The opinion of the court was delivered by: Justice O'mara Frossard.
Appeal from the Circuit Court of Cook County
Honorable Michael B. Bolan, Judge Presiding.
Following a bench trial, defendant Gregory Smith was convicted of first degree murder and sentenced to 20 years in prison. The judgment was affirmed on direct appeal. People v. Smith, No. 1-97-2853 (1998) (unpublished order under Supreme Court Rule 23). Defendant filed an initial and an amended petition for post-conviction relief, both of which were prepared by retained counsel. The trial court summarily dismissed the petition as frivolous and patently without merit. Defendant contends on appeal that his amended petition stated meritorious claims of ineffective assistance of trial and appellate counsel.
Defendant's conviction arose from the fatal shooting of George Barron on July 3, 1993, in Chicago. The only eyewitness to testify at trial was Richard Campbell. According to Campbell, he, Barron, and Antonio Cox were walking on the street when three men approached them. Campbell recognized one of the men as Ronald Ware. Ware fled the scene, but one of the men who was with Ware started shooting at Campbell and his companions. Campbell testified that the shooter was wearing a cream- and black-colored hooded shirt. He described the shooter's gun as an automatic, stating that he heard shells hitting the ground. Campbell testified that the shooter continued toward them, firing the gun. Eventually, the shooter came within two feet of Barron and shot him in the right temple. Campbell testified that the third offender simply stood and looked around. The third man was short and dark-skinned with a mustache, wearing a cream-colored North Carolina "Targets" hooded shirt. Campbell later identified Ware during a lineup. He also identified the cream-color North Carolina "Targets" hooded shirt, which was worn by defendant in the lineup. However, Campbell did not identify defendant as one of the offenders.
Officer John McCann testified that he recovered five 9 millimeter Luger shell casings "a few feet" from Barron's body. Officer McCann interviewed Campbell and obtained Ware's address. When Officer McCann brought Ware to the station for questioning, Ware implicated defendant and a man named Yaw Appiah. Officer McCann went to Appiah's home, where he found Appiah and defendant. Defendant was taken to the police station, where he was given Miranda warnings and was advised that he could be charged as an adult. Defendant's mother arrived at the police station some time after defendant. Defendant told Officer McCann that on the night of the shooting, he had taken a gun from his mother's bedroom because some Folks were going to shoot him. About 7 p.m. that night, he went to a party where he met Ware and Appiah, who had a black 9 millimeter semiautomatic gun. Defendant told Officer McCann that Ware, Appiah, and two other men he did not know were talking about going to shoot some Folks. Defendant gave his gun, which was a .357, to Ware, who handed it to one of the men defendant did not know. When that man indicated he wanted defendant's shirt because it had a hood, defendant switched shirts with him. Defendant told Officer McCann that Ware, Appiah, and the man wearing defendant's shirt then left the party for about 20 minutes. When they returned, Appiah told defendant that he wanted to leave. While they were walking to Appiah's house, Appiah told defendant that he shot some Folks. Defendant asked Appiah about his .357 gun, but Appiah did not answer.
Officer McCann testified that he owned a Smith & Wesson .357 Magnum handgun that shot ".38 special, class B" bullets. McCann explained that a .357 caliber handgun will fire either .38 or .357 caliber bullets. Officer McCann testified that a few hours after he interviewed defendant, Assistant State's Attorney Weaver arrived and defendant gave a statement to Weaver that was "substantially the same" as his statement to Officer McCann.
The parties stipulated that if called to testify, Dr. Thamrong Chira would have testified that he performed an autopsy on Barron and cause of death was nine gunshot wounds. Dr. Chira determined that eight of the nine bullets exited Barron's body and recovered the remaining bullet from Barron's spinal cord. The parties further stipulated that if called to testify, Richard Fournier, a firearms examiner, would have testified that he examined the recovered bullet, determined that it was "a .38 caliber bullet, and he classified it as a .38 special."
On direct appeal, defendant argued that the evidence was insufficient to prove him guilty of first degree murder on the theory of accountability because it did not establish that defendant's gun was used in the commission of the offense. We rejected defendant's contention and affirmed his conviction. People v. Smith, No. 1-97-2853 (1998) (unpublished order under Supreme Court Rule 23).
