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03/17/88 the People of the State of v. Thomas Bernardo

March 17, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THOMAS BERNARDO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

525 N.E.2d 857, 171 Ill. App. 3d 652, 121 Ill. Dec. 550 1988.IL.376

Appeal from the Circuit Court of Cook County; the Hon. Theodore M. Swain, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. LINN and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Following a bench trial, defendant, Thomas Bernardo, was convicted of attempted murder and aggravated battery (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 12-4) and sentenced to eight years' imprisonment. On direct appeal, this court vacated his conviction for aggravated battery and affirmed his conviction for attempted murder. (101 Ill. App. 3d 1195 (opinion pursuant to Supreme Court Rule 23).) While the appeal was pending, defendant filed a petition for relief under the Illinois Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) arguing that he was entitled to a new trial because he had been denied effective assistance of counsel. The trial court denied defendant's petition without an evidentiary hearing and he appeals.

We affirm.

Background

Defendant was convicted of attempted murder for the shooting of Willie Fuller (Fuller) in an apartment building courtway in the late evening hours of November 27, 1976. Evidence presented by the State established that on that day, Fuller was visiting Mae Webb (Webb), his former girlfriend, at her apartment. Fuller had driven Webb home from the hospital where her year-old baby had been admitted with multiple bruises. While Fuller was at Webb's apartment, a man entered the front door, ordered Fuller to leave, pulled out a gun, kicked Fuller in the chest, and ran out the front entrance. Shortly thereafter, Fuller also left the apartment. When he reached the courtway, the man with the gun appeared from behind the bushes and fired three shots before running away. Two shots grazed Fuller's head and neck; a third penetrated through his leg. Thereafter officers of the Chicago police department arrived at the scene and transported Fuller to a hospital. Chicago police officers arrested defendant approximately two weeks after the incident. Defendant was in a car with Webb when he was arrested.

Defendant denied that he shot Fuller. Defense evidence showed that on the evening in question, Fuller was at Webb's apartment, but had not driven her from the hospital to her home. At Webb's apartment, Webb told him that certain persons, including the defendant, may have been responsible for the injuries to Webb's child who was in the hospital. Webb testified that although Fuller was not the natural father of the child, he liked to think of the child as his. Fuller became angry when he learned of the child's injuries. Shortly thereafter, defendant and Rita Johnson (Johnson) appeared at the door of Webb's apartment. Fuller grabbed defendant, inquired who he was, and accused defendant of being Webb's "new boyfriend." Fuller then chased defendant down the stairs and outside the building. Meanwhile, Webb took from her apartment a gun that Fuller had previously given her and chased after the two men. As she was following them, she tripped on the sidewalk and her gun accidentally discharged several times, striking Fuller in the leg once.

The defense introduced evidence that Webb filed a criminal complaint against Fuller approximately a week after defendant was arrested. A few months after Webb filed her complaint against Fuller, Fuller offered to drop charges against defendant in exchange for Webb's dropping of the charges against Fuller. Webb agreed.

Thereafter, Webb, Fuller, and defendant's mother spoke in person to the partner of the assistant State's Attorney who was assigned to prosecute the defendant's case. According to Webb, Fuller told the assistant State's Attorney that Fuller was drunk on the night of the incident and that he wanted to withdraw his statement that defendant had shot him. Webb also testified that Fuller made this same retraction to defendant's attorney, Stan Hill (Hill), a month after Fuller's visit to the State's Attorney's office. Then Webb, Fuller, and Hill appeared before Judge Howard Miller, and Hill informed the Judge of Fuller's recent disclosures and intention to have the charges dropped. During earlier cross-examination, Fuller denied having indicated to Webb and defense counsel that he wanted to retract his accusations and denied having appeared with them before Judge Miller.

Webb was the first defense witness. After her testimony, Hill withdrew from the case in order to become a defense witness regarding Fuller's alleged attempt to withdraw his accusations of defendant. A second attorney, W. Maudlin Smith, filed an appearance on defendant's behalf and represented him during the remainder of the trial.

In rebuttal to the defendant's evidence, the State presented the testimony of an assistant State's Attorney who had appeared on behalf of the State at the hearing wherein Hill represented to the court that Fuller intended to retract his accusations against defendant. The assistant State's Attorney testified that the person who appeared before Judge Miller and identified himself ...


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