APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
544 N.E.2d 1026, 188 Ill. App. 3d 518, 136 Ill. Dec. 251 1989.IL.1373
Appeal from the Circuit Court of Cook County; the Hon. James A. Bailey, Judge, presiding.
JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO
Petitioner-appellant William Pearson was convicted by a jury in 1979 of murder, three counts of armed robbery, attempted armed robbery, unlawful use of weapons, and armed violence. He was sentenced to imprisonment for concurrent terms of 40 years for murder, 20 years for each armed robbery, 10 years for attempted armed robbery and 5 years for unlawful use of weapons. No sentence was entered on the armed violence conviction. He now appeals from an order of the circuit court dismissing his petition for post-conviction relief.
The issue raised on this appeal is whether the trial court properly dismissed the post-conviction petition without an evidentiary hearing, where petitioner alleged ineffective assistance of counsel based on (1) trial counsel's failure to call as a witness a physician who would have testified that on the night of the crime petitioner was struck by two bullets of different calibers, thereby corroborating petitioner's defense theory that he was the victim, rather than the perpetrator, of the crime; (2) appellate counsel's failure to raise the issue of the trial court's refusal to allow a defense witness to testify for the purpose of impeaching a State's witness with a prior inconsistent statement; and (3) appellate counsel's failure to raise the issue of systematic exclusion of blacks during jury selection.
The evidence presented at petitioner's trial established that, on December 3, 1978, petitioner had been drinking and gambling at an "after hours" bar in Chicago. Petitioner announced a hold-up, brandished a sawed-off shotgun and pistol, and fired several shots into the ceiling. The other patrons in the bar dove for cover, more shots were fired, and petitioner fled with a large sum of money. Sammy Priest was fatally wounded during the hold-up.
Petitioner denied committing the robberies. He claimed that he was robbed and shot after winning money in a dice game. Petitioner admitted that he fired some shots, but claimed that he fired in self-defense.
During the State's case in chief, Sherry McWoodson testified that on the night of the hold-up, petitioner arrived at her home with money and guns and stated that he had shot someone and that he hoped that person was dead. Two days after her testimony, defense counsel requested leave to add Maggie Sprott to the list of defense witnesses. Defense counsel told the court that he had learned that Sprott, a friend of both petitioner and McWoodson, had a conversation with McWoodson before McWoodson testified. Defense counsel made an offer of proof that Sprott would testify that McWoodson admitted to her that petitioner never stated that he had shot someone. The trial court denied defense counsel's request to allow Sprott to testify on the ground that no foundation had been laid on cross-examination for impeaching McWoodson by confronting her with a prior contrary statement. Defense counsel did not request leave to recall McWoodson for the purpose of laying a foundation.
On Friday, September 21, 1979, after the State rested, petitioner's attorney informed the court that he intended to call a certain physician, believed to be petitioner's treating physician, to testify that petitioner had been struck twice by bullets of different calibers. Petitioner's attorney indicated that he had not anticipated the need to call petitioner's physician until after a State's witness had testified that petitioner had been shot only once. Petitioner's attorney requested a continuance to locate the doctor and his request was granted until the following Monday. On Monday morning, petitioner's attorney informed the court that he had learned that a different physician, Dr. Richard Pearson, appeared to have treated petitioner, but that Dr. Pearson needed to review his records to determine whether he had examined petitioner. Petitioner's attorney requested a one-day continuance to bring in Dr. Pearson. That request was denied.
The record reflects that petitioner's attorney had known about Dr. Pearson for some time, but never subpoenaed him or any other physician. In his motion for a new trial, petitioner submitted a letter written by Dr. Pearson, stating that Dr. Pearson had removed two bullets from petitioner that, "to the best of [Dr. Pearson's] recollection," were of different calibers.
Petitioner's appellate counsel raised two issues on appeal: first, whether the trial court erred in denying the request for a one-day continuance; and second, whether the trial court erred in denying petitioner's motion for a new trial based on the State's failure to honor his request for disclosure of arrest records of certain State witnesses. However, petitioner's convictions and sentences were affirmed. (People v. Pearson (1981), 102 Ill. App. 3d 732, 430 N.E.2d 304.) Significantly, the court did not find any abuse of discretion in the trial court's denial of the motion for a continuance because of "the obvious lack of diligence of defense counsel in determining the identity of the treating physician" and the "lack of certainty surrounding [Dr. Pearson's] expected testimony." People v. Pearson (1981), 102 Ill. App. 3d 732, 737, 430 N.E.2d 304.
The Illinois Supreme Court denied petitioner leave to appeal. (People v. Pearson (1982), 91 Ill. 2d 564, 440 N.E.2d 126.) On February 17, 1984, the United States District Court denied petitioner's pro se habeas corpus petition. On January ...