Appeal from the Circuit Court of Cook County. No. 95 CR 26313 The Honorable Charles P. Burns, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices Hall and Gordon concurred in the judgment and opinion.
¶ 1 The trial court dismissed defendant Albert Cleveland's petition at the second stage of post-conviction proceedings. In 1996, the defendant was convicted of murder and attempted murder. In 1998, the defendant filed a pro se post-conviction petition alleging ineffective assistance of trial counsel based on a per se conflict of interest and counsel's failure to call the mother of his children as an alibi witness. Over the course of 10 years, appointed counsel supplemented the defendant's initial petition with additional affidavits from other potential exculpatory witnesses and added another claim of ineffective assistance of counsel alleging he was precluded from testifying by his defense counsel. In assessing the merits of the petition, the trial judge refused to consider the failure-to-testify claim and some of the supplemental affidavits as untimely. Based on the remaining material, the court ruled the petition failed to show a substantial deprivation of a constitutional right. The court rejected the defendant's claim of a per se conflict of interest because defense counsel's prior representation of the murder victim occurred years before the defendant's trial. The court concluded the defendant suffered no prejudice based on the alleged conflict. The court also rejected the affidavits from the remaining witnesses as not supporting an alibi defense. Finally, the court ruled no substantial showing was made that defense counsel precluded the defendant from testifying. We reverse as to the first two claims. The Illinois Supreme Court has made it clear that a per se conflict of interest grounded on defense counsel's representation of both the defendant and the victim of the defendant's criminal conduct is not subject to a prejudice analysis. In the context of a post-conviction petition, a supported claim that defense counsel was subject to a per se conflict of interest makes a substantial showing of a violation of the defendant's sixth amendment right. We rule the court erred in striking affidavits of potential alibi witnesses from the record. We conclude the defendant has made a substantial showing of a constitutional violation based on counsel's failure to interview several alibi witnesses. We affirm the dismissal of the defendant's final claim based on counsel's alleged refusal to allow him to testify because the defendant did not assert his desire to testify before the trial court. We remand for a third-stage evidentiary hearing on the claims that his counsel was subject to a per se conflict of interest and that defense counsel failed to call known exculpatory witnesses.
¶ 3 The defendant was convicted by a jury of first degree murder and of attempted murder on September 27, 1996. In his direct appeal, the defendant raised three claims: (1) lack of proof beyond a reasonable doubt; (2) improper comments by the prosecutor during closing argument; and (3) defense counsel's ineffectiveness for failing to object to the improper comments. On December 31, 1997, this court affirmed in an unpublished decision. People v. Cleveland, No. 1-96-4327 (1997) (unpublished order under Supreme Court Rule 23). On June 3, 1998, the Illinois Supreme Court denied leave to appeal. People v. Cleveland, 178 Ill. 70 585 (1998) (table). The following summarizes the evidence presented at the defendant's trial from our unpublished decision and the post-conviction record.
¶ 4 The defendant was represented by Richard Dickinson, a private attorney. Before jury selection began, Dickinson informed the court that he would call only one defense witness: the defendant's sister, Victoria Cleveland. The court excluded Victoria from the courtroom during the trial.
¶ 5 The State's first witness was Sherrocco Allen, the only eyewitness to the shooting to testify at trial. Allen testified that on July 17, 1995, she was 15 years old. On that date, at approximately 1:30 a.m., she was at the Trumbull Park housing project sitting on the outside stairs of a building with a friend, her younger sister, and her aunt. As she sat on the stairs, Allen heard an argument "down the street" at an address "half a block" away. Her view was unobstructed and the area was well lit. Allen saw five men arguing; she identified the five as the defendant, the murder victim Magellan Steward, the attempted murder victim Martin Amos, and two others she knew only as Keith and Bowie. Allen had known the defendant for two to three years and knew him by his street name "Face" and his legal name. She had known Steward for approximately one year and knew Amos to be Steward's brother. When her attention was first drawn to the five men, she saw Amos holding a small stick.
¶ 6 Allen "wasn't really paying attention" to the men and did not hear what they were saying until she saw the defendant pull a black gun from his waist. With the gun in hand, the defendant told Amos to "put the stick away." Amos dropped the stick and the defendant returned the gun to his waist. The men continued to argue until Amos and Steward walked away toward a gangway between two buildings. As they walked away, the defendant again removed his gun and handed it to Keith. Both the defendant and Keith ran toward the gangway, where Keith shot Amos multiple times in the face and handed the gun back to the defendant. The defendant then walked forward and fired three or four shots into the gangway. Allen could not see Steward in the gangway because her view was blocked by one of the buildings. She did see that the defendant was not close enough to "put the gun on" Steward. After the shooting, the defendant, Keith, and Bowie ran away. Allen ran home.
¶ 7 Allen stated that at the time she witnessed the shootings, it was dark outside. However, the housing project buildings had working lights. Allen did not speak to the police initially because she was scared. Five days after the shooting, when she was contacted by Chicago police detective Louis Caesar, she told the detective what she saw. She later selected the defendant from a photo array, identified him at an in-person lineup, and in court.
¶ 8 Mertis McNabb testified that she lived near the site of the shooting. On the night of the crime, she was awoken by loud arguing and later heard three or four gunshots. When she heard someone yell that people had been shot, she ran outside and observed two bodies on the ground. One body was in the front yard of a building and the other was in the gangway. She testified that there were working lights above the doorways and on top of the buildings in the area of the shooting.
