People v. Ford

FIRST DIVISION

October 23, 2006

No. 1-04-1939

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

) the Circuit Court

Plaintiff-Appellee, ) of Cook County

)

v. ) No. 79 CR 7021

)

JAMES FORD, ) Honorable

) Clayton J. Crane,

Defendant-Appellant. ) Judge Presiding.

JUSTICE CAHILL delivered the opinion of the court

We review the denial of a petition for postconviction relief in an appeal with a few

expected and a few unexpected arguments. Expected is a claim of ineffective assistance of trial

counsel. Unexpected is an admission by distinguished trial counsel that he was, in fact,

ineffective. Unexpected as well is a group of lawyers who testified that trial counsel was

suffering from emotional fatigue as a result of an earlier trial, which may have contributed to his

ineffectiveness. So we have a new wrinkle in the expanding web of ineffective assistance

claims: missteps brought about by the stress of the job. The trial judge in response to this chorus

of claimed ineffectiveness, and after a traversal of the trial record, found that trial counsel turned

in a "stellar performance." Our review of the record leads us to concur with the trial judge. Trial

1-04-1939

counsel has been much too hard on himself. We affirm.

On appeal, defendant claims the evidence at the postconviction hearing showed that his

constitutional rights were violated; first, because the trial judge forced his trial to begin without

adequate preparation by his attorney, and second, because his trial and appellate attorneys

rendered ineffective assistance.

Defendant was charged with the murder and armed robbery on a subway of Joseph Ardell

on October 24, 1979. Randolph Stone was appointed to represent defendant. Stone filed his

appearance and began filing motions on defendant's behalf in November 1979. On January 3,

1980, Gerson Kaplan, a staff psychiatrist for Cook County, examined defendant, found him fit to

stand trial and determined he was "legally sane" at the time of the alleged offenses. On June 27,

1980, the trial judge set defendant’s trial for August 18, 1980. Because of attorney Stone’s

involvement in the Pontiac prison riot case, a capital murder case, defendant’s trial was delayed.

Judge Cousins, the trial judge, set a new trial date of July 13, 1981, and advised Stone that if the

Pontiac case ended earlier, defendant's trial would be advanced. The Pontiac trial ended on May

8, 1981. On May 15, 1981, Stone received notice that the State had asked to advance

defendant’s trial date to May 26, 1981. Stone moved for a continuance, arguing that he was not

adequately prepared for trial. Judge Cousins denied the motion and jury selection began on May

28, 1981.

The details of the trial and the evidence presented appear in this court's opinion, People v.

Ford, 118 Ill. App. 3d 59, 60, 454 N.E.2d 1095 (1983). We will recount only those portions of

the trial record that apply to this appeal.

2

1-04-1939

Defendant presented two witnesses at trial. Dr. Bobby Wright, a psychologist qualified

as an expert witness, testified that defendant suffered from chronic alcoholism. He said that in

his "professional opinion there [was] reasonable doubt as to whether [defendant] possess[ed]

substantial capacity to appreciate the criminality of his conduct or to conform his behavior to the

requirements of the law." Dr. Wright testified on cross-examination that he first examined

defendant on May 29 and 30, 1981, after jury selection for defendant's trial had started.

Geraldine Galvin testified that she had a 10-year relationship with defendant, who was the father

of her child. She said he became loud and violent and "just out of hand" when he drank. She

said that after drinking, he would not remember what had happened.

Defendant was convicted and sentenced to life imprisonment for first degree murder with

a concurrent 60-year term for armed robbery.

Defendant appealed. Appellate counsel (not Stone) raised two issues: (1) that the trial

court erred in failing to instruct the jury that a verdict of not guilty by reason of insanity could

subject defendant to involuntary commitment; and (2) the trial court erred in denying his motion

for a mistrial despite prosecutorial misconduct. Ford, 118 Ill. App. 3d at 60. We note in

passing that appellate counsel on direct appeal found nothing in Mr. Stone's performance to

warrant an ineffective assistance of counsel claim. The appellate court affirmed defendant's

convictions and sentences. Ford, 118 Ill. App. 3d at 60.

In November 1990, defendant filed a pro se petition under the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122 (West 1996)). In 1995, the State filed a motion to dismiss.

