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07/31/97 PEOPLE STATE ILLINOIS v. CHESTER S. LESTER

July 31, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
CHESTER S. LESTER, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 84--CF--664. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication August 29, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Colwell and Rathje, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

Petitioner, Chester S. Lester, was convicted of first degree murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2) (now codified, as amended, at 720 ILCS 5/9-1(a)(1), (a)(2) (West 1996))) and sentenced to 40 years' imprisonment. He appealed his conviction, and we affirmed. People v. Lester, 145 Ill. App. 3d 720, 99 Ill. Dec. 543, 495 N.E.2d 1278 (1986) (Lester I). Petitioner filed a petition for post-conviction relief, and the trial court dismissed it without an evidentiary hearing. We remanded the cause for an evidentiary hearing to determine if defendant received ineffective assistance of counsel. People v. Lester, 261 Ill. App. 3d 1075, 199 Ill. Dec. 517, 634 N.E.2d 356 (1994) (Lester II). Following a hearing, the court denied the petition. Petitioner appeals, and we affirm.

The facts of this case are adequately set out in our previous opinions, and we will not repeat them here except as is necessary to resolve the issue petitioner raises. In Lester II, we remanded the cause for an evidentiary hearing on whether defendant received the effective assistance of counsel. Petitioner alleged that his attorney told him that he should not testify because it might hurt his appeal. We suggested that that statement, if made before trial, might be ineffective assistance of counsel because petitioner's attorney would be assuming the trial was lost before it began. See Lester II, 261 Ill. App. 3d at 1079-80.

At the hearing, petitioner's trial attorney, Tom McCulloch, testified that petitioner had convictions that McCulloch believed would have been brought out if petitioner had testified. McCulloch testified that he had several discussions with petitioner about his right to testify. These discussions took place throughout McCulloch's representation and continued up until petitioner told the trial judge that he chose not to testify. McCulloch told petitioner that he had a right to testify and that no one could stop him from testifying. He also told him that, if he did so, he could expect to be impeached with his convictions and to be cross-examined about statements he gave the police and hospital personnel.

When asked if he told petitioner that testifying would harm his chances on appeal, McCulloch stated "No, I didn't say that to him. And I, if he took it that way, then I would guess he took it that way. I can't control what he does construe that way." McCulloch also pointed out that petitioner had been consistent in his denials, but not in the details, and that the State had already introduced his denials into evidence. McCulloch testified that his opinion was that, as a matter of strategy, petitioner should not testify. He explained to petitioner that petitioner had a right to testify and that no one could prevent him from doing so. Petitioner made the ultimate decision not to testify.

Petitioner testified that he maintained his innocence throughout the case and continued to do so. According to petitioner, McCulloch told him right before trial that he did not think he should take the stand, although they had already agreed he would. When petitioner asked why, McCulloch told him that it would hurt his appeal. McCulloch then asked petitioner what he wanted to do, and petitioner asked what he should do. McCulloch told him that he could go to the judge's office and refuse to take the stand. Petitioner then went to the judge's chambers, and, with a court reporter present, told the judge that he was giving up his right to testify and that he had not been threatened. Petitioner also testified that McCulloch told him he should not testify because of his convictions.

The transcript of the judge's questioning of petitioner at his trial was also introduced into evidence. The transcript shows that petitioner and McCulloch appeared before the judge, who told petitioner that he understood that petitioner was giving up his right to testify. The judge advised petitioner of his right to testify and of his right not to testify, and asked if he was exercising his right not to testify. Petitioner responded "Yes, sir." The judge asked if he had any questions about that right, and petitioner responded "No, sir, I don't." The judge then told petitioner that he would accept that as what petitioner wanted to do, and petitioner responded "Yes, sir."

Following arguments, the trial judge ruled that petitioner had made an informed decision not to testify. The trial judge also noted that petitioner had the chance to decide to testify, as late as when he addressed the judge. The trial judge later stated that "even taking the argument a step further and saying the decision was not the defendant's, even if it was by counsel or on advice of counsel, the decision was clearly trial strategy and sound trial strategy. " Accordingly, the trial judge denied the post-conviction petition.

On appeal, petitioner argues that this matter must again be remanded because the trial judge misinterpreted the purpose of our remand. Petitioner points out that the issue was not whether he made an informed decision not to testify, but whether he received ineffective assistance of counsel because his attorney told him that testifying would hurt his appeal. According to petitioner, the trial judge did not decide whether the comment was in fact made.

Before addressing petitioner's argument, we must clarify one of the trial judge's statements. In Lester II, we admonished the trial judge that the decision whether a defendant should testify is the defendant's own decision and is not a strategic decision to be made by defense counsel. See Lester II, 261 Ill. App. 3d at 1079. We note that the trial judge again made this misstatement. However, this time it was made in the context of an alternative ruling, after the judge had already made his decision. While the trial judge is correct that the attorney's advice on whether a defendant should testify is a matter of strategy, the decision is for the defendant. As our supreme court recently stated:

"We recognize that the decision whether to take the witness stand and testify in one's own behalf ultimately belongs to the defendant [citations], but it should be made with the advice of counsel [citations]. Thus, in the instant case, defendant's decision not to testify must be viewed as strategy with which he agreed." ...


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