¶ 9 Cook County medical examiner Joseph Kogan reviewed the Steward autopsy. Steward sustained gunshot wounds to his chest and right hand. The edges of the wound to his hand were discolored, indicating that the gun was fired from less than one inch away. The wound to the chest was not consistent with a close-range shot.
¶ 10 Chicago police officer David Pearson testified that he arrived at the scene of the shootings at approximately 1:50 a.m. Both victims were alive at the time. Only Amos could speak; he told Officer Pearson he could not identify the person that shot him. Officer Pearson testified that the buildings in the area were well lit. According to the officer, the stoop from which Allen witnessed the crime was approximately one-half block from the scene of the shootings.
¶ 11 The parties stipulated to the testimony of Dr. Richard Gonzalez, the emergency room physician where Amos was taken. Pursuant to the stipulation, Dr. Gonzalez would testify that Amos suffered a gunshot wound to the head and suffered traumatic blindness. Amos did not tell Dr. Gonzalez who shot him.
¶ 12 Detective Caesar testified that four days after the shooting, he learned an inmate in Racine, Wisconsin, had information about Steward's murder. The inmate was Sherrocco Allen's brother, Tartorious*fn1 Allen. He told Detective Caesar to contact his sister Sherrocco for more information. Sherrocco Allen later identified the defendant as one of the shooters to Detective Caesar.
¶ 13 The defense presented no evidence or witnesses. The defendant did not testify, and the court did not admonish him regarding his right to testify. The jury found him guilty of first degree murder and attempted first degree murder. On October 25, 1996, the court sentenced the defendant to 45 years' imprisonment for first degree murder and a concurrent sentence of 10 years for attempted murder. The defendant spoke at the sentencing hearing. He did not state that he had wanted to testify during his trial.
¶ 14 On November 24, 1998, the defendant initiated post-conviction proceedings with his initial petition. In his petition, the defendant claimed his defense attorney had a conflict of interest because he had previously represented the murder victim, Steward. In his attached affidavit, the defendant averred that Dickinson did not inform him of this conflict until after his trial and sentencing. The petition also claimed his defense counsel failed to call an alibi witness that was ready and willing to testify on his behalf. The defendant attached an affidavit from Willanika Wheaton, in which she stated that the defendant was the father of her children. Her affidavit claimed that "on the date of the alleged crime" the defendant had been dropped off at her home by his sister, Victoria. The defendant arrived at 11:30 p.m. and remained until the next morning. To Wheaton's knowledge, the defendant did not leave her home during the night. The affidavit also stated that Wheaton had attended several pretrial hearings and had spoken to the defense attorney in anticipation of being called as a witness, but Dickinson never contacted her. Wheaton averred that had she been called, she would have testified to the facts set out in her affidavit.
¶ 15 On February 17, 1999, the court advanced the post-conviction petition to the second stage and appointed the Cook County public defender's office to represent the defendant. Over the course of seven years, at least five different assistant public defenders (APD) appeared on the defendant's case. Little or no action was taken on the defendant's petition. On March 2, 2006, the defendant filed a request to have counsel appointed "other than the Office of the Cook County Public Defender." The record does not contain a ruling on this request.
¶ 16 A decade after the defendant filed his original post-conviction petition, APD Pamela Leeming filed an amended petition for post-conviction relief on May 29, 2009. The petition argued that Dickinson had a per se conflict of interest based on his prior representation of the murder victim. The amended petition also claimed that counsel was ineffective for failing to call Wheaton and Victoria Cleveland as alibi witnesses.
¶ 17 On July 15, 2009, APD Leeming filed a supplemental petition, which attached an appearance form filed by defense attorney Richard Dickinson on behalf of "Magellah Steward" in criminal case number 88168478. The supplemental petition also added that Dickinson should have called Tojuna Williams and Estrella Mares as defense witnesses, each of whom provided an affidavit that was attached to the supplemental petition.
¶ 18 According Williams' affidavit, dated June 22, 2005, she was in the Trumbull Park housing project on July 17, 1995, between 1 a.m. and 2 a.m. She averred, "[I was] with a married man whom I knew to be Fudgy. We were involved in a sexual act in the living room, when we heard ruckus." According to her affidavit, Williams looked out the window and saw Steward and Amos about eight feet away. They were "arguing with several individuals." When two of the men pulled out guns, she saw Steward run, and Williams and Fudgy "hit the deck" as they heard shots. Williams stated she knew the defendant personally and he was not one of the men that argued with Stewart and Amos. According to Williams, Fudgy told her not to speak to the police because he did not want his wife to find out she had been at his house. Williams left that night without telling the police what she saw. Months later, Williams learned that the defendant had been charged with murder and attempted murder arising from the shootings. She stated, "I contacted Mr. Cleveland's mother who directed me to Richard Dickinson. I told him that Mr. Cleveland didn't do the crime. He told me he would call me back to get my complete version of events [but] he never did."
¶ 19 The purported affidavit from Estrella Mares bore a notary seal and the signature from a notary dated September 10, 2004. The affidavit, however, was not signed by Mares. The affidavit stated that on July 17, 1995, Mares was a resident of the Trumbull Park housing project. At 1:30 a.m., Mares was walking home when she stopped to talk to her friend, Sherrocco Allen. As they were talking, Mares heard three or four loud shots "coming from up the street" and heard someone yell, "they are shooting." Mares and Allen immediately fled for their safety. Mares never saw a gun. According to the Mares affidavit, Allen could not have seen "anything because it was dark and some distance away, and we were scared for our life. So we ran." The Mares affidavit further stated that approximately four or five months after the incident, the defendant's family contacted her to ask if she had any information. Mares told them what happened that night, and they asked her to contact Dickinson. She called Dickinson several ...