The Illinois Appeals Court for the Fourth District recently upheld a defendant’s DUI conviction, reasoning that the trial court did not err by refusing to appoint new counsel following her claims of ineffective assistance.
In May 2012, Thelma G. Lawson was charged with two counts of DUI. At trial, officer Sean Bowsher testified that at approximately 11 PM on May 8, 2012, he responded to a call of disorderly conduct in a residential neighborhood. There, he encountered Lawson, who was “loud and disorderly” and appeared intoxicated, holding a 40-ounce beer in her hand. Officer Bowsher left the scene after Lawson agreed to stay in her house for the rest of the night.
Roughly an hour later, Lawson called the police, complaining that someone had damaged her car while she was driving. Bowsher returned to the scene, and Lawson told him that she was driving when someone threw an object at her car. As Bowsher spoke to Lawson, she was holding her car keys and appeared “very intoxicated.” The hood of Bowsher’s car was warm, as though it had recently been driven. Bowsher called another officer to conduct DUI testing.
Officer Brooks testified that he arrived at the scene to conduct field-sobriety testing of the defendant. Lawson was holding her car keys in her hand and telling other officers that she had not been driving. However, she admitted to Brooks that she drove in her driveway 20 or 30 minutes ago. Lawson failed the field-sobriety testing administered by Brooks. A portable breath test indicated that her BAC was .236. The jury was shown a video of the defendant performing field-sobriety tests.
Lawson testified that she drank only one 40-ounce beer that night. She further testified that she drove her car to pick up her children at around 5 or 6 PM and did not drive again after that. She testified that the father of her children, Cedric Gomiller, drove in her place. When he returned, he told her to call the police because someone had thrown a chair at the car. The defendant explained that she did not tell Brooks that she had driven 20 minutes earlier and instead was confused by Brooks’ question. Gomiller testified and corroborated Brooks’ testimony.
The jury found the defendant guilty of both counts.
In September 2012, the defendant filed a pro se motion alleging ineffective assistance of counsel. The motion alleged that her trial counsel refused the defendant’s suggestion to call additional witnesses to testify that the defendant did not drive that night. At a hearing, the court refused to consider the motion, reasoning that her counsel had sole authority to file motions on Lawson’s behalf.
In October 2012, the defendant filed a post-trial motion, alleging that the evidence was insufficient to prove her guilt. The motion did not raise any claim of ineffective assistance of counsel. The trial court denied that motion and sentenced the defendant to 18 months of probation.
The defendant appealed, arguing that (1) the trial court erred by failing to conduct a hearing to consider her pro se claims of ineffective assistance of counsel, and (2) her convictions violated the one-act, one-crime rule. The court vacated the trial court’s dismissal of the defendant’s post-trial motion and remanded.
On remand, the trial court conducted a hearing, at which it granted the State’s motion to dismiss one of the defendant’s two convictions to eliminate any one-act, one-crime issue. The trial court declined to appoint new counsel to pursue the defendant’s pro se claims of ineffective assistance of counsel. The court determined that the decision whether to call a particular witness belonged to counsel and was a matter of trial strategy. The court therefore denied the defendant’s pro se post-trial motion.
On appeal, Lawson argued that the trial court erred by failing to appoint new counsel. The appeals court disagreed and affirmed Lawson’s conviction.
Pursuant to the Illinois Supreme Court in People v. Krankel, when a defendant raises a pro se post-trial claim of ineffective assistance, the trial court should first examine the factual basis of the claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.
To determine whether counsel should be appointed, “some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary.” As part of this interchange, the trial court may question defense counsel and the defendant about the facts and circumstances surrounding the allegations.
Pursuant to the United States Supreme Court in Strickland v. Washington, to establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by her counsel’s deficient performance. Counsel has a duty to make reasonable investigations into the defendant’s case unless those investigations are unnecessary. Whether a failure to investigate constitutes ineffective assistance depends on the value of the evidence that was not investigated and its similarity to the evidence that was presented at trial. “Failure to call or investigate a witness whose testimony is cumulative does not demonstrate ineffective assistance of counsel.”
Here, the appeals court reasoned that trial counsel’s decision not to investigate or call Lawson’s suggested witnesses was a matter of trial strategy because the witnesses’ testimony would have been cumulative of Gomiller’s testimony. Lawson claimed that the additional witnesses would have testified that Gomiller, not the defendant, drove the defendant’s car that night. However, Gomiller presented that same testimony to the jury. Trial counsel therefore had the authority to decide whether it was a desirable strategy to present additional testimony on that point. Counsel decided not to present that additional testimony. That decision was a matter of trial strategy that could not be used to establish deficient performance.
Even if it were to assume for argument’s sake that trial counsel was negligent for failing to fully investigate the potential witnesses, the appeals court reasoned that that failure would not be prejudicial, due to the overwhelming evidence against the defendant. In her call to the police and her statements to officers on the scene, the defendant admitted driving that night. In addition, both Bowsher and Brooks testified that the defendant was holding her car keys in her hand when they arrived at the scene. In light of that evidence, the jury declined to accept the defendant’s theory that Gomiller was the one driving the car that night. Additional testimony that the defendant had not driven, the appeals court reasoned, was not likely to affect the jury’s decision.
Thus, the court affirmed.
If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us toll-free at 1-800-829-8513.
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