Appointed counsel from the Cook County Public Defender's office filed a supplemental petition

3

1-04-1939

in February 2001. Defendant claimed to have suffered violations of his constitutional rights

when: (1) the trial court denied his request for a continuance; (2) trial counsel failed to arrange

psychological and psychiatric examinations before jury selection; (3) the prosecutor excluded

minority jurors; (4) the prosecutor made improper opening and closing remarks; (5) counsel

failed to represent him at sentencing; (6) appellate counsel was ineffective for failing to raise

meritorious issues; and (7) his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 147 L.

Ed. 2d 435, 120 S.Ct. 2348 (2000).

Attached to the petition was the affidavit of Stone. Stone averred that he knew

defendant’s sanity was a key issue in the trial, but he, Stone, failed to arrange for an adequate

psychological and psychiatric examination before the trial began. Stone said he had wanted to

have defendant tested by Dr. Carl Mellinger, a psychiatrist, but Dr. Mellinger was unavailable.

This error, he claimed, destroyed any possibility of an insanity finding. Stone claimed that both

he and the trial judge erred in failing to obtain a fitness hearing when evidence emerged at trial

that defendant had received psychotropic medications while in jail. Stone said that he had not

been prepared for sentencing and he believed defendant would have received a lighter sentence if

he, Stone, had been better prepared.

The State filed a motion to dismiss the postconviction petition. The court denied the

State’s motion and ordered an evidentiary hearing. It was held on November 25, 2003, and

February 26, 2004.

Stone, then a clinical professor of law at the University of Chicago Law School, testified

that he was appointed as counsel for defendant in 1979. But by late 1979 and for all of 1980, he

4

1-04-1939

was involved in the Pontiac case. He said the Pontiac case left him “physically and emotionally

exhausted.” He said the advancement of defendant's trial left him inadequately prepared. He

said he arranged for Dr. Bobby Wright, a psychologist, to examine defendant while jury

selection was underway, but Wright did not have enough time to evaluate defendant and to

prepare for trial. Stone said he tried to arrange an examination with a psychiatrist, Dr.

Mellinger, but was unable to do so. Stone said he believed that if he had secured the testimony

of both Dr. Wright and Dr. Mellinger, the jury could have found defendant not guilty by reason

of insanity.

On cross-examination, Stone admitted that when he sought a continuance, defendant’s

case was one of the older cases on the judge’s docket. He admitted that before the Pontiac trial

and even before his official appointment as defendant's attorney, he worked on defendant’s case

by meeting with defendant and filing several motions. Stone acknowledged that defendant was

examined by Dr. Kaplan, a psychiatrist, on January 3, 1980, and found fit to stand trial.

David Thomas, a clinical professor at Chicago-Kent College of Law, testified that he

represented defendants in the Pontiac case, a multiple-defendant, multiple-murder prosecution,

from November 1980 until May 1981. He said when the trial ended, Stone was physically and

emotionally exhausted and “completely washed out." Thomas admitted on cross-examination he

was not involved in defendant’s trial and did not read the transcript. Stanley L. Hill testified that

he was an attorney on the Pontiac case. He said the case was “all consuming” and Stone was

involved in all phases. He said he believed certain aspects of Stone’s performance at

defendant’s trial should have been raised by appellate counsel. He admitted on cross-

5

1-04-1939

examination he had no knowledge of defendant’s case. Thomas Breen, a prosecutor in the

Pontiac trial, testified that the trial was one of the most complicated he had ever seen. Breen

said Stone actively participated in the pretrial motions, jury selection and trial. Breen admitted

on cross-examination he had no knowledge of defendant’s case. Attorney Michael Deutsch

testified that he saw Stone on the day the Pontiac trial ended and Stone looked very tired and

“basically just wasted” from the trial. Deutsch admitted he had no personal knowledge of

defendant’s trial.

The parties stipulated to the testimony of Judge Leo Holt, a defense attorney in the

Pontiac case. If called as a witness Judge Holt would have testified that Stone actively

participated in the Pontiac case and the trial was a “horrendous experience.” The defense also

presented an affidavit from Judge Marianne Jackson, another defense attorney in the Pontiac

trial. Judge Jackson said she saw Stone on May 9, 1981, and he looked “emotionally, physically

and mentally drained.” She said she “would not have been able to start picking a jury in a

capital trial on May 27, 1981.”

The State presented no witnesses. On June 14, 2004, the trial court denied defendant's

postconviction petition in a written order. It is from that order defendant now appeals.

We use a deferential standard in reviewing a trial court's decision after an evidentiary

hearing on a postconviction petition, reversing only if the decision was manifestly erroneous.

