People v. Brooks

2021 IL App (4th) 200573

198 N.E.3d 201

459 Ill.Dec. 411

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Nicholas Carlos BROOKS, Defendant-Appellant.

NO. 4-20-0573

Appellate Court of Illinois, Fourth District.

Filed September 28, 2021

Rehearing Denied October 19, 2021

James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Don Knapp, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In December 2010, a jury found defendant, Nicholas Carlos Brooks, guilty of first degree murder of John Turnpaugh ( 720 ILCS 5/9-1 (West 2010) ), and the trial court later sentenced defendant to 60 years in prison. He appealed, and this court affirmed. People v. Brooks , 2012 IL App (4th) 110516-U, ¶ 48, 2012 WL 6863406.

¶ 2 In August 2013, defendant filed pro se a postconviction petition under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2012). The trial court advanced defendant's petition to the second stage and appointed counsel, as defendant requested. The State filed a motion to dismiss, which the court granted. Defendant appealed, and this court reversed, concluding that postconviction counsel provided defendant unreasonable assistance. We remanded for further second-stage proceedings and the appointment of new counsel. People v. Brooks , 2018 IL App (4th) 160010-U, ¶ 19, 2018 WL 1158363.

¶ 3 On remand in January 2020, defendant's newly appointed counsel filed an amended postconviction petition, alleging that defendant's trial counsel provided ineffective assistance by failing, among other things, to investigate or call Alena Carsell as a witness. The petition alleged (1) Carsell possessed a text message from Junior Snow in which Snow admitted to having killed Turnpaugh and (2) no evidence existed that trial counsel investigated Carsell as a witness.

¶ 4 In August 2020, the State filed a motion to dismiss defendant's postconviction petition, and in October 2020, the trial court granted that motion.

¶ 5 Defendant appeals, arguing that his postconviction petition made a substantial showing that trial counsel provided ineffective assistance when counsel failed to investigate Carsell or call her as a witness. Specifically, defendant alleges that (1) Carsell could have testified and provided Snow's text messages inculpating himself in Turnpaugh's death and (2) no evidence existed to show that trial counsel investigated her as a witness.

¶ 6 We conclude that the trial court erred by dismissing defendant's postconviction petition at the second stage, reverse that dismissal, and remand for third-stage proceedings.

¶ 7 I. BACKGROUND

¶ 8 A. The Evidence at Defendant's Trial

¶ 9 To put defendant's postconviction claims in context, we will briefly summarize the evidence presented at defendant's trial.

¶ 10 In July 2009, the McLean County Sheriff's Department was informed that John Turnpaugh, a white male, was missing. Later that month, the police discovered Turnpaugh's decomposed body in his mobile home. Turnpaugh's death was caused by multiple injuries involving slash and stab wounds to his body and a penetrating injury to the skull that went through his brain.

¶ 11 Turnpaugh was last seen with defendant, and Turnpaugh's vehicle was located near defendant's sister's residence. The police were able to determine that defendant used Turnpaugh's cell phone to call several of defendant's family members and friends on the morning of July 2, 2009.

¶ 12 In the early morning hours of July 2, 2009, Turnpaugh, defendant, and two other men were "hanging out" at a Bloomington residence when Turnpaugh said he wanted to go back to his trailer where he had some beer. The other two men left and went their own way, while defendant and Turnpaugh went in a different direction in Turnpaugh's van.

¶ 13 Later on July 2, 2009, defendant picked up a woman, Heidi Cummings, from a location near the Salvation Army shelter. Defendant was driving Turnpaugh's van. Defendant showed Cummings a bag that contained a T-shirt, a hammer, and a knife. Defendant told Cummings that the red substance on the items was blood and it got there because he had just killed somebody.

¶ 14 The police recovered surveillance from July 2 depicting defendant picking up Cummings in Turnpaugh's van at 7:56 a.m.

¶ 15 Defendant's brother, Jeremy Fields, testified to also seeing defendant that morning. Fields testified that (1) defendant's T-shirt was covered in blood and (2) he had a bloody hammer. Defendant had a cell phone that he used to make several calls, and defendant told Fields that he had killed someone in a fight.

