People v. Elkins

2019 IL App (1st) 161798

148 N.E.3d 718

439 Ill.Dec. 665

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

v.Tiffany ELKINS, Defendant-Appellant

(The Cook County Public Defender, Intervenor-Appellee).

No. 1-16-1798

Appellate Court of Illinois, First District, SECOND DIVISION.

November 26, 2019

Stephen L. Richards, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

Amy Campanelli, Public Defender, of Chicago (Karen Dimond and Lester Finkle, Assistant Public Defenders, of counsel), for intervenor-appellee.

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

¶ 1 Defendant, Tiffany Elkins, was convicted of first degree murder in the shooting death of Devonte "Boo Man" Harris after being identified as the shooter by multiple eyewitnesses. She was represented by the Cook County Public Defender's Office at trial. Prior to sentencing, she retained private counsel who issued a subpoena for the public defender's entire trial file, including work product, for use in preparing a motion for a new trial. The trial court sua sponte quashed the subpoena, finding that the public defender had "no obligation at all" to tender "any of their file" to successor counsel.

¶ 2 Elkins appeals, arguing that the trial court erred in quashing the subpoena and challenging her conviction on various other grounds. Under the facts of this case, where successor counsel sought his client's trial file in connection with ongoing proceedings, we find the trial court erred in declaring the entire file off-limits on the basis of the work-product doctrine. We therefore vacate the order quashing the subpoena and remand for further posttrial proceedings without reaching Elkins's other contentions of error.

¶ 3 BACKGROUND

¶ 4 On August 19, 2011, shortly before 11 p.m., 18-year-old Devonte Harris went to the Strack & Van Til grocery store in Calumet City, where he met up with several other teenagers: Darion Thomas, Akira Willis, her sister Ajahnique, Mikiyell Morgan, and John Thompson. It was a Friday evening, and they intended to go to Thomas's house together.

¶ 5 As they walked along Douglas Avenue, a car pulled up next to them with the passenger side facing them. The driver, whom Willis later identified as Elkins, mentioned that someone got into a fight at school, and she asked if they knew "Boo Man." They said no and kept walking. Elkins drove alongside them and repeated her question. Harris approached the car and identified himself as Boo Man. He spoke briefly with Elkins, then returned to the sidewalk.

¶ 6 As Harris and his friends continued walking, Elkins had a loud conversation on her cell phone. Morgan overheard her saying, "Put Ferris¹ on the phone." After further conversation, she said "Here go Boo Man right here" and "F*** it, I'm gonna blow the whole crowd." Willis overheard Elkins yelling: "Boo Man right here, but he with * * * some girls. I'm finna shoot the whole crowd up. I don't care."

¶ 7 Elkins then started firing a gun out the passenger-side window. She fired four to six shots as the group ran. Harris's friends made it safely to Thomas's house, but Harris was fatally shot in the back of the neck.

¶ 8 Willis identified Elkins as the shooter in a photo lineup on August 21 and an in-person lineup on August 23. She also identified Elkins in court and was "[v]ery sure" of her identification. As for Morgan, he did not see the shooter's face, but he noticed that she was light-skinned. He identified Elkins as the shooter in a photo lineup and a physical lineup but only because of her complexion. He could not identify her in court.

¶ 9 The shooting was also witnessed by Jason Dickson, a youth care specialist. At around 11 p.m., Dickson was sitting on his front porch playing dominos with his cousin; he had drunk two glasses of vodka with orange juice. He saw headlights from a car moving south on Douglas Avenue, which was unusual because it was a one-way street going north. The car pulled up alongside a group of "kids" walking down the sidewalk; the kids stopped, about five gunshots rang out, the kids ran, and the car sped away toward Dickson's house.

Dickson came down the stairs of his porch, and the car passed within 10 feet of him. He got a clear view of the driver's face, which was illuminated by the light of her cell phone.

¶ 10 On August 21, two days after the shooting, police showed Dickson an array of six photographs. Dickson was unable to identify anyone. But at an in-person lineup on August 23, Dickson identified Elkins as the driver and was "100 percent" sure of his identification at that time. He also identified Elkins in open court. On cross-examination, Dickson admitted that earlier that day, the prosecutor had shown him a photograph of the in-person lineup and he could not recall who he previously identified as the shooter. He also admitted telling the prosecutor, "If the woman in the car walked past me today, I [would] not be able to identify her."

