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03/01/94 PEOPLE STATE ILLINOIS v. BILLIE GENE

March 1, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
BILLIE GENE HIGHTOWER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Williamson County. No. 85-CF-274. Honorable C. David Nelson, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Welch, Maag, Chapman

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Because the facts of this case have been detailed in two previous opinions by this court (see People v. Hightower (1992), 233 Ill. App. 3d 188, 598 N.E.2d 482, 174 Ill. Dec. 285 (Hightower II); People v. Hightower (1988), 172 Ill. App. 3d 678, 526 N.E.2d 1129, 122 Ill. Dec. 590 (Hightower I)), we will only briefly restate the operative facts. On June 9, 1986, Billie Gene Hightower ("defendant") was convicted in the circuit court of Williamson County of murdering his wife, Cathy Hightower. The defendant was sentenced to 25 years in prison. Following the affirmance of defendant's conviction and sentence in Hightower I, defendant filed a post-conviction petition alleging, inter alia, that the trial court erred in refusing to give his tendered voluntary manslaughter instruction based on provocation, and that his attorney's failure to raise the issue on direct appeal constituted ineffective assistance of counsel. On November 13, 1990, the circuit court granted the post-conviction petition and ordered that defendant file a notice of direct appeal. Defendant thereafter prepared and filed what was purported to be a notice of direct appeal from his original conviction.

On July 11, 1991, this court ordered, inter alia, that: (1) defendant's November 13, 1990, notice of appeal be stricken; and (2) defendant's appeal be based only upon the filing of the late notice of appeal from the circuit court's November 13, 1990, order and the post-conviction proceedings. On July 12, 1991, the defendant filed his late notice of appeal from the circuit court's November 13, 1990, order in the post-conviction proceeding. On August 20, 1992, this court in Hightower II: (1) held that the post-conviction hearing Judge was without authority to order a new appeal; (2) vacated the trial court's rulings on the defendant's post-conviction petition; and (3) remanded the case "to the circuit court for a proper determination on the merits of the defendant's claim of ineffective assistance of counsel * * *." ( Hightower II, 233 Ill. App. 3d at 192, 598 N.E.2d at 484.) On November 23, 1992, the post-conviction court found that the defendant was denied the effective assistance of counsel and therefore entered an order granting the defendant a new trial. The State now appeals and raises the following issue: whether the post-conviction court erred as a matter of law in finding appellate counsel on direct appeal ineffective for failing to challenge the trial court's refusal of a voluntary manslaughter instruction.

In order to demonstrate that appellate counsel was ineffective for failing to raise a particular issue, a defendant must show twothings: (1) that appellate counsel's failure to raise the issue was objectively unreasonable and (2) that as a result of the failure there was a reasonable probability that the conviction would have been reversed. ( People v. Caballero (1989), 126 Ill. 2d 248, 269, 533 N.E.2d 1089, 1096, 128 Ill. Dec. 1.) The undergirding for this two-pronged test was first articulated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and subsequently adopted by our supreme court in Caballero as the appropriate standard for resolving ineffective assistance of appellate counsel claims.

Using this standard, the post-conviction court in the instant case entered the following order:

"At the time of the original appeal, there was a line of cases, subsequently disapproved by the Supreme Court in People v. Chevalier (1989), 131 Ill. 2d 66, [544 N.E.2d 942, 136 Ill. Dec. 167,] recognizing that the breakup of a marital relationship and words informing a spouse of adultery could be a sufficient basis to instruct a jury on provocation, so as to reduce murder to voluntary manslaughter.

Here, as elaborated on in this Court's original order ruling on the post-conviction petition, there was evidence, including testimony from the State's own psychiatrist, which raised the issue of provocation. The trial Judge's articulated reason for refusing the instruction was at least arguably wrong.

Given the state of the case law at the time the appeal was taken, appellate counsel's failure to raise the issue was objectively unreasonable. There was a reasonable possibility that, had it been raised, the defendant would have been granted a new trial. To speculate that the appellate court would have anticipated Chevalier does not seem appropriate. Surely this issue, raised in the post-trial motion, should have been pursued on appeal. The failure to do so amounts to deprivation of the defendant's constitutional right to the effective assistance of counsel on appeal."

The appropriate standard of review to be applied in this case is whether the post-conviction court's determination is manifestly erroneous. ( People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 832, 107 Ill. Dec. 677.) The term "manifest error" has been interpreted to mean error which is clearly evident, plain, and indisputable. ( People v. Green (1991), 218 Ill. App. 3d 71, 75, 578 N.E.2d 169, 172, 161 Ill. Dec. 42.) Applying this standard to the instant case, we find that the post-conviction court's determination that the defendant was denied the effective assistance of counsel is manifestly erroneous. The controlling question before this court is the correctness of the post-conviction court's Conclusion, not the validity of its rationale or reasoning. ( People v. Johnson (1992), 231 Ill. App. 3d 412, 419, 595 N.E.2d 1381, 1386, 172 Ill. Dec. 711; People v. Dyer (1986), 141 Ill. App. 3d 326, 332, 490 N.E.2d 237, 241, 95 Ill. Dec. 764.) It is our opinion that the post-conviction court erred in finding appellate counsel on direct appeal ineffective for failing to challenge the trial court's refusal to give a voluntary manslaughter instruction. To reach this Conclusion, we must ascertain whether: (1) appellate counsel's decision not to pursue the issue on appeal was objectively unreasonable; and (2) there was a reasonable probability that the conviction would have been reversed had the issue been pursued. Caballero, 126 Ill. 2d at 269, 533 N.E.2d at 1096.

We start from the premise advanced by the State: if there was no error in the trial court's refusal to give the voluntary manslaughter instruction, then it follows, a fortiori, that appellate counsel's decision not to raise the issue on direct appeal was reasonable. In other words, if the trial court properly denied the voluntary manslaughter instruction, then appellate counsel's decision not pursue the issue on appeal was not objectively unreasonable. Without a showing of objective unreasonableness, it cannot be said that the defendant was deprived of a reasonable probability of reversal. In order to resolve this question, we must go back in time and look at the law as it existed in 1986 (time of conviction) and 1988 (time of direct appeal).

"Passion on the part of the slayer, no matter how violent[,] will not relieve him from liability for murder unless it is engendered by a provocation which the law recognizes as being reasonable and adequate. If the provocation is not sufficient[,] the crime is murder." ( ...


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