Opinion
No. 1-19-0584
05-07-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMIE WILLIAMS, Defendant-Appellant.
NOTICE: 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 Cook County. No. 14 CR 11275 Honorable Brian Flaherty, Judge, presiding. JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.
Justices Sheldon Harris and Maureen Connors concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not commit manifest error when, after holding a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), it did not appoint new counsel to represent defendant on his pro se posttrial claims of ineffective assistance of trial counsel. ¶ 2 Following a 2017 bench trial, defendant Tommie Williams was convicted of aggravated domestic battery predicated on strangulation (720 ILCS 5/12-3.3(a-5) (West 2014)) and, based on his criminal history, sentenced to a Class-X term of 17 years in prison. On appeal, defendant contends that the trial court erred when it did not appoint new counsel to investigate his pro se posttrial claim that his trial counsel was ineffective for failing to introduce a recording of a jail phone call during which the victim stated that defendant did not choke her. For the reasons that follow, we affirm. ¶ 3 Defendant's conviction arose from a May 10, 2014, altercation with M.P. in Harvey, Illinois. Following his arrest, defendant was charged by indictment with aggravated domestic battery predicated on strangulation (count I), domestic battery (count II), and unlawful restraint (count III). ¶ 4 Prior to trial, the State filed a motion to admit proof of other crimes to introduce evidence of four previous incidents of domestic violence committed by defendant against M.P. The trial court granted the motion in part, allowing evidence of three of the incidents to be admitted at trial. Those incidents occurred on November 3, 2010, October 21, 2012, and April 30, 2014. ¶ 5 At trial, M.P. testified that defendant was her ex-fiancé and that she had been in a dating relationship with him for five or six years. On November 3, 2010, M.P. and defendant were living together in an apartment in Calumet City. That night and into the morning hours of the next day, while M.P. was at a friend's house, defendant called her repeatedly, threatening to kill her and destroy her belongings. On the morning of November 4, 2010, M.P. entered her apartment with a security guard from the building and saw that her carpet and all her furniture and clothing had bleach poured over them. M.P. called the Calumet City police and filed a police report. ¶ 6 On October 21, 2012, M.P. was living alone in a condominium in Glenwood. That morning, defendant rang M.P.'s doorbell. When she did not let him in, he went to her bedroom window and knocked on it. Defendant said things to the effect of, "who the f*** you got in here with you" and "I know that n*** in here." He then went back to the front of the condominium. M.P. still refused to let him in and called the police. After an officer arrived at the scene, defendant called M.P. She gave the phone to the officer because defendant was threatening to kill her, which the officer heard. Later, when M.P. went outside to go to work, she discovered that her tires had been slit. ¶ 7 M.P. testified that her relationship with defendant ended around the end of April 2014. At that time, she was living with defendant in a house in Harvey. On April 30, 2014, M.P. and defendant got into an argument. Defendant hit her face with an open hand and threatened to kill her. M.P. considered defendant's actions to be an end to their relationship, so she asked him to leave and give her the keys to the house. Defendant did not give M.P. the keys. ¶ 8 On the date in question, May 10, 2014, M.P. was living alone in the house in Harvey. That night, she had gone to sleep in a pajama bottom and a tank top. Around 3 a.m., a noise woke her. She heard someone walking and saw a shadow come across her. M.P. jumped up and "hollered out" defendant's name. She saw defendant run toward the back of the house. M.P. yelled at him, asking him why he was there. Defendant returned to the bedroom and told M.P. that he loved her, was sorry, wanted them to be together, and just wanted to talk. M.P. observed that defendant, who was within a couple of feet of her, had been drinking. She told him that she did not want to talk and that she was "just done." Defendant called her names and asked why she was not having sex with him. M.P. repeated that they were "done." Defendant hit M.P. with an open hand, striking her near her eye, and said, "B***, you don't know me. I'm not one of those suit-wearing a*** n*** in the streets. I will kill your a***. I will wire your jaw shut and trunk you." M.P. interpreted defendant's statements to mean that he was going to kill her. ¶ 9 Defendant pushed M.P. back to the bed and pinned her down. With one hand on her arm and the other around her throat, he tried to have sex with