People v. Chatman, 357 Ill. App. 3d 695, 698, 830 N.E.2d 21 (2005). "A decision is manifestly

erroneous only if it contains error that is 'clearly evident, plain, and indisputable.' ” People v.

Frieberg, 305 Ill. App. 3d 840, 847, 713 N.E.2d 210 (1999), quoting People v. Ruiz, 177 Ill. 2d

6

1-04-1939

368, 384-85, 686 N.E.2d 574 (1997).

Defendant first claims he was denied a fair trial when his motion for a continuance was

denied and the date of his trial was advanced over his objection. He argues the continuance was

justified because his attorney professed to being unprepared and, as a result, counsel had not

secured Dr. Mellinger as an expert witness to support his theory that defendant was not guilty by

reason of insanity. The State argues that a continuance was not justified, given the extended

length of time that the case was on the court's docket and the court's repeated warnings that the

case would be advanced immediately after the completion of the Pontiac trial.

In its written order, the postconviction court stated:

"The trial date of the case was pushed up 6 weeks. The defense attorney had

notice of this possibility almost 2 weeks prior to the start of the trial, and,

arrangements had been made for Dr. Wright to report prior to the opening

statements. Although this is a tight schedule, I find no abuse of discretion where

as in this case there are experienced trial attorneys on both sides and an extremely

experienced trial judge. As concerns to any prejudice to the petitioner, I point to

the facts as enumerated in the trial counsel's ineffective assistance claim ***.

There were few avenues of approach in this case. A denial of a continuance did

not cause the defendant to be convicted in this case."

The court found People v. Flores, 269 Ill. App. 3d 196, 201-03, 645 N.E.2d 1050 (1995),

to be controlling. There, the trial court denied the defendant's motion for a continuance,

resulting in his counsel being unprepared. The appellate court concluded the trial court had not

7

1-04-1939

abused its discretion in denying the continuance because, among other things, the case had been

set for trial for more than one year, which gave the public defender's office sufficient time to

investigate. Flores, 269 Ill. App. 3d at 201. The appellate court also relied on the trial court's

finding that the additional information sought would "would not have been likely to yield

sufficiently relevant evidence." Flores, 269 Ill. App. 3d at 202. The appellate court also decided

that even if the trial court abused its discretion in denying the continuance, it did not prejudice

the defendant where the record showed that defense counsel "adequately cross-examined the

State's witnesses and otherwise competently conducted the defense." Flores, 269 Ill. App. 3d at

203. The thorough Flores analysis of the issue was amply supported by citations to People v.

Ward, 154 Ill. 2d 272, 304, 609 N.E.2d 252 (1992); People v. Hayes, 52 Ill. 2d 170, 174-75, 287

N.E.2d 465, 467 (1972); and People v. Hall, 157 Ill. 2d 324, 337, 626 N.E.2d 131 (1993).

Flores, 269 Ill. App. 3d at 203-04. The court in Flores also distinguished United States v.

Cronic, 466 U.S. 648, 662, 80 L. Ed. 2d 657, 670, 104 S. Ct. 2039, 2048 (1984) (the denial of a

defendant's motion for a continuance may give rise to a presumption of ineffective assistance of

counsel). Flores, 269 Ill. App. 3d at 205-06.

We agree with the court's reliance on Flores here. The trial was first set to begin on

August 18, 1980. The trial court gave Stone a continuance of nearly one year for the Pontiac

case with the understanding that if the Pontiac trial ended sooner, the date would be advanced.

This is exactly what happened. Stone had sufficient time to investigate and to contact and

schedule an examination with Dr. Mellinger. There was no showing or offer of proof at the

postconviction evidentiary hearing that Dr. Mellinger's involvement in the case would have

8

1-04-1939

yielded evidence in support of defendant's insanity defense. To show that the trial court erred in

denying Stone's request for a continuance to secure additional witnesses, defendant would have

to show he was diligent in seeking the witnesses, that the testimony was material and might have

affected the jury's verdict and that he was prejudiced. Ward, 154 Ill. 2d at 307. There was no

evidence offered to support these requirements or even hint at what Dr. Mellinger's testimony

might have been.

The postconviction court considered the affidavits, exhibits, trial record and the

testimony received at the evidentiary hearing. It concluded that although defense counsel was

faced with a tight schedule, he had two weeks' notice of the start of the trial. The postconviction

court found that both the trial attorneys and the judge had extensive trial experience. Its

conclusion that there were few avenues of approach to the case supports the conclusion that less

preparation would have been required for this case than for a case with multiple potential

defenses. Defendant did not provide affidavits or other evidence from Dr. Mellinger to show

that his opinion would have contradicted Dr. Kaplan's opinion. Defendant did not explain how

he expected Dr. Mellinger's testimony to support an insanity defense. Other than his conclusory

claim that the jury would have been swayed by a psychiatrist's opinion, defendant did not show

that Dr. Mellinger's testimony would have been material and would have changed the trial

outcome. The assertion that Dr. Mellinger would have testified that defendant was insane at the

time of the offense is speculative.

Because defendant cannot show that Dr. Mellinger’s testimony would have been

favorable to him and would have affected the outcome of his trial, defendant cannot show the

9

1-04-1939

requisite prejudice. See Ward, 154 Ill. 2d at 307. The postconviction court did not err in

concluding that defendant received a fair trial despite the trial court's denial of his motion for a

continuance and its advancement of the trial over his objection.

In opposition to Flores and Ward, defendant relies solely on People v. Johnson, 11 Ill.

App. 3d 395, 401, 296 N.E.2d 763 (1973). In Johnson, the trial court erred in denying the

defendant's motion for a continuance when the defendant had "not a single witness to support his

defense of insanity." Johnson, 11 Ill. App. 3d at 400. In Johnson, the defendant moved for a

continuance because two psychiatrists who would have testified in his behalf were unavailable.

Johnson, 11 Ill. App. 3d at 397. Attached to the motion were two "suggested stipulations" from

the psychiatrists which gave their opinions that defendant was insane. The trial court allowed

the "suggested stipulations" to be introduced as defense exhibits. Johnson, 11 Ill. App. 3d at

397. The appellate court determined that the trial court erred in denying the defendant's motion

for a continuance and in allowing the reports of psychiatric examinations, that could not be

subject to confrontation and cross-examination by the defendant, to be substituted for sworn

testimony. Johnson, 11 Ill. App. 3d at 402. The appellate court found that the defendant was

deprived of the opportunity to persuade the trial court of his insanity, the “sole issue upon which

he relied for his defense.” Johnson, 11 Ill. App. 3d at 401. But see People v. Joyce, 234 Ill.

App. 3d 394, 407-08, 599 N.E.2d 547 (1992) (where the defendant had almost two years from

the time of his indictment to obtain a psychological evaluation, Johnson did not require a finding

that the trial court abused its discretion in denying the defendant's motion for a continuance).

Unlike the defendant in Johnson, defendant here had a fair opportunity to present his

10

1-04-1939

insanity defense. He presented Dr. Wright, an expert witness, who testified that defendant was

unable to conform his conduct to the law. Defendant cross-examined Dr. Kaplan, who testified

for the State that defendant was sane. Also, the numerous delays and continuances in this case

were not factors in Johnson. Johnson does not stand for the proposition that the denial of a

defendant's motion for a continuance in a case grounded on an insanity defense constitutes error

of constitutional proportions.

Defendant next claims that the postconviction court erred in denying his petition because

he received ineffective assistance of counsel at his trial. He claims Stone was unprepared for

trial, failed to secure witnesses to support his insanity defense and allowed Dr. Wright to become

an easy target for the prosecution in its cross-examination and closing arguments.

The postconviction court concluded that defendant's ineffective assistance claims did not

warrant postconviction relief. We quote from the court's written order:

"Under Strickland's mandate [(Strickland v. Washington, 466 U.S. 668, 80

L. Ed. 2d 674, 104 S. Ct. 2052 (1984))], neither mistakes in strategy nor the fact

that another attorney with the benefit of hindsight would have proceeded

differently is sufficient to establish ineffective assistance of counsel. [Citation.]

Indeed, to ruminate over the wisdom of counsel's advice is precisely the kind of

retrospection proscribed by Strickland and its progeny. [Citations.]

A review of the transcripts reveals that most all of the avenues of defense

had been cut off by January 3, 1980. The petitioner had been identified, the

petitioner had given several different explanations[,] then admitted the crime to

11

1-04-1939

an [a]ssistant State's Attorney. A psychiatrist was of the opinion that the

defendant was sane. A police officer was of the opinion that the petitioner had

been drinking but was not intoxicated. Defendant['s] counsel filed a defense of

insanity but the petitioner was not examined again for almost 17 months. The

balance of the transcript shows a stellar performance by defense counsel[. A]t

each turn he was on his game. He preserved an excellent record. Does the delay

in having the petitioner examined meet both prongs of the Strickland test[?] I

find it meets neither. It neither falls below an objective standard [nor,] as a result

of it, would the result have been different[.]"

