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People v. Reed

Court of Appeals of Illinois, First District, Fifth Division

December 31, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DEVIN REED, Defendant-Appellant

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[Copyrighted Material Omitted]

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As Corrected.

Appeal from the Circuit Court of Cook County. No. 02 CR 3413 (03). Honorable Dennis J. Porter, Judge Presiding.

Affirmed.

For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Heidi Lynn Lambros, Assistant Appellate Defender.

For Appellee: Anita Alvarez, State's Attorney of Cook County, Alan J. Spellberg, Douglas P. Harvath, Tasha-Marie Kelly, Assistant State's Attorneys, of counsel.

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

REYES, JUSTICE

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[¶1] Following a jury trial in the circuit court of Cook County, petitioner Devin Reed was found guilty of first degree murder, armed robbery and residential burglary. On direct appeal, this court affirmed Reed's conviction for murder and his natural life sentence, but reversed his convictions and sentences for armed robbery and residential burglary. People v. Reed, 405 Ill.App.3d 279, 286, 938 N.E.2d 199, 344 Ill.Dec. 930 (2010). Pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)), Reed thereafter initiated the instant postconviction proceeding by filing a pro se petition asserting various trial errors, as well as claims that he received ineffective assistance of trial and appellate counsel. On July 26, 2012, the circuit court entered a memorandum order dismissing Reed's petition as frivolous and patently without merit. Reed now appeals, contending his petition stated the gist of claims of ineffective assistance of appellate counsel. Reed also contends his natural life sentence for first degree murder is void. For the following reasons, we affirm.

[¶2] BACKGROUND

[¶3] Reed's Trial

[¶4] The facts adduced at Reed's trial were fully set forth in this court's opinion on Reed's direct appeal. Reed, 405 Ill.App.3d at 281-84. We briefly summarize those proceedings and note additional facts here to the extent necessary to address the issues raised in this appeal.

[¶5] On January 1, 2002, after midnight, Reed, Anthony Williams, India Williams, and Kimberly Thompson drove to Timothy Kollar's residence near 25th Street and Kildare Avenue in Chicago, where they all smoked cocaine. When the drugs ran out, Reed, Anthony, and India left to purchase more cocaine, during which time they agreed they would rob Kollar.

[¶6] At some time after Reed, Anthony, and India returned to Kollar's home, Thompson left the house to place a telephone call. Approximately 20 minutes later, while Kollar and India were smoking cocaine, Reed wrapped a porcelain statue in foam and struck Kollar on the right side of his head with the statue. The blow did not render Kollar unconscious. Anthony then grabbed an aluminum baseball bat and struck Kollar two or three times while Reed searched the bedroom for money. India bound Kollar's legs with an electrical cord, after which she and Anthony both struck Kollar more times with the bat. Reed exited the room but could hear the bat strike Kollar several more times. By the time Thompson returned, Reed, Anthony and India were removing items, including guitars, from Kollar's home. India also took money from Kollar.

[¶7] Medical examiner Dr. Michelle Jordan testified Kollar died of cranial cerebral injuries due to blunt force trauma, with strangulation a significant contributing factor to Kollar's death. Dr. Jordan characterized the death as tortuous based on the extent of the injuries, the degree of bondage and a wound to the neck.

[¶8] Thompson, who testified at trial on behalf of the State, acknowledged that she was a prostitute in January 2002 and admitted that she was a drug addict. Thompson had difficulty identifying Reed as one of the men she was with at Kollar's

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house. She testified that she had memory problems as a result of her past addictions and because of her bipolar disease. After Thompson learned from the televised newscast that Kollar had been killed, she contacted the police. Thompson subsequently met with police officers and identified Reed, Anthony, and India.

[¶9] Retired Chicago deputy police chief of narcotics and gangs Michael Cronin testified that after Reed was identified in a lineup, he informed Reed of his Miranda rights and Reed recounted the events surrounding the incident. A few hours later, Cronin and Assistant State's Attorney (ASA) Erica Dillon had another conversation with Reed. ASA Dillon testified she also informed Reed of his Miranda rights, whereupon Reed waived those rights and again discussed the circumstances of the incident. ASA Dillon further testified she informed Reed of various ways he could memorialize his statement, but Reed preferred to provide only an oral statement. ASA Dillon additionally testified she then dictated what Reed told her to her supervisor, who was not present for Reed's oral statement. According to ASA Dillon, she reviewed her supervisor's transcription, but she acknowledged Reed did not have the opportunity to review the transcription.

[¶10] During the conference regarding jury instructions, Reed's counsel objected to the verdict forms and requested that the jury be given separate verdict forms for felony murder and intentional or knowing murder. The court denied the defense counsel's request.

