People v. Morrow

2019 IL App (1st) 161208

146 N.E.3d 85

438 Ill.Dec. 331

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

v.Mitchell MORROW, Petitioner-Appellant.

No. 1-16-1208

Appellate Court of Illinois, First District, Fourth Division.

Opinion filed September 19, 2019

James E. Chadd, Patricia Mysza, and Michael Gomez, of State Appellate Defender's Office, of Chicago, for appellant.

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

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

¶ 1 Defendant, Mitchell Morrow, was convicted after a jury trial of murder and armed robbery and sentenced to concurrent terms of 60 years for murder and 20 years for armed robbery. On appeal, this court vacated his conviction for armed robbery.

¶ 2 In this appeal, defendant asks this court to reverse an order denying him leave to file a successive postconviction petition. In his successive petition, defendant claims that his appellate counsel was ineffective for failing to ask this court to remand for resentencing after we vacated his armed robbery conviction. For the following reasons, we affirm the trial court's denial.

¶ 3 BACKGROUND

¶ 4 This court has set forth the evidence at defendant's trial in detail on two prior occasions, and we incorporate those discussions here by reference. People v. Morrow , 303 Ill. App. 3d 671, 674-675, 236 Ill.Dec. 844, 708 N.E.2d 430 (1999) ; People v. Morrow , 2013 IL App (1st) 121316-U, ¶¶ 5-43, 378 Ill.Dec. 184, 3 N.E.3d 464. In sum, the State's evidence at trial established that defendant was a pimp and that he shot a customer after a physical altercation broke out between the customer and two prostitutes inside the customer's vehicle. The fistfight occurred because the customer realized that one of the prostitutes was also attempting to take his wallet. After the murder, the two prostitutes, defendant, and another pimp split equally the $160 in the customer's wallet. On appeal, this court reversed defendant's armed robbery conviction, finding that there was no evidence that defendant intended to rob the customer; rather, defendant had approached the customer's vehicle in response to the altercation. Morrow , 303 Ill. App. 3d at 683-84, 236 Ill.Dec. 844, 708 N.E.2d 430.

¶ 5 We describe in detail defendant's sentencing process since defendant claims on this appeal that the sentencing judge was unduly influenced by the subsequently vacated armed robbery conviction when it sentenced defendant to 60 years for murder.

¶ 6 At the time of his sentencing, the death penalty was still available in Illinois, and the State sought it for defendant. On April 15, 1996, defendant waived his right to a jury for his death penalty hearing, which was subsequently held on May 28, 1996. During the first stage of the death penalty hearing, the State introduced testimony about defendant's age and introduced a certified copy of his birth certificate, which established that defendant was 26 at the time of the offense. After listening to arguments by counsel for both sides, the trial court found defendant eligible "for a capital sentencing hearing under Illinois law," explaining:

"THE COURT: Considering the arguments of counsel, [defendant's counsel], considering the law that exists in this area, especially the law of accountability, I think that [defendant's] acts are well within the felony murder doctrine.

The facts here I agree do not impart the classic theory of murder in the course of another felony, but I will not impugn the jury verdict finding [defendant] guilty of murder and armed robbery nor will I retreat from the law in this area, the law of accountability.

Suffice it to say I find that there is sufficient conduct to prove by the prosecution that [defendant] is guilty of first degree murder and is accountable for the taking of the victim's property.

Based on the arguments made to me, I find beyond a reasonable doubt that the defendant is eligible for a capital sentencing hearing under Illinois law.

Are the parties ready to proceed in aggravation and mitigation at this time?"

The trial court then proceeded to the second stage, where it considered factors in aggravation and mitigation.

¶ 7 The State called three witnesses in aggravation. First, Dennis Dobson, a Chicago police officer, testified that, on October 23, 1988, when he and his partner attempted to arrest a woman for prostitution, defendant started yelling obscenities at the officers. After the officers told him to be quiet, defendant responded "f*** you, I will kick your a***." Defendant was then arrested for disorderly conduct. However, defendant's case was subsequently dismissed.