¶ 16 B. Defendant's Postconviction Petition

¶ 17 In January 2020, defendant filed an amended postconviction petition, alleging that trial counsel was ineffective for failing to call Carsell because (1) Carsell possessed a text message from Snow in which he admitted to having killed Turnpaugh and (2) no evidence existed that trial counsel investigated her as a witness.

¶ 18 Defendant attached to the petition numerous exhibits, which included an affidavit from an investigator, Nicholas Tripoli. That affidavit contained the following regarding Tripoli's contact with Carsell:

"I was initially able to contact Ms. Carsell by phone and had a conversation with her regarding her knowledge of [defendant's] case. She indicated that she had received text messages from the actual murderer, Junior Snow, admitting to the crime and that Ms. Carsell had been in possession of those text messages for quite some time after [defendant's] trial. However, Ms. Carsell stopped answering my phone calls[,] and I was unable to obtain an affidavit from her. I have no information as to Ms. Carsell's whereabouts or any other contact information as she refused to give that information to me."

¶ 19 Defendant's affidavit was also submitted in support of his petition, and among other averments in that affidavit, defendant asserted the following:

"Another thing I told my attorneys before trial was that I had learned that an individual by the name of Alena Carsell had received text messages from the actual murderer, Junior Snow, admitting to the crime and that Ms. Carsell might still be in possession of those text messages.

*** I personally spoke to Ms. Carsell on the phone in approximately August of 2012 while I was incarcerated in Stateville Correctional Center[,] and Ms. Carsell corroborated the fact that she had the text messages from Junior Snow on her phone that indicated that Junior Snow was the one who killed Turnpaugh."

¶ 20 In defendant's verified initial postconviction petition, he wrote the following:

"Ms. Carsell would've testified that she was in contact with defense counsel and spoke to the defense investigator about her (Carsell) having a text message on her phone from ‘Jr’ Snow stating, ‘I gave that white boy what he deserved’ and that she told the investigator she had no problem with coming in and testifying on behalf of the defense that they (State) had the wrong guy."

¶ 21 In August 2020, the State filed a motion to dismiss defendant's amended postconviction petition. In October 2020, the trial court conducted a hearing on the State's motion and granted it, explaining, in part, the court's reasons for doing so, as follows:

"[T]here is an abundance of case law within the State of Illinois that failure to attach or provide affidavits as required under the Post-Conviction Hearing Act, more specifically 725 ILCS 5/122-2, that failure to attach any such affidavit defeats any post-conviction petition alleging what a witness could or may have testified to because then it's just the defendant's own statements that had this witness been contacted he or she would have testified to this.

This is maybe a little bit different because there is secondhand hearsay, that being we have the affidavit from Mr. Tripoli, the private investigator, that he had a conversation in particular with Miss Carsell. But that is insufficient because it would not be admissible whether it be a third stage proceeding on a post-conviction petition or certainly not at trial as to what any statement or statements that she would have made. Also[,] I'll doubt the argument made by the State which is that that information would not have been admissible at trial due to the fact that there would have been no foundation that could have been laid.

Lastly[,] on that particular issue even if—even if the testimony of Miss Carsell was or would have been provided[,] the other evidence in the case—the other evidence in the case was overwhelming[,] and there would have been no reasonable probability from the court's perspective here that had the jury heard such testimony[,] that the outcome of the trial would have been any different."

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 Defendant appeals, arguing that his postconviction petition made a substantial showing that his trial counsel provided ineffective assistance when he failed to investigate Carsell or call her as a witness. Specifically, defendant alleges that (1) Carsell could have testified and provided text messages from Snow inculpating himself in Turnpaugh's death and (2) no evidence existed to show that trial counsel investigated her as a witness.

¶ 25 We conclude that the trial court erred by dismissing defendant's postconviction petition at the second stage, reverse that dismissal, and remand for third-stage proceedings.

¶ 26 A. The Law Regarding Claims of Ineffective Assistance of Counsel

¶ 27 All defendants enjoy the constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV ; Ill. Const. 1970, art. I, § 8. "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced ...