Trial counsel was not ineffective for failing to bar testimony that would not have impacted the verdict

The appellant in People v. Brown, 2020 IL App (1st) 170980 appealed the trial court’s order dismissing his pro se post-conviction petition claiming ineffective assistance of trial counsel. Brown argued on appeal that the circuit court erred by dismissing his petition where he made a substantial showing of a constitutional violation. The Appellate Court affirmed.

Kiar Brown was originally charged and convicted of first degree murder and sentenced to 55 years’ imprisonment. Id. at ¶ 1. At trial, the State presented testimony from multiple eyewitnesses, two of whom were minors, who had observed the commission of the crime, saw Brown conceal the weapon used in the commission of the crime, notified police, gave sworn statements and selected Brown out of a lineup shortly thereafter. Id. at ¶ 5-21.

The defense presented testimony from one witness, Tenija Ratcliffe, who disputed part of the eyewitness testimony regarding beads in Brown’s braids, as she had braided his hair that day and testified that Brown was with her at a barbecue during the murder. Id. at ¶ 27. Brown did not to testify and rested following Ratcliffe’s testimony. The State presented a portion of Brown’s post-arrest, video-recorded statement to rebut his alibi defense. Brown indicated in his statement that he left the barbecue approximately at hour before the murder. Id. at ¶ 30. After the recording of the video was played for the jury, Brown was found guilty of murder. Id. at ¶ 31.

On direct appeal, Brown argued that his sixth amendment right to effective assistance of counsel was violated where his trial counsel presented Ratcliffe’s alibi testimony, which contradicted his post-arrest statement to police. Id. at ¶ 32. The court affirmed his conviction. While his appeal was pending, Brown filed a petition for injunctive relief, alleging various improprieties in the grand jury process that rendered his indictment invalid. The court dismissed the petition and Brown appealed. The appellate court affirmed the trial court’s judgement. Id at ¶ 33.

Brown then filed a post-conviction petition in which he asserted a litany of claims, including a claim of ineffective assistance of counsel. The ineffective assistance of counsel was based on counsel’s failure to inform the trial court that Brown had overhead an ASA tell a witness the contents of a previous witnesses’ testimonies, what she was going to ask him, and what she expected the witness to say in response. Id. at ¶ 34. No action was taken on the petition within 90 days, and it was advanced to the second stage of proceedings, where counsel was appointed. Brown filed a motion to proceed pro se, which the court granted. The State filed a motion to dismiss, which was granted by the court. Brown appeal after the trial court denied Brown’s motion to reconsider.

On appeal, Brown argued that the allegations in his petition and affidavit substantially showed that he was deprived of his right to effective assistance of counsel. In its review, the court noted that a second stage dismissal is proper “where the defendant’s claims, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation.” Id. at ¶ 41.

The appellate court applied the Strickland test and determined that Brown had failed to make a substantial showing of prejudice originating from counsel’s alleged deficient performance, as “even if we presume [the witnesses’] testimony would have been excluded at trial, it is unlikely the outcome would have been different.” Id. at ¶ 43-45. The court noted that the evidence against Brown was “overwhelming.” Id. at ¶ 46. Further, the court determined that because the eyewitness descriptions and identifications presented at trial were positive and reliable, there is no probability that the result of the trial would have been different but for counsel’s failure to seek exclusion of specific testimony. Id. at ¶ 52. As such, the court held that the petition failed to set forth a substantial showing of a constitutional deprivation and that the trial court properly dismissed the petition. Id. at ¶ 52.

The Appellate Court affirmed.

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