her. M.P. testified, "I couldn't breathe. I thought I was dying. He was choking me." M.P. asked defendant to stop and told him she could not breathe multiple times. She then told defendant that if he stopped choking her, she would have sex with him. Defendant stopped choking M.P. and they had sex. ¶ 10 M.P. heard either a knock at the door or someone ringing the doorbell. She could not recall which sound she heard. Defendant, who was not wearing any clothes, jumped up and ran to the door. M.P. put on her pajama bottoms. She was still wearing her tank top, but it was ripped and torn. M.P. ran after defendant to see who was at the door. It was a "young lady" M.P. had never seen before. Defendant told the woman to "go back to the car" and that he was "taking care of some business." M.P. told defendant not to send the woman away, but rather, to let her in because she wanted to talk to the woman. Defendant let the woman in. M.P. was grateful for her presence because she thought "if somebody is with him, he wouldn't kill me." ¶ 11 The woman came inside the house and sat on the couch. M.P. asked her some questions and then sent defendant to the kitchen to get his "friend" something to drink. When defendant left the room, M.P. grabbed her purse, phone, and keys, ran outside, and texted and called her niece to call the police. M.P. got into her car. She stayed in her car until police officers arrived. M.P. talked to the police officers, who went into the house and arrested defendant. ¶ 12 Three days later, on May 13, 2014, M.P. went to the Markham courthouse because she had read the police report and wanted to amend it. According to M.P., the report did not include everything she had told the police about what happened. M.P. spoke with an Assistant State's Attorney (ASA) and then went to the Harvey police department to amend the police report. ¶ 13 On cross-examination, M.P. testified that she did not recall whether she had called the police while defendant was calling her on November 4, 2010. After that incident, defendant was charged with telephone harassment. When defense counsel asked M.P. whether defendant was also charged with criminal damage to property, M.P. answered that she did not remember the exact charges. She stated that on December 29, 2010, she went to court regarding the telephone harassment, but denied that she refused to cooperate at that time. Rather, M.P. stated, she forgave defendant and was giving him another chance. The telephone harassment case was dismissed. ¶ 14 Regarding the October 21, 2012, incident, M.P. testified that after defendant rang her doorbell and came to her back window, she noticed that the window screen was ripped. It had not been ripped before defendant came to the condominium that day. ¶ 15 M.P. testified that on May 10, 2014, when defendant was choking her, she felt like she was passing out. She stated that she texted her niece to call the police after defendant went into the kitchen, but before she left the house. Once in her car, she called a man named Darron Travis and asked him to call the police as well. M.P. did not go to any of her neighbors' houses because she did not know them. Instead, she explained, she reached out to people she knew because she wanted them to know what was going on. ¶ 16 When M.P. spoke with the police on May 10, 2014, she told them she had "put [defendant] out" "a couple weeks prior" because he had hit her in the face and called her a "b***" and a "h***." She told the police that defendant was her "ex" and that he hit her, but did not remember whether she told the police that he struck her face or her eye. She told the police that defendant choked her, that she could not breathe, that she agreed to have sex with him, that they stopped when there was a knock at the door, and that the woman who was at the door came inside the house. M.P. testified that her tank top was torn because defendant ripped it, that her breast was showing, and that an officer asked her to put on some clothes. M.P. did not recall whether an officer asked if she wanted medical attention or if she refused. ¶ 17 On May 12, 2014, M.P. went to the hospital for "complications" with her eye. Specifically, her eye was bloodshot and swollen closed. M.P. was diagnosed with a corneal abrasion. She denied that the doctor told her the abrasion was caused by leaving her contacts in. According to M.P., the doctor said it was caused by "some type of pressure" that hit or contacted her eye. At some point, M.P. texted defendant's mother that she was going to the hospital regarding her eye. Defendant's mother asked via text if M.P. was going because defendant hit her in the eye, and M.P. told her no. M.P. testified that "people at the court" took pictures of her eye, but she did not recall when that occurred. ¶ 18 Finally, M.P. admitted that in 2008, she was convicted of theft and placed on probation. ¶ 19 Defendant made an oral motion for a directed finding, which the trial