Appeal from the Circuit Court of Cook County 99 CR 14723 Honorable Clayton J. Crane, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Cunningham and Harris concurred in the judgment and opinion.
¶ 1 Following a direct appeal of his conviction for murder, attempted murder, and aggravated discharge of a firearm, defendant Volney McGhee filed a postconviction petition, alleging denial of his constitutional right to effective assistance of trial and appellate counsel. The circuit court dismissed the petition at the second stage. We affirm.
¶ 3 Most of the issues that defendant raises require only limited discussion of the facts, so we will briefly summarize the background of this case and will refer to additional facts and testimony as necessary in our analysis.*fn1
¶ 4 The victim, Melvin Thornton, was shot dead at a gas station around 1 a.m. Witnesses at trial testified that while the victim was waiting in line at the gas station, a red car drove slowly by while defendant leaned out of a rear window, staring at the car that the victim had been riding in. A passenger in the front seat of the red car was identified as a friend of defendant's. After driving by the gas station, the car flipped around and pulled into the opposite side of the station.
Defendant got out of the red car carrying a gun and approached the car that the victim had been riding in. When defendant began to run toward the car, the driver of the car put the vehicle in reverse and attempted to flee, leaving the victim in the gas station parking lot. Defendant fired several shots at the fleeing vehicle and then turned toward the victim, who was standing close by. Defendant shot the victim in the face, and a second round struck the victim's thigh as his body fell to the ground. Defendant fled, but he was later arrested and was identified as the shooter in a lineup about three months after the murder.
¶ 5 Defendant presented an alibi defense at trial. Laura Higgs, defendant's wife's grandmother, testified that defendant, his wife, and their two children were staying overnight with her at her apartment on the night the victim was killed. Higgs testified that defendant arrived at the apartment around 11:30 p.m. and that she saw defendant asleep in a bedroom around 1 a.m., which was about the time of the murder. Higgs testified that she did not hear anyone leave the apartment that evening.
¶ 6 The jury found defendant guilty of murder, attempted murder, and aggravated discharge of a firearm. We affirmed on direct appeal, in which defendant raised a number of issues including reasonable doubt, ineffective assistance of counsel, and prosecutorial misconduct in closing arguments. See People v. McGhee, No. 1-03-0761 (2004) (unpublished order under Supreme Court Rule 23).
¶ 7 Defendant then filed the instant postconviction petition pro se, raising additional issues of ineffective assistance of trial and appellate counsel. The trial court appointed postconviction counsel for defendant, but the petition was dismissed on the State's motion at the second stage. The trial court found that, regardless of whether trial counsel's performance was deficient, defendant was not prejudiced by any of the alleged errors raised in the petition due to the overwhelming evidence against him. Defendant timely appealed.
¶ 9 The circuit court dismissed defendant's postconviction petition at the second stage of proceedings. At this stage, the State must either answer or move to dismiss the petition. See 725 ILCS 5/122-5 (West 2010). The question for the court at this stage is "whether the petition and any accompanying documentation make a substantial showing of a constitutional violation." People v. Edwards, 197 Ill. 2d 239, 246 (2001). If the petition makes such a showing, then the petition advances to stage three, at which the circuit court holds an evidentiary hearing on the petition's claims. See 725 ILCS 5/122-6 (West 2010). We review the dismissal of a postconviction petition at the second stage de novo.
¶ 10 Defendant's petition is a broad ineffective assistance of counsel claim regarding the performance of both his trial and appellate counsel. Four of the claims are primarily directed at his trial counsel, but they also implicate his appellate counsel because they were not included among the ineffective assistance of counsel claims that defendant's appellate counsel raised on direct appeal. See People v. Williams, 209 Ill. 2d 227, 233 (2004) (noting that although the doctrine of res judicata ordinarily bars litigation of issues that were or could have been raised in a prior proceeding, such an issue may be raised in a postconviction petition if, among other things, "the waiver stems from the ineffective assistance of appellate counsel"). As to his trial counsel, defendant alleges ineffective assistance of counsel due to (1) failure to properly support defendant's alibi defense with additional witnesses and evidence, (2) failure to object to certain testimony, (3) failure to present expert testimony regarding the reliability of eyewitnesses, and (4) failure to challenge defendant's sentence as excessive. The fifth claim is directed solely at his appellate counsel for failure to raise on direct appeal the trial court's failure to poll the jury at the request of defendant after it returned its verdict.