In his amended post-conviction petition, prepared by retained counsel, defendant alleged that his trial counsel was ineffective for the following reasons: (1) failed to "run" a motion to suppress defendant's statement; (2) admitted defendant's accountability in the opening statement and motion for directed verdict; (3) failed to engage in meaningful adversarial testing of the firearm evidence; that failure included a stipulation that the bullet recovered from the victim was a .38 special; (4) failed to inform defendant of the nature and potential effect of that stipulation; (5) stipulated to the cause of death, failed to engage in meaningful adversarial testing of the medical examiner's testimony and failed to explore the possibility that if a bullet from defendant's gun was found in the victim's body, it was not a cause of death; (6) did not properly inform defendant of the nature and potential effect of stipulating that multiple gunshot wounds were the cause of the victim's death; (7) caused defendant to involuntarily relinquish his right to testify on his own behalf by telling him that (a) if he testified, his gang affiliation would be brought up and be extremely detrimental to his case; and (b) if he were to testify contrary to what he was claimed to have said in the police reports, it would negatively affect his case; (8) caused defendant to involuntarily relinquish his right to a jury trial by telling defendant that the judge owed him a favor and it would be better to have a bench trial because the judge would have information not available to a jury; (9) failed to engage in meaningful adversarial testing of Officer McCann's testimony and the State's evidence regarding defendant's gun being used in the offense; and (10) provided representation that "constituted nothing more than a sham and farce."
Defendant also contended in his petition that appellate counsel was ineffective for (1) going forward on appeal without a full transcript of the trial record; (2) failing to raise the issue of plain error regarding Officer McCann's testimony that a .357 caliber handgun is capable of firing .38 caliber bullets; and (3) failing to raise the issue of ineffective assistance of trial counsel.
Defendant attached a self-executed affidavit and an affidavit executed by his mother in support of the allegations in his petition. He also attached an affidavit executed by post-conviction counsel. The trial court dismissed defendant's petition as frivolous and patently without merit. Defendant now appeals from the summary dismissal of his petition for post-conviction relief.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides that a defendant may challenge his conviction for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). Post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill. 2d 83, 89 (1999). All issues decided on direct appeal are res judicata, and all issues that could have been raised in the original proceeding but were not are waived. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). There are circumstances under which the waiver rule may be relaxed. For example, res judicata and waiver will be relaxed when appropriate under principles of fundamental fairness. People v. Holman, 191 Ill. 2d 204, 210 (2000). The waiver rule is relaxed where the alleged waiver stems from the incompetence of appellate counsel. Whitehead, 169 Ill. 2d at 371. If a claim of ineffective assistance of counsel is based on matters outside the record, then it could not have been raised on appeal and, consequently, is not waived in a post-conviction petition. People v. Owens, 129 Ill. 2d 303 (1989).
The Act establishes a three stage process for adjudicating a petition for post-conviction relief. 725 ILCS 5/122-1 et seq. (West 1998). This case was before the trial court at the first stage of the post-conviction process. We rely on the language of the Act for purposes of defining the first stage pleading standard. A defendant may proceed under the act by alleging "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998). A petition filed under the Act must "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1998). The petition shall have attached "affidavits, records or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 1998).
At the first stage, the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The trial court is not to consider the petition on the merits, rather, it is to consider the petition independently, without any input from either side. Gaultney, 174 Ill. 2d at 418. At the first stage of a post-conviction proceeding, the circuit court determines whether the petition alleges a constitutional infirmity which would necessitate relief under the Act. People v. Coleman, 183 Ill. 2d 366, 380 (1998). The first stage presents a pleading question. Unless positively rebutted by the record, all well-pled facts are taken as true at this stage and the trial court's determination is subject to de novo review. Coleman, 183 Ill. 2d at 388-89. Substantive questions relating to the issues raised in the petition are not to be addressed at the first stage of the post-conviction proceeding. People v. Topps, 309 Ill. App. 3d 813, 819 (1999).