court denied. ¶ 20 The case was continued so that defense counsel could serve a Harvey police officer. Before it was recalled, defense counsel filed a motion asking the court to order the State to produce the photographs taken of M.P. when she went to the courthouse, the name of the person who took the photographs, and the name of the ASA who spoke with M.P. and showed her a copy of the police report. The case was continued to allow the State time to research the issue. The record does not indicate that the requested information was ever produced. ¶ 21 Harvey police officer Stuart testified for the defense. He stated that around 4 a.m. on May 10, 2014, he responded to a call at an address in Harvey. He was working alone and was in uniform. As he was walking up to the house, M.P. approached, told him what happened, and indicated that defendant was inside. Stuart did not recall if she referred to defendant as her boyfriend or her ex-boyfriend. M.P.'s shirt was ripped, but her breasts were not exposed and Stuart did not ask her to put on anything over the shirt. M.P. reported that defendant hit her on the left side of her face. Stuart did not recall M.P. saying defendant had hit her in the eye. M.P. did not report that defendant choked her or told her, "B***, I will wire your mouth up and trunk your a***." M.P. did not report that she texted her niece to call the police; rather, she told Stuart that she had called 911. Further, M.P. did not tell Stuart that a couple of weeks earlier, defendant had slapped her and called her a b*** and a h***, that she had "put [him] out," or that they had broken up. ¶ 22 Stuart estimated that he was with M.P. for about 20 to 30 minutes total, and that they spoke outside for about three to five minutes before going into the house. He did not observe any bruises on M.P.'s eye or neck. He attempted to get her medical treatment, but she refused. Stuart placed defendant under arrest. ¶ 23 Defense counsel recalled M.P. as a defense witness. M.P. testified that in May of 2014, she would exchange text messages with defendant's mother, Geneva Wright. On or around May 12, 2014, M.P. sent Wright a text message, informing her that she was going to the emergency room because when she woke up, her eye hurt and would not open. Wright asked, "It's from [defendant] hitting you?" M.P. responded, "No LOL, not funny, but LOL," to which Wright replied, "Oh, no. I just assumed, LOL." ¶ 24 M.P. also texted Wright on May 14 and June 4, 2014, to ask her about obtaining money from defendant's boss, Lamont Markham. At some point, she had also called Markham regarding money. On cross-examination, M.P. explained that she asked Wright for help because defendant had stolen money from her bank account a month or two prior and he was supposed to pay her for a car he was buying from her. On redirect, M.P. acknowledged that she never filed a police report stating that defendant stole money from her. ¶ 25 The parties stipulated that if called as a witness, Dr. Manisha Ogle would have testified that she treated M.P. at Oak Forest Immediate Care on May 12, 2014. M.P. had a corneal abrasion and her diagnosis was contact lens overwear. Ogle advised M.P. not to sleep in contact lenses and discussed with M.P. the risks of contact lens overwear. Ogle performed a "body observation" of M.P., including her neck and eye, and did not find any marks or bruises. ¶ 26 The trial court found defendant guilty on all three counts. In pronouncing its decision, the trial court stated that there was "no textbook way" for a victim of domestic battery to act and testify. The court added that although the defense made a "big deal" about what M.P. did not tell Officer Stuart, the identified topics were things that a domestic battery victim would not tell an officer during a three- to five-minute interaction. The court stated it initially had two problems with the case, but had solved them. The first involved M.P.'s visit to the doctor for her eye. However, the court noted that when M.P. was asked whether she went to the doctor for being hit in the eye, she answered that she was treated for her eye being red and swollen. The court noted that it later came out that she was treated for wearing her contacts too long. The second problem identified by the court was whether M.P. was honest with defendant's mother when she denied via text message that defendant hit her. However, the court found that "there is no playbook on how a victim of domestic violence would act." ¶ 27 On February 13, 2018, defense counsel filed a motion for a new trial. When the case was called on February 15, 2018, counsel informed the court that she would be amending the posttrial motion. Defendant stated that he was preparing to file a Krankel motion. He made a request for transcripts, which the trial court denied. ¶ 28 Thereafter, defendant filed a series of five pro se motions alleging numerous claims of ineffective assistance of trial counsel, as