People v. Scott

2023 IL App (1st) 170845-U

No. 1-17-0845

Order filed December 15, 2023

Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent

by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 10 CR 2985 01

)

LEMAR SCOTT ) Honorable

) Ursula Walowski,

Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court.

Justices C.A. Walker and Tailor concurred.

ORDER

¶1 Held: Affirmed, as the defendant cannot show counsel provided ineffective assistance, the

circuit court properly denied defendant’s claims after a Krankel inquiry.

¶2 Lemar Scott contends trial counsel possibly neglected his case and, under People v.

Krankel, 102 Ill.2d 181 (1984), seeks new counsel to develop several claims. Scott argues trial

counsel (i) unduly influenced his decision not to testify, (ii) failed to call witnesses who could have

supported his claim of innocence, and (iii) failed to introduce a 911 tape. In addition, he contends

the circuit court conducted the Krankel inquiry improperly.

No. 1-17-0845

¶3 Scott’s varied and inconsistent accounts of the events undermine possible prejudice, so his

right-to-testify claim does not warrant development. Further, Scott cannot establish possible errors

regarding his counsel’s failure to call witnesses or introduce a 911 audio tape, as these decisions

deserve substantial deference to counsel. Finally, the record refutes his procedural criticisms of the

Krankel inquiry on remand. We affirm.

¶4 Background

¶5 This case comes before us a second time after we remanded for another Krankel inquiry

before a different judge, following the State improperly participating at the first inquiry. People v.

Scott, 2015 IL App (1st) 133180, ¶¶ 27, 30.

¶6 The State’s case established that two men robbed Anthony Thorpe and his niece, Alicia

Taylor, at gunpoint during a midnight pizza delivery. One man shot Taylor point-blank, causing

significant injuries. Soon after, the police seized Scott in a nearby alley near a gun. Within a day,

Taylor and Thorpe identified Scott. Theodore Smith was charged as well. Smith pleaded guilty

and, at trial, identified Scott, too. Without DNA, gunshot residue, or fingerprints, the State relied

on the testimony of Thorpe, Taylor, and Smith.

¶7 In defense, Nathaniel Howard, a resident of the same apartment building as Scott, testified

to going to Smith’s apartment immediately after hearing gunfire. Londell Favors, another resident,

testified that Scott had been with him five minutes earlier. Scott elected not to testify.

¶8 Krankel Inquiry on Remand

¶9 On remand, the circuit court heard from Scott and trial counsel and reviewed the record.

The circuit court dismissed Scott’s ineffective assistance claims, finding Scott had to do more than

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“basically rearguing everything that was presented and argued” throughout the trial. The court

noted the inconsistencies Scott raised were “all presented [***] at a motion [***] or at trial.”

¶ 10 Scott raised many claims at this remand inquiry, including claims he did not raise at the

initial inquiry. He pursues the following three on appeal.

¶ 11 Right to Testify

¶ 12 Scott let known his desire to testify at pre-trial proceedings before the trial court, though

he declined to testify after being admonished at trial. When the trial court asked Scott whether it

was his “choice not to testify,” Scott responded, “Yes, sir.”

¶ 13 At the Krankel inquiry on remand, Scott stated that his decision not to testify had been

influenced by trial counsel having spoken with his mother. Scott claimed that after repeatedly

expressing his desire to testify, trial counsel “went on to [his] mother, who had a child on her

deathbed,” and told her to advise Scott against testifying. Scott felt he could not “go against [his]

mother’s wishes at that time.”

¶ 14 Scott also stated that trial counsel felt that Scott would “lose the case flat out” if he testified.

Counsel did not deny giving Scott this advice. Indeed, counsel said, “Mr. Scott is a hundred percent

correct,” that counsel believed Scott would lose should he testify.

¶ 15 Proposed Defense Witnesses

¶ 16 Scott raised trial counsel’s failure to call “key witnesses,” Margie Smiley, Rissa Phillips,

and Jessica Jackson. According to Scott, Smiley would have testified that Scott spoke to her while

selling marijuana in the hallway, and she heard gunfire “minutes later.” Scott claimed Phillips

would testify that he was “in the apartment hallway [***] at the time of the shooting” and saw one

person committing the robbery. Jackson had called 911 that night.

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No. 1-17-0845

¶ 17 911 Tape

¶ 18 Several times before trial, Scott asked about the 911 call recording from the night of the

robbery. His counsel repeatedly delayed pending its receipt. Neither the transcript of the tape of

the 911 call nor agreement on what the tape contains appears in the record. At trial, a Chicago

police officer testified that Jackson spoke about multiple offenders when interviewed that night.