Section 5/122-2.1 of the Act directs the trial court to conduct a threshold evaluation of the allegations pled in post-conviction petitions and to dismiss those which are "frivolous" or "patently without merit." The Act provides: "If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West 1998). "In considering a petition pursuant to this Section the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 1998). Those records should be examined to determine whether the allegations are positively rebutted by the record. That determination will assist the trial court in resolving the issue as to whether the petition is frivolous or patently without merit. We are mindful that this case is reviewed by this court at the first stage of the post-conviction process. Based on the procedural posture of this case, the relevant question is whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998); People v. Edwards, 197 Ill. 2d 239, 244, 246-47 (2001). Whether the petition and any accompanying documents make a substantial showing of a constitutional violation is a second stage inquiry. Edwards, 197 Ill. 2d at 245-46. If at the second stage a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 1998); Gaultney, 174 Ill. 2d at 418.
I. Ineffective Assistance of Trial Counsel
Defendant contends on appeal that his petition stated a meritorious claim of ineffective assistance of trial counsel. The petition pled ten separate allegations of ineffective assistance of trial counsel in detail. The State argues that because defendant did not raise this issue on direct appeal, it is waived. However, defendant also alleged ineffective assistance of appellate counsel including appellate counsel's failure to raise the issue of ineffective assistance of trial counsel. As we have previously noted, the waiver rule may be relaxed where the facts relating to the claim do not appear in the original appellate record, where the defendant's arguments are based on the incompetency of the original appellate counsel, or where fundamental fairness so requires. We review defendant's claim that he received ineffective assistance of trial counsel based on these recognized exceptions to the waiver rule. Holman, 191 Ill. 2d at 210; People v. Tooles, 177 Ill. 2d 462, 464-65 (1997); Whitehead, 169 Ill. 2d at 271.
In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court set forth the following two-prong test to determine whether a defendant has been denied effective assistance of counsel: (1) the defendant must show that counsel's representation fell below an objective standard of reasonableness, and (2) the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The defendant must overcome a "strong presumption" that his counsel's conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. If the ineffectiveness claim can be disposed of on the basis that the defendant did not suffer sufficient prejudice, a court need not consider whether counsel's performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Hall, 157 Ill. 2d 324, 337 (1993). Mindful that we are reviewing the trial court's dismissal of a first stage post-conviction petition, we address each of defendant's allegations of ineffectiveness of counsel. Whether we find the allegations of ineffective assistance meritorious, not frivolous, and not positively rebutted is determined by a close review of the record.
A. Motion to Suppress Statements
Defendant asserts that although his trial counsel filed a motion to suppress statements, he failed to litigate the motion. Defendant argues that his statement to the police was involuntary, and if the motion had been litigated, it would have likely succeeded. Defendant contends that because the only evidence directly connecting him to the murder was his statement, its suppression would have prevented the State from prosecuting him for murder. Finally, defendant asserts that because "[t]here was no downside to running the motion," trial counsel's failure to do so "evidence[d] no conceivable trial strategy."
Defendant indicated in his petition that he was 15 years old at the time he was arrested and interrogated, and asserted that he was never surrendered to a juvenile officer. Defendant alleged that he was interrogated for approximately 10 minutes before his mother arrived at the police station. According to his mother's affidavit, she learned of defendant's arrest through a co-defendant's mother, and by the time she arrived at the police station, the police had already begun interrogating her son. Defendant's mother also stated that at the time of his arrest, defendant was "very impressionable and would quickly acquiesce to any show or display of authority." She indicated that defendant's acquiescence in giving his statement to the police "was due to his young age, lack of experience with the court system, natural tendency to submit to authority, marginal intelligence and the deception by the officers involved in his interrogation that his `confession' would lead to his not being charged with the murder." Both defendant and his mother asserted in their affidavits that Officer McCann led them to believe that if defendant cooperated, he would not be charged. According to the affidavit executed by defendant's post-conviction counsel, trial counsel's reason for not litigating the motion to suppress was because defendant's testimony at a hearing on the motion "would be `inconsistent' with the police reports."
At trial, Officer McCann testified that he and his partner arrested defendant and co-defendant Yaw Appiah at Appiah's house. While Officer McCann and his partner were still at Appiah's house, Appiah's mother called defendant's mother, and informed her that the police were taking her to the police station with their sons. Appiah's mother asked defendant's ...