Order denying post-conviction petition reversed where trial counsel promised in opening statement that defendant would testify and then advised defendant not to testify during trial

The appellant in People v. Gunn, 2019 IL App (4th) 170653, appealed the trial court’s order dismissing his amended post-conviction petition at the second-stage of proceedings, arguing that the petition made a substantial showing of a constitutional violation. Ultimately, the Appellate Court of Illinois Fourth District reversed the decision of the circuit court and remanded for a third-stage evidentiary hearing.

Kendall Gunn was charged by indictment with three counts of first-degree murder for causing the death of Shane Howard. At trial, both the State and defense presented evidence and elicited witness testimony indicating that Gunn may have acted in self-defense, or imperfect self-defense, when taking the life of Shane Howard. Id. at ¶ 2-11. However, in closing, the State published to the jury portions of the audio and video recordings of Gunn’s police interview and argued that Gunn had no reasonable fear for his own life and thus could not have acted in self-defense. Id. at ¶ 12. The State also noted Gunn’s dishonesty during the interview regarding where he discarded the knife.

Following closing arguments, the court instructed the jury that (1) “neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on evidence should be disregarded” and (2) “the fact that the defendant did not testify must not be considered in any way in arriving at a verdict.” Id. at ¶ 13. Following deliberations, the jury found Gunn guilt of first-degree murder, resulting in a 35-year sentence from the trial court. Id. at ¶ 14. On direct appeal, the appellate court affirmed Gunn’s conviction and sentence.

Gunn then filed a pro se post-conviction petition, which advanced to the second stage of proceedings. Appointed post-conviction counsel supplemented the petition, and the State filed a motion to dismiss, which was eventually granted by the trial court following a hearing. Id. at ¶ 16. Shortly thereafter, Gunn appealed the dismissal of the petition, arguing on appeal that he was denied reasonable assistance of post-conviction counsel. The appellate court reversed and remanded for new second-stage proceedings. Id. at ¶ 17.

Newly appointed post-conviction counsel filed an amended post-conviction petition on Gunn’s behalf, which argued, in part, that trial counsel was ineffective for “objecting to the reading of the fourth Zehr principle on the basis that [Gunn] would testify and for telling the jurors the petitioner was going to tell them certain things throughout the trial, when in fact he did not tell them anything because he never testified.” Id. at ¶ 18. The petition alleged that counsel’s failures met both prongs of the Strickland test and further alleged that appellate counsel was ineffective for failing to raise these claims on appeal from the conviction and sentence. Id. at ¶ 18.

Post-conviction counsel attached an affidavit from Gunn, which averred, in part, that Gunn fully intended to testify at trial, up until the last day of the trial, when counsel instructed him it would not be necessary, as she believed they’d presented enough evidence to avoid a conviction. The State filed a motion to dismiss in response, arguing that trial counsel’s advice not to testify should be regarded as a shift in trial strategy and did not rise to the level of unreasonableness and that the petition establish prejudice. Id. at ¶ 20. The trial court dismissed the petition, finding that Gunn failed to make a substantial showing of a constitutional violation. This appeal followed.

On appeal, Gunn argued that the appellate court should reverse the trial court’s judgment because his amended post-conviction petition made a substantial showing of a constitutional violation with the ineffective assistance of counsel claims presented. Gunn requested that the matter be remanded for a third-stage evidentiary hearing concerning the factual question of whether counsel’s actions constituted a valid trial strategy. Id. at ¶ 24.

The appellate court noted that “to determine whether the failure to provide promised testimony amounts to ineffective assistance of counsel, we must look to the factual circumstances of a given case.” In that regard, the court acknowledged that the record reflected both Gunn and his counsel anticipating providing testimony up until the last day of the trial. The court held that trial counsel, therefore, waived Gunn’s right to have the trial court ask prospective jurors whether they understood and accepted the fourth Zehr principle and promised the jury that Gunn would testify and explain why he lied to the police, that he wasn’t in a gang, and that he stabbed Howard in self-defense. Id. at ¶ 30. The court noted that this decision could not be regarded as a situation where a defendant who expressed a pre-trial desire to testify simply changed his mind, but, instead, is a situation where trial counsel changed strategy mid-trial and advised Gunn that his testimony was not necessary, which Gunn relied on when electing not to testify. Id. at ¶ 31.

The court rejected both the State’s argument that trial counsel’s decision to change course was a result of sound trial strategy and its assertion that the decision was not objectively unreasonable (based on counsel’s own stated rationale that the jury had heard “enough” not to convict). Id. at ¶ 33-34. The court held that but for an unforeseeable event, the failure to present promised testimony may be unreasonable, for “little is more damaging than to fail to produce important evidence that had been promised in opening.” Id. at ¶ 34. Counsel failed to provide any explanation at trial to suggest that an unforeseeable event occurred to justify the change in strategy, and thus the court held that Gunn made a substantial showing that counsel’s decision was constitutionally inadequate.

On the prejudice prong of Strickland, the court rejected the State’s arguments that Gunn’s testimony would have been entirely cumulative and that jury instructions cured any prejudice suffered by Gunn. Id. at ¶ 35-36. The court concluded that “given the specific promises made by counsel and the fact the evidence of guilt was not overwhelming, we find [appellant] made a substantial showing he was prejudiced by counsel’s decision to change course and advise him his testimony was not necessary.” Id. at ¶ 37.

The Appellate Court of Illinois Fourth District reversed the decision of the Circuit Court of McLean County and remanded for a third-stage evidentiary hearing.


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