¶ 19 At the Krankel inquiry on remand, trial counsel stated the 911 call “didn’t have a good

description” of anything or anyone. Also, Scott claimed the caller, Jackson, saw “one person out

there.” Scott stated that he had repeatedly asked about the 911 tape, and counsel told him he was

“sav[ing] them for trial.” Scott believed the 911 tape contained exonerating evidence, but his trial

counsel did not “see the 911 tapes helping us at all.”

¶ 20 Analysis

¶ 21 To show that trial counsel provided ineffective assistance, a defendant must prove that

“counsel’s performance was deficient” and “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). At this first stage under Krankel, a defendant

needs only show “possible neglect” by trial counsel. People v. Moore, 207 Ill.2d 68, 78 (2003).

Failure to make the required showing for both deficient performance and sufficient prejudice

defeats an ineffectiveness claim. Strickland, 466 U.S. at 697. We review denial of ineffective

assistance claims under a manifest error standard. People v. Jackson, 2020 IL 124112, ¶ 98.

¶ 22 Right to Testify

¶ 23 Scott fails to show possible prejudice for three reasons. To begin, he sought to testify he

was in the area selling marijuana and had gone outside shortly before the robbery. On appeal, he

describes this defense as “wrong place, wrong time.” But Scott’s proffered testimony does not

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explain why he was apprehended next to the weapon used in the robbery. That is, Scott had no

explanation for why he was in the wrong place at the wrong time, not once but twice: first at the

scene of the shooting, then at a nearby alley next to the gun.

¶ 24 Further, one of Scott’s proposed witnesses would have testified to Scott’s presence “in the

apartment hallway [***] at the time of the robbery,” undermining Scott’s version of events.

Likewise, Scott’s proposed testimony finds no corroboration within the record. Again, Scott claims

that he would have testified he was attempting to sell marijuana to the victims and that—although

he did not commit the crime—he was the last person the victims saw before the robbery. No other

witness, not even Scott’s witnesses, ever mentioned seeing anyone selling marijuana.

¶ 25 Finally, at the hearing on his motion to quash arrest, Scott’s testified to a different account.

At that time, Scott asserted he was inside during the robbery. Specifically, he went outside “after

the shots were fired.” Thus, this testimony undermined the evidentiary value of his Krankel

testimony. See People v. Sturgis, 58 Ill. 2d 211, 216 (1974) (permitting State to impeach defendant

at trial with testimony from hearing on motion to suppress).

¶ 26 As to Scott’s claimed errors, advising a client not to place themselves at the scene falls

within Strickland’s permissible “wide range of professional conduct.” See Strickland, 466 U.S. at

691. Scott’s desire to testify that he was the last person the victims saw before the robbery suggests

that the trial counsel’s advice was objectively reasonable. Moreover, typically, a defendant who

declines to testify after being admonished may not claim interference with their decision. See

People v. Knapp, 2020 IL 124992, ¶ 54. When admonished, Scott said he “wish[ed] not to testify.”

Though brief—asking once if Scott understood—nothing more is required if a “defendant’s

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election against testifying was unequivocal.” People v. Harris, 2021 IL App (4th) 180522-U, ¶ 16.

Scott’s refusal was unequivocal.

¶ 27 Finally, although Scott raises a unique factual allegation that his counsel spoke to his

mother about whether he should testify, he does not argue counsel manipulated that relationship.

Scott stated that he “felt [he] could not go against [his] mother’s wishes” because she had a deathly

ill child. But courts determine the objective reasonableness of counsel’s actions “on the facts of

the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.

Nothing indicates that counsel speaking with Scott’s mother was improper.

¶ 28 Scott failed to show possible error and possible prejudice so denial of this claim was not a

“clearly evident, plain, and indisputable” error. Jackson, 2020 IL 124112, ¶ 98.

¶ 29 Proposed Defense Witnesses

¶ 30 Next, Scott argues counsel failed to call three “key witnesses” to testify: Jessica Jackson,

Margie Smiley, and Rissa Phillips. According to Scott, Jessica Jackson, who made the 911 call,

would have identified “a single offender.” Margie Smiley, a resident of Scott’s building with

whom Scott spoke that night, would testify Scott was “in and out of the building selling marijuana.”

Rissa Phillips, Londell Favors’ niece, would have testified similarly. Scott argues these three

witnesses could have “certainly strengthened” his “wrong place, wrong time” defense.

¶ 31 Strickland demands broad deference to the “reasonableness of counsel’s challenged

conduct” when assessing performance. Strickland, 466 U.S. at 690. The defendant must “overcome

the presumption that [***] the challenged action might be considered sound trial strategy.”

