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People v. Boyd

March 19, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY BOYD, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  Following a bench trial, defendant, Anthony Boyd, was convicted of first-degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1998)), aggravated battery (720 ILCS 5/12-4(b)(1) (West 1998)), and felony murder predicated on the aggravated battery offense (720 ILCS 5/ 9-1(a)(3) (West 1998)). During sentencing, the judge referenced the one-act, one-crime rule and merged the felony murder conviction into the first-degree murder conviction. The order of commitment and sentence to the Illinois Department of Corrections signed by the judge accurately reflected the sentence imposed as 45 years on first-degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1998)) concurrent with 5 years on aggravated battery (720 ILCS 5/12-4(b)(1) (West 1998)).

[9]  On direct appeal defendant raised one issue only, whether his trial counsel was ineffective for eliciting testimony from him that he had struck one of the victims with a gun, which according to defendant, ensured his conviction for felony murder. We affirmed on direct appeal. People v. Boyd, No. 1-00-0491 (2002) (unpublished order under Supreme Court Rule 23). Defendant filed a post-conviction petition which was dismissed at the first stage of the post-conviction process. Defendant now appeals the trial court's first-stage dismissal of his post-conviction petition.

[10]   BACKGROUND

[11]   Around 6:30 p.m. on February 5, 1998, Marcus Bolden and a friend, Jermaine Muse, went to visit the apartment of Steve Robinson at 7410 South Chappel Avenue in Chicago to buy cocaine. Bolden initially remained in the car. Besides Robinson, also present in the apartment were defendant, Kenji Hawthorne, and Vernon Watts. While in Robinson's apartment, Robinson asked Hawthorne for two bags of cocaine. Hawthorne gave two small bags of crack cocaine to Robinson. Robinson and Muse then went outside to the car to talk to Bolden. While Robinson and Muse were outside, defendant asked for and received a gun from Hawthorne. Robinson and Muse, together with Bolden, eventually returned to the apartment. At that point, defendant, Hawthorne, and Vernon Watts were in the front room of the apartment. Robinson told Hawthorne that Bolden wanted to test the cocaine.

[12]   As Bolden paid Hawthorne and began to smoke the cocaine, defendant asked Muse why he had his hands in his pockets. Defendant instructed Muse to remove his hands from his clothing. Defendant, with Hawthorne and Watts, went into a front bedroom, while Muse, Bolden and Robinson stayed in the kitchen. Muse suggested to Bolden that they leave because defendant was making Muse nervous. When Bolden indicated he wanted to stay, Muse left the kitchen and attempted to leave the apartment. However, as Muse approached the front door, he was stopped by Hawthorne. Defendant also appeared, displayed the gun and stated that nobody was leaving the apartment.

[13]   Defendant pointed the gun at Muse and instructed Muse to get on the floor. Defendant suddenly struck Muse several times in the head with the gun and asked Muse if he was a police officer. Muse stated no and attempted to explain to defendant that he worked at Ford Motor Company. As defendant confronted Muse, Hawthorne grabbed and searched Bolden. Robinson, who, like Muse, was on his knees, repeatedly told defendant that neither Muse nor Bolden was a police officer. Defendant told Robinson to be quiet and threatened to shoot Robinson. When Robinson continued telling defendant that his friends were not the police, defendant told Robinson "to get the fuck out" and Robinson ran to the kitchen. Muse escaped by jumping through a closed front-room window, shattering the glass, and began searching for help.

[14]   During the commotion caused by Muse escaping, Bolden attempted to grab the gun from defendant and a struggle ensued. Hawthorne testified that Bolden grabbed defendant around the waist in a bearhug, while defendant, holding the gun in his hands, attempted to break free. During the struggle, the gun was fired and Bolden fell to the floor. According to Hawthorne, defendant had the gun in his hands the entire time and he never observed defendant pick the gun up off the floor.

[15]   Defendant searched Bolden while Bolden was on the floor and pulled some unidentified items from Bolden's pants pocket. Defendant, together with Hawthorne and Watts, then fled from the apartment. Bolden was transported to Cook County Hospital, where he later died of a gunshot wound to the chest. Several days later defendant was arrested and placed in a lineup. The lineup was viewed separately by Muse, Robinson and Hawthorne, each of whom positively identified defendant as being present at Robinson's apartment with the gun on the night of the shooting.

[16]   After the State rested, the defendant testified. Defendant stated that he went to Robinson's apartment on the night of the shooting to meet Hawthorne, who had asked defendant to obtain a gun for him. Upon his arrival, defendant gave Hawthorne a gun and the two went to a restaurant to eat. They eventually returned to Robinson's apartment, and because Hawthorne was "playing" with the gun, defendant took the gun away from Hawthorne.

