, and was suffering from severe emotional and/or mental health issues.
He contended that, as a result of those issues, he was unable to fully understand his rights
and did not make a knowing and voluntary waiver of his rights.
¶ 30 At the December 5, 2002, hearing on the motion to suppress, the following
testimony was presented about the circumstances surrounding the questioning of the
defendant, which led to his incriminating statements concerning his involvement in this
matter. Drew testified that the defendant arranged a meeting with him to discuss the events
that occurred the night before. The defendant voluntarily agreed to go with Drew to the
police station, he was not in custody, and his Miranda rights were initially read to him at
5:08 p.m. He appeared to understand his rights and signed the written waiver form.
Though the defendant was Mirandized several times, this was the only time that he was
given a written waiver form that night. He voluntarily agreed to give the recorded
statements about what happened. After the tape recording malfunctioned during the initial
questioning, the officers stopped the questioning. Before the questioning resumed, the
defendant was again read his Miranda warnings, and he verbally indicated that he
understood. The second interview began at 9 p.m. and ended at about 9:30 p.m. During
13
these two interviews, the defendant did not implicate himself as a participant in this
incident; he claimed he was just a witness. It was not until the third interview, which began
at 2:44 a.m. and ended at 2:56 a.m., that the defendant said he was a lookout. The defendant
was in a locked room with another officer for approximately 4½ to 5 hours between the
second and third interview. The defendant was also read his Miranda rights before the
third interview, and he again verbally indicated that he understood. He was given food and
drink and was allowed to smoke in between the interviews.
¶ 31 During this entire time, the defendant never said that he was under the influence of
any alcohol or drugs, he did not appear to be under the influence of any intoxicating
substances, and he appeared “physically fine.” Drew observed that the defendant was
walking fine, was not slurring his speech, did not appear confused, and was coherent. The
defendant appeared to understand the questions that were asked of him, and he never
requested that the questioning stop. He never requested an attorney and never requested to
leave. Drew testified that none of the officers threatened or made any promises to the
defendant to get him to make the statements.
¶ 32 Drew testified that he had previous encounters with the defendant that started when
the defendant was approximately 12 or 13 years old. He had given the defendant his
Miranda rights on more than one occasion. The defendant had never indicated that he did
not understand his rights during those encounters. He acknowledged that if the Miranda
warnings were written at a higher level than the defendant could read, then the defendant
likely would have trouble understanding them. However, he noted that the defendant did
not have any problem reading the Miranda warnings to him. He also acknowledged that
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the defendant indicated that he only had approximately two to three hours of sleep the night
before. He further acknowledged that the defendant admitted drinking, smoking
marijuana, and huffing spray paint during the night of the incident, but he never gave the
defendant a test to determine if he was under the influence. He further acknowledged that
he never asked the defendant if he had consumed any intoxicating substances on the day
of the interviews. However, Drew stated that during the defendant’s detailed report of what
happened the night of the murder and the following day, he did not indicate that he had
consumed any intoxicating substance before he met with Drew.
¶ 33 Frattini testified that he was present when the defendant was given his Miranda
warnings and that the defendant was given those warnings before each taped statement was
taken. The defendant indicated that he understood each of those rights, read most of them
aloud the first time that they were given, and signed the written waiver form. After
receiving the warnings, the defendant agreed to speak with him and Drew. During the
entire time that the defendant was with the officers, Frattini never threatened him or made
any promises to him. He also never observed any of the other officers threatening the
defendant. The defendant did not appear to be under the influence of alcohol, drugs, or
any other substance. He was coherent, did not have difficulty speaking with them, and was
walking fine.
¶ 34 Dr. Gelbort testified that he was a clinical neuropsychologist and, as a part of his
practice, he conducted neuropsychological evaluations on people charged with crimes,
which assessed the person’s brain function. Dr. Gelbort conducted a neuropsychological
evaluation on the defendant in May 2002, which included giving the defendant a variety of
15
tests, including an IQ test; reviewing the taped statements and police reports; and getting a
background health history from the defendant. He did not review any of the defendant’s
medical or school records. The defendant reported that he had difficulty in school, did not
complete the tenth grade, and obtained his general educational diploma (GED) when he
was 17.
