Appeal from the Circuit Court of Cook County. The Honorable Michael Brown, Judge Presiding. No. 00CR10872
The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.
Justices Howse and Epstein concurred in the judgment and opinion.
¶ 1 Defendant Lester Dobbey appeals from an order of the circuit court of Cook County summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). On appeal, defendant contends that the circuit court erred in dismissing his petition because he set forth an ineffective assistance of counsel claim that had an arguable basis in law and in fact. For the following reasons, we affirm the decision of the circuit court of Cook County.
¶ 3 Defendant was charged with multiple counts of first degree murder, attempted first degree murder, aggravated battery with a firearm, aggravated discharge of a firearm, and aggravated battery for firing a rifle at three individuals, striking one and killing another. Following a jury trial, defendant was found guilty of the first degree murder of victim Dorsey Williams, attempt first degree murder and aggravated battery with a firearm of Michael Cole, and not guilty of attempted first degree murder of a third person, Terence Robinson. Defendant was sentenced to consecutive sentences of 45 years' imprisonment for first degree murder and 6 years' imprisonment for attempted first degree murder.
¶ 4 Prior to trial, defense counsel filed a motion to suppress his statement to the police, alleging that his statement was coerced when police officers refused to allow him to make a telephone call in order to hire an attorney until after he gave his statement. The trial court denied the motion.
¶ 5 Defense counsel then filed a motion in limine to bar the State from making reference to defendant's or any other witness's gang affiliation. The trial court denied the motion.
¶ 6 Numerous individuals testified at trial, including the deceased's mother, Cole, Robinson, a paramedic, a fingerprint expert, an assistant State's Attorney, and Chicago police officers. We recite here only the details relevant to the issue before us.
¶ 7 At trial, Cole, the victim of the attempted murder, testified that he had known defendant for most of his life and had gone to school with defendant's brother. Cole and defendant lived on the same block and saw one another daily for "most of his life." In February and March 2000, Cole was a member of the Gangster Disciples street gang. Defendant was a member of a rival street gang, the Mickey Cobras. Cole disliked defendant because they were in rival gangs.
¶ 8 On February 25, 2000, Cole was on 92nd Street and Cottage Grove, riding in a stolen van from which shots were fired at defendant. Cole was not charged in the incident. Toward the end of March 2000, Cole was on the corner of 92nd Street and Cottage Grove when defendant and two neighborhood boys pulled up next to him in a car. Defendant asked Cole why he was staring at him, and Cole answered that he was staring at him because he disliked him. Defendant said Cole should not tell him that and warned that one day their "paths would cross."
¶ 9 Cole was at his girlfriend's house at approximately 9 p.m. on March 31when his friend and fellow gang member, Terence Robinson, asked him to drive him home. Robinson got into the backseat of the car and fell asleep while he waited for Cole. Cole stayed with his girlfriend awhile longer. Eventually, Cole drove to 91st Street and Dauphin, where he saw defendant pass by in a car. Thereafter, Cole's uncle, Dorsey Williams, flagged down Cole's car and got inside. Williams rode in front. Robinson was still asleep in the backseat.
¶ 10 At approximately midnight, as Cole approached the intersection of 92nd Place and St. Lawrence Avenue, he heard five to six gunshots. Cole was struck in his upper right arm. Williams was struck in the chest and slumped onto Cole.
¶ 11 Cole looked over his shoulder and saw defendant standing on the corner firing a rifle. Cole had an unobstructed view of defendant for two to three seconds, from a distance of 15 to 20 feet. Cole also saw a black male with defendant, but was unable to identify him.
¶ 12 Robinson testified that he awoke to the gunshots but did not sit up. When Cole, who had been shot, could no longer drive, Robinson moved to the front seat, took the wheel, and drove to a gas station two or three minutes away. Robinson went into the gas station and asked the clerk to call an ambulance. When he came back outside, Cole was helping Williams out of the vehicle. Williams was unable to walk. Williams "regained consciousness" as Robinson approached, and Cole laid him on the ground. Robinson heard Williams say, "I can't believe I'm shot. I'm shot. I'm shot." Robinson then heard Dorsey exclaim at least two times that it was defendant who shot him. Paramedics arrived and transported Williams to the hospital, where he subsequently died.
¶ 13 At the gas station, Cole provided police officers with a description and approximate address for defendant. At the hospital, Cole again provided the same address and description to another detective. On April 1, 2000, while Cole was still hospitalized, he viewed a photo array and identified a photograph of defendant.