well as various trial errors by the court and the State. Defendant informed the court that the latest motion, titled "Amended Motion to Dismiss Counsel for Ineffective Assistance," which he filed on August 20, 2018, superseded his previous motions. Defendant's allegations of ineffectiveness in that motion included the following: (1) failure to call as witnesses "Kaitlin" (the woman who came to the door during the incident), defendant's mother, defendant's boss, and the officer who "changed defendant's charges from a misdemeanor to Class-X sentencing"; (2) failure to inform him of the State's plea offer of six years; (3) failure to argue that he was not given Miranda warnings; (4) failure to introduce the recording of a jail phone call that took place on September 20, 2014, during which M.P. told defendant, "I know this phone call is being recorded and I know you didn't choke me"; (5) failure to demand a speedy trial; (6) failure to obtain a transcript of the bond hearing; (7) failure to "destroy" M.P.'s credibility; (8) failure to file a motion to quash arrest and challenge grand jury proceedings; (9) failure to play the 911 recording at trial; (10) failure to ask M.P. to demonstrate how her shirt was ripped or question why the shirt was not entered into evidence; (11) failure to subpoena M.P.'s text messages; and (12) failure to investigate a witness who would have testified that the window screen was ripped before M.P. moved into the condominium. ¶ 29 The court held an initial Krankel inquiry on September 10, 2018. The State was present but did not participate. The trial court went through each of defendant's allegations of ineffectiveness, asked defendant to explain each allegation or whether he had any additional information regarding each allegation, and allowed defense counsel to respond. ¶ 30 Relevant here, defendant asserted that during a recorded jail telephone conversation, M.P. said, "[Defendant], I know that you didn't choke me, and I know this phone call is being recorded." Defendant told the court that he "begged" defense counsel to obtain the recording and enter it into evidence, but counsel first told him such phone calls were not recorded, and then told him the State found out he and M.P. had been talking and wanted to go over his phone records. Counsel responded as follows:
"I never told [defendant] that they don't record. In fact, because this was an order of protection, and part of the order of protection was that he not have any contact with the complaining witness. I repeatedly told [defendant] you do not call her from the jail. At some point the State gave me recordings where he called [M.P.] under his name and I believe under another person's identification. I listened to those recordings. I did not think it will be in his best interest to play recordings. One, because the phone call is a violation of the order of protection that he was under; and two, some of the information, some of the statements by [defendant] in the recordings were harmful to his case. They were not beneficial to his case."Defendant replied that he told defense counsel he understood the call violated an order of protection, but he was "willing to do the time for that" and he wanted the recording to be played. ¶ 31 On February 1, 2019, the trial court, after reviewing its notes from trial and the transcript of the Krankel inquiry, denied defendant's Krankel motion. The court orally reviewed each of the allegations of ineffectiveness. With regard to defendant's claim concerning the recorded telephone call, the trial court stated, "[Defense counsel] listened to the recording. As far as she was concerned, it was a violation of the order of protection. Also trial strategy she didn't feel would be helpful for the trial." The court concluded, "I think what we have here is the defendant trying to second guess and pull out anything that he can to say that [defense counsel] violated his rights and was ineffective. I find that to the contrary. I think that [defense counsel] did an excellent job based on the evidence presented." ¶ 32 On February 19, 2019, defendant filed two pro se motions. The first was a motion to reconsider the denial of his Krankel motion. Relevant here, defendant asserted that the trial court found defense counsel did not enter the recording of the phone call into evidence because it would have proven defendant violated an order of protection. Defendant argued that he was "well aware of that, but it would have proven that I did not choke allege[d] victim, which is a 1,000% more serious offense." Defendant wrote that he still wanted the trial court to hear the recording. In the second motion, which he titled "Petition for Evidentiary Hearing," defendant asserted that he wished to subpoena, among other things, the recording of the phone call. ¶ 33 On March 18, 2019, the trial court denied both of defendant's pro se motions. The court also denied defense counsel's posttrial