Opinion
4-23-0153
12-21-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY R. CAREY, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Sangamon County No. 16CF61 Honorable John M. Madonia, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Zenoff concurred in the judgment.
ORDER
HARRIS JUSTICE
¶ 1 Held: The appellate court affirmed, holding that the trial court did not err by summarily dismissing defendant's pro se postconviction petition at the first stage of postconviction proceedings.
¶ 2 Defendant, Wesley R. Carey, appeals the summary dismissal of his pro se postconviction petition at the first stage of postconviction proceedings. Defendant argues the trial court erred by dismissing his petition because it set forth the gist of a claim that his trial counsel was ineffective for failing to object to the prosecutor's allegedly improper comments during closing arguments. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Following a jury trial, defendant was found guilty of first degree murder and sentenced to 45 years' imprisonment. We discussed the trial evidence extensively in our order in defendant's direct appeal. People v. Carey, 2021 IL App (4th) 190097-U, ¶¶ 20-64. However, we will briefly summarize it here.
¶ 5 At the trial, defendant testified that he and the victim, who was his girlfriend, drank large amounts of alcohol in her apartment on the afternoon of the incident. Id. ¶ 23. Defendant indicated that he got into an argument with the victim, during which she struck him repeatedly. Id. ¶ 24. He pushed her away, took her phone, and threatened to call 911. Id. The victim grabbed defendant around the neck, and they fell to the ground. Id. The victim left the apartment and returned approximately 90 seconds later. Id. ¶¶ 24-25. Defendant stated he then walked into the kitchen and saw the victim holding a knife. Id. ¶ 25. Defendant grabbed her wrist, and they fell to the floor while struggling over the knife. Id. Defendant grabbed the knife from the victim's hand and tossed it behind them. Id. The victim tried to reach for the knife, but she was "bleeding all over the place." Id. Defendant indicated he later woke up in the hospital and could not remember what had happened. Id. ¶ 27 He acknowledged he told a police officer shortly after the incident that he was "guilty." Id. ¶ 28. He stated the details of the incident came back to him a few days later. Id.
¶ 6 The State presented as evidence a recording of a 911 call made from the victim's phone at approximately 9 p.m. on the night of the incident. Id. ¶¶ 31-32. In the recording, a woman could be heard screaming," 'help me,' 'I'm dying,' 'I'm bleeding,' 'You're killing me,' 'I can't move,' and 'Let me go.' "Id. ¶ 33. The woman also says," 'He stabbed me.' "Id. Later, a man is heard saying:" 'I did it, I did it all, It's all me. I tried to kill every f*** person *** in this f*** house.' "Id. ¶ 34. He goes on to say," 'give me the knife.' "Id.
¶ 7 Renee Ackman, the victim's neighbor, testified that the victim knocked on her door around 9 p.m. on the night of the incident and screamed for Ackman to save the victim's child. Id. ¶ 51. Ackman went to her daughter's bedroom, told her daughter to call 911, and then ran over to the victim's apartment. She saw the victim and defendant lying on the floor, and there was a lot of blood. Id. ¶ 52. The victim's one-year-old son was also present. Id. Ackman grabbed the child and ran out of the apartment. Id. William Walsh, another one of the victim's neighbors, testified that he entered the victim's apartment right as Ackman was leaving. Id. ¶ 54. Walsh observed defendant and the victim lying on the floor surrounded by a lot of blood and a knife. Id. Walsh saw defendant reach toward the knife and heard him say," 'let me finish it.' "Id.
¶ 8 A police officer and several medical personnel who responded to the scene testified that defendant was uncooperative and highly intoxicated. Id. ¶¶ 37, 57. Defendant was examined for injuries but had none. Id. ¶ 57. The victim had a puncture wound to her left forearm and told medical personnel she had been stabbed multiple times and punched. Id. The victim subsequently died due to her injuries. Id. ¶ 59. Defendant was taken to the hospital. Id. ¶ 37. He slept for a few hours, and, when he woke, he asked an officer what happened. Id. ¶ 39. The officer told him he had stabbed the victim. Id.
¶ 9 Detectives interviewed defendant the day after the incident. Id. ¶ 41. During the interview, defendant stated he had no memory of the incident, but he indicated he" 'did it.' "Id. ¶ 42. Defendant stated an officer had told him at the hospital that he did it. Id. ¶ 44. Defendant indicated he believed "Hank," his alter ego, stabbed the victim. Id. ¶¶ 45-46. Defendant stated:" 'I was pure evil, it was pure hatred and I'm gonna fry for it but, it wasn't her fault, whatever it was, it wasn't her fault, it was mine.'" Id. ¶ 45.
