Appeal from the Circuit Court of Cook County. No. 08 CR 15116 Honorable Michael Brown, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Karnezis*fn1 concurred in the judgment and opinion.
¶ 1 This case arises from a September 17, 2010 order entered by the circuit court of Cook County, which denied defendant Markell McLaurin's (McLaurin) pro se posttrial claims for ineffective assistance of counsel and motion for a new trial.
¶ 2 After a jury trial, McLaurin was found guilty of first-degree murder and was found to have discharged the firearm that proximately caused the death of Demarlon Jernigan (victim). 720 ILCS 5/9-1 (West 2008). During the hearing on his posttrial motion for a new trial, McLaurin requested a new attorney and, acting pro se, raised claims of ineffective assistance of defense counsel. The trial court rejected McLaurin's claims, and after hearing arguments in aggravation and mitigation, sentenced McLaurin to 60 years in the Illinois Department of Corrections.
¶ 3 In this direct appeal, McLaurin argues that: (1) defense counsel was ineffective because counsel should have secured the testimony of eyewitness Timothy Williams through section 3 of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Witness Attendance Act) (725 ILCS 220/3 (West 2008)), after Timothy Williams failed to appear at a prior proceeding; (2) defense counsel was ineffective for failing to object to the admission of, and failing to request the redaction of, inadmissible statements in State witness Marlon Williams' prior written statement and grand jury testimony; (3) the trial court abused its discretion when it allowed the jury to receive and review a portion of witness Marlon Williams' prior written statement, because it contained other-crimes evidence disclosing that McLaurin "carries different types of guns"; and (4) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2001) because it did not "provide each juror an opportunity to respond" to specific questions regarding McLaurin's presumption of innocence, the burden of proof on the State, and McLaurin's right to not be penalized if he did not testify in his own defense. McLaurin requests a new trial, or in the alternative, that the case be remanded for the appointment of new counsel to investigate further his posttrial claims of ineffective assistance of defense counsel.
¶ 4 For the following reasons, we remand the case to the circuit court of Cook County for the court to conduct an adequate inquiry into the defendant's pro se claims of ineffective assistance of counsel.
¶ 6 On January 9, 2008, the victim died of multiple gunshot wounds on the street in the area of Pulaski Rd. (Pulaski) and Division St. (Division) in Chicago. After an investigation, the police arrested McLaurin, who was charged with six counts of first-degree murder related to the shooting.
On February 1, 2010, before McLaurin's trial was set to commence, defense counsel sought a continuance stating that he was unable to locate defense witness Timothy Williams. The State, also interested in Timothy Williams, informed the trial court that it desired to subpoena him, but had been unsuccessful in serving him at his last known address. Defense counsel stated that he had not subpoenaed Timothy Williams and told the trial court that he had "no excuse other than schedule and workload" for not serving Timothy Williams with a subpoena prior to the trial date. Defense counsel made a proffer that Timothy Williams would testify that neither McLaurin nor State witness Bruce Jackson was at the scene of the shooting. Defense counsel also stated that Timothy Williams was unable to identify the actual shooter. The trial court granted the continuance until March 8, 2010, stating that McLaurin deserved to have a lawyer who would investigate his case, and further commented that defense counsel's efforts to locate Timothy Williams up to that time were "not due diligence."
¶ 7 On March 8, 2010, McLaurin's jury trial commenced in the circuit court of Cook County. On March 10, 2010, after the State rested its case-in-chief, the trial court questioned defense counsel about whether Timothy Williams would testify. Defense counsel informed the trial court that Timothy Williams had contacted him the prior morning stating that he was in Chicago, and that he would testify, but then Timothy Williams subsequently left a message indicating that he needed a ride to court. Defense counsel received Timothy Williams' message when the trial broke for lunch and defense counsel attempted to return Timothy Williams' call multiple times that day. Defense counsel told the court that Timothy Williams did not answer the telephone. Timothy Williams ultimately did not appear in court that day or at any time during the trial. When the trial court asked defense counsel if he had subpoenaed Timothy Williams, defense counsel responded, "he did not tell me where he was, and I did not have time to secure an investigator to locate him in Iowa, I believe he stated [sic] he was living." The following day, defense counsel indicated that Timothy Williams had not contacted him. Defense counsel concluded that he would not be present in court. The case then proceeded to closing argument. On March 12, 2010, the trial court declared a mistrial after the jury was hung and could not reach a verdict.