¶ 8 Ronald Behling, a Chicago police officer, testified that, on February 7, 1994, he also arrested defendant. Defendant had been walking on the sidewalk, when he observed the officer and subsequently dropped a plastic bag containing four foil packets of suspected heroin. After his arrest, defendant informed the officer that the substance was "not real," that "he had made them up to sell again," that it was "only Actifed," and that "he knew he could be killed if he got caught selling the stuff but he needed the money."

¶ 9 John O'Shea, a Chicago police officer, testified that, on November 8, 1992, defendant kicked and punched him as O'Shea attempted to arrest a prostitute. The officer held out his badge and identification in his hand and informed defendant that he was a police officer, but defendant responded "f*** you, I want my woman back, * * * give her to me." After other officers arrived, O'Shea arrested both defendant and the prostitute. At the police station, when O'Shea tried to handcuff defendant to the wall, defendant punched O'Shea repeatedly in the face and side. Injuries to O'Shea's side, face, and hands required O'Shea to seek medical treatment at a hospital. Defendant also had injuries and was transported to a hospital, where he received multiple stitches.

¶ 10 In mitigation, defendant called five witnesses. First, the defense called Lamar Thomas, defendant's first cousin, who testified that he had known defendant his whole life. Thomas had worked as a police officer and detective for the Chicago Police Department for 26 years and was currently recovering from an illness. During the three years prior to defendant's incarceration, Thomas visited with defendant usually once a month at holidays or family affairs. Thomas testified that defendant was "always a very polite young man," and that Thomas had "never seen him do anything untoward." On cross-examination, Thomas admitted that he was unaware that defendant was a pimp.

¶ 11 Daisy McLendon, defendant's sister, testified that she had been employed as a medical assistant at a hospital for over 10 years and that she was also an ordained minister. As a minister, she had met with defendant on a weekly basis during the last two or three years. McLendon testified that, "since last May, following the incident, he has really made a commitment to the Lord of his life. And he has no desire to be affiliated with any gang or any such thing of that sort." She further testified that "my brother while being held here at Cook County as a prisoner was severely attacked and beaten nearly to death. He had several facial fractures and his face was severely swollen. And this was a direct result of denying being a part of any gang." McLendon testified that defendant was "always very kind" and "helpful," but she was not aware prior to his arrest that he was a pimp.

¶ 12 Josie Bradley, defendant's aunt, testified that, during the two or three years prior to defendant's arrest, she encountered defendant at family gatherings, as well as two or three times a month. Bradley described defendant as "a kind, soft spoken young man."

¶ 13 Ida Mae Jones, defendant's mother, testified that defendant was "always lovely," never disrespectful, and was helpful around the house. Tracy Morrow, defendant's sister, testified that he was a "loving" brother and "always around."

¶ 14 After both sides rested, the trial court heard arguments from counsel. The State asked the trial court to impose the same death penalty that defendant had "imposed on [the victim] when he killed him, for a senseless, [sic ] no reason." In contrast, defense counsel emphasized that defendant had "only two misdemeanors, one for pimping and one for disorderly conduct." The trial court found:

"Based on the arguments presented to me; based on Illinois law, confine [sic ] Illinois law to the evidence, I find that the defendant * * * is 28 year[s] old; he was 26 when the acted is [sic ] resulted in the death of the victim.

I find although he has had his contacts, brushes with the law in the past, he has no significant history, prior criminal activity as contemplated by the Illinois Death Penalty Act.

I find therefore that there is sufficient mitigation for this Court to be precluded from imposing the death sentence. Defendant will be sentenced under ordinary Illinois criminal sentencing law."

¶ 15 Both counsel indicated that they had nothing further to present in mitigation or aggravation. The State then asked the trial court to impose consecutive rather than concurrent sentences. After listening to argument from both sides, the trial court observed, in aggravation, that defendant's "acts" were "senseless" and "vicious." "An unarmed man whose only mistake was to in a rather pathetic way look[ ] for sex for hire, was gunned down because he attempted to rightly stop a prostitute or prostitutes from taking his property, his wallet."

¶ 16 In mitigation, the trial court observed:

"In mitigation, I will agree with your attorney, [defendant], that I don't think as you charged the [victim's] car, you had formed a premeditated intent to take the life of the victim * * *, however when you reached the window, you realized that he, the victim, was resisting, fighting the prostitutes; you shot him not once but at least

...