People v. Turner

2023 IL App (1st) 191503

218 N.E.3d 1238

467 Ill.Dec. 367

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

v.Devois TURNER, Defendant-Appellant.

No. 1-19-1503

Appellate Court of Illinois, First District, First Division.

Filed March 27, 2023

James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan (Lorelee Kampschneider, law student), of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Retha Stotts, and James Naughton, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Defendant Devois Turner appeals from the trial court's order granting the State's motion to dismiss his petition filed under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2018). On appeal, defendant asserts that postconviction counsel failed to provide reasonable assistance. For the following reasons, we affirm the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 A. Trial

¶ 4 Defendant was charged with the first degree murder of 87-year-old Joe Miller, as well as home invasion, armed robbery, and residential burglary. Defendant's girlfriend, Malia Nelson, was charged as an accomplice and subsequently agreed to testify against him pursuant to a plea agreement.

¶ 5 Briefly stated, Nelson, who was serving a 17-year prison term for this offense, testified that on the day in question, Miller was living in a senior citizen apartment near 13th Street and Harding Avenue. She and Miller were friends, but their relationship was "semi-sexual." She was unemployed and would clean his apartment or have sex with him for money. In addition, Nelson knew that Miller kept money and a gun in a locked cabinet in his bedroom. About one month before this incident, she had taken the cabinet keys and approximately $3500, while he slept.

¶ 6 On September 22, 2017, Nelson and defendant, whom she was dating at the time, discussed a plan to steal money from Miller to buy drugs, but ultimately agreed that Nelson would simply ask Miller for the money. Defendant, against Nelson's wishes, wanted to accompany her in case they needed to scare Miller. When Nelson ultimately told defendant she had changed her mind, he accused her of trying to hide something and dragged her toward Miller's building, where she reiterated that she would "handle this by [her]self." Defendant, however, forcibly accompanied her inside. She signed into the visitors log as "L. Lewis."

¶ 7 When the pair arrived at Miller's apartment, he initially told Nelson to return the following day but then allowed her to use the bathroom. Afterward, Nelson saw defendant standing behind Miller, who was sitting in a chair. Defendant had one arm around Miller's neck and held a gun to the right of it. Nelson asked what defendant was doing but he told her to "shut the fuck up, [and] let [him] handle it." Upon defendant's inquiry, Miller said he had no money in the apartment. A struggle then ensued. In addition, defendant directed Nelson to look for Miller's money. Unable to find the key to the cabinet, Nelson unsuccessfully tried to open the cabinet with a kitchen knife, cutting herself in the process. Miller, sounding frightened, called her name during this time.

¶ 8 In the kitchen, Nelson saw defendant force Miller to the floor. Miller's eyes were closed, and he was unresponsive when Nelson shook him. Although Nelson thought that he was dead, defendant said he would be fine and ordered Nelson to bind his hands, threatening to shoot Nelson if she did not. Nelson did so with a phone cord and subsequently gained entry to the cabinet. She later learned that defendant had taken money, a gun, and a Crown Royal bag filled with coins. They used the money to buy drugs and, two weeks later, defendant sold the gun for $150. Nelson acknowledged that she had a 25-year history of substance abuse, had used cocaine on the day in question and had seven prior narcotics convictions.

¶ 9 Leroy Miller, the victim's son, testified that after being unable to reach his father, a security guard let him into the apartment, where his father lay dead on the kitchen floor with his hands bound above his head. He later recognized Nelson from surveillance footage, although he could not remember her name. He also discovered that some coins and a handgun were missing from the cabinet.

¶ 10 The police confirmed that the logbook was signed by "L. Lewis" and "M. Partee." In addition, the police learned Nelson's name and arrested her. Miller's son identified her from a lineup, and her DNA was found on the phone cord, as well as on three of the four knives recovered from the apartment. After interviewing Nelson, the police were looking for defendant, who was arrested the following day. He gave a videotaped interview discussing the events culminating in Miller's death and claimed that the robbery was Nelson's idea. He denied that he used a weapon against Miller or that Miller struggled. Furthermore, Miller was alive when defendant left.