¶ 35 Dr. Gelbort reported that the defendant had an IQ of 88, which was considered the
low average range approaching the average range. He was in the impaired range on the
brain’s frontal lobe abilities, he had some difficulty with reasoning, and he likely had some
congenital weakness in terms of higher cognitive abilities. Dr. Gelbort noted that the
defendant had self-reported a history of huffing paint, which could suppress his thinking
and decision-making skills. Dr. Gelbort stated that being under the influence of alcohol or
drugs would cause a normal brain to act like an impaired brain and that lack of sleep would
exacerbate any impairment. The defendant also reported that he had been knocked
unconscious at least twice and that could have residual effects on a person. Dr. Gelbort
testified that cognitive disfunction was not apparent from observing someone.
¶ 36 Dr. Gelbort testified that the Miranda warnings were written at between a sixth-
grade and eighth-grade level and that the defendant’s reading was at a fifth-grade level.
Dr. Gelbort opined that the defendant would have significant difficulty with a reasonable
level of comprehension of the Miranda warnings. He believed that the defendant’s
understanding of the warnings would likely be marginal but adequate if he was well rested
and sober. However, if he was tired and still under the effects of alcohol and inhalants,
then his comprehension would be poor, and his ability to anticipate the consequences of
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his own actions or make decisions regarding waiving his rights would be impaired. Dr.
Gelbort found that the defendant likely had some understanding of the warnings but that
understanding was not normal or appropriate.
¶ 37 The State offered no expert to rebut Dr. Gelbort’s expert opinion. After hearing the
arguments of counsel, the trial court took the matter under advisement. On December 7,
2002, the court entered an order by docket entry, which denied the defendant’s motion to
suppress. In the order, the court found that the defendant was given Miranda warnings on
at least four occasions on the date of questioning, the warnings were given prior to any
questioning by police authorities, the questioning commenced after the defendant asked to
speak with Drew, the defendant was not initially in custody or under arrest, the defendant
made no claim that any statement was procured through force or coercion, he clearly
waived his Miranda rights every time that they were given to him, his statements were
voluntarily given, and he did not claim that he was under the influence of drugs or alcohol
at the time that he gave his statements. Also, the court, noting that it had listened to the
tape recordings, observed that the defendant appeared to understand the various questions
that the officers asked him and that he was coherent and responsive. The court noted that
the defendant did not appear confused during the interviews, his IQ scores and other test
results placed him in the low average range, he was not “mentally retarded,” and it was not
reported that he was in any special education classes in school. The court concluded that
although the defendant reportedly had some deficiency in the functioning of the frontal
lobe of his brain, which might cause him to be more susceptible to suggestions, when all
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the factors involved were considered, the defendant gave a voluntary statement following
a knowing, voluntary, and intelligent waiver of his rights.
¶ 38 A defendant’s waiver of a constitutional right is only valid if it is clearly established
that there was an intentional relinquishment or abandonment of a known right. People v.
