# People v. Lewis > Illinois Supreme Court · November 30, 1984 · 105 Ill. 2d 226 URL: https://www.frixlaw.com/law-library/cases/9524005 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CORNELIUS LEWIS, Appellant - **Court:** Illinois Supreme Court - **Decided:** November 30, 1984 - **Citations:** 105 Ill. 2d 226; 85 Ill. Dec. 302; 473 N.E.2d 901; 1984 Ill. LEXIS 412 - **Precedential status:** Published - **Opinion:** Dissent by Clark - **Judges:** Clark, Simon - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9524005 ## How later opinions describe it (automated extraction) - holding that defendant waived review of an issue which he raised for the first time during oral argument - stating that the result would be the same under Strickland and Greer ## Opinion text JUSTICE CLARK, dissenting: In People v. Lewis (1981), 88 Ill. 2d 129 , I joined with the majority of this court in affirming the defendant’s conviction and sentence. However, in light of facts which were brought out in the post-conviction hearing and during oral argument, I am compelled to dissent from them now. In defendant’s direct appeal to this court, he raised the issue of ineffective assistance of counsel. He again raised this issue in his petition for post-conviction relief, as well as in his present appeal. Although the defendant has raised points similar to those he raised in Lewis I in this post-conviction appeal, he raised additional points as well. I have also sua sponte raised points on this issue. I believe that when all of the individual points which have been raised on this issue are added together, the only conclusion that can be reached is that defendant’s trial counsel, Kenneth Kinser, was ineffective. The American system of justice is an adversarial system. We use this system because we believe it leads to fair and just results. In a long line of cases, the Supreme Court has recognized that the sixth amendment right to counsel is an integral part of our adversarial system. See Powell v. Alabama (1932), 287 U.S. 45 , 77 L. Ed. 158 , 53 S. Ct. 55 ; Johnson v. Zerbst (1938), 304 U.S. 458 , 82 L. Ed. 1161 , 58 S. Ct. 1019 ; and Gideon v. Wainwright (1963), 372 U.S. 335 , 9 L. Ed. 2d 799 , 83 S. Ct. 792 . In Gideon, the court recognized the importance of counsel’s assistance, holding that the sixth amendment right to counsel applies to all State felony prosecutions and that the defendant has the right to appointed counsel if he is unable to retain counsel. 372 U.S. 335 , 9 L. Ed. 2d 799 , 83 S. Ct. 792 . The Supreme Court has also recognized that the mere presence of counsel at trial is not enough. “[T]he right to counsel is the right to the effective assistance of counsel.” (McMann v. Richardson (1970), 397 U.S. 759, 771, n.14 , 25 L. Ed. 2d 763 , 773 n.14, 90 S. Ct. 1441 , 1449 n.14.) “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984), 466 U.S. _ , _, 80 L. Ed. 2d 674, 692-93 , 104 S. Ct. 2052, 2064 .) The proper standard for counsel’s performance is “that of reasonably effective assistance.” ( 466 U.S. _ , __, 80 L. Ed. 2d 674, 693 , 104 S. Ct. 2052, 2064 .) The criminal attorney’s performance must therefore be “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” McMann v. Richardson (1970), 397 U. S. 759 , 25 L. Ed. 2d 763 , 90 S. Ct. 1441 , quoted in Strickland v. Washington (1984), 466 U.S._, _, 80 L. Ed. 2d 674, 693 , 104 S. Ct. 2052, 2065 . In Strickland, the court set forth the two-part test which a defendant claiming ineffective assistance of counsel must meet to have his conviction and/or death sentence reversed. This court adopted the Strickland test in People v. Albanese (1984), 104 Ill. 2d 504 . To reverse the defendant’s conviction and/or death sentence in this case, the defendant had to establish that: (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” 466 U.S._,_, 80 L. Ed. 2d 674, 693 , 104 S. Ct. 2052, 2064 . I believe the defendant established both requirements. I will first set forth all the points which the defendant raised in Lewis I. I will then discuss the points the defendant raised in this appeal, and lastly the points which I raise sua sponte. I will then analyze these points using the Strickland two-part test. In Lewis I, the defendant raised the following points with regard to the issue of ineffective assistance of counsel: (1) Kinser failed to make a motion in limine to prevent the use of defendant’s prior convictions if the defendant testified; (2) Kinser failed to ask that the race of the jurors be noted; (3) Kinser failed to object to the leading questions asked of Maurice Farris during the direct examination of Farris; (4) Kinser failed to couple his motion for a mistrial with a motion for severance from Willie T. Sangster’s trial; (5) Kinser failed to object to inaccuracies in the prosecutor’s closing argument and Scott Diamond’s closing statement which implied that the defendant was guilty; (6) Kinser and the defendant failed to communicate adequately; and (7) Kinser waived the opening statement. In Lewis I, this court concluded that Kinser’s representation of the defendant, when “[vjiewed in the context of an ongoing trial,” was not ineffective. ( 88 Ill. 2d 129, 159 .) Today, the court has reached the same conclusion. However, I cannot join in this erroneous conclusion. In the defendant’s post-conviction appeal, he argued that the post-conviction