Claims of ineffective assistance of counsel implicate a defendant's constitutional rights

under the state and federal constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I.

§8. The two-prong test for evaluating claims of ineffective assistance of trial and appellate

counsel is set out in Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. We

note in passing that ineffective assistance of counsel claims in the time frame of this trial were

controlled by the standards in People v. Greer, 79 Ill. 2d 103, 120-21, 402 N.E.2d 203 (1980).

The Greer standard was substantially similar to the one later adopted in Strickland, 466 U.S. at

687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, and People v. Albanese, 104 Ill. 2d 504, 524-25,

473 N.E.2d 1246 (1984).

Ineffective assistance requires a showing that: (1) counsel’s performance was deficient or

fell below an objective standard of reasonableness; and (2) defendant suffered prejudice as a

result of counsel’s deficient performance. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104

12

1-04-1939

S. Ct. at 2064. The court need not decide whether counsel’s performance was deficient if the

defendant suffered no prejudice from the alleged errors. People v. Foster, 168 Ill. 2d 465, 475,

660 N.E.2d 951 (1995). Prejudice is shown when there is “a reasonable probability" that, but for

counsel’s ineffectiveness, the defendant's sentence or conviction would have been different.

People v. Mack, 167 Ill. 2d 525, 532, 658 N.E.2d 437 (1995). On the specific question of

whether counsel was competent despite failing to call or contact certain witnesses, the defendant

must attach affidavits to his postconviction petition, showing the potential testimony of the

witnesses and its significance. People v. Barr, 200 Ill. App. 3d 1077, 1081, 558 N.E.2d 778

(1990).

Here, the postconviction court reviewed the trial transcripts and found no reasonable

probablity that, but for Stone's alleged ineffectiveness, defendant's convictions or sentences

would have been different. The transcripts show overwhelming evidence against defendant. He

was identified by witnesses as the offender, he gave inconsistent explanations as to why blood

was on his clothing and he confessed to an assistant State's Attorney. Dr. Kaplan, the

psychiatrist who examined him within days of the murder, found defendant was sane at the time

of the offenses. A police officer testified that defendant had been drinking but was not

intoxicated. With this evidence in the record before it, the postconviction court could have

concluded that there was no reasonable probability that defendant would have been acquitted but

for counsel's alleged errors. Nor did the postconviction court find Stone's performance to be

deficient under the first prong of Strickland. The judge said Stone turned in "a stellar

performance," was "on his game" and "preserved an excellent record." The judge found that

13

1-04-1939

neither prong of Strickland was met. We believe that the court's conclusion comports with the

record and the evidence presented at the evidentiary hearing. The postconviction court did not

err in its application of Strickland or its denial of defendant's postconviction claim of ineffective

assistance of trial counsel.

Defendant relies on People v. Popoca, 245 Ill. App. 3d 948, 615 N.E.2d 778 (1993), and

Tillery v. United States, 419 A.2d 970 (D.C. Cir. 1980), to argue that a defense attorney is

ineffective when he fails to present or adequately prepare expert witnesses to support his theory

of defense. In Popoca, the defendant was convicted of attempted murder. He sought

postconviction relief, claiming he was denied effective assistance when defense counsel failed to

support his intoxication defense with expert testimony. Popoca, 245 Ill. App. 3d at 952. At an

evidentiary hearing, a psychologist testified that the defendant had a history of substance abuse

and that alcohol had affected his mental state. The court determined that trial counsel was

ineffective in failing to present expert testimony that would have substantially strengthened

defendant’s claim of intoxication. Popoca, 245 Ill. App. 3d at 957. In Tillery, the court reversed

the defendant’s murder conviction, finding he was denied effective representation. Tillery, 419

A.2d at 976. The defendant’s trial counsel failed to conduct even a rudimentary investigation

that would have identified two doctors whose testimony would have supported an insanity

defense. Tillery, 419 A.2d at 974.

Popoca and Tillery are readily distinguishable. In those cases, proof was offered that

experts, had they been called, would have testified in support of the defendants' theories of

defense. No such proof was offered here. There was no affidavit or testimonial evidence from

14

1-04-1939

Dr. Mellinger to show that, if he had examined defendant, his opinion would have supported an

insanity defense. Unlike the defendants in Popoca and Tillery, defendant here has not shown

that Dr. Mellinger’s testimony would have affected the outcome of his trial.

The same analysis applies to defendant's argument that Stone was ineffective for failing

to present the testimony of lay witnesses at the crime scene who reported that a "crazy" person

was in the subway. He cites People v. Williams, 38 Ill. 2d 115, 123, 230 N.E.2d 224 (1967),

where the supreme court recognized a "general rule *** that nonexpert witnesses may give their

opinion as to an individual's sanity based on their personal observations." In Williams, the court

recognized that a lay person would be allowed to give an opinion that the defendant was insane

at the time of the offense, but such testimony would be of little probative value. Williams, 38 Ill.

2d at 124. Here, the evidentiary hearing yielded no testimony or affidavits of lay persons who, if

contacted by Stone, would have provided such conclusive evidence of defendant's mental state

that the outcome of the trial would have changed. Stone did not render ineffective assistance by

failing to investigate the possibility of testimony when it would have been of little probative

value.

Defendant next claims that counsel will be judged ineffective where, as here, he decides

to raise an insanity defense but then does not prepare for it. He cites foreign authority to support

this claim: People v. Saunders, 388 N.Y.S.2d 142, 54 A.D.2d 938, 938-39 (1976); People v.

Bryant, 77 Mich. App. 108, 258 N.W.2d 162 (1977); and People v. Nyberg, 140 Mich. App. 160,

362 N.W.2d 748 (1984). These decisions are not binding on Illinois courts (People v. Chandler,

88 Ill. App. 3d 644, 653, 411 N.E.2d 283 (1980)), but more importantly, the cases are

15

1-04-1939

distinguishable. All three involved egregious circumstances where defense counsel failed to

have the defendant examined by a mental health expert or failed to pursue what would have been

a complete defense of insanity. Here, defense counsel had defendant examined by a

psychologist, Dr. Wright, and advanced an insanity defense at defendant's trial.

Defendant next argues that he received ineffective assistance of counsel at his sentencing

hearing when Stone declined to cross-examine two witnesses. Defendant claims he received a

harsher sentence as a result. The postconviction court did not specifically comment in its written

decision on Stone's effectiveness at sentencing. But its broad statement that the trial transcript in

general showed "a stellar performance" by Stone supports the conclusion that the postconviction

court did not perceive ineffective assistance at sentencing. Defendant contends that his claim of

ineffective assistance of counsel at sentencing must be evaluated under Cronic, 466 U.S. 648, 80

L. Ed. 2d 657, 104 S. Ct. 2039. Where “counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that

makes the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659, 80 L. Ed.

2d at 668, 104 S. Ct. at 2047. Defendant argues that Cronic applies because at the sentencing

hearing, the State presented the testimony of two victims who said defendant approached them

on the subway, threatened them with a knife and demanded money from them. Stone did not

cross-examine the witnesses, claiming that his representation of defendant did not extend to

defendant's other alleged crimes against those victims. Defendant claims that by not cross-

examining the witnesses, Stone failed to subject the prosecution’s case to “meaningful

adversarial testing,” especially since the other crimes were used as aggravating factors in

16

1-04-1939

sentencing.

Our supreme court has applied the Cronic exception only in narrow circumstances. It

was applied in People v. Hattery, 109 Ill. 2d 449, 464, 488 N.E.2d 513 (1985), where the

defendant's attorneys made an unequivocal concession of the defendant's guilt. Defense counsel

said the only issue at trial was whether the defendant should receive the death penalty. Hattery,

109 Ill. 2d at 464. The court concluded that defense counsel did not subject the prosecution’s

case to the “meaningful adversarial testing” required by the sixth amendment. Where a

defendant proceeds to trial, the State must be held to its burden of proof. Hattery, 109 Ill. 2d at

465. Unlike Hattery, the presumption of prejudice as established in Cronic was not found in

People v. Johnson, 128 Ill. 2d 253, 270, 538 N.E.2d 1118 (1989). In Johnson, there was

overwhelming evidence of the defendant's guilt and no defense was available. The court

determined that counsel could concede even murder without the presumption of prejudice if the

concession could be beneficial in deflecting a more serious felony murder charge. Johnson, 128

Ill. 2d at 270. The court concluded that the Cronic presumption has limited applications: “the

defendant faces a high burden before he can forsake the two-part Strickland test.” Johnson, 128

Ill. 2d at 270.