(Internal quotation omitted.) Id. at 689. Usually, whether to call a witness involves a strategy that

“will not support a claim of ineffective representation.” People v. Vidaurri, 2023 IL App (1st)

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200857, ¶ 70. Courts will defer to trial counsel’s decision “unless the chosen trial strategy is so

unsound that counsel fails to conduct any meaningful adversarial testing.” People v. Deloney, 341

Ill.App.3d 621, 634 (2003). Counsel may be deemed ineffective, however, for failing “to call

witnesses whose testimony would support an otherwise uncorroborated defense.” People v. Tate,

305 Ill.App.3d 607, 612 (1999).

¶ 32 None of Scott’s proffered witnesses are sufficient to “overcome the presumption” that trial

counsel acted reasonably. Strickland, 466 U.S at 689-90. Scott alleges that the witnesses “would

support [the] otherwise uncorroborated defense” of him selling marijuana to the victims. See Tate,

305 Ill.App.3d at 612. Yet, as would these witnesses, Londell Favors and Nathaniel Howard placed

Scott at the scene. Whether Scott was selling marijuana is immaterial to his presence, which the

defense witnesses already established.

¶ 33 Phillips had the same vantage point as her uncle, so that she could add nothing new.

Further, Phillips’ testimony undercuts Scott’s version by putting him “in the apartment hallway”

at the time of the robbery. While Scott alleges Smiley would testify that he was “in and out of the

building selling marijuana,” that falls short of the kind of critical “alibi witness” needed to establish

ineffective assistance. Tate, 305 Ill.App.3d at 612. On the contrary, Smiley’s testimony would

place Scott near the crime almost immediately before it transpired, like the witnesses at trial.

Nothing indicates failing to call these witnesses was “so unsound that counsel fail[ed] to conduct

any meaningful adversarial testing.” Deloney, 341 Ill.App.3d at 63

¶ 34 The testimony of Scott’s witnesses is duplicative at best and incriminating at worst. Trial

counsel’s failure to introduce them was not objectively unreasonable. Given the entirety of the

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record, the denial was not a “clearly evident, plain, and indisputable” error. Jackson, 2020 IL

124112, ¶ 98.

¶ 35 911 Tape

¶ 36 Scott argues trial counsel should have introduced Jackson’s 911 call because it contained

specific, exculpatory evidence. The record is vague on what was said on the call. Scott alleges the

caller mentioned she saw one person commit the robbery. His counsel said the call “was not an

issue that was going to turn on the outcome of the case.” Officer O’Connor, who spoke with

Jackson, testified at trial that Jackson mentioned multiple offenders, contradicting Scott’s

allegation that she reported seeing one individual.

¶ 37 Failure to introduce “important exculpatory evidence” may constitute deficient

performance. See People v. York, 312 Ill.App.3d 434, 437 (2000). Usually, courts view the

decision to introduce evidence as a “matter[] of trial strategy that [is] generally immune from

ineffective assistance claims.” York, 312 Ill.App.3d at 437. Scott needed to establish that the

content was “important exculpatory evidence” reasonable counsel would have introduced to

overcome this “heavy measure of deference to counsel’s judgments” and prove possible error. Id.

Scott has not come near this “heavy measure of deference.”

¶ 38 Moreover, trial counsel’s decision not to introduce the tape came within his professional

judgment. While counsel believed the tape might be “beneficial,” counsel heard nothing helpful

after review. This indicates counsel acted reasonably by seeking out the evidence, considering it,

and making the strategic choice not to introduce it, refuting possible error. A court must assess the

“challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”

Strickland, 466 U.S. at 690. Doing so, we find that trial counsel did not possibly err.

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¶ 39 Even if Scott’s allegation that Jackson saw one offender was true, it would be cumulative.

“Trial counsel’s performance cannot be considered deficient because of a failure to present

cumulative evidence.” People v. Henderson, 171 Ill.2d 124, 155 (1996). Nothing in the record

indicates that Theodore Smith was physically near Scott at the time of the robbery. Scott cannot

show possible prejudice.

¶ 40 Sufficiency of Inquiry on Remand

¶ 41 Finally, Scott claims the circuit court did not conduct a sufficient factual inquiry on remand

because it primarily relied on findings from the initial inquiry. Whether a court properly conducted

a Krankel inquiry presents a question of law that we review de novo. People v. Jolly, 2014 IL

117142, ¶ 28.

¶ 42 Scott mischaracterizes the circuit court’s review. A judge must “examine the factual basis

of the defendant’s claim.” Moore, 207 Ill.2d at 77-78. If the court determines “the claim lacks

merit or pertains only to matters of trial strategy,” it may deny the motion. Id. at 78. Further, “a

trial court generally has broad discretion over the manner in which it conducts its hearings.” In re

T.R., 2019 IL App (4th) 190529, ¶ 87.

¶ 43 The circuit court repeatedly asserted that it “reviewed the court file,” “everything” from

“all [of Scott’s] arguments,” and “examine[d] the factual basis” of Scott’s claim before concluding

that he offered nothing not presented and argued before or at trial. See Moore, 207 Ill.2d at 77–78.

The circuit court afforded Scott the requisite “full consideration” on remand.

¶ 44 Affirmed.

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