Appellate Court holds that second-stage dismissal was proper where claim had already been litigated before trial

The appellant in People v. Johnson, 2019 IL App (1st) 162999, appealed the trial court’s order dismissing his petition for post-conviction relief at the second stage, where Johnson argued that his trial counsel and appellate counsel were ineffective. The  First District ultimately affirmed the decision of the circuit court, finding that the issues raised by Johnson had been litigated prior to trial and, thus, neither his trial counsel nor his appellate counsel could be ineffective for failing to raise it.

Michael Johnson was convicted of acting as a hit man for a drug dealer, Marc Norfleet, and killing a police informant, Adam Schultz. Id. at ¶ 8. Prior to trial, trial counsel filed a motion to suppress the Johnson’s statements, claiming that they were obtained after Johnson’s elected to remain silent and requested to consult with an attorney, in violation of his fifth and fourteenth amendment rights. Id. at ¶ 10. At the hearing on this motion, detectives testified that the entire time they were with Johnson he had never asked for an attorney, never indicated that he wanted to remain silent, and never refused to speak with them. Id. at ¶ 15, 21.

The ASA who participated in the interviewed statement testified that the interview was conducted to obtain an arrest warrant for Marc Norfleet based on an accountability theory, and that once Johnson was confronted with an article concerning Norfleet’s arrest, he then implicated himself. Id. at ¶ 17. Johnson then chose a videotaped statement to memorialize his statements. The ASA also testified to reviewing Johnson’s Miranda rights with him, “word for word,” after they’d been read to him by detectives. Id. at ¶ 19. Johnson disputed the testimony provided by the ASA and detectives, stating he was only advised of his Miranda rights by the ASA (not the detectives) and that his videotaped statement was involuntary. Id. at ¶ 33. Johnson did, however, testify that he read and signed a form stating he was consenting to the videotaping, did not complain of mistreatment by police, and did not ask for an attorney in the videotaped statement. Id. at ¶ 34.

In arguments on the motion, Johnson argued that his fear of the death penalty, as corroborated by both the ASA and the detectives, in addition to threats and promises regarding the death penalty, overbore his free will, rendering his statement involuntary. Id. at ¶ 35. The State rebutted each claim in the motion individually. The trial court denied the suppression motion based on the credibility of the witnesses. Id. at ¶ 36.

Despite raising numerous claims in his initial pro se post-conviction petition and supplemental petition filed by counsel, appellant raises only one claim on direct appeal: that counsel failed to “clearly articulate” an Edwards claim. The petition stated that Edwards requires that once a suspect invokes his fifth amendment right to counsel, all custodial interrogation must cease, and it may resume only if counsel has been made available to the defendant or the defendant initiates communication. Id. at ¶ 38. The trial court dismissed the petition, finding that trial counsel conducted a full suppression hearing during which he ably advocated on behalf of his client by arguing vehemently that he was coerced, not informed of his Miranda rights, and interrogated after electing to remain silent. Id. at ¶ 39. This appeal followed.

On appeal, Johnson argued that the trial court erred by dismissing his petition at the second stage of proceedings. The court’s review of the trial court’s dismissal of the petition was conducted de novo.

Johnson raised two ineffective assistance of counsel claims, relating to both trial and appellate counsel’s performance. To determine the effectiveness of counsel’s assistance, the court used the Strickland test, which requires that a defendant prove both (1) that his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness and (2) that, absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id. at ¶ 53. This standard applies equally to both claims. The court observed that an ineffective assistance of counsel claim can be disposed of if a petitioner cannot satisfy both prongs of the Strickland test. Id. at ¶ 56.

To establish the first prong, appellant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial sound strategy. Id. at ¶ 58. On the Edwards issue, the court noted that the trial court had previously adjudicated the matter and decided the issue, based on the credibility of the witnesses, in the State’s favor. Id. at ¶ 64. Further, the appellate court held that failing to specifically cite Edwards in the pretrial motion is not dispositive, particularly because counsel had made sure to address the claim in suppression testimony. Counsel’s decision not to respond to a very specific case cited by the State is considered a matter of trial strategy, immune to an ineffectiveness claim. Ultimately, the court concluded that “we cannot find trial counsel ineffective for failing to raise a claim that was, in fact, raised, and we cannot find appellate counsel ineffective for the same reason.” Id. at ¶ 65.

The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

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