record showed that “Mr. Kinser’s age, experience, background and personal make-up rendered him completely unequipped to act as a conscientious and zealous advocate” on defendant’s behalf. Kinser testified that he had kept abreast of changes in the criminal law by reading legal publications and attending seminars. He also testified that he had been retained in at least 50 felony cases. However, Kinser indicated at the post-conviction hearing that around 1975 he decided to curtail his criminal practice. It must be noted that at the time of the trial, spring 1979, Kinser was a sole practitioner and that the primary emphasis of his practice was real estate, probate and trust law. A second point raised in the defendant’s post-conviction appeal was that Kinser failed to properly handle a motion for a mistrial. This issue was raised in the defendant’s direct appeal; however, new facts came to light at the post-conviction hearing. At the trial, an FBI agent testified that he had seen the defendant with the defendant’s probation officer. This testimony alerted the jury that the defendant had a prior criminal record. Testimony at the post-conviction hearing established that Kinser objected to the FBI agent’s testimony only after Scott Diamond, Bernice Lewis’ attorney, instructed Kinser to object. In addition, when Diamond and Kinser approached the bench, Diamond had to tell Kinser to move for a mistrial, which Kinser did. Kinser later withdrew this motion, even though the trial judge indicated that the motion would be granted. A third point raised by defendant in this post-conviction appeal was that Kinser failed to have a third party present during his interview with Maurice Farris. Therefore, Kinser was unable to impeach Farris’ testimony at trial. The defendant further alleged that Kinser failed to investigate the defendant’s background and the facts of the case, to discover mitigating factors which could have been beneficial to the defendant in the sentencing phase of the trial. The defendant cited the following omissions by Kinser: (1) failure to talk to friends, past employers, and some family members; (2) failure to investigate defendant’s prior criminal record; (3) failure to interview eyewitnesses to the murder and robbery; and (4) failure to have the State produce certified transcripts of the defendant’s prior convictions. Another point which the defendant argued for the first time in this appeal was that Kinser failed to investigate an alibi defense. The defendant gave Kinser the names of potential alibi witnesses in Des Moines, Iowa. Kinser wrote to these individuals but received little response. On several occasions, the potential alibi witnesses broke appointments to meet with Kinser. Diamond had contacted Shirley Steele, an attorney from Des Moines, Iowa, to contact alibi witnesses on Bernice’s behalf. Steele interviewed the potential witnesses regarding Bernice’s whereabouts on the dates in question and found the potential witnesses to be suspect. Steele did not question these potential witnesses with respect to an alibi defense for Cornelius. Yet, Kinser relied on Steele’s opinion that the witnesses could not provide an alibi defense for Cornelius. Five potential alibi witnesses attended the defendant’s trial. Yet, Kinser failed to interview them or call them as witnesses. By failing to interview and call these potential witnesses, Kinser prevented the jury from determining their veracity. I now turn to points which I raise sua sponte on the issue of ineffective assistance of counsel. In addition to failing to investigate or call the potential alibi witnesses, Kinser failed to investigate what type of testimony Bernice Joyners might have provided. During a conversation outside the presence of the jury, the defendant told the court that Bernice Joyners, if called, would have testified that she saw Maurice Farris alone in downtown Decatur the morning before the robbery. However, Farris testified that, at this very time, he was with Cornelius and Bernice Lewis in downtown Decatur. Another witness Kinser failed to call was FBI agent Burwitz. During the police investigation of this case, two negroid hairs suitable for analysis were found. One was found in a ski mask used in the robbery, and the other was found in the back-seat area of the maroon Monte Carlo automobile which was used in the robbery. These two hair samples were compared with hair standards obtained from Cornelius Lewis, Bernice Lewis, and Maurice Farris, three of the people charged with the robbery. All three were black. The FBI compared these standards with the hair samples found in the ski mask and the car and excluded the Lewises as the source. Because of a verbal report, Kinser knew that Agent Burwitz would have testified that Cornelius had been excluded as the source of the negroid hair found in the ski mask and the car. Besides failing to call Agent Burwitz, at a pretrial hearing motion on May 8, 1979, the trial court became aware that the prosecutor and defense attorneys were waiting for FBI reports, presumably the hair-analysis reports. The judge stated: “*** I’m confident that you’ll have it before certainly the time comes if you would want to put it on, to present it. If not, for whatever reason it’s not available at that time, I’m prepared to grant whatever relief might be required to see to it that it is