motion. In the course of doing so, the court stated that it had observed M.P.'s demeanor when she testified and, despite the existence of some impeachment, found her "very credible, more than enough evidence to convict the defendant of aggravated domestic battery." ¶ 34 At sentencing, the State presented the testimony of a sergeant at the Cook County Department of Corrections who intercepted a letter at the jail that defendant had written to someone he called "Row." In the letter, which was admitted and published to the court, defendant stated that he had tried to get his mother to convince M.P. to drop the charges against him, but M.P refused. Defendant wrote, "[S]omebody got to pay that b*** a visit, a call, or something at this point. I don't care if it's a threat, beatdown, or bullet. She need[s] to know or think something will happen to her if she continue[s] with that lie." ¶ 35 Following the presentation of aggravation and mitigation and the arguments of the parties, the trial court merged count II and count III into count I and, based on defendant's criminal history, imposed a Class-X sentence of 17 years in prison for aggravated domestic battery. Defense counsel filed a motion to reconsider sentence, which the trial court denied. Defendant filed a timely notice of appeal. ¶ 36 On appeal, defendant contends that the trial court manifestly erred when, following a proper preliminary inquiry, it did not appoint new counsel to investigate his pro se posttrial claim that his trial counsel was ineffective for failing to introduce the recording of the jail phone call during which M.P stated that defendant did not choke her. Noting that the only evidence of choking or strangling came from M.P.'s testimony at trial, which he characterizes as "riddled with credibility issues," defendant maintains that the recording would have proven he was not guilty of aggravated domestic battery, the most serious charge against him. Defendant argues that the court committed manifest error because trial counsel never denied that the recording was exculpatory and, even if the recording demonstrated that he violated an order of protection, that crime is a lesser offense than aggravated domestic battery. Moreover, he notes that during the preliminary Krankel inquiry, he stated that he understood the call violated an order of protection, but was "willing to do the time" for that offense. As such, according to defendant, he established that counsel possibly neglected his case by failing to introduce exculpatory evidence. As relief, he seeks remand for the appointment of independent counsel and further Krankel proceedings. ¶ 37 A procedure for considering pro se posttrial claims of ineffective assistance of counsel has developed from People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny. See People v. Jackson, 2020 IL 124112, ¶¶ 95-97. When a defendant brings a pro se posttrial claim of ineffective assistance of counsel to the trial court's attention, the trial court is to conduct an inquiry into the factual basis of the claim. Id. ¶ 97. If the trial court determines that the claim "lacks merit or pertains only to matters of trial strategy," it may deny the motion without appointing new counsel. Id. However, if the defendant's allegations show "possible neglect" of the case, new counsel should be appointed to represent the defendant at a hearing on his claims. Id. ¶ 38 At the preliminary Krankel inquiry, the circuit court may consider both the factual basis for the claim and its legal merits. People v. Roddis, 2020 IL 124352, ¶¶ 61, 70. "The court can 'base its evaluation of the defendant's pro se allegations of ineffective assistance on its knowledge of defense counsel's performance at trial and the insufficiency of the defendant's allegations on their face.' " Id. ¶ 56 (quoting People v. Moore, 207 Ill. 2d 68, 79 (2003)). ¶ 39 Whether the trial court properly conducted a preliminary Krankel inquiry is a legal question that is reviewed de novo. Jackson, 2020 IL 124112, ¶ 98. However, if the trial court has conducted a proper preliminary Krankel inquiry, its determination that a defendant has not demonstrated possible neglect of the case will be reversed only where that decision is manifestly erroneous. Id.; People v. Maya, 2019 IL App (3d) 180275, ¶ 17. Manifest error occurs when an error is clearly evident, plain, and indisputable. Jackson, 2020 IL 124112, ¶ 98. ¶ 40 In this case, defendant has not raised an issue with the procedure that the trial court used to conduct the preliminary inquiry. He solely claims that the trial court erred in its determination on the merits. As such, we review the trial court's determination for manifest error. People v. Lobdell, 2019 IL App (3d) 180385, ¶ 10. ¶ 41 After reviewing the record, we find that the trial court's decision not to appoint new counsel was not manifestly erroneous because defendant did not show possible neglect of the case regarding his claim that