Johnson, 75 Ill. 2d 180, 187 (1979). A valid waiver of Miranda rights occurs where:
(1) defendant’s decision to relinquish those rights was voluntary and not the product of
intimidation, coercion, or deception; and (2) defendant knowingly and intelligently waived
his rights, i.e., he made the waiver while fully aware of the nature of the rights being
abandoned and the consequences of his decision to abandon them. People v. Crotty, 394
Ill. App. 3d 651, 662 (2009). To waive rights intelligently and knowingly, a defendant
must at least understand basically what those rights encompass and minimally what the
waiver will entail. In re W.C., 167 Ill. 2d 307, 328 (1995). Intelligent knowledge in the
Miranda context means defendant’s ability to understand the very words used in the
warnings. Id. at 334. If a defendant lacks the ability to understand the words used in the
warnings, then the repetition of advice even accompanied by a defendant’s statement of
agreement indicates little. Id.¶ 39 The issue of whether a waiver is knowing and intelligent is determined by the
particular facts and circumstances of each case, including defendant’s age, intelligence,
background, experience, mental capacity, education, and physical condition at the time of
the questioning; the legality and duration of the detention; the duration of the questioning;
and any physical or mental abuse by the police. In re G.O., 191 Ill. 2d 37, 54 (2000). The
test to be used in determining whether a defendant knowingly and intelligently waived his
18
rights is whether the words in the context used, considering the age, background, and
intelligence of the individual being interrogated, impart a clear, understandable warning of
all of his rights. People v. Daniels, 391 Ill. App. 3d 750, 781 (2009).
¶ 40 Here, we find that the defendant failed to make a substantial showing of a
constitutional violation for his appellate counsel’s failure to argue that his waiver of his
Miranda rights was not knowing and voluntary. The record reveals that the defendant
initiated contact with Drew, willingly went with Drew to the police station, and was not
under arrest at that time. He voluntarily gave three statements about what occurred that
night, was read his Miranda rights four times, and signed a waiver of his Miranda rights
after indicating that he understood each one. There was no indication that he did not
understand his rights that night. Frattini corroborated Drew’s testimony that the defendant
did not appear to have any problems reading or understanding his rights. The officers’
testimony indicated that the defendant was coherent, alert, and appeared to understand the
questions that he was asked. Drew further testified that he had previous contact with the
defendant where he read the defendant his Miranda rights, and the defendant never
indicated that he did not understand his rights. He never requested that the questioning
cease, and he never asked to leave. Also, the defendant agreed to take the officers to the
location where he disposed of the gun. In between the interviews, the defendant was given
food and drink and was allowed to smoke.
¶ 41 Although Dr. Gelbort testified that the defendant suffered from mild brain
impairment, his ability to make reasoned decisions was suppressed, and he read at a fifth-
grade level, the defendant’s IQ was at the upper end of the low average range (just below
19
the average range), he completed his GED at the age of 17, there was no indication that the
defendant was in any special education classes in school, and he was able to read the
Miranda rights from the written waiver form. He was able to clearly answer the officers’
questions and was responsive during the interviews. Dr. Gelbort did not review the
defendant’s medical or educational records. Further, during the time that the defendant
was with the officers, he did not consume any intoxicating substances and did not appear
under the influence. The defendant also did not indicate that he had consumed any
intoxicating substances on the day that he sought out Drew.
¶ 42 The trial court had an opportunity to observe the officers’ testimony as well as Dr.
Gelbort, assessed their respective credibility, and determined that the defendant knowingly
and voluntarily waived his Miranda rights. Evidence of a limited intellect alone is not
enough to demonstrate that one is incapable of waiving his constitutional rights. People v.
Richardson, 2015 IL App (1st) 113075, ¶ 18. Other facts to consider include defendant’s
age, prior experience with the law, and emotional stability. Id.¶ 43 The court carefully considered the issue and clearly set forth its reasons for denying
the motion to suppress. Accordingly, under the totality of the circumstances, considering
the defendant’s age, background, and intelligence, we cannot say that appellate counsel’s
performance was deficient for failing to raise this issue on appeal. Because the underlying
issue has no merit, the defendant has not suffered any prejudice by his appellate counsel’s
failure to raise this issue on direct appeal. See Enis, 194 Ill. 2d at 382; see also People v.
Coleman, 168 Ill. 2d 509, 523 (1995) (unless the underlying issues are meritorious,
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defendant suffered no prejudice due to appellate counsel’s failure to raise those issues on
direct appeal).
¶ 44 D. Pretrial Publicity
¶ 45 The defendant next contends that he made a substantial showing that his appellate
counsel was ineffective for failing to argue that the trial court abused its discretion when it
denied his motion to change the place of trial due to extensive media coverage. We
disagree.