¶ 11 Ineffective assistance of counsel claims are governed by the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). There are two prongs to the test: first, the defendant must show that counsel's performance was deficient, and second, the deficient performance must be prejudicial to the defendant. See People v. Petrenko, 237 Ill. 2d 490, 496 (2010). The performance prong is satisfied if "counsel's performance was objectively unreasonable under prevailing professional norms," and the prejudice prong is satisfied if there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Id. at 496-97. The test is essentially the same for a claim of ineffective assistance of appellate counsel, in which the defendant "must show both that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful." Id. at 497.
¶ 12 Appellate counsel is only required to raise meritorious issues on appeal (see People v.
Easley, 192 Ill. 2d 307, 329 (2000)), so defendant's constitutional claims of ineffective assistance of appellate and trial counsel depend on whether his underlying substantive claims of error have merit. If they do not, then defendant's appellate counsel cannot be faulted for not raising them in the direct appeal and defendant's petition would accordingly fail to make the required "substantial showing" of a constitutional violation.
¶ 13 A. Failure to Poll the Jury
¶ 14 We will begin with defendant's argument that his appellate counsel was ineffective because appellate counsel did not raise on direct appeal the issue of the trial court's failure to poll the jury upon request, given that this is the most complex issue that defendant raises.
¶ 15 In every criminal trial, the defendant has the absolute right to poll the jury after it returns its verdict. See People v. Rehberger, 73 Ill. App. 3d 964, 968 (1979). This right has long been recognized in Illinois and is rooted deep in our common law. See, e.g., Nomaque v. People, 1 Ill. 145, 150 (1825) ("The prisoner had a right to have the jurors polled: this right could not have been exercised where the presence of the jurors was dispensed with. *** In the present case, the verdict was not even sealed; it was liable to alteration, and besides, the court had no legal evidence that it was the verdict of the jury."); Martin v. Morelock, 32 Ill. 485, 487 (1863) ("Either party has the right to have the jury examined by the poll before the verdict is recorded."). The purpose of polling the jury is to ensure that the verdict is in fact unanimous. See Rehberger, 73 Ill. App. 3d at 968. There are two important points underlying the right to poll the jury. First, "[t]he finding of a jury does not become a verdict until it has been received, accepted by the court and recorded of record. [Citations.] In other words, a verdict is not final until pronounced and recorded in open court." Rehberger, 73 Ill. App. 3d at 968. Second, "[t]he opportunity for jurors to show their assent or dissent to a verdict is basic to our system which requires unanimity among the jurors since if any of the jurors dissents from the verdict, it cannot be recorded." Id.
¶ 16 There are several basic scenarios in which jury-polling errors can potentially occur, each of which requires a slightly different analysis. In one scenario, the court does not allow enough time between the return of the verdict and the dismissal of the jury for the defendant to request a poll. See, e.g., People v. Wheat, 383 Ill. App. 3d 234, 235-42 (2008) (trial court allowed no more than two seconds for the defendant to request a jury poll before discharging the jury, and defense counsel requested a poll immediately after the jury was discharged but while the jurors were still present in the courtroom). In another scenario, the defendant asks the court to poll the jury and, during the poll, a juror gives some type of ambiguous response. See, e.g., People v. McDonald, 168 Ill. 2d 420, 461-63 (1995) (when asked the question, " '[W]as this and is this now your verdict,' " a juror responded, " 'Reluctantly, yes your Honor' "); People v. Herron, 30 Ill. App. 3d 788, 789 (1975) (jury foreman responded, " 'It wasn't, but it is' "). In a third scenario, the defendant timely requests a jury poll but the court dismisses the jury without conducting the poll. See, e.g., Rehberger, 73 Ill. App. 3d at 968 (jury returned sealed, unanimous verdict on four out of six charges but deadlocked on remaining charges, and the trial court declared a mistrial but then entered judgment on the four charges 3 1/2 months after the jury was discharged and without conducting a poll).
¶ 17 This case deals with the third scenario. After the jury returned its verdict, defense counsel stated, "I want them polled, Judge." The trial court acknowledged defense counsel's request and proceeded to thank the jurors for their service, but then dismissed the jury without conducting the poll. There is no indication in the record that a poll was ever conducted. In fairness to the trial court, the mistake appears to have been inadvertent and defense counsel never followed up on the request to poll the jury. Yet the mistake was ...