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People v. Garner

OPINION FILED AUGUST 12, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LAMAR D. GARNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Donald Joyce, Judge, presiding.

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 16, 1986.

Defendant, Lamar D. Garner, was convicted of murder after a bench trial. We affirmed his conviction. (People v. Garner (1981), 102 Ill. App.3d 755, 430 N.E.2d 320.) In reviewing his conviction, we concluded that the case presented nothing more than an evaluation of the credibility of the witnesses and that the trial court did not err in its determination of that credibility. (102 Ill. App.3d 755, 757, 430 N.E.2d 320.) Our supreme court denied defendant's petition for leave to appeal. People v. Garner (1982), 91 Ill.2d 562.

Defendant's pro se petition for post-conviction relief, pursuant to article 122 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.), was denied on October 2, 1984. This timely appeal followed.

I

Defendant contends in his post-conviction petition that he was deprived of effective assistance of counsel at the preliminary hearing, at trial, and on appeal. The facts dealing with the murder have been recited in our previous opinion, so there is no need to repeat them in this opinion.

• 1, 2 The object of the Post-Conviction Hearing Act (Act) is to provide an effective, post-trial forum to "[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both." (Ill. Rev. Stat. 1985, ch. 38, par. 122-1.) The Act was "designed to afford to the convicted an opportunity to inquire into the constitutional integrity of the proceedings in which the judgment was entered." (People v. Pier (1972), 51 Ill.2d 96, 98, 281 N.E.2d 289.) A proceeding under the Act is not an appeal but is a collateral attack on a judgment. People v. James (1986), 111 Ill.2d 283, 290, 489 N.E.2d 1350.

• 3 The test to determine the effectiveness of counsel was announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L.Ed. 2d 674, 104 S.Ct. 2052. There, the court held that in order to establish a denial of effective assistance of counsel, a defendant must prove: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) the counsel's substandard representation so prejudiced his defense as to deny the defendant a fair trial. (466 U.S. 668, 687, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064-65.) The court stated that there was no fixed set of rules by which to judge counsel's conduct but that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (466 U.S. 668, 689, 80 L.Ed.2d 674, 694, 104 S.Ct. 2052, 2065.) The Strickland test has been adopted by our supreme court in People v. Albanese (1984), 104 Ill.2d 504, 526-27, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L.Ed.2d 335, 105 S.Ct. 2061.

• 4 Defendant's first point is that defense counsel failed to object to the hearsay testimony of Officer Willie Johnson at the preliminary hearing. Johnson testified that he spoke with the pathologist, Doctor Lee F. Beamer, by telephone and that Dr. Beamer told him that the cause of death was multiple gunshot wounds. Clarence Cox, the victim's son, also testified at the hearing and gave an eyewitness account of the shooting. He stated that he saw defendant shoot his father four times at close range. This testimony was certainly sufficient to establish probable cause. (People v. Bonner (1967), 37 Ill.2d 553, 557, 229 N.E.2d 527.) Even if probable cause were not established, the State could still have sought an indictment against defendant. People v. Gooding (1974), 21 Ill. App.3d 1064, 1068, 316 N.E.2d 549, rev'd on other grounds (1975), 61 Ill.2d 298, 355 N.E.2d 769.

Defendant concedes that hearsay testimony is admissible at a preliminary hearing. (People v. Velez (1966), 72 Ill. App.2d 324, 335-36, 219 N.E.2d 675.) Thus, the court did not err in allowing Officer Johnson to testify about his conversation with Dr. Beamer. Furthermore, defense counsel cross-examined Officer Johnson to draw out any deficiencies in his testimony. Defendant's first point is not well taken.

• 5 Defendant's second point is that he was denied effective assistance of counsel when his trial attorney stipulated as to the cause of death. Defendant argues that "it was a matter of great controversy as to whether Cox died of gunshot wounds or natural causes unrelated to the shooting. The failure of the defense attorney to introduce this alternative defense * * * was a clear instance of ineffective assistance of counsel."

Dr. Lee F. Beamer testified by stipulation. He is an expert in forensic pathology and is currently employed by the Cook County medical examiner's office. He examined the body of the victim in the Cook County morgue. He found five gunshot wounds on the body of the victim — one near the knee cap, two in the leg, one in the abdomen, and one in the buttocks. The victim died within 48 hours after being shot by defendant. In Dr. Beamer's expert opinion, the victim died of multiple gunshot wounds.

In his post-conviction petition, defendant does not present any evidence that the victim died of "natural causes unrelated to the shooting." Without making any effort to prove that witnesses exist who could establish death from natural causes, defendant persists in his attack on the professional competence of trial counsel. For allegations of incompetence of trial counsel to rise to the level of constitutional significance, defendant must supply some facts in his petition demonstrating the actual incompetence of his attorney and how he was prejudiced this alleged incompetence. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064-65.) Defendant failed to meet this standard.

The defense subpoenaed medical records of Provident and Cook County hospitals for use at the murder trial. Provident Hospital's records reveal that on September 12, 1979, the victim was brought to the emergency room on a stretcher by the Chicago police department. He was suffering from multiple gunshot wounds. The following day he was transferred to Cook County Hospital for surgical care. County Hospital's admitting diagnosis was "[g]unshot wound abdomen." Other entries reveal all of the previously mentioned gunshot wounds and that "[t]his patient is in an impossible situation, since, on top of acute renal failure, his is hypotensive. This will preclude hemodialysis until his [blood pressure] has stabilized." This 65-year-old black male was pronounced dead on September 14, 1979, by Dr. M.L. Griauzoe, whose clinical diagnosis of the cause of death was "acute cardiac and respiratory failure, acute renal failure, septic shock." His report ...


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