¶ 46 On September 26, 2003, the defendant filed a motion for change of place of trial
based on the pretrial publicity that the case had received. In the motion, the defendant
contended that since the date of the incident, there had been extensive media coverage of
the case in the Williamson County area, which was prejudicial to the defendant in that he
would not receive a fair trial in Williamson County.
¶ 47 At the October 31, 2003, hearing on the motion for change of place of trial, Richard
Hall, a Southern Illinois University communications professor, testified that on October
14, 2003, between 7 p.m. and 9 p.m., he conducted a telephone survey poll of 11,366
Williamson County households regarding McKenzie’s murder. The purpose of the survey
was to reach as many potential jurors as possible to determine their familiarity with the
case. Of the 1468 individuals who answered the survey, 55% said they knew something
about the case, while 45% did not know about it. Regarding those who indicated that they
were familiar with the case, 39% were not very familiar, 42% knew details, and 19% were
very familiar. As to their opinion on the defendant’s guilt, 57% believed that he was guilty,
1% thought that he was probably innocent, and 42% had no opinion at that time. The
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defendant’s counsel then submitted a compilation of transcripts of stories involving
McKenzie’s murder from local media outlets and noted that the murder had been
mentioned 145 times in the media. The court then announced that it was taking the matter
under advisement.
¶ 48 On December 1, 2003, before the trial court ruled on the motion for change of place
of trial, the defendant filed a motion to renew that motion. In the motion, the defendant
noted that on November 7, 2003, codefendant Hernandez pled guilty to the murder of
McKenzie; the Williamson County State’s Attorney contacted the media about the guilty
plea; WSIL-TV news ran stories on the Hernandez guilty plea on its 5 p.m., 6 p.m., and 10
p.m. news broadcasts; the broadcasts showed a photograph of the decedent and included
an interview with the state’s attorney where he stated, “Two down, one to go”; and the
report concluded by stating the date of the defendant’s trial. The defendant contended that
the State’s actions in contributing to the pretrial publicity while the motion for change of
place of trial was pending were improper and had removed “whatever chance for a fair trial
and impartial jury remained” for the defendant in Williamson County.
¶ 49 On December 2, 2003, before commencement of voir dire for the jury trial, the trial
court heard arguments on the defendant’s motions for change of place of trial. After
hearing arguments of counsel, the trial court denied the motion but noted that it could be
renewed during voir dire if it became evident that it was necessary.
¶ 50 During voir dire, the prospective jurors were individually questioned outside of the
presence of any other jurors and witnesses to determine whether there existed any prejudice
against the defendant. Out of the 14 jurors that were chosen (including 2 alternates), 10
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jurors had either heard or read news reports about the case. However, they all stated that
they had not formed any opinions on the case, they could set aside what they had heard or
read about the case, and they could reach a decision on the case based on the evidence and
not what they heard or read.
¶ 51 Both the United States and the Illinois Constitutions protect a defendant’s right to a
trial before an impartial jury. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. For a
jury’s verdict to be impartial and fair, it must be solely based on the evidence heard during
trial and not on information obtained elsewhere. People v. Taylor, 101 Ill. 2d 377, 386
(1984). If a defendant is denied his right to a fair trial because of the denial of a motion
for change of venue or because of the denial of a challenge for cause to a juror, defendant
must receive a new trial. Id. at 387. When determining whether a defendant received a
fair trial from an impartial jury, “there is no simple test which we can apply to every case.”
Id. at 391. Rather, the decision must be based on the totality of the circumstances. Id.¶ 52 The right to an impartial jury does not require that jurors be completely ignorant of
the case before trial. Coleman, 168 Ill. 2d at 547. Heinous crimes are reported extensively
in the media, and it would be unreasonable to expect jurors not to have at least heard of
those cases prior to trial. Taylor, 101 Ill. 2d at 386. An impartial jury can be secured under
such circumstances if the jurors are willing and able to put aside their preconceptions and
decide the case based upon the evidence presented at trial. Coleman, 168 Ill. 2d at 547.