¶ 11 Myeisha Mitchem testified that, in August 2011, her father was Elkins's boyfriend. Mitchem was 12 years old at the time. A couple days before the shooting, she saw Elkins take a gun from her car door and put it in her purse. She also saw Elkins with a gun on at least one prior occasion.

¶ 12 Elkins had a close relationship with her brother Ferris. On the evening of August 19, Ferris returned home from a football game at school and spoke about something that happened at the game. Later that night, Elkins called Mitchem and asked her to put Ferris on the phone. Mitchem heard Ferris give Elkins a name—"Boo Man"—and a description. They finished their conversation, and Ferris returned the phone to Mitchem. Elkins was still on the other end of the line. Mitchem heard Elkins asking someone if his name was "Boo Man," and then she heard two gunshots. She ended the call.

¶ 13 An hour later, Elkins called Mitchem again and asked if the police had come around. Mitchem said no, to which Elkins replied: "Don't say nothing to them."

¶ 14 On August 21, 2011, Elkins was arrested and charged with the first degree murder of Harris. Elkins was represented by the Cook County Public Defender's Office. On September 24, 2015, a jury found her guilty of first degree murder. After her conviction but prior to sentencing, attorney Algis Baliunas filed an appearance on her behalf, and the public defender withdrew. Baliunas said he would ask the public defender's office to transfer discovery materials to him, including "paper notes and documents." The assistant public defender (APD) who represented Elkins at trial replied:

"In terms of the discovery * * *, it is still an open murder case in our office. There's bonds, and there are other lawyers looking into it. So I don't think we will be in a position to hand him discovery. He is going to have to go to the State for that, because we won't be willing to tender that."

Baliunas clarified that he wanted the public defender's "entire trial file," including "investigator slips" and "trial notes." The trial court directed him to file a written motion, stating that it was a "very unique issue" because "you are talking about attorney work."

¶ 15 Baliunas later issued a subpoena to Elkins's APD seeking the trial file. Specifically, he sought "any and all discovery materials, any and all materials accumulated on behalf of the defendant, any and all investigative requests and results, any and all notes, pretrial and trial." At a hearing on October 20, 2015, Baliunas argued that he needed those materials in order to prepare a motion for a new trial. He acknowledged that his request included attorney work product, stating: "Work product on whose behalf? On defendant's behalf."

¶ 16 The APD was not willing to hand over the trial file, explaining:

"[T]hings he requested like my notes, investigative reports, I think he knows better. He is not entitled to those things. * * * I think most of the file is work product. When you do a jury trial you write notes everywhere. There are notes all over the police reports. There are notes in the file, outside the file. Certainly stuff he is not entitled to. It is my work product."

¶ 17 After hearing arguments by the parties, the court sua sponte quashed Baliunas's subpoena, stating that it did not believe the APD had an obligation to turn over its file to successor counsel. At a later hearing on April 20, 2016, the court clarified its reasoning: "Of course I denied Mr. Baliunas' request for the public defender's file in this case, as I deem it to be work product. * * * I believe that the attorneys' file is absolutely inviolate."

¶ 18 Baliunas filed a motion for a new trial. The motion alleged, among other things, that the APD was ineffective because he failed to adequately investigate the case and prepare for trial. In an attached affidavit, Elkins alleged that the APD only visited her once in jail before trial. She also alleged that he did not interview or investigate her alibi witnesses or any of the State's witnesses.

¶ 19 At the hearing on the motion, the APD testified that he regularly met with Elkins at monthly status hearings in court. Many of their meetings were conducted in a private interview room and generally lasted up to 20 minutes. The APD "told her about every witness * * * and what the witness would say and what the evidence was." Elkins never indicated that she wanted to present an alibi defense or provided the name of an alibi witness. Although the APD personally contacted several of the State's witnesses, none of them were willing to speak to him.

¶ 20 At the conclusion of the hearing, Baliunas stated that he was unable to properly prepare his motion for a new trial without access to Elkins's trial file. He argued that "any notes taken from interviews, anything of that nature would be very helpful" in establishing ineffective assistance of counsel. The trial court denied Elkins's motion for a new trial.

¶ 21 ANALYSIS

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