¶ 10 Keith Underwood, the victim's former fiance, testifying as a defense witness, stated that the victim accidentally stabbed him with a kitchen knife at a party approximately six years before her death. Id. ¶ 61.
¶ 11 During defense counsel's closing argument, he asserted the State only presented circumstantial evidence of what happened to the victim, but defendant testified as to what actually happened. Defense counsel argued the recording of the 911 call was not a confession by defendant. Defense counsel noted that defendant stated during the call that he tried to kill everyone in the residence but argued this was not true because the victim's one-year-old son, who was present in the residence, was uninjured. Defense counsel also noted that physical evidence collected from the scene and the victim's person was not sent to the crime laboratory for DNA testing. Additionally, defense counsel challenged the State's timeline of events and discussed the prior incident during which the victim stabbed Underwood.
¶ 12 During his rebuttal argument, the prosecutor stated: "Wow. Just wow. Uhm, the absolute unmitigated absurdity of what you just heard is staggering based on the evidence that you've all sat here and patiently listed to for the past two days." The prosecutor noted defendant stated during his interview with detectives that bad things happened when his alter ego, Hank, came out, and he had to conduct "damage control" the next day. The prosecutor then asserted: "I submit to you that what you heard on that witness stand when the Defendant got up there and spewed a demonstrably false story about what happened that night, that was his attempt at one final gargantuan attempt at damage control." The prosecutor noted defendant had heard all the State's evidence before he testified and asserted defendant's testimony was "his best attempt at an account that would be consistent with the physical evidence at the scene." The prosecutor also described defendant's testimony as a "wild story," "a fairytale," "a complete lie," "complete and utter nonsense," and a "tapestry of lies." The prosecutor extensively discussed the ways in which defendant's testimony was inconsistent with the State's evidence.
¶ 13 The prosecutor also stated that several points defense counsel made during his closing arguments were attempts to "distract" the jury from the evidence. Specifically, the prosecutor noted defense counsel had discussed the fact that items from the scene were not sent to the crime laboratory for testing. The prosecutor stated the issue in the case was what happened, not who was there, and defense counsel's argument was "a patent attempt to distract you from the evidence." The prosecutor challenged defense counsel's argument that defendant's statement on the 911 call that he attempted to kill everyone in the residence was not a confession. The prosecutor stated: "And I guess that means somehow the Defendant is innocent because he didn't accomplish his self proclaimed objective. Another distraction, folks. Don't buy it." The prosecutor also stated defense counsel's argument challenging the State's purported timeline of events was an "attempt to distract" the jury because the State never asserted the timeline unfolded in the manner defense counsel claimed. Additionally, the prosecutor stated that defense counsel's argument concerning the prior incident during which the victim accidentally stabbed Underwood was an attempt to distract the jury because it had "nothing to do" with the incident that occurred in the instant case.
¶ 14 On direct appeal, defendant argued (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred by admitting certain evidence, (3) the court erred by denying his motion to suppress, (4) the court erred by admitting testimony as to the lyrics of a song, and (5) the 45-year sentence of imprisonment imposed by the court was excessive. Id. ¶ 3. We affirmed defendant's conviction and sentence. Id. ¶ 166.
¶ 15 Defendant filed a pro se postconviction petition asserting, inter alia, a claim that his trial counsel was ineffective for failing to object to certain statements the prosecutor made during closing arguments, including the "unmitigated absurdity" of defense counsel's closing argument, defendant "spew[ing]" a "demonstrably false story" during his testimony as an attempt at "damage control," and defense counsel attempting to "distract" the jury during his closing argument. Defendant asserted these comments constituted prosecutorial misconduct and likely affected the jury's verdict.
¶ 16 The trial court summarily dismissed the pro se postconviction petition, finding the petition was without merit and had no basis in law or fact. The court found defense counsel's decision not to object during the State's rebuttal closing argument was a matter of trial strategy and that defendant failed to allege or establish prejudice.
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 On appeal, defendant argues the trial court erred by summarily dismissing his pro se postconviction petition because it stated the gist of a claim that his trial counsel provided ineffective assistance by failing to object to the State's allegedly improper remarks during rebuttal closing argument. Defendant further argues his appellate counsel was arguably ineffective for failing to raise this claim because it is based on matters contained in the trial record and was available on direct appeal.
