Appeal from the Circuit Court of Cook County. No. 04 CR 30561 The Honorable Lawrence P. Fox, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion.
Presiding Justice R. E. Gordon and Justice Cahill concurred in the judgment and opinion.
¶ 1 This court affirmed defendant Ronchawn Douglas's conviction of the first-degree murder of Grover Anthony George, following a jury trial, and his sentence of 60 years. People v. Douglas, No. 1-06-1394 (2008) (unpublished order under Supreme Court Rule 23). The defendant now challenges the first-stage dismissal of his pro se post-conviction petition. He contends his petition stated the gist of a constitutional claim of ineffective assistance of counsel based on two omissions. The defendant contends he invoked his right to counsel soon after his arrest, which should have been the basis to exclude his two custodial statements introduced at trial. The defendant faults his defense counsel for not objecting to the introduction of his post- arrest statements. The defendant also contends trial counsel should have called a witness to contradict the testimony of one of the State's key witnesses. We find there is no factual support for his first claim and his second does not rise to an arguable constitutional claim. We agree with the circuit court's summary dismissal of the defendant's "frivolous and patently without merit" petition and affirm.
¶ 3 On February 1, 2006, the defendant was convicted of first-degree murder. Soon after the defendant's arrest, attorney Thomas Organ filed his appearance on behalf of the defendant. Approximately eight months before trial, the court allowed attorney Organ to withdraw and appointed new counsel for the defendant. At trial, the State presented several witnesses; the defense presented one. The State presented David Butler and Thomas Brewer as eyewitnesses.
¶ 4 Butler testified that he was with the defendant and the victim shortly before the shooting. Butler knew the defendant well and was the victim's cousin. Before the crime took place, the three were initially gathered at the victim's car. Butler left to enter his house. From the front picture window of his home, Butler saw the victim and the defendant standing on Thomas Brewer's porch across the street. Butler testified he saw the victim and the defendant leave the porch and walk back toward the car. Butler then saw the defendant shoot the victim in the back of the head. As Butler ran out of his house toward the victim, he saw the defendant jump into a Ford van and leave the scene. Later that day, Butler identified the defendant from a photo array. On the back of the defendant's photograph, Butler wrote, "This is the killer that shot my cousin." Approximately nine months after the shooting, Butler identified the defendant at an in-person lineup. During defense counsel's cross-examination of Butler, he acknowledged that he witnessed the shooting through a picture window and the shooting occurred before he could "say anything."
¶ 5 Thomas Brewer testified that the defendant and the victim came to his house. After they left, Brewer heard a "pow" and looked through the blinds of his front door. He saw the victim lying on the ground and the defendant standing over him. He then saw the defendant shoot the victim. He called 911. Brewer admitted on direct examination that he did not initially tell the police what he saw. He explained he did not want to get involved and he believed in street justice to an extent. He also testified that his children were staying with the defendant's mother at the time, and he worried about their safety. After the defendant's arrest, Brewer came forward with information because he would "rather have people mad at [him] over a truth than over a lie."
¶ 6 On cross-examination, Brewer testified that he told police on the day of the shooting that he heard the shots, but did not see the shots fired. He also admitted that the blinds he looked through were "for the most part" closed. He admitted he told the defendant's mother he did not see the defendant shoot the victim.
¶ 7 The State's next witness, Muriel Brewer, Thomas Brewer's sister, testified she was at home with her brother on the day of the shooting. She had known the defendant since he was 10 years old. She saw the defendant at her home with her brother and the victim shortly before the shooting. After she heard noise from the street, she looked out and saw Butler standing over the victim's body. She tried to call 911, but her brother was already on the phone.
¶ 8 The State called several of the investigating police officers. An arresting officer testified that when the defendant was apprehended he claimed his name was Cortez Ford. The defendant also claimed he did not know the victim and he had never been to the intersection where the shooting took place.
¶ 9 Following the denial of the defendant's motion for a directed verdict, the defense called its only witness. Officer David Eaglin testified that he spoke to Butler soon after the crime occurred. Butler initially told Officer Eaglin that he saw the defendant shoot the victim. Later, Butler told Officer Eaglin that he did not actually see the defendant shoot the victim but, rather, heard the shot and saw the defendant standing over the victim.
¶ 10 After deliberating a few hours, the jury sent a note indicating it was having difficulty reaching a decision. No response to this note appears in the record. After more deliberation, the jury was sent home for the night. The following morning, after the jury resumed deliberating, the jury sent another note indicating it was having difficulty once again reaching a verdict. The parties agreed to have the judge return the note with directions that the jury continue to deliberate. A few hours later, the jury reached its verdict of guilty.
¶ 11 In his direct appeal, the defendant alleged prosecutorial misconduct and ineffective assistance of counsel. This court found no reversible error occurred at trial. People v. Douglas, No. 1-06-1394 (2008) (unpublished order under Supreme Court Rule 23).
¶ 12 On October 5, 2009, the defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel. The defendant alleged counsel committed professional error by not discovering that the defendant had invoked his right to counsel immediately upon his arrest, which would have provided a basis to object to the admission of the defendant's use of an alias at the time of his arrest and his statement that he had never been to the intersection where the murder occurred. His petition also alleged that counsel was ineffective for not calling Erin Wells, who would have contradicted Thomas Brewer's testimony that his fear for his children kept him from talking initially to the police and that Brewer said he "presumed" the defendant had shot the victim because he saw the two together. The defendant submitted affidavits in support of his petition. The defendant's own affidavit stated he was arrested while riding in a taxi, and he invoked his right to counsel immediately upon encountering the police. The affidavit further stated the defendant told his initial counsel that he had requested an attorney upon being arrested. The defendant conceded he never told this to his trial counsel, but explained his trial counsel never asked him about his arrest or his interviews with police investigators.
¶ 13 A friend of the defendant's mother, Gaynette Hoskin, submitted an affidavit stating that she was at the defendant's mother's house on the day the defendant was arrested. When the telephone rang, Ms. Hoskin answered it. Ms. Hoskin stated the caller was a taxi driver, who told her the defendant had been arrested and had told the police he wanted a lawyer. Ms. Hoskin stated that she gave the phone to the defendant's mother, Willia Douglas. Ms. Douglas stated in her affidavit that the taxi ...