made available so you can have that evidence.” (Emphasis added.) Kinser never requested any relief. He did not tell the judge if he had received the reports, and if he did receive the reports, he did not request time to examine them. In addition, in his testimony at the post-conviction hearing Kinser stated that he planned to create confusion as to whom the “perpetrator was.” However, his cross-examinations of the eyewitnesses failed to create any doubt as to whom the gunman could have been. It was clear from the testimony of the eyewitnesses at the trial that the gunman was the taller of the two robbers. At trial there was also testimony as to the heights of Cornelius Lewis, Bernice Lewis, and Maurice Farris. An FBI agent testified that Cornelius Lewis told the agent that he was 6 feet 2 inches tall. Farris testified that he was 5 feet 8 inches tall, that Bernice Lewis was 5 feet 10 inches or 5 feet 11 inches tall, and that Cornelius Lewis was at least 6 feet tall. Clearly Cornelius was the tallest of the three. The eyewitness also testified that the robbers were two men. At trial Maurice Farris testified that when he first met Bernice Lewis he thought she was a man. Testimony at the post-conviction hearing revealed that Bernice was extremely flat chested and could easily be taken for a man. In addition, Diamond testified at the post-conviction hearing that he was not convinced that Bernice was not the gunman. Even though Kinser’s apparent theory was to create confusion as to who the gunman was, he never developed his cross-examination of the eyewitnesses to cause the eyewitnesses to doubt who the gunman was. Of the five eyewitnesses, Kinser only cross-examined four. He never asked these four if they had ever seen a woman who resembled a man or if the gunman could have been a flat-chested woman. If Kinser had developed a cross-examination along these lines, he could have argued that it might have been Bernice and Farris who were the two robbers. Therefore, Bernice, the taller of these two, would have been the gunman. Besides failing to attempt to use the height and build of the robbers compared to the height and build of the defendants to create doubt in the minds of the jurors, Kinser failed to use the results of the hair-analysis tests on Maurice Farris’ hair standard to aid Kinser’s theory. The hair-analysis report of Farris’ hair standard excluded Farris as the source of the hair found in the ski mask, but was inconclusive as to Farris being the source of the hair found in the back seat of the car. Although there was some question as to whether Kinser received this report, at the post-conviction hearing he testified that he had a “faint recollection” of seeing it. As noted earlier, Cornelius had been excluded as the source of the hair found in the car. Farris testified, however, that he drove the car; yet he had not been excluded as the source of the hair found in the back seat. By using this evidence, Kinser could have created doubt as to whether Farris was the driver or one of the robbers. The final point regarding the ineffective-assistance-of-counsel issue was that Kinser was ineffective during the sentencing phase of the trial when he stipulated to a “rap sheet,” thereby failing to make the State prove that none of these convictions were from uncounseled guilty pleas. The “rap sheet” contained the defendant’s prior felony convictions, namely, felonious assaults with a knife and firearm; (2) second degree robbery; and (3) bank robbery. If any or all of these convictions were a result of an uncounseled guilty plea, the conviction(s) would have been inadmissible and therefore not presented to the jury. It can be presumed that if the jurors were never told (i.e., of the bank robbery) they might have been less inclined to sentence the defendant to death. The question of whether these convictions resulted from uncounseled guilty pleas, without a knowing waiver, goes to Kinser’s ineffectiveness as counsel. This point was raised for the first time during oral argument. According to Supreme Court Rule 341(e)(7) ( 87 Ill. 2d 341 (e)(7)), points not argued in the appellant’s brief are waived and shall not be raised in oral argument. However, in Hux v. Raben (1967), 38 Il. 2d 223, 224-25, this court held: “The last sentence of [the rule] *** states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court. The distinction clearly appears when that sentence is read in conjunction with Rule 366, which deals with the powers of a reviewing court and the scope of review. Rule 366 provides: ‘(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just *** (5) give any judgment and make any order that ought to have been given or made, ***.’ ( 36 Ill. 2d 159 .) A similar thought is expressed in the provision of Rule 615 with respect to the review of criminal cases: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.’ 