[17]   Defendant testified that Robinson asked Hawthorne for some cocaine. Hawthorne gave Robinson two bags of cocaine and Robinson went outside. Robinson returned shortly with Muse and Bolden and everyone gathered in the kitchen. After some hesitation, Bolden agreed to purchase the cocaine and gave Hawthorne money. Defendant, Hawthorne and Watts then went into a room in the front of the apartment. Defendant noticed Muse attempting to open the front door. Hawthorne asked Muse where he was going and Muse stated he was going outside to get a beer. Hawthorne, according to defendant, responded by suggesting that Muse was a police officer. Defendant agreed with Hawthorne and Hawthorne grabbed Muse, pushing him away from the door and back into the apartment. Defendant indicated that he assisted Hawthorne, during which time Muse "kind of like pulled the gun out" of defendant's clothing. Defendant then told Muse to get on the floor.

[18]   Defendant grabbed hold of the gun while Bolden and Robinson entered the room. According to defendant, Hawthorne began to tussle with Bolden. Defendant stood next to Muse, who was on his knees, and told Bolden to let go of Hawthorne. During his direct examination, defense counsel specifically asked defendant if he ever hit Muse with the gun while Muse was on his knees. Defendant acknowledged that he did hit Muse with the gun. Defendant indicated that while he and Robinson talked about whether Muse and Bolden were police officers, Muse got up and jumped out of a window. Defendant stated that Bolden then suddenly rushed him and grabbed the gun's handle. Defendant explained his finger was on the trigger and the gun's barrel was pointed in the direction of Bolden. Defendant and Bolden began to struggle, during which the gun fired and dropped to the floor. Defendant stated that both he and Bolden were holding onto the gun during their altercation and that they released their respective hold of the gun after its discharge. When defendant realized that Bolden, not he, had been shot, defendant walked over to where Bolden was lying and picked up the gun. Defendant fled the apartment and threw the gun in a nearby alley.

[19]   Following the shooting, defendant knew that Bolden had died and that the police were searching for him. Defendant, however, never contacted the police to explain his involvement in the shooting. Defendant maintained the shooting was an accident and that he had no intention to shoot or kill Bolden.

[20]   The trial judge found the defendant not guilty of the attempted robbery charge, but found defendant guilty of first-degree murder, aggravated battery and felony murder predicated on the offense of aggravated battery. The court sentenced defendant to 45 years in prison on the first-degree murder conviction and a concurrent term of 5 years in prison for the aggravated battery conviction. On direct appeal, defendant argued one issue: whether his trial counsel was ineffective for eliciting testimony from him that he had struck Muse with a gun, which, defendant contended, ensured his conviction for felony murder. People v. Boyd, No. 1-00-0491 (2002) (unpublished order under Supreme Court Rule 23). Defendant contended because the shooting of Bolden occurred shortly after defendant struck Muse several times in the head with a handgun without the intervention of any independent act, defense counsel's eliciting the admission from defendant that he committed an aggravated battery upon Muse guaranteed a finding of guilty on the greater charge of felony murder.

[21]   In resolving that argument raised by defendant on direct appeal, we indicated in pertinent part as follows:

[22]   "Even assuming defense counsel's concession of defendant's guilt for aggravated battery constitutes incompetence, we do not believe a reasonable probability exists that the trial court would have found defendant not guilty of felony murder based on the aggravated battery if defendant had not been questioned about his assault on Muse. The crux of defendant's ineffective assistance claim is that his attorney's concession of guilt on the aggravated battery charge lead the court to enter a conviction for felony murder based on that offense. The State's evidence, however, overwhelmingly established defendant's guilt for aggravated battery. Most notably, Muse, one of the victims, and Robinson and Hawthorne, both eye witnesses, all testified that defendant struck Muse in the head with the handgun several times. Given the strength of the State's evidence introduced in support of its aggravated battery charge, we cannot conclude defendant would have been acquitted of felony murder if he had not testified to striking Muse with a gun." Boyd, slip op. at 15.

[23]   Defendant filed a pro se post-conviction petition. The petition alleged various constitutional deprivations based on the alleged ineffective assistance provided by trial and appellate counsel. We will address each in turn, but first we briefly discuss as backdrop the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)).

[24]   POST-CONVICTION HEARING ACT

[25]   The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). A post-conviction petition is a collateral attack on a prior conviction. Mahaffey, 194 Ill. 2d at 170.

[26]   In a non-capital case, the Act creates a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from the State, examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stage two, where section 122-4 of the Act provides for the appointment of counsel for an indigent defendant. 725 ILCS 5/122-4 (West 2000). At stage two the State has the opportunity to either answer or move to dismiss the petition (725 ILCS 5/122-5 (West 2000)), and the trial court determines whether the petition makes a substantial showing of a constitutional violation (People v. Coleman, 183 Ill. 2d 366, 381 (1998)). If the petition is not dismissed at stage two, it proceeds to stage three, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2000). An ...


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