¶ 20 The Post-Conviction Hearing Act sets forth a three-stage process for a criminal defendant to challenge his or her conviction on the basis that it was the result of a substantial denial of his or her rights under the United States or Illinois constitution. 725 ILCS 5/122-1 et seq. (West 2022). At the first stage of postconviction proceedings, the trial court shall dismiss a petition within 90 days of its filing if it finds the petition is "frivolous or is patently without merit." Id. § 122-2.1(a)(2). If the trial court does not summarily dismiss the petition at the first stage, the proceeding advances to the second stage, where counsel may be appointed to represent an indigent defendant and may file an amended petition. People v. Gaultney, 174 Ill.2d 410, 418 (1996). The State may answer the petition or file a motion to dismiss it at the second stage. Id. If the petition is not dismissed or denied by the court at the second stage, it advances to a third-stage evidentiary hearing. Id.
¶ 21 A pro se postconviction petition may be summarily dismissed as frivolous or patently without merit at the first stage only if it has no arguable basis in law or fact. People v. Hodges, 234 Ill.2d 1, 16 (2009). "A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation." Id. Our supreme court has also held that res judicata and forfeiture are proper bases for a trial court to summarily dismiss a postconviction petition at the first stage because "where res judicata and forfeiture preclude a defendant from obtaining relief, such a claim is necessarily 'frivolous' or 'patently without merit.'" People v. Blair, 215 Ill.2d 427, 445 (2005). The doctrine of res judicata bars postconviction petitioners from raising issues that were previously raised and decided on direct appeal, and the doctrine of forfeiture bars petitioners from raising issues that could have been raised on direct appeal but were not. Id. at 443-444.
¶ 22 "Because most postconviction petitions are drafted by pro se petitioners, the threshold for a petition to survive the first stage of review is low." People v. Knapp, 2020 IL 124992, ¶ 44. "Where defendants are acting pro se, courts should review their petitions 'with a lenient eye, allowing borderline cases to proceed.'" Hodges, 234 Ill.2d at 21 (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983)). "A petitioner need only allege sufficient facts to state the 'gist' of a constitutional claim for the petition to be advanced to the second stage." People v. Johnson, 2021 IL 125738, ¶ 26. "In evaluating the allegations in the petition, the circuit court must take them as true and construe them liberally." People v. Allen, 2015 IL 113135, ¶ 25. We review de novo defendant's claim that the trial court erred by summarily dismissing his postconviction petition. Knapp, 2020 IL 124992, ¶ 42.
¶ 23 A. Forfeiture
¶ 24 Initially, the State contends that defendant's claim of ineffective assistance of trial counsel is forfeited because it is based on matters apparent from the trial record, and his claim of ineffective assistance of appellate counsel is not properly before this court on appeal because it was not raised in his pro se postconviction petition.
¶ 25 We agree that defendant forfeited his claim that his trial counsel was ineffective for failing to object to the State's allegedly improper remarks during closing argument by failing to raise it on direct appeal, as it is based entirely on matters contained in the record. See People v. Veach, 2017 IL 120649, ¶ 46 ("[Defendants are required to raise ineffective assistance of counsel claims on direct review if apparent on the record."). Because the claim was not raised on direct appeal, the doctrine of forfeiture bars defendant from asserting it in postconviction proceedings. See Blair, 215 Ill.2d at 443-44. While the trial court did not summarily dismiss defendant's pro se petition on the basis of forfeiture, "we may affirm the summary dismissal on any basis that has support in the record." People v. Wright, 2013 IL App (4th) 110822, ¶ 32.
¶ 26 An exception to the forfeiture doctrine exists when "the alleged forfeiture stems from the incompetence of appellate counsel." Blair, 215 Ill.2d at 450-51. Defendant acknowledges that he failed to specifically allege ineffective assistance of appellate counsel in his pro se petition. However, defendant argues that, pursuant to Hodges, 234 Ill.2d at 21, his petition should be liberally construed to include a claim of ineffective assistance of appellate counsel because it contained sufficient facts to support the legal theory that appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness on direct appeal.
¶ 27 The State contends defendant's claim of ineffective assistance of appellate counsel is not properly before this court because defendant failed to raise the issue in his pro se petition. See People v. Jones, 213 Ill.2d 498, 508 (2004) ("[O]ur appellate court is not free, as [the supreme] court is under its supervisory authority, to excuse, in the context of postconviction proceedings, an appellate waiver caused by the failure of a defendant to include issues in his or her postconviction petition."). We find the decision in People v. Cole, 2012 IL App (1st) 102499, to be instructive on this point.
