Appeal from Circuit Court of Adams County. No. 99CF66. Honorable Scott H. Walden, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
This case requires us to determine whether criminal defense counsel may properly force his client to choose between testifying without his counsel's assistance or not testifying at all, when defense counsel's determination that his client will commit perjury on the witness stand is based solely on counsel's assessment of the evidence. We hold that he may not.
In February 1999, the State charged defendant, Cory W. Calhoun, with residential burglary of Sarah Louderback's home. Evidence presented at defendant's May 1999 jury trial showed that on February 22, 1999, defendant, who was driving Louderback's Chevy Blazer, dropped Louderback off at work and then drove her son, David, to his babysitter's house. Later that day, Louderback reported to police that her Chevy Blazer and certain items from inside her home were missing. Later that night, defendant was arrested in Hannibal, Missouri, after Hannibal police spotted Louderback's Blazer, pulled it over, and found defendant at the wheel. Some of Louderback's missing items were found in the Blazer. Louderback testified at trial that she and defendant were friends but had never dated.
The jury convicted defendant of residential burglary (720 ILCS 5/19-3 (West 1998)), and the trial court later sentenced him to 11 years in prison and ordered him to pay $420 in restitution and $331 in court costs. The court also ordered the Department of Corrections (DOC) to withhold 50% of defendant's DOC wages and remit those funds to the circuit clerk to be applied toward the amounts due for restitution and costs.
Defendant appealed, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he was denied effective assistance of counsel at trial and in posttrial proceedings; and (3) the trial court lacked the authority to order the withholding of his DOC wages. This court agreed with only defendant's third argument and thus affirmed his conviction and remanded with directions. People v. Calhoun, No. 4-99-0560 (November 13, 2000) (unpublished order under Supreme Court Rule 23).
In October 2001, defendant pro se filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2000)), and the trial court later appointed post-conviction counsel for defendant.
In February 2002, post-conviction counsel filed an amended post-conviction petition, alleging that (1) defendant's trial counsel was ineffective in that he failed to (a) assist defendant in testifying in his own defense, (b) obtain phone records to impeach a State's witness, and (c) perfect defendant's appeal of his sentence; (2) defendant was denied due process in that the amount he was ordered to pay in restitution was not supported by the evidence; and (3) defendant's 11-year sentence constituted cruel and unusual punishment. Later in February 2002, the State filed a motion to dismiss defendant's amended post-conviction petition.
Following a February 2002 hearing, the trial court granted the State's motion to dismiss defendant's amended post-conviction petition as to all of defendant's claims except his claim that his trial counsel provided ineffective assistance when he refused to assist defendant in presenting his testimony. As to that claim, the trial court granted defendant an evidentiary hearing.
At the July 2002 evidentiary hearing, defendant testified that he and his trial counsel, Randall Prizy, first discussed whether defendant would testify after the trial court denied his motion for a directed verdict. In the trial court's chambers following that denial, Prizy informed the court that the defense would not be putting on any evidence and he did not believe defendant would be testifying. Defendant interrupted and stated that he "had" to testify. The court then gave defendant and Prizy time to discuss the matter outside chambers.
In the hallway outside the trial court's chambers, Prizy explained to defendant that it would not be wise for him to testify because if he did so, all of his prior convictions would hurt him. Defendant and Prizy argued "vehemently." When they returned to the court's chambers, the court explained to defendant that his prior convictions could be a grave concern. The court asked the prosecutor what defendant's prior convictions were, and he informed the court of a few but did not have a complete listing with him. Defendant said that he needed to testify, and he and Prizy again stepped outside chambers. Prizy began by saying to defendant, "How is it going to look if you get up to testify and I got no questions to ask you?" Defendant was "stunned" and went back into the court's chambers and said that he was not going to testify. Defendant acknowledged that the court had earlier admonished him regarding his right to testify.
Defendant further testified that (1) he never told Prizy that he was guilty and had not told Prizy what he would testify to if he took the stand; (2) he and Prizy did not discuss whether his testimony would be truthful, only that his prior convictions would hurt him; and (3) he did not testify because Prizy would not help him do so. Defendant also testified that he did not tell the trial court that Prizy said he would not help him testify and explained as follows: "Well I was stunned. I wish I would have now."
Prizy testified as follows regarding his first conversation with defendant following the trial court's denial of the motion for directed verdict.
"Generally it was one in which it was my advice to him not to take the stand generally because of his prior convictions. He had quite a few felony convictions we had dealt with. I didn't do a motion to see if we could get any of those felonies thrown out because it was my intention and my hope that [defendant] elected [sic] not to take the stand because I wasn't comfortable with his felony convictions and I also wasn't comfortable with his version of the events of that particular day where he was charged with theft and the residential burglary. So I was leaning towards advising him not to take the stand."
Prizy did not remember the conversation exactly but stated that they did discuss his discomfort with defendant's version of events. Prizy acknowledged that he learned defendant's version of events months earlier--three or four days after he was appointed to represent defendant and prior to defendant's preliminary hearing. Between the preliminary hearing and trial, Prizy and defendant discussed defendant's version of events "numerous times." Defendant's version was consistent each time they discussed it.
During their second conversation outside the trial court's chambers, Prizy and defendant covered the same ground. Defendant told Prizy that (1) he wanted the jury to hear his story; (2) Louderback was lying; and (3) the jury would believe him. When asked whether a discussion occurred about the way the trial would proceed if defendant testified, Prizy replied, as follows:
"When the situation comes to that, sometimes --I sometimes will tell a defendant, and I don't remember if I told [defendant] this, but I may have told him that if by chance he testified, that it might be a narrative form because I still wasn't at all comfortable with his testimony. And I may have told him that he may have a better chance at telling the jury anything and everything that he wanted to, but it would be a narrative, it wouldn't be a question and answer period from me, it would be me getting up and asking him to give his own version, but we needed the [c]court's consent to do that. And if we did that and that was allowed, it was my opinion to him that the jury would sense that something funny was going on and they might not like it and they would more so scrutinize his testimony."
Prizy did not recall whether he said this to defendant. At the end of their conversation, defendant decided not to testify. Defendant never appeared to be shocked, upset, or alarmed by what Prizy told him. Prizy acknowledged that on the day of trial, he and defendant had some heated conversations and were unhappy with each other. He further acknowledged that defendant was convinced of the truth of his version of events.
Prizy also testified that (1) he was convinced that defendant was going to commit perjury; and (2) he did not want defendant to get into any more legal trouble. When asked what it was about defendant's version of events that caused Prizy to believe it would be perjurious, Prizy replied, as follows:
"A lot of very simple things to a lot of complicated things. [Defendant] maintained that he and [Louderback] were boyfriend, girlfriend. [Louderback] said that was not remotely true, that they were friends, no more no less, but because of this that they were no longer friends.
She had a son by the name of [David]. [Defendant] had asked me to talk to him and subpoena him, I believe he was nine or ten years old at the time, that he would support [defendant's] story. That he would say that they went back to the house and everything was fine and he was taking care of him, that he didn't take anything in the house and there was no problem, but--basically [defendant] told me that he was a normal good kid who loved his mother and he and [defendant] were good friends. I met with [David] and his mother three or four days before trial, it was extremely obvious to me that he had large behavior problems. He could not ...