36 Ill. 2d 182 . These provisions recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.” In view of the fact that the defendant’s life is at stake, I feel the majority should have overridden the consideration of waiver and should have considered the point raised by the defendant in oral argument. Gideon v. Wainwright (1963), 372 U.S. 335 , 9 L. Ed. 2d 799 , 83 S. Ct. 792 , established the rule that the right to counsel guaranteed by the sixth amendment was applicable to the States by virtue of the fourteenth amendment, making it unconstitutional to try a defendant for a felony in a State court unless that defendant had counsel or validly waived counsel. Presuming waiver of counsel from a silent record is impermissible. (Carnley v. Cochran (1962), 369 U.S. 506 , 8 L. Ed. 2d 70 , 82 S. Ct. 884 .) In this case, because of Kinser’s stipulation to the “rap sheet,” the record is silent as to whether the prior convictions were uncounseled and whether any were guilty pleas. An uncounseled guilty plea cannot be used for any purpose. (See Burgett v. Texas (1967), 389 U.S. 109 , 19 L. Ed. 2d 319 , 88 S. Ct. 258 .) Since the possible defect in the prior conviction could have been denial of the right to counsel, the defendant in effect suffers anew from the deprivation of his sixth amendment rights. See Burgett v. Texas (1967), 389 U.S. 109 , 19 L. Ed. 2d 319 , 88 S. Ct. 258 . As stated earlier, the defendant had to establish that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984), 466 U.S._,_, 80 L. Ed 2d 674, 693, 104 S. Ct. 2052, 2064 .) Unless the defendant established both elements, it could not be said that the conviction and/or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. I believe that such a breakdown occurred. With respect to the performance element of the Strickland test, it must be determined whether the aforementioned acts and/or omissions of Kinser “were outside the wide range of professionally competent assistance.” (466 U.S__, _, 80 L. Ed. 2d 674, 695 , 104 S. Ct. 2052, 2066 .) For this part of the test, information which came to the court’s attention in defendant’s post-conviction hearing can be relied on. (466 U.S._, __., 80 L. Ed. 2d 674, 701 , 104 S. Ct. 2052, 2071 .) With respect to the performance element, the record shows that Kinser: failed to make a motion in limine to keep defendant’s prior convictions out of evidence if Cornelius would have testified; failed to note the race of the jurors; failed to object to the leading questions asked of Farris during the direct examination of Farris; failed to couple his motion for a mistrial with a motion for severance from Willie T. Sangster’s trial; failed to object to inaccuracies in the prosecutor’s closing argument and Scott Diamond’s closing statement which implied that the defendant was guilty; failed to communicate adequately with the defendant; waived the opening statement; failed to have a third party present during his interview with Farris, thereby making it impossible to impeach Farris at trial; failed to investigate the defendant’s background for the sentencing stage of the trial; failed to interview important witnesses (i.e., eyewitnesses); failed to investigate an alibi defense; failed to develop his theory of the case (i.e., Kinser did not attempt to create doubt as to who was involved in the robbery and murder through cross-examination of eyewitnesses and the use of the test results on Cornelius’ and Farris’ hair standards); failed to notify the court that he either received the FBI reports or did not receive the reports; failed to request additional time to study the FBI reports if he received them; and lastly, failed to make the State prove that the defendant’s prior convictions were not uncounseled guilty pleas. After adding all these points together, I believe that Kinser failed to perform in the manner in which an effective criminal defense attorney would have performed. With respect to the prejudice element of the Strickland test (this standard was not used in Lewis I), the defendant raised in Lewis I the following points, namely: (1) Kinser’s failure to object to inaccuracies in the prosecutor’s closing argument and (2) Kinser’s failure to properly handle the motion for a mistrial. The defendant, in his present appeal, raised the point of prejudice regarding Kinser’s stipulation to the “rap sheet.” In view of these three points, I believe that Kinser’s deficient performance prejudiced Cornelius Lewis’ defense. When adjudicating a claim of actual ineffectiveness, it is important to note that the principles which I have stated do not establish mechanical/mathematical rules. In every case a court should be concerned with whether the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the finder of fact would have had a reasonable doubt with regard to guilt. (Strickland v. Washington (1984), 466 U.S__,_, 80 L. Ed. 2d 674, 698 , 104 S. Ct. 2052, 2069 .) When a defendant challenges a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer (including a reviewing court, to the extent that it independently reweighs the evidence) would have concluded that the balance of aggravating and mitigating circumstances did not sanction death. 466 U.S__,_, 80 L. Ed. 2d 674, 698 , 104 S. Ct. 2052, 2069 . In this case, I believe that there was a reasonable probability that, had Kinser’s errors not occurred, the jury would have had a reasonable doubt with respect to the defendant’s guilt. I also believe that, absent those errors, there was a reasonable probability that the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Consequently, I would have reversed the defendant’s conviction and sentence and remanded his case for a new trial. For the aforementioned reasons, I dissent. JUSTICE SIMON joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9524005. Public record. Not legal advice.