[¶11] The jury returned guilty verdicts for first degree murder, armed robbery and residential burglary. The jury also found that the armed robbery was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

[¶12] On October 24, 2008, defense counsel filed a posttrial motion for a new trial. On October 31, 2008, Reed also filed two pro se posttrial motions, one seeking a new trial and one seeking new counsel.

[¶13] In his pro se supplemental motion for a new trial, Reed argued he had received ineffective assistance of trial counsel because counsel had failed to file a pretrial motion to suppress Reed's statement to the police. Reed asserted the transcription of his " alleged" statement raised questions regarding its validity. Reed noted Cronin's testimony that ASA Dillon transcribed the statement conflicted with ASA Dillon's testimony that she related the statement to her superior. Reed also contended his trial counsel interfered with his right to testify on his own behalf. Reed asserted he would have testified: he told an ASA named Chung he did not wish to give a statement; he never gave the police a statement; and the police never informed him of his Miranda rights. Reed further contended his trial counsel failed to present other defense witnesses, including ASA Dillon and ASA Chung.

[¶14] Reed's pro se supplemental motion additionally asserted that trial counsel failed to subpoena any records of complaints against Cronin. Moreover, Reed complained that trial counsel failed to object to or strike several of the jurors. Trial counsel was also allegedly ineffective in the impeachment of Thompson. Reed's pro se supplemental motion further claimed the trial court erred in allowing death photographs of the victim to be shown to the jury, allowing the in-court identification of Reed by Thompson, and overruling objections to allegedly inadmissible evidence. In addition, Reed's supplemental motion contained general allegations that the State failed to prove Reed guilty beyond a reasonable doubt and was contrary to the evidence in the record.

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[¶15] In his other pro se posttrial motion, Reed argued his allegations of ineffective assistance of counsel created a conflict of interest requiring the appointment of new counsel. Reed asserted his trial counsel otherwise would be unable to testify regarding Reed's claims at a hearing on Reed's pro se supplemental motion for a new trial.

[¶16] The trial court denied Reed's posttrial motions. After reviewing Reed's allegations of ineffective assistance of trial counsel, the trial court stated it did not " see that the motion would be granted in any event," and observed Reed had presented nothing but the allegation that ASA Chung would have testified as alleged by Reed. The trial court further observed there was nothing in the proceedings establishing either of Reed's trial counsels' performance was " so deficient that [it] would entitle [Reed] to a new counsel."

[¶17] Reed then waived a jury for sentencing purposes. The trial court found that Reed was eligible for the death penalty. In particular, the trial court found: the murder occurred during the course of a felony; the acts causing Kollar's death were inflicted at least in part by Reed; and Reed acted with the knowledge his acts created a strong probability of death or great bodily harm to Kollar. After hearing arguments in aggravation and mitigation of the offense, the trial court initially observed the victim's death " was brutal and heinous beyond the most person's [sic] capacity to understand probably or even imagine," noting the victim's " horrible death" would " in many cases" " qualify someone to receive the ultimate penalty." The trial judge also observed Reed had a dozen convictions related to automobile theft, which suggested Reed was unlikely to " change his ways." The trial judge noted in mitigation of the offense that Reed's family background was " quite horrible." In addition, Reed had obtained a G.E.D., was arguably not present at the killing, and had no convictions for violent crimes. The trial judge also considered Reed's statement that he had wrapped the statue in foam before striking the victim, which arguably suggested some concern for the damage to be caused to the victim by the blow. The trial court ultimately sentenced defendant to natural life imprisonment for felony murder, a concurrent extended-term sentence of 60 years for armed robbery, and a concurrent 15-year sentence for residential burglary. Id. at 285.

[¶18] On November 7, 2008, Reed filed a pro se motion to reduce his sentence, which the trial court denied. The record indicates Reed's trial counsel also filed a motion to reduce sentence on November 14, 2008. The transcript of proceedings indicates that the trial judge noted Reed's eligibility for the death penalty in denying Reed's postsentencing motions.

[¶19] The Direct Appeal

[¶20] In his direct appeal to this court, Reed raised the following issues: (1) whether the trial court erred by denying his request to provide the jury with separate instructions and verdict forms for felony murder, which resulted in him receiving an improper sentence on the predicate felonies; (2) whether the trial court erred when it imposed extended-term sentences for both first degree murder and armed robbery as extended-term sentences may only be imposed on the conviction of the most serious offense; (3) whether the evidence was insufficient to prove him guilty beyond a reasonable doubt of residential burglary where he was invited into the victim's home; (4) whether the trial court abused its discretion in sentencing him to natural life imprisonment for first degree murder because this was his first conviction for a violent offense and he had minimal

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involvement in the events that resulted in the victim's death; and (5) whether the trial court erred in refusing to allow defense counsel's proposed addict instruction where it was an accurate statement of the law and one of the State's witnesses was an admitted drug addict. Id.