defense counsel was ineffective for failing to introduce the recording of the phone call at trial. At the preliminary Krankel inquiry, counsel explained that she had obtained the recording and, after listening to it, decided not to introduce it at trial. Counsel gave two reasons for this decision. First, the fact that defendant called M.P. showed that he had violated an order of protection. Second, and more important, counsel explained that "some of the information, some of the statements by [defendant] in the recordings were harmful to his case. They were not beneficial to his case." The trial court found that the second reason given by counsel reflected that she was exercising sound trial strategy. We agree with the trial court. ¶ 42 To establish ineffective assistance of counsel, a defendant must show that his defense was prejudiced by a deficiency in counsel's performance. People v. Edmondson, 2018 IL App (1st) 151381, ¶ 33 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). To make such a showing, a defendant "must overcome a 'strong presumption' that counsel's alleged error was part of a 'sound trial strategy.' " Id. (quoting People v. Houston, 226 Ill. 2d 135, 144 (2007)); see also Maya, 2019 IL App (3d) 180275, ¶ 27 (recognizing that during an initial Krankel inquiry, a defendant must overcome the strong presumption of sound trial strategy). Matters of trial strategy—including decisions regarding what evidence to present—are generally immune from claims of ineffective assistance of counsel. People v. Custer, 2019 IL 123339, ¶ 39. Errors in trial strategy constitute ineffective assistance only if counsel entirely fails to conduct any meaningful adversarial testing. Id. ¶ 43 In this case, counsel's decision not to introduce the recording of the jail phone call was related to a matter of trial strategy. As such, it was immune from attack under Strickland and its progeny unless it was so obviously incorrect or misguided as to amount to no trial strategy at all. See id. That is not the case here. As mentioned, counsel explained at the preliminary Krankel inquiry that she decided not to introduce the recording at trial because by making the call, defendant violated an order of protection, and also because he made statements in the recording that would have been harmful to his case. Effectively ignoring the second reason cited by defense counsel, defendant maintains that a possible conviction for violation of an order of protection would have been a worthwhile risk where the recording contained evidence that he was not guilty of aggravated domestic battery. However, even if we were to assume, arguendo, that this is so, this circumstance only makes counsel's tactical decision debatable and does not overcome the presumption that counsel's judgment to forgo introducing the recording was reasonable trial strategy and thus immune from attack under Strickland. See id. Given this record, we have no basis for finding that the trial court's decision to deny defendant's Krankel motions was manifestly erroneous. See Jackson, 2020 IL 124112, ¶ 106. ¶ 44 Contrary to defendant's arguments, this is not a case like People v. Alexander, 2020 IL App (3d) 170829, ¶ 26, where counsel failed to investigate a jail call that the defendant claimed was exculpatory, or like Maya, 2019 IL App (3d) 180275, ¶ 11, where counsel failed to strike a juror that the defendant claimed was not impartial. In Alexander, defense counsel's statements at the Krankel inquiry did not demonstrate that his inaction was the result of trial strategy; rather, counsel stated that he did not investigate the jail call because he did not want to continue the case and because, possibly incorrectly, he did not believe the call would be admissible. Alexander, 2020 IL App (3d) 170829, ¶ 26. In Maya, the claim regarding the juror was not addressed by the trial court or by defense counsel during the preliminary inquiry. Maya, 2019 IL App (3d) 180275, ¶¶ 13, 34. ¶ 45 Here, in contrast to Alexander and Maya, counsel gave two reasons at the preliminary inquiry to explain why, after obtaining and listening to the recording, she did not seek to have it introduced at trial. The trial court found that the second reason given by counsel—that some statements defendant made on the recording were harmful to his case—reflected trial strategy. In these circumstances, we see no clearly evident, plain, or indisputable error in the trial court's determination that defendant failed to show possible neglect of the case by defense counsel. See Jackson, 2020 IL 124112, ¶¶ 98, 106. ¶ 46 In sum, the trial court did not manifestly err when it denied defendant's pro se posttrial motion alleging ineffective assistance of trial counsel without appointing new counsel and conducting a hearing pursuant to Krankel. For the reasons explained above, we affirm the judgment of the circuit court. ¶ 47 Affirmed.
Officer Stuart's first name does not appear in the record.