¶ 28 In Cole, the defendant filed a pro se postconviction petition alleging his right to due process had been violated. Id. ¶ 4. The trial court summarily dismissed the petition, finding that the due process claims were forfeited because they could have been raised on direct appeal and were meritless because they were rebutted by the trial record. Id. ¶ 5. On appeal, the defendant argued his pro se petition presented the gist of two claims of ineffective assistance of appellate counsel due to appellate counsel's failure to raise the due process claims on direct appeal. Id. ¶ 9. The State argued that the defendant was precluded from raising issues of ineffective assistance of appellate counsel on appeal from the summary dismissal of his pro se petition because he did not allege appellate counsel's ineffectiveness in his petition. Id. ¶ 10. In reply, the defendant argued that a liberal construction of the pro se petition gave rise to an" 'implicit claim' of ineffective assistance of appellate counsel." Id. ¶ 11.
¶ 29 The Cole court rejected the defendant's argument that" 'implicit' claims of ineffective assistance of appellate counsel fall within the 'liberal construction' mandate for review of pro se postconviction petitions." Cole, 2012 IL App (1st) 102499, ¶¶ 14-15. The Cole court noted the supreme court's holding in Jones that claims not raised in a defendant's postconviction petition may not be raised for the first time on appeal from the dismissal of the petition. Id. ¶¶ 12-13 (citing Jones, 213 Ill.2d at 504). The court held that, because the defendant did not raise any allegations concerning appellate counsel's allegedly ineffective performance in his postconviction petition, he was precluded from asserting for the first time on appeal claims of ineffective assistance of appellate counsel that were not ruled upon by the trial court. Id. ¶ 16.
¶ 30 As in Cole, we find defendant's claim of ineffective assistance of appellate counsel in the instant case may not be raised for the first time on appeal from the summary dismissal of his petition. See id.; Jones, 213 Ill.2d at 508. Defendant's pro se petition contained no allegations related to appellate counsel's performance, but rather, only challenged the performance of trial counsel. Accordingly, defendant's forfeiture of the issue of trial counsel's effectiveness is not excused by the claim of ineffective assistance of appellate counsel raised for the first time in his appellate brief.
¶ 31 In reaching our holding, we reject defendant's reliance on People v. Allen, 2015 IL 113135. In Allen, the supreme court held that the defendant's failure to notarize a statement styled as an evidentiary affidavit, which was attached to the defendant's pro se petition pursuant to section 122-2 of the Code (725 ILCS 5/122-2 (West 2008)), did not render the petition frivolous or patently without merit. Allen, 2015 IL 113135, ¶ 34. The Allen court found that the lack of notarization did not prevent the court from reviewing the petition's substantive merit or from determining whether the allegations in the petition were capable of independent corroboration. Id. The court concluded that a petition could not be summarily dismissed solely for failure to notarize a purported affidavit, though the petition could be dismissed at the second stage if the defendant was unable to obtain a properly notarized affidavit. Id. ¶¶ 34-35. Defendant contends that, like the defendant's failure to notarize an affidavit in Allen, his failure to allege appellate counsel's ineffectiveness in his pro se petition to overcome the bar of forfeiture did not render the petition frivolous because it was a defect that was fixable at the second stage of proceedings.
¶ 32 However, if we were to extend the holding in Allen to the present situation, it would significantly undermine the supreme court's holding in Blair that postconviction petitions may be summarily dismissed based on forfeiture. See Blair, 215 Ill.2d at 445. The pro se petition in the instant case was devoid of any allegation concerning the performance of appellate counsel. If we were to construe the petition in the instant case to include a claim of ineffective assistance of appellate counsel merely because the claim was based on facts contained in the record and was not raised on direct appeal, we would effectively be holding that no petition could be summarily dismissed based on forfeiture where the defendant was represented by counsel on direct appeal. If facts relating to the claim did not appear on the face of the record, the claim would not be subject to forfeiture. See id. at 450-51. On the other hand, if all the facts relating to the claim appeared on the face of the record, the claim would be construed to include an implicit allegation of ineffective assistance of appellate counsel and would be exempt from forfeiture on that basis. See id.
¶ 33 Nothing in Blair indicates the supreme court intended for its holding to be so limited. In fact, the Blair court explicitly considered adopting an approach that would preclude a trial court from summarily dismissing a petition based on forfeiture, which was based on the rationale that it was inappropriate to consider matters of procedural compliance at the first stage and that the petition might otherwise be meritorious. See id. at 441-42. However, the Blair court rejected this approach in favor of one that would allow first-stage summary dismissals on the basis of forfeiture. Id.
¶ 34 B. Defendant's Claim of Ineffective Assistance of Trial Counsel
¶ 35 Even if we agreed with defendant that his claim of ineffective assistance of trial counsel was not forfeited, we would find defendant's pro se petition failed to assert an arguable claim that his trial counsel was ineffective because the challenged remarks made by the prosecutor during rebuttal closing argument were not improper. Our supreme court has held that "[a] postconviction petition alleging ineffective assistance of counsel should not be summarily dismissed if (1) it is arguable that counsel's performance fell below an objective standard of reasonableness and (2) it is arguable that the petitioner was prejudiced." People .v. Knapp, 2020 IL 124992, ¶ 46.