¶ 8 On June 7, 2010, McLaurin's second jury trial began. Both sides agreed to adopt the trial court's ruling on the motions in limine from the first jury trial, in which the court ruled that evidence of the victim's gang membership was inadmissible. There was no further discussion in the second trial concerning whether Timothy Williams would appear as a defense witness. Defense counsel indicated there would be no changes to his witness list from the previous trial, and the trial court informed the venire that Timothy Williams was a potential witness in the case.
¶ 9 During voir dire, the trial court instructed the venire about McLaurin's presumption of innocence, that the burden of proof in the case was on the State, and that McLaurin was not required to prove his innocence or testify. The trial court then asked the venire whether they "had any problems" with these principles. Additionally, the trial court asked, "[i]f the defendant decides not to testify, is there anyone here who believes that regardless of what I have just said, you would hold that decision against the defendant?" None of the members of the venire answered in the affirmative.
¶ 10 The State's first witness, Jackee Suttle, testified that she was the girlfriend of the victim and on January 9, 2008, the two met, intending to go to a restaurant together near Division and Pulaski at around 9 p.m. They also had plans to meet Bruce Jackson, a friend who was going to prison the next morning. While conversing with friends near the restaurant, the victim became involved in a verbal altercation with a "big heavy guy." The two headed to a nearby park and engaged in a fistfight. The victim left the park after the fight in a vehicle driven by his friend, Timothy Williams, and returned to the Division and Pulaski area around 10 p.m. Suttle observed the victim outside the restaurant, walking toward a liquor store across the street from the restaurant. Suttle was still in the restaurant, when she heard "five or six" shots fired. Suttle walked outside and observed the victim running away on Division. She observed the victim "taking bullets" and "getting shot," but did not observe the shooter.
¶ 11 In this second trial, Suttle testified that she did not observe Timothy Williams or the "big heavy guy" at the crime scene, even though she had testified in the first trial that both were present at the scene of the shooting. Suttle also testified that she did not observe Bruce Jackson at the crime scene that night, but could not say for sure that Jackson was not there, because her attention was focused on her wounded boyfriend. After the victim was shot, she went over to his wounded body, which was near the bus stop at Division and Pulaski. His body was covered by a brown jacket, but he had been wearing a red jacket when she was with him earlier in the day. When the ambulance arrived, Suttle did not ride in the ambulance with the victim because the police told her to come to the police station. She went to the police station but did not talk to the police that night because she was upset. She returned to the police station a week and a half later.
¶ 12 The State's second witness, Bruce Jackson, testified that his relationship with the victim was "something like brothers" and that they were together every day. The night of the shooting, he dropped the victim off at Division and Pulaski "in the evening or something like that" and did not hear from the victim for "two or three hours, something like that." The victim called him because "[h]e had said that he was out there and some boys was trying to fight him or something like that, he didn't want to fight them." Jackson drove to the Division and Pulaski area to pick up the victim, and parked his vehicle on Pulaski. Jackson approached the victim as he was crossing the street to enter the liquor store. Jackson "was walking right behind [the victim]" at a distance of "just like a few feet, couple of feet." There were people by the liquor store, and after Jackson and the victim "[m]ade it by the liquor store," Jackson started hearing shots and observed everyone running around. Jackson then observed the gun, which looked like a revolver and was "chrome or a silver like" with a black handle. He also observed the shooter's face in good light from a "car length" away. In the courtroom, Jackson identified McLaurin as the shooter. Jackson testified that he ran away when the shots first rang out, but he also testified that he observed McLaurin shoot the victim. He heard four or five shots, and he chased the shooter for awhile until he eventually ran into police officers who had arrived at the scene. He told the police officers which way the shooter ran, but the police did not pursue the shooter any further. Instead, the police attended the wounded victim. Jackson did not talk to the police about the shooter's identity on the night of the shooting because he was upset and was mad at the police for not pursuing the shooter more vigorously.
¶ 13 Jackson further testified that he drove to the hospital the night of the shooting and was at the hospital when the victim died. The next morning, on January 10, 2008, he turned himself in to the Illinois Department of Corrections, to serve his sentence. However, he did not speak to the police until April 1, 2008, even though he was released in "mid-March" 2008. He went to the police station "because the police kept coming to my house looking for me and I wanted to know what they was looking for me for." Jackson testified that at the police station on April 1, 2008, he identified McLaurin after a discussion with detectives. On July 10, 2008, he identified McLaurin in a lineup.
