People v. Brown

JUSTICE WELCH, dissenting:

I respectfully dissent. In setting forth the standard by which to judge a claim of ineffective assistance of counsel, the Illinois Supreme Court has held that a defendant must prove that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense in that absent counsel’s deficient performance there is a reasonable probability that the result of the proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004). With regard to the second prong, a reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome. Evans, 209 Ill. 2d at 220 . A reasonable probability of a different result is not merely a possibility of a different result. Evans, 209 Ill. 2d at 220 . Although the majority posits what I deem to be the possibility of a different result in the case at bar, I do not share the majority’s belief that any errors made by the defendant’s counsel create a reasonable probability of a different result sufficient to undermine confidence in the outcome of the trial. Although I agree with the majority’s position that in the context of an ineffective-assistance-of-counsel claim, one must do more than simply discount the evidence that should not have been admitted and ascertain whether the remaining evidence was legally sufficient to establish guilt (358 Ill. App. 3d at 596, citing People v. Moore, 279 Ill. App. 3d 152, 161 (1996)), I do not believe that one must entirely discount the evidence that was properly before the jury, as the majority appears to do when it begins its analysis of the possible prejudice in this case. Even when one excludes all the evidence that might have been tainted, however remotely, by the alleged ineffective assistance of counsel — including all of Demond Spruill’s testimony, the defendant’s own testimony, and the testimony of Eugene Swafford in rebuttal— the following evidence was properly before the jury, and it stands to reason that this evidence should be considered carefully and thoroughly in any review of the proceedings as a whole.

As the majority itself notes in its facts section, though not in its analysis of the potential prejudice in this case, Sylena Sergerson’s grandmother, Mary Weaver, testified that the defendant drove the victim’s car up to her house on the day of the victim’s disappearance. She also testified that she watched the defendant and Swafford, who was a passenger in the car, unload the victim’s possessions from the inside of the car and from its trunk. Mrs. Weaver watched the defendant and Swafford carry numerous items from the car into her basement, and she heard the defendant state that he wanted $10 for speakers the men were unloading. She noticed that the men threw a few things away, and after the men departed her home in the victim’s car, she satisfied her curiosity and searched the trash can into which they had been throwing things. She found and retrieved the victim’s car registration and the victim’s black Ponderosa work hat from her trash can.

The State presented numerous other witnesses who also clearly established that the defendant was driving around Granite City in Keller’s car on the evening of April 16, 2001. One of those witnesses, Christopher Landreth, testified that the defendant and Swafford wanted to borrow Landreth’s truck to move into the basement of Mary Weaver’s home an entertainment stand that was too large to fit into a car. Although neither the defendant nor Swafford owned such a stand, crime scene photographs from the victim’s home show such a stand, splattered with blood and surrounded by pools of blood. Another witness, Monte Morgan, who testified that he was a long-standing neighborhood acquaintance of both the defendant and Swafford, testified that on Wednesday, April 18, 2001, the defendant and Swafford were at Morgan’s home when the subject of the victim’s disappearance, which had just been broadcast on the local news, came up. Morgan testified that both the defendant and Swafford got very quiet and then quickly left the home, uncharacteristically not saying as much as “bye or I’ll talk to you later or nothing like that.”

James Hollis, who characterized himself as a childhood friend of the defendant and Swafford, although, in his own words, he was “a better friend of [the defendant],” testified that on Tuesday, April 17, 2001, the defendant called him and asked him if he wanted to buy, or knew anyone else who would want to buy, a “big tv” for $400. The defendant owned no such television at the time, although the victim’s entertainment stand, discussed above, was missing a large-screen television. The State also presented surveillance videotapes made at the Alton Square Sears store on the evening of the murder. The tapes showed the defendant, Swafford, and Sergerson shopping at the store. Swafford purchased several items of clothing with the victim’s Sears credit card that night, including clothing for the defendant. Detective George McLaren of the Granite City police department testified that when the defendant was arrested, he was wearing clothing that matched the description of some of the clothing purchased at the Sears store with the victim’s credit card, including a St. Louis Cardinals T-shirt, a pair of Nike shoes, a pair of Levi’s jeans, and a Cardinals baseball cap. Sergerson later turned in other articles of clothing purchased that night at Sears. Charlie VanDeusen, another self-described friend of both the defendant and Swafford, testified that in mid-April 2001, within days of the murder and before the defendant was arrested, the defendant called VanDeusen and asked him if he wanted to “go do something.” The defendant indicated to VanDeusen that the defendant had a car that would be good for a couple of days but then would probably be reported stolen.

As to the brutal nature of this crime, the State presented the testimony of police officers and a crime scene investigator who authenticated crime scene photographs that depicted, in bloody detail, the savagery and wanton cruelty of the murder. The photographs show broken furniture and household goods, pools and splotches of blood found throughout the home where the murder took place, the victim’s blood-splattered car, and the duct tape, bindings, and electrical cords that were used to restrain the victim before, and possibly while, he bled to death. The jury also heard testimony from pathologist Dr. Dolph Haege regarding the amount of force necessary to break a knife blade off in the victim’s back so deeply that the broken pieces were not visible from outside the body but were visible only by X rays, testimony that bore witness to the ferocity of the attack. Dr. Haege also testified that the victim’s throat was slit while the victim was still alive, and in all probability before the knife was broken in the victim’s hack, further evidence of the sheer depravity of the murder.

In sum, after a careful and thorough review of the proceedings as a whole, I simply do not believe that the defendant in this case has met his burden of proving that in the absence of his counsel’s allegedly deficient performance there is a reasonable probability that the result of his trial would have been different, either in terms of his guilt or in terms of the finding that his killing of Michael Keller was accompanied by brutal and heinous behavior indicative of wanton cruelty. Furthermore, because a second basis — the defendant’s prior conviction for residential burglary — existed that would justify the defendant’s extended-term sentence and because the record demonstrates that this second basis was indeed considered by the judge in doling out that sentence, I do not believe it matters for purposes of determining potential prejudice whether the jury would still have found that the murder had been accompanied by brutal and heinous behavior indicative of wanton cruelty. Accordingly, I continue to have confidence in the outcome of the defendant’s trial and cannot conclude that a new trial is warranted under the circumstances of this case. Because my colleagues conclude otherwise, I respectfully dissent.