Appeal from the Circuit Court of Cook County. 91 CR 26304 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Defendant Marcus King appeals the circuit court's denial of his petition for relief pursuant to the Post-Conviction Hearing Act, (725 ILCS 5/122-1 (West 1998)). After conducting an evidentiary hearing, the trial court determined that defendant's trial counsel had not rendered ineffective assistance in violation of defendant's constitutional rights. Because we cannot conceive of any sound trial strategy that would justify counsel's failure to call an available alibi witness who would have bolstered an otherwise uncorroborated defense, we reverse and remand this case for a new trial. *fn1
Following a bench trial, defendant was convicted of aggravated criminal sexual assault and aggravated kidnapping for the abduction and rape of 17-year-old L.R., a passenger on defendant's school bus route. The trial court sentenced defendant to consecutive prison terms of nine and six years for these respective offenses. We affirmed these convictions on direct appeal. People v. King, No. 1-92-1945 (1993) (unpublished order pursuant to Supreme Court Rule 23).
Defendant thereafter filed a timely pro se petition for relief pursuant to the Post-Conviction Hearing Act, (725 ILCS 5/122-1 (West 1998)). In his petition, defendant alleged: (1) he was denied his right to testify at trial because his attorney refused several requests he made to testify on his own behalf, (2) he was denied effective assistance of counsel because (a) he was never informed that he had the right to testify and (b) his attorney failed to call Dovie Mathews, an essential alibi witness, (3) he was denied his right to present a defense because neither he nor his alibi witness was called to testify at trial, and (4) he was denied effective assistance of appellate counsel because these issues were not raised on direct appeal even though he discussed them with his attorney.
In support of his post-conviction petition, defendant attached his own affidavit and the affidavit of Dovie Matthews, a then 69-year-old woman who worked as a bus attendant on defendant's bus the day of the alleged rape. Defendant's affidavit stated that he provided his trial counsel, Jeff Ginsberg, with Dovie Matthews' name and told Ginsberg that Matthews could testify on his behalf. As far as defendant knew, attorney Ginsberg did not interview Matthews in preparation for trial, although she was present at court and available to testify on the trial date. Defendant maintained that he did not rape L.R. and was never alone with her on the bus. Finally, defendant stated that L.R. arrived home a little late on the day in question because he had taken an additional route to drop off an extra group of children.
Defendant's statements were corroborated by Dovie Matthews' affidavit. Matthews stated that she was the bus attendant assigned to defendant's route on October 15, 1991, the date L.R. claimed she was raped. Matthews further stated that she was on the bus the entire time the students were riding home from school as her job required. According to Matthews, on the day of the alleged rape she did not leave the bus early. Furthermore, L.R. was never alone on the bus with defendant. Matthews explained that she and defendant did a double shift that day, driving two separate groups of children home at the same time. Eight extra students were dropped off first, then the seven regular students were dropped off. Matthews also stated that she was in the courtroom on the day of defendant's trial but was told to leave and wait in another room, where she remained available and was ready to testify to the above facts. Matthews denied that she talked to defendant's trial counsel on the day of defendant's trial. She further stated that she waited to testify until the end of the day when someone told her that the trial was over and the courtroom was locked.
The trial court summarily dismissed defendant's petition. On appeal, we reversed and remanded the case with instructions for the trial court to appoint counsel to represent defendant and to conduct further proceedings consistent with the Post-Conviction Hearing Act. We noted that to preclude a summary dismissal, the petition need only contain a statement "which presents the gist of a meritorious constitutional claim [citation.]" People v. King, No. 1-95-1809 (1996) (unpublished order pursuant to Supreme Court Rule 23).
Upon remand, defendant's appointed counsel filed a memorandum in support of defendant's original pro se post-conviction petition, requesting a new trial or an evidentiary hearing. An evidentiary hearing was never conducted. The trial judge, after hearing argument, granted the State's motion to dismiss defendant's post-conviction petition on the merits. Again, this court reversed and remanded. We held that defendant was entitled to a post-conviction evidentiary hearing to properly evaluate his claims because a substantial showing of a violation of a constitutional right had been made and his allegations were supported by the record and affidavits. People v. King, No. 1-97-0729 (1998) (unpublished order pursuant to Supreme Court Rule 23).
On April 14, 1999, the parties appeared on the trial court's call to set a date for the evidentiary hearing. The sitting post-conviction judge inquired as to why an evidentiary hearing was still necessary in light of the fact that defendant had already served a seven-year prison sentence and was no longer incarcerated. Defendant, appearing personally, informed the court that he wanted to proceed with his post-conviction claims in an effort to clear his name. At this time, over defense counsel's objection, the post-conviction judge interpreted the appellate mandate (No. 1-97-0729) as requiring an evidentiary hearing solely on the issue of ineffective assistance of counsel for attorney Ginsberg's failure to call Dovie Matthews as a witness. An evidentiary hearing was set for May 12, 1999, to address this single issue.
On May 12, 1999, the trial court denied defendant's motion to reconsider the court's prior order which limited the scope of the evidentiary hearing, thus effectively dismissing all but one of defendant's post-conviction claims. Defendant also presented a motion to continue the evidentiary hearing due to the unavailability of the defendant's key witness, Dovie Matthews. However, the State stipulated to the facts contained within Matthews' affidavit and further stipulated to her credibility. The evidentiary hearing immediately proceeded. The following evidence was presented: (1) testimony from defendant's trial counsel, Jeff Ginsberg, regarding his failure to call Matthews as a witness, (2) the appellate record of the trial with transcripts of witnesses' testimony, (3) defendant's affidavit submitted in support of his post-conviction petition, (4) stipulated testimony of Dovie Matthews that provided an alibi for defendant, and (5) stipulated sign-in records from Jacqueline Transportation, Inc., indicating that Dovie Matthews was the attendant on defendant's bus on October 15, 1991, the date of the alleged rape.
As the State was presenting its opening statement, the post-conviction judge interrupted and called Jeff Ginsberg to the stand. Attorney Ginsberg was sworn and the following direct examination was conducted by the judge:
"The Court: Why didn't you call Debbie [sic] Matthews?
Mr. Ginsberg: Judge, I don't recall. I know that I did subpoena her. I did speak to her on the phone once. I then subpoenaed her to court. I remember interviewing her after Miss Morask spoke- or before Miss Morask spoke to her. And at that point, Judge, I chose not to call her as a witness. That's all I recall.
The Court: That's a decision you made as trial strategy at that time?
Mr. Ginsberg: Yes, Judge, it was.
The Court: You felt that calling her as a witness would not be helpful in your representation of Mr. King?.
Mr. Ginsberg: Judge, I can only assume-
The Court: You talked to her?
Mr. Ginsberg: I chose not to call her. It was a matter of strategy. I do not recall specifically why I did not call her after speaking to her."
On cross-examination by defense counsel, Ginsberg testified that he was aware, at the close of his proofs, that he had not presented any evidence to rebut the testimony of the State's witnesses who said Matthews got off the bus early. Ginsberg further testified:
"Ms. Raddick: Do you recall what your trial strategy was for this case?
Mr. Ginsberg: Trial strategy in this case, as far as I can recollect ***, we felt that the mental state of the victim in this case made her incapable of being a ...