[¶21] This court, following our supreme court's decision in People v. Smith, 233 Ill.2d 1, 906 N.E.2d 529, 329 Ill.Dec. 331 (2009), concluded the trial court should have granted Reed's request for separate verdict forms for intentional, knowing, and felony murder. Accordingly, the appellate court affirmed Reed's conviction for murder, but reversed his convictions and sentences for residential burglary and armed robbery. Reed, 405 Ill.App.3d at 286. The disposition of that issue rendered it unnecessary for the appellate court to consider the sufficiency of the residential burglary conviction and the propriety of the sentence on the armed robbery conviction. Id.

[¶22] This court also ruled the trial court properly sentenced Reed to natural life imprisonment for felony murder, noting the trial court found Reed eligible for the death penalty based on the fact that during the course of another forcible felony, Reed inflicted injuries which at least in part contributed to Kollar's death, and acted with the knowledge that his acts created a strong probability of death or great bodily harm. Id. at 287 (citing 720 ILCS 5/9-1(b)(6) (West 2006)). Lastly, this court ruled the trial court did not err in refusing to allow defense counsel's proposed addict instruction. Reed, 405 Ill.App.3d at 288.

[¶23] Our supreme court denied Reed's petitions for leave to appeal. People v. Reed, 949 N.E.2d 663, 350 Ill.Dec. 871 (2011). The United States Supreme Court denied Reed's petition for certiorari review. Reed v. Illinois, 132 S.Ct. 460, 181 L.Ed.2d 300 (2011).

[¶24] Postconviction Proceedings

[¶25] Reed subsequently filed his pro se petition for postconviction relief.[1] Reed divided his petition into three sections: (1) ineffective assistance of trial counsel; (2) trial errors; and (3) ineffective assistance of appellate counsel.

[¶26] Reed primarily claimed his trial counsel was ineffective by failing to file a pretrial motion to suppress his " alleged" oral statement. Reed asserted he would have denied giving any oral statement and told ASA Chung he did not wish to make a statement. Reed also denied that he was ever informed of his Miranda rights and did not sign a waiver of those rights. Reed further asserted he would have testified that he denied participating in the crime and had no knowledge of the incident until he was arrested. Reed maintained that if trial counsel had pursued a motion to suppress, the outcome of his trial would have been different because neither Thompson nor Harris testified that Reed murdered or robbed Kollar, and because Cronan and ASA Dillon would not have been allowed to testify regarding his alleged inculpatory statements. Reed's petition also faulted trial counsel's performance on additional grounds, including--but not limited to--his failure to argue his motion for a directed finding, conduct discovery regarding possible complaints of misconduct by Cronin, investigate and interview all witnesses, sufficiently cross-examine Thompson, and call

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a clinical psychologist to testify that Thompson was easily led and would repeat stories.

[¶27] Reed's petition next asserted the trial court erred by allowing the State to deprive Reed of exculpatory evidence regarding his alleged oral statement, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Reed also alleged the trial court erred by allowing the State to lead Thompson in her testimony and in her in-court identification of Reed, thereby resulting in a false identification. Reed additionally alleged the prosecutor deprived him of due process of law by engaging in this misconduct.

[¶28] Reed's petition further alleged he received ineffective assistance of appellate counsel where counsel failed to: (1) include the charging instruments in his direct appeal; (2) telephone Reed to discuss the appeal; (3) challenge the admissibility of his alleged oral statement as hearsay, with no proof Reed actually provided it; (4) " to renew Post Trial Motion's [ sic ], motion for New Trial, motion for appointment of new counsel" ; (5) raise discovery violations related to ASA Dillon's supervisor; and (6) claim prosecutorial misconduct related to the prosecutor's leading Thompson into a false identification of Reed.

[¶29] Reed's petition was supported by five excerpts from the transcript of proceedings at his trial. Exhibit A includes ASA Dillon's testimony regarding the transcription of Reed's oral statement. Exhibit B includes Cronin's testimony regarding the transcription of Reed's oral statement, which allegedly contradicted ASA Dillon's testimony. Exhibit C includes the transcript indicating that defense counsel declined to present oral argument on the motion for a directed finding. Exhibit D included a statement by defense counsel that certain discovery regarding Thompson's criminal background had not been tendered by the State, along with the later admission that ...


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