Find Legal Information

JUSTICE SLATER delivered the opinion of the court:

Defendant Terrance Haynes was convicted of first-degreemurder after a jury trial and was sentenced to a term of 45years' imprisonment. On appeal, defendant claims that the trialcourt erred in denying his post-trial motion alleging ineffectiveassistance of counsel without appointing substitute counsel. Wereverse and remand.

Defendant was convicted of killing Cezaire Murrell on May27, 1999, in Kankakee, Illinois. Approximately one week prior tothe killing, Murrell had assaulted the defendant at a shoppingmall, punching and kicking him. On May 27, the defendant was onthe front porch of the home of his friend, Gary Hammond. Anumber of other people were present, including the State's chiefwitness, Marcus Hammond, the 11-year old brother of Gary Hammond. Marcus testified that Murrell approached the porch from thesidewalk, shoved a man named Willie Turner out of the way, andcame onto the porch. Everyone else left the porch and moved ontothe sidewalk as Murrell and the defendant exchanged words. Whenthe two men were five to six feet apart, the defendant pulled outa gun and pointed it at Murrell. Murrell moved toward thedefendant and the defendant fired twice, striking Murrell in thechest and shoulder. Marcus testified that he did not see Murrellholding a gun.

The defendant testified that Murrell walked up to the porch,asked him for money, and threatened to hit the defendant when herefused. Willie Turner walked Murrell back to the sidewalk andtried to get him to leave, but Murrell said he wasn't leavinguntil something happened. According to defendant, Murrell liftedhis shirt, revealing a gun in his waistband. Defendant thenpicked up a gun that was on the porch underneath a shirt and putit in his back pocket. Murrell pushed Turner down and ran up onthe porch. Murrell had one hand on his gun and he was reachingfor the defendant with the other hand. Defendant pulled out thegun, closed his eyes and started shooting. The defendant thenran away, leaving both the gun he used in the shooting andMurrell's gun behind. No guns were recovered from the scene.

At the jury instruction conference, the defendant, againsthis attorney's advice, declined to have the jury instructedconcerning second-degree murder. The defendant was found guiltyof two counts of first-degree murder. At the sentencing hearing,the defendant claimed that his attorney had been ineffective infailing to present the testimony of certain witnesses. The trialcourt scheduled a hearing to investigate defendant's claim. Atthe November 17, 2000, hearing the defendant testified that therewere "at least ten people" who had been at the scene of theshooting and were willing to testify. Defendant could only namefive of those people, however: Darryl Haynes, defendant'scousin; Gary Hammond, Jr.; Lance Crowell; Jackie Speed; and ToyaWilliams.

Defendant's attorney, John Boyd, testified that hisconversations with the defendant indicated that Crowell, Speedand Williams could only testify about previous incidents, notabout the shooting. In addition, Hammond was in federal custodyand Boyd was concerned "about the negative aspects of puttingsomeone on the stand who has a significant criminal history orwho is currently serving time for a criminal activity." Boydstated that another witness whom he could not recall was also incustody.

The defendant testified in rebuttal that Crowell, Speed andWilliams were at the scene of the shooting and could havetestified to what happened that day. Defendant also assertedthat Boyd never talked to Darryl Haynes.

In response, Boyd testified that if he had called GaryHammond, Darryl Haynes, Toya Williams or Jackie Speed to testify,then "based on the statements previously given to the police bythe witnesses, I believed I would have been impeaching myclient's version of the story and assuring a [f]irst [d]egree[m]urder conviction." The defendant disagreed, claiming thataccording to the statements he had received in discovery, thelisted witnesses had stated that they had seen Murrell with agun.

The court found that defendant's claims of ineffectiveassistance of counsel were matters of trial strategy or tactics. The court ruled that the witnesses had not been presented becausethey either could not help defendant's case, would impeach histestimony, or would not be helpful because of their criminalhistory. Accordingly, the court declined to appoint new counselfor the defendant.

"When a defendant presents a pro sepost-trial claim of ineffective assistance ofcounsel, the trial court may, under certaincircumstances, appoint new counsel to assistthe defendant in presenting his claim. However, the trial court should first examinethe factual basis for defendant's claims. After this examination, if the trial courtdetermines that the claim lacks merit orpertains only to matters of trial strategy,then new counsel need not be appointed andthe pro se motion can be denied. However, ifthe allegations show possible neglect of thecase, new counsel should be appointed.[Citations.] The appointed counsel can thenindependently evaluate the defendant's claimand would avoid the conflict of interest thattrial counsel would experience if she had tojustify her actions contrary to her client'sposition. [Citations.] '[T]he operativeconcern for the reviewing court is whetherthe trial court conducted an adequate inquiryinto the pro se defendant's allegations ofineffective assistance of counsel.' Peoplev. Johnson, 159 Ill. 2d 97, 125, 636 N.E.2d485 (1994)." People v. Bull, 185 Ill. 2d179, 210, 705 N.E.2d 824, 839-40 (1998).

A trial court's finding that it is unnecessary to appointnew counsel will not be disturbed on appeal unless it ismanifestly erroneous. People v. Woodson, 220 Ill. App. 3d 865,581 N.E.2d 320 (1991).

Defendant argues that the trial court should not haveconsidered his ineffectiveness claims as merely involving trialstrategy. We agree. Boyd testified that he did not call GaryHammond, Darryl Haynes, Toya Williams or Jackie Speed aswitnesses because, based on statements they had given to thepolice, their testimony would have conflicted with thedefendant's testimony. According to the defendant, however, thewitnesses' statements supported his claim that Murrell had a gun,a critically important fact. Given the conflicting nature of thetestimony, we believe the trial court should have either examinedthe police reports if they were available, continued the hearinguntil they could be obtained, or should have simply appointed newcounsel. See Bull, 185 Ill. 2d at 210, 705 N.E.2d at 839 (newcounsel should be appointed "if the allegations show possibleneglect") (emphasis added); see also People v. Nitz, 143 Ill. 2d82, 572 N.E.2d 895 (1991) (new counsel should have been appointedwhere defendant alleged failure to call witnesses; counsel shouldnot have been allowed to question witnesses who might prove hisincompetence).

We emphasize the narrowness of our holding. A trial courtis not required to appoint new counsel every time a defendantclaims that his attorney failed to call all favorable witnesses. Many factors influence the decision to put a witness on thestand, and such decisions are generally matters of trial strategythat are beyond the scope of review. People v. Cordevant, 297Ill. App. 3d 193, 696 N.E.2d 1233 (1998). Nor do we suggest thatnew counsel is required every time the attorney's testimonyconflicts with that of his client. But where a defendant'sassertions, if true, strongly suggest possible neglect, and thoseassertions may be readily proved or disproved by consulting therecord, we believe it is incumbent upon the trial judge to do so.

Accordingly, we reverse the trial court's ruling denying thedefendant's post-trial motion and we remand for furtherproceedings. The trial court should examine the statements givenby the witnesses to the police, along with any other inquiry thecourt deems necessary. If the evidence demonstrates possibleneglect of defendant's case, new counsel should be appointed torepresent the defendant. If, however, the court again finds thatdefendant's claims pertain only to trial strategy, defendant'spost-trial motion should be denied.

For the reasons stated above, the trial court's judgmentdenying defendant's pro se post-trial motion is reversed and thiscause is remanded for further proceedings.

Reversed and remanded.

LYTTON, P.J., and McDADE, J., concur.