¶ 36 "It is well settled that a prosecutor is allowed a great deal of latitude in closing argument [citation] and has the right to comment upon the evidence presented and upon reasonable inferences arising therefrom, even if such inferences are unfavorable to the defendant." People v. Hudson, 157 Ill.2d 401, 441 (1993). "However, a prosecutor must refrain from making improper, prejudicial comments and arguments." Id. It is improper for a prosecutor to disparage the integrity of defense counsel or "suggest that defense counsel fabricated a defense theory, used trickery or deception, or suborned perjury." People v. Glasper, 234 Ill.2d 173, 207 (2009); People v. Laugharn, 297 Ill.App.3d 807, 812 (1998). It is not error, however, for the prosecutor to challenge the credibility of the defendant or the theory of defense when evidence exists to support such a challenge. Glasper, 234 Ill.2d at 207.
¶ 37 A prosecutor's statements "must be considered in the context of the closing arguments as a whole [citation], and counsel may comment upon defense characterizations of the evidence or case." People v. Evans, 209 Ill.2d 194, 225 (2004). Also, during rebuttal closing argument, prosecutors may respond to comments of defense counsel that clearly invite a response. People v. Hall, 194 Ill.2d 305, 346 (2000).
¶ 38 Defendant argues it was improper for the prosecutor to repeatedly call him a liar because his testimony did not contradict the rest of the evidence in the case. Specifically, defendant argues it was improper for the prosecutor to refer to his testimony as "damage control," "a wild story," "a fairy tale," "a complete lie," "complete and utter nonsense," and "a tapestry of lies." However, defendant's trial testimony that the victim was the aggressor and sustained her stab wounds while he was trying to take the knife away from her was inconsistent with the State's evidence. For example, in the recording of the 911 call, the victim begged for help, said she was bleeding, and said she had been stabbed. Defendant could be heard on the recording saying that he "did it" and that he tried to kill everyone in the residence. Ackman testified the victim ran to her apartment during the incident and asked her to "save [the victim's] baby," indicating the victim feared for the life of her child. Walsh entered the apartment during the incident and saw defendant and the victim lying on the floor covered in blood. Walsh also saw defendant reach for a knife on the floor and heard him say "let me finish it." The conflicts between the foregoing evidence and defendant's testimony made the prosecutor's assertions that defendant was lying during his testimony a fair inference from the trial evidence, and the prosecutor's statements to that effect were not improper. See People v. Starks, 116 Ill.App.3d 384, 394 (1983) ("It is not improper comment to call the defendant or a witness a 'liar' if conflicts in evidence make such an assertion a fair inference.").
¶ 39 Also, defendant contends the prosecutor improperly impugned defense counsel's integrity by referring to the "unmitigated absurdity" of his closing argument and by stating that several points defense counsel made during his argument were attempts to distract the jury from the evidence. However, the prosecutor's comments were not improper personal attacks on defense counsel or accusations that counsel "fabricated a defense theory" or "used trickery or deception." Glasper, 234 Ill.2d at 207. Rather, the prosecutor's comments challenged the credibility of defense counsel's theory of the case. The prosecutor's statements that some of defense counsel's arguments were attempts to "distract" the jury from the evidence were responsive to statements made during defense counsel's closing arguments and expressed the State's position that these portions of defense counsel's argument involved relatively insignificant matters in the context of all the evidence presented. See Hall, 194 Ill.2d at 346 ("Prosecutors are allowed considerable latitude in closing argument [citation], and may respond to comments that clearly invite a response."); People v. Hicks, 101 Ill.App.3d 238, 243 (1981) ("There is nothing improper in suggesting that the opponents' arguments are immaterial or irrelevant.").
¶ 40 Because the challenged remarks made by the prosecutor during closing argument were not improper, it is not arguable that defendant's trial counsel performed deficiently in failing to object to them during the trial. See Knapp, 2020 IL 124992, ¶ 46. Also, as the underlying claim of ineffective assistance of trial counsel lacked merit, appellate counsel was not arguably ineffective for failing to raise the issue on direct appeal. See People v. Johnson, 205 Ill.2d 381, 406 (2002) ("Appellate counsel need not brief every conceivable issue and may refrain from developing nonmeritorious issues without violating Strickland [citation], because the defendant suffered no prejudice unless the underlying issue is meritorious [citation].").
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court's judgment.
¶ 43 Affirmed.