Appeal from the Circuit Court OF ILLINOIS, of the 9th Judicial Circuit, McDonough County, Illinois, No. 06--CF--163 Honorable Edward R. Danner, Judge, Presiding.
The opinion of the court was delivered by: Justice Holdridge
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.
The defendant, Darrell Rippatoe, appeals from an order of the circuit court of McDonough County denying his posttrial claims of ineffective assistance of counsel and denying his request for appointment of new counsel. This is the second time that the defendant's posttrial claim of ineffective assistance of trial counsel has been brought before this court. We previously remanded this matter to the circuit court with directions to conduct an appropriate inquiry into whether new counsel should be appointed to present the defendant's claim of ineffective assistance of trial counsel. People v. Rippatoe, No. 3--07--0646 (2009) (unpublished order under Supreme Court Rule 23).
A jury found the defendant guilty of home invasion (720 ILCS 5/12--11(a)(6) (West 2006)) and resisting or obstructing a peace officer (720 ILCS 5/31--1(a) (West 2006)). At the sentencing hearing, the defendant raised allegations of ineffective assistance of counsel. The trial judge, Judge Larry Heiser, did not address the defendant's claims of ineffective assistance of trial counsel. The court sentenced the defendant to 61/2 years for home invasion and 364 days for resisting or obstructing a peace officer, the sentences to run concurrently.
In a pro se motion filed after sentencing, the defendant again raised allegations of ineffective assistance of counsel, asking the trial court to appoint another attorney to represent him. By this time, Judge Heiser had retired and Judge Edward Danner presided over defendant's motion. Judge Danner ruled that, based upon his review of the transcript of the prior proceedings, there was no merit to the defendant's ineffective assistance claims. The trial court then summarily denied the request to appoint new counsel.
The defendant appealed, maintaining that the trial court had failed to conduct an adequate inquiry into the factual basis of his pro se ineffective assistance claim. See People v. Krankel, 102 Ill. 2d 181, 188 (1984). This court reversed and remanded the matter to the trial court with directions to conduct an inquiry into the factual basis of the defendant's pro se posttrial claims in order to determine whether new counsel should be appointed to investigate those claims. This court held that the defendant's claims of ineffective assistance could not be adequately addressed by merely reviewing the transcripts of the trial.
Following remand from this court, the defendant was transported from a Department of Corrections facility to the McDonough County courthouse where he was brought before Judge Danner with his legs shackled together and his arms shackled to a waist belt. When asked to raise his right hand to be sworn, the defendant exhibited extreme difficulty in doing so due to the presence of the shackles. After some effort to overcome the weight and encumbrance of the shackles, the defendant was able to raise his right hand sufficiently to swear an oath of truth.
After the defendant successfully raised his right hand, there was no further mention of the shackles, which remained on the defendant throughout the hearing.
The defendant testified that he told his defense counsel that an individual named Floyd Robinson could testify that the defendant had asked him to watch his two-year-old son, Ezekiel, while the defendant went to the alleged victim's house on the day in question. This testimony would have contradicted the testimony of the victim and the victim's adult son that the defendant had brought Ezekiel with him to the victim's house. The defendant alleged that counsel did not call Robinson to testify because of his race. The defendant also testified that his counsel had failed to ask a number of questions of the prosecution witnesses that he had requested be asked.
Attorney Douglas Miller, defendant's trial counsel, was called by the court to give testimony regarding his representation of the defendant at trial. Miller testified that the defendant had given him the name of Floyd Robinson as a potential witness. Miller thereafter arranged for Robinson to come to the courthouse during the defendant's trial. Outside the courtroom, Miller asked Robertson if, on the day in question, the defendant had taken Ezekiel to Robinson's house so that Robinson could watch the child. Robinson told Miller that he could not be sure that the defendant had gone to the victim's house while he was watching the child or if the defendant had picked the child up before going to see the victim. Robinson claimed that he watched the child for approximately an hour that day, but he could not pinpoint the time of day when he was watching the child. Miller recalled that both the victim and her son testified that Ezekiel was with the defendant when he invaded the victim's home and attempted to sexually assault her.
Although Miller indicated that he had no concerns about Robinson's credibility as a witness, he decided not to call Robinson to testify because he did not believe that Robinson's testimony would support a claim that the State's witnesses were not truthful when they testified that Ezekiel was with the defendant. In view of the fact that Robinson could not establish what time of day he was watching the child, Miller ...