We find this case to be more like Johnson than Hattery. Here, there was overwhelming

evidence of defendant's guilt. Counsel did not concede defendant's guilt as in Hattery. We

conclude the appropriate standard to apply is Strickland, not Cronic.

Defendant argues that under the two-pronged Strickland test, 466 U.S. at 687, 80 L. Ed.

2d at 693, 104 S. Ct. at 2064, counsel's failure to cross-examine the witnesses at sentencing

17

1-04-1939

made the resulting sentence unreliable. The State argues that defense counsel's decision not to

cross-examine the witnesses was a matter of trial strategy. The witnesses were victims of other

crimes alleged to have been committed by defendant and their testimony on cross-examination

could have revealed additional unfavorable evidence.

"Generally, the decision whether or not to cross-examine or impeach a witness is a matter

of trial strategy which will not support a claim of ineffective assistance of counsel." People v.

Pecoraro, 175 Ill. 2d 294, 326, 677 N.E.2d 875 (1997). Trial counsel renders ineffective

assistance in cross-examining witnesses only if his approach is objectively unreasonable.

Pecoraro, 175 Ill. 2d at 327. We believe that Stone's decision not to cross-examine the witnesses

was a strategic choice that was not objectively unreasonable in light of the possibility that

elaborations by the victims could have justified a harsher sentence. The court did not err in

denying defendant's postconviction petition despite his claims of ineffective assistance at

sentencing.

Defendant next argues that his postconviction petition should have been granted because

appellate counsel was ineffective for failing to raise certain claims on direct appeal. The

postconviction court concluded:

"Although it is axiomatic that a criminal defendant is guaranteed the effective

assistance of counsel on appeal [citation], effective assistance in a constitutional

sense means competent, not perfect, representation. [Citation.] *** As the

Illinois Supreme Court has recognized:

[']A defendant who contends that appellate counsel rendered

18

1-04-1939

ineffective assistance, [for example] by failure to argue [an] issue, must

show that []the failure to raise that issue was objectively unreasonable[]

and that, []but for this failure, [the defendant's conviction or sentence]

would have been reversed.['] [People v. Richardson, 189 Ill. 2d 401, 412,

727 N.E.2d 362 (2000); [citations].]

*** Clearly, appellate counsel is under no obligation to brief every

conceivable argument on appeal. [People v. Jackson, 205 Ill. 2d 247, 267, 793

N.E.2d 1 (2001); People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919

(1995); People v. Collins, 153 Ill. 2d 130, 140, 606 N.E.2d 1137 (1992);

[citations].] 'It is not incompetence for counsel to refrain from raising those

issues which, in his judgment, are without merit.' People v. Sanders, 209 Ill. App.

3d 366, 377, 568 N.E.2d 200 [(1991); [citations].]

Petitioner specifically faults appellate counsel for not raising each and

every one of the issues raised in this [postconviction proceeding. A] review of

the court's response to these issues find[s] this issue likewise without merit."

The postconviction court supports its conclusion with sound authority: Jackson,

205 Ill. 2d at 267 (appellate counsel is not obligated to raise every conceivable issue on

appeal); Coleman, 168 Ill. 2d at 523, citing Collins, 153 Ill. 2d at 140 (appellate counsel's

choice of the issues to be raised and argued will not be questioned unless his judgment

was patently erroneous; and Sanders, 209 Ill. App. 3d at 377 ("It is not incompetence for

counsel to refrain from raising those issues which, in his judgment, are without merit").

19

1-04-1939

The court's conclusion is also supported by our supreme court's holding that where a

defendant's claims in his postconviction petition were not meritorious, he suffered no

prejudice when appellate counsel failed to raise them on appeal. People v. Enis, 194 Ill.

2d 361, 381, 743 N.E.2d 1 (2000).

Having concluded that the claims in defendant's postconviction petition were not

meritorious and that appellate counsel cannot be faulted for failing to raise claims that

lack merit, we cannot say that defendant suffered ineffective assistance of appellate

counsel.

Applying a deferential standard of review to the court's conclusions drawn from

the evidence presented at the hearing and the record before it, we conclude that the court

did not err in denying defendant's petition.

The judgment of the circuit court is affirmed.

Affirmed.

J. GORDON and R.E. GORDON, JJ., concur.

20