¶ 14 Defendant was arrested on April 2, 2000, and brought to the police station. Chicago police detective Martin Tully testified that he and Detective Krakauski met with defendant in an interview room at approximately 12:15 p.m. Detective Tully told defendant that they wanted to speak with him about the March 31 shooting of Williams and Cole. Defendant initially told the detectives that he was at his girlfriend Simone's house at the time of the shooting. Defendant did not know Simone's last name or address. Detective Tully unsuccessfully attempted to find Simone. Defendant signed a consent to search form, giving officers permission to search his home.
¶ 15 On April 3, Cole identified defendant in a lineup. Thereafter, Assistant State's Attorney Blakey (ASA) and Detective Tully renewed their interrogation of defendant. Defendant made a statement, again telling them that he was with Simone at the time of the shooting but, according to Detective Tully, also stated that he did not like the ASA, that he was very tired and did not want to talk to the ASA any longer. The interrogation was terminated.
¶ 16 Detective Tully testified that, at about 9 a.m. on April 3, defendant knocked on the locked door to the interview room and asked to use the restroom. On the way, defendant told Detective Tully that he was not with Simone during the shooting after all, that he did not want her involved, and that he did not want the police to bother her family. He claimed he was with his friend Kenny Calhoun at the time of the shooting.
¶ 17 Detective William Higgins testified that later that day, defendant again knocked on the interview room door. When Detectives Higgins and Krakauski answered the door, defendant told them that he wanted to tell the truth about the homicide. Defendant stated that on March 31, 2000, he was near 92nd and Cottage Grove Avenue when he saw Cole drive past and point a gun at him. Defendant then obtained a rifle and went to 92nd Place and St. Lawrence Avenue. At approximately midnight, defendant again saw Cole driving nearby. Defendant fired 20 rounds from his rifle at Cole's car. Detective Higgins asked defendant where the rifle was now, and defendant initially stated that he threw it into a river. Defendant later stated that he left the rifle by a nearby garbage can. Police searched for the rifle, but did not recover a weapon.
¶ 18 ASA Eileen Austin Murphy testified that she met with defendant at the police station on April 3, 2000, and informed him of his Miranda rights. Defendant agreed to make a handwritten statement. ASA Murphy read the statement in court. In it, defendant stated that he previously was a member of the Mickey Cobra street gang and that Cole was a member of rival gang the Gangster Disciples. Defendant stated that, in February 2000, some Gangster Disciples shot at him from a van. Cole was in the van from which the shots were fired.
¶ 19 At approximately 10 p.m. on March 31, 2000, defendant was driving his car when another car pulled up on the passenger side of his car. Defendant looked over and saw Cole driving the car and aiming a gun at him. Defendant drove away, met with some friends, and smoked marijuana. Then he obtained a gun and walked to 92nd Place and St. Lawrence Avenue.
¶ 20 When defendant saw Cole driving on 92nd Place he shot at the car approximately 10 times. Defendant stated that he wanted to shoot Cole.
¶ 21 Dr. Kendall Crowns, a forensic pathologist at the Cook County medical examiner's office, testified as an expert in forensic pathology that he had reviewed the photographic slides and autopsy report performed by Dr. Filkins on the victim's body. At the time of trial, Dr. Filkins no longer worked for the medical examiner's office. Dr. Crowns testified that a bullet entered Williams' right chest and exited out of the mid-back. There was no evidence close-range firing. Dr. Crowns concluded to a reasonable degree of medical certainty that the cause of Williams' death was a gunshot wound to the chest and that the manner of death was homicide.
¶ 22 Defendant offered no evidence on his behalf. The jury returned a verdict of guilty of the first degree murder of Williams and the attempted first degree murder of Cole. He was found not guilty of the attempted first degree murder of Robinson.
¶ 23 In July 15, 2002, defense counsel filed a motion for new trial. However, defendant informed the trial court that he no longer wanted defense counsel to represent him because he felt defense counsel had provided "bad representation." Defendant then filed a pro se motion for a new trial. In August 2002, defense counsel was discharged.
¶ 24 After hearing arguments in October 2002, the court denied defendant's pro se motion for a new trial. Following arguments in aggravation and mitigation, the trial court sentenced defendant to consecutive sentences of 45 years' imprisonment for ...