Ordinarily, the best way to determine whether a juror can be impartial is to ask. Taylor,
101 Ill. 2d at 398. Voir dire is a significant tool in determining whether a juror can lay
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aside any biases and make a determination solely on the basis of evidence presented in
court. Id.¶ 53 However, in some circumstances, the pretrial publicity is so prejudicial that jurors
cannot be trusted to set aside their preconceptions and decide the case on the evidence
presented. See, e.g., id. In Taylor, the 13-year-old defendant was charged with murder in
a highly publicized case. Id. at 382-83. The “unprecedented” media coverage reported
that defendant’s suspected codefendant had been released after passing a polygraph test,
while the results of defendant’s polygraph test were “inconclusive.” Id. at 383. The
voir dire questioning revealed that six of the jurors who ultimately found defendant guilty
were aware that the codefendant had been released, and three connected his release to his
performance on the polygraph test. Id. at 388. Our supreme court found that defendant
was denied a fair trial because of the prejudicial effect of the knowledge of the lie detector
test. Id. at 395-96. Based on the unprecedented volume of publicity combined with the
highly prejudicial nature of the polygraph results, the supreme court held that the jurors’
claims to impartiality could not be accepted, and any jurors with knowledge of the
polygraph results should have been excused. Id. “If the biasing effect of the information
is so powerful that it cannot be considered, even under the controlled conditions of the
courtroom, then certainly access to the same biasing information, under the uncontrolled
influence of the news media, cannot be allowed to affect the outcome of a trial.” Id. at 392.
¶ 54 In the present case, 8 out of the 12 selected jurors had heard or read about the case
before the trial. However, that, by itself, is not enough to require reversal, as “[t]otal
ignorance of the case is exceptional, and it is not required.” Id. at 386. Each potential juror
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was individually questioned outside of the presence of the other potential jury members so
as not to contaminate the jury pool. The jurors who had indicated that they had read or
heard about the case were individually questioned about what they heard or read, were
asked whether they had formed any opinion on the case, and were asked whether they could
set aside any of their previous opinions and decide the case based on the evidence at trial.
None of the jurors remembered the case in any detail; they either did not know anything
about the case or had just heard about it when it first happened (over three years earlier).
A lapse of time between the publicity and actual trial may be sufficient to dissipate any
feeling of prejudice resulting from the pretrial publicity. People v. Black, 52 Ill. 2d 544,
558 (1972). Moreover, we note that each juror stated that, despite any preexisting
knowledge of the case, he or she could render a verdict based solely on the evidence
presented at trial.
¶ 55 In denying the defendant’s motion to change the place of trial, the trial court
conceded that there had been a great deal of publicity about the case, but the court stated
that the individuals who had already formed opinions and might have knowledge about the
case would not be acceptable jurors and that any bias would be discovered in voir dire.
The extensive voir dire questioning by the court and counsel here established that the jurors
could render an impartial verdict. Moreover, this case is distinguishable from Taylor, as
the media coverage in November 2003 following Hernandez’s guilty plea where the State
indicated that there was one more prosecution to go was not as highly prejudicial as the
polygraph evidence at issue in Taylor, especially where there was no indication that the
selected jurors even heard that statement. Thus, we cannot say that appellate counsel’s
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performance was deficient where the record reveals that the media coverage did not prevent
the jurors from being impartial. Because this underlying issue has no merit, the defendant
suffered no prejudice by his appellate counsel’s failure to raise it on direct appeal.
Accordingly, we conclude that the trial court did not err in dismissing the defendant’s pro
se postconviction petition.
¶ 56 III. CONCLUSION
¶ 57 For the reasons stated, we affirm the judgment of the circuit court of Williamson
County.
¶ 58 Affirmed.
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