¶ 14 The State then called Marlon Williams,*fn2 who testified that he was currently in the custody of the Stateville Correctional Center, serving time for a 2009 conviction for aggravated unlawful use of a weapon. He then testified that he was not in the Division and Pulaski area in 2008 when the victim was shot. He did not know the victim and he did not observe a person shot on January 9, 2008. Marlon Williams also did not remember giving a written statement on February 22, 2008, to Assistant State's Attorney Beth Pfeiffer (ASA Pfeiffer) and police detective Roger Sandoval (Detective Sandoval) about what he observed on the night of January 9, 2008. He claimed the signature on the statement presented to him in court was not his. Moreover, he did not remember signing the document, having it read back to him, or testifying in front of a grand jury.
¶ 15 Marlon Williams further testified that he was stopped by police on January 30, 2008, and the police kept talking to him about a shooting that had occurred at Pulaski and Division. He claimed that the police were questioning him about the shooting because he had a prior conviction. During the conversation with the police, they described the shooting to him. He talked with the police about the shooting because he believed there was a possibility that if he cooperated, the unrelated case for which he had been arrested would go away. Specifically, the officers told him that "they was going to quit bothering me, talking about I was -- something about a home invasion or something like that I had nothing to do with or knew anything about." Marlon Williams testified that the officers also told him that they could make things disappear if he helped them, although he said that police always say things like that, even if they have no intention of actually helping.
¶ 16 The State then called Emmanuel Bass, who testified that he was in the custody of the Stateville Correctional Center where he was serving a six-year sentence for delivery of a controlled substance. On January 9, 2008, he was in the area of Division and Pulaski "selling weed." He was in the area when the victim was fighting in a park near Division and Pulaski. Bass testified that the victim was in a fistfight with a man named "Reesie." He did not observe who won, but observed that the victim walked out of the park and left the area, then returned about 20 minutes later. Bass recalled testifying before the grand jury that the victim knocked Reesie out. Bass testified that Reesie was drinking after the fight and remained in the area. Bass testified that he did not observe McLaurin walk up to the victim and start shooting. However, during this second trial testimony, the prosecutor asked Bass to read excerpts from his grand jury testimony. Bass read portions of his grand jury testimony that indicated that he had previously testified that he did observe McLaurin shoot the victim. Bass said he recalled his testimony before the grand jury that he observed McLaurin shoot the victim, but testified at the second trial that he heard about the shooting from people in the neighborhood. When asked at the second trial about his grand jury testimony, Bass explained that much of it was not true:
"MR. MIRAGLIA [defense counsel]: So essentially everything that Miss D'Souza [assistant State's Attorney] just read to you as far as your testimony at the grand jury, it's not true, is it?
MR. BASS: It's not nothing that I seen. I only know about the fight, yeah, but the rest, the shooting and all that, I didn't witness that."
¶ 17 Bass further testified that Detective Sandoval promised him that he would be released from jail if Bass told the detective what he had heard from the neighborhood. In his grand jury testimony, Bass testified that no promises were made to him. Bass testified at the second trial that he did not recall testifying before the grand jury that no promises were made to him. Bass testified that after his grand jury testimony, he told his defense counsel, who was an assistant public defender, to contact the State's Attorney to tell her that Detective Sandoval promised him that he would be released if he told the grand jury what the police wanted. Bass explained that he did not tell the State's Attorney before the grand jury proceeding because he was worried that he would lose the deal he made with Detective Sandoval. Detective Sandoval had told him not to say anything about the promise. Bass did not receive any help after his grand jury testimony and subsequently was sent to jail to serve the rest of his six-year term.
¶ 18 The State then called ASA Pfieffer, who testified that on February 22, 2008, after meeting with detectives, she met with Marlon Williams to hear what he had to say about the shooting. ASA Pfieffer did not want Marlon Williams to be under the impression that their conversation would lead to anything regarding his pending case. She denied speaking to him about his pending case, and also denied that Detective Sandoval, who was present at the meeting, spoke to him about his case. She obtained Marlon Wiliams' written statement where he explained "what he heard said a couple of days after the murder" of the victim.
¶ 19 ASA Pfeiffer further testified that Marlon Williams' written statement explained that no threats or promises were made to him in exchange for the statement. Regarding the night of January 9, 2008, Marlon Williams' statement explained that around 8 p.m., he was with McLaurin and others when he observed the victim and Reesie in a fight over a girl. After the fight, the victim left the area but Reesie remained nearby. About 45 minutes later, Marlon Williams was standing near Division and Pulaski and he observed the victim and friends walking across the street toward a liquor store. Then, Marlon Williams heard someone say, "he's got a banger on him." Marlon Williams then heard some gunshots in front of the liquor store and observed McLaurin holding a gun with fire coming out of it. The victim was running away from McLaurin, but McLaurin followed him and fired a total of six to eight shots at him. After the shooting, McLaurin placed the gun ...