¶ 11 Dr. Valerie Arangelovich, a pathologist, opined that Miller died from stress due to restraint and robbery but identified coronary atherosclerosis as a contributing factor. She ruled his death a homicide.

¶ 12 The defense presented no witnesses and defendant chose not to testify. Upon the court's inquiry, defendant confirmed his understanding that he had a right to testify and that, after speaking with his attorneys, he did not want to do so. Defendant also confirmed that no one was forcing or coercing him not to testify and that he was exercising his own free will.

¶ 13 The jury found defendant guilty of first degree murder and he was sentenced to 27 years in prison.

¶ 14 B. Direct Appeal

¶ 15 On direct appeal, we rejected defendant's assertions that the trial court erred by declining to provide a jury instruction on the lesser offense of involuntary manslaughter and by denying his request to provide the jury with his proposed nonpattern jury instruction regarding his addiction to narcotics. We corrected the mittimus to reflect the correct amount of presentencing custody credit. People v. Turner , 2013 IL App (1st) 111716-U, 2013 WL 5434485.

¶ 16 C. Postconviction Proceedings

¶ 17 On August 22, 2014, defendant filed a pro se postconviction petition, asserting, among other things, that trial counsel was ineffective for not "basing a defense on her own reasonable investigation" but, instead, relying "exclusively on cross-examination of State witnesses to discredit the State's case." In addition, counsel "impede[d]" his right to testify. Defendant "repeatedly told his defense counsel that he wanted to testify as to his version of what happened," but counsel threatened to withdraw if he did, stating that his testimony would be viewed as "self-serving and harmful to the defense." Furthermore, counsel did not heed defendant's request to negotiate an agreement for him to plead guilty to second degree murder. Instead, counsel said the court would not allow him to plead guilty to that offense. Appellate counsel was ineffective for failing to raise those claims on direct appeal.

¶ 18 The trial court then appointed postconviction counsel, who subsequently filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Counsel certified that (1) he consulted with defendant "by phone, mail, electronics means or in person to ascertain his contentions of deprivations of constitutional rights," (2) he "obtained and examined the record of proceedings at the trial and sentencing in this case," and (3) he did not prepare a supplemental postconviction petition "as the petitioner's previously-filed pro se petition for postconviction relief adequately sets forth the petitioner's claims of deprivation of his constitutional rights."

¶ 19 The State moved to dismiss, arguing that defendant's ineffective assistance of counsel claims were meritless. Specifically, trial counsel's decision not to present evidence was a matter of strategy, and the record rebutted defendant's claim that trial counsel impeded his desire to testify.

Defendant also failed to show that the result of the proceeding would have been different. Furthermore, defendant failed to provide any affidavit or supporting documents showing that counsel did not attempt to negotiate a lesser charge.

¶ 20 At a hearing on the parties’ pleadings, postconviction counsel argued that while the trial court had admonished defendant about his right to testify, the colloquy between the court and defendant did "not in any way capture the intimidation that existed at the time of that proceeding." In addition, "when you look at that issue that he raised and combination with others he's raised, he's, in effect, saying that he was intimidated by this trial counsel." When the postconviction court asked for proof of this intimidation, counsel argued, "Well, it's inferred, Judge, in a s[e]nce that in his pleadings he said that he was [sic ] prudently asked his lawyer to testify. His lawyer continued to sho[o]t him down." Counsel advocated for a third stage hearing to "really get to the bottom of it."

¶ 21 The trial court granted the State's motion to dismiss. First, the court found that defendant failed to make a substantial showing to rebut the presumption that trial counsel's decisions were a matter of valid strategy. In addition, he did "not show or even allege the existence of any specific evidence his counsel failed to discover." The court further found that the record rebutted defendant's claim that trial counsel did not allow him to testify. In any event, defendant failed to state what his testimony would have been, and the jury saw defendant's videotaped statements in which he admitted to his involvement in the robbery, notwithstanding that his statements had minimized his involvement. Moreover, defendant had no constitutional right to a plea bargain, and there was no evidence that the State made an offer, that d...