People v. Zareski

2017 IL App (1st) 150836

84 N.E.3d 527

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

v.Brandon ZARESKI, Petitioner-Appellant.

No. 1-15-0836.

Appellate Court of Illinois, First District, Second Division.

Opinion filed August 1, 2017

Michael J. Pelletier, Patricia Mysza, and Stephanie T. Puente, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Joseph Alexander, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Brandon Zareski was convicted of first degree murder for shooting Jonathan Nieves. Zareski hired his own counsel, Scott Frankel, to represent him on direct appeal, and we upheld his conviction in People v. Zareski , 2012 IL App (1st) 102102-U, 2012 WL 6950492. Zareski again retained Frankel to file a postconviction petition, which the trial court dismissed at the second stage of proceedings. Zareski now appeals from that dismissal.

¶ 2 Zareski first argues that Frankel had a "per se " conflict of interest by acting as both direct appeal and postconviction attorney. But this situation does not fit in the restrictive category of per se conflicts. Nor has Zareski shown that Frankel labored under an actual conflict of interest that had an adverse effect on his representation. Also, contrary to Zareski's contention, Zareski has failed to make a substantial showing of a claim of actual innocence. His claim that his trial counsel was ineffective for failing to impeach State witnesses with photographs purporting to show their gang affiliations is barred by res judicata .

¶ 3 In addition, Zareski argues that Frankel did not provide reasonable assistance of counsel as postconviction attorney. This case presented us with the unusual situation of a postconviction attorney who was retained by the petitioner to file the initial petition—most often, a postconviction petition is filed pro se , and counsel is only appointed or retained at the second stage of proceedings. Illinois Supreme Court Rule 651 was written to address that most common situation, and both the rule and the cases interpreting Rule 651 do not quite fit with Frankel's status. Close review of the rule and case law lead us to conclude that although Frankel was required to provide Zareski with a reasonable level of assistance, Rule 651 does not specifically apply when petitioner's retained counsel files the initial petition. Given this, we asked the parties to file supplemental briefs on the standard under which we should evaluate Frankel's assistance. Based on these briefs, and our own research, we conclude that we should use a Strickland -like standard, and under that standard we reject Zareski's unreasonable-assistance claims.

¶ 4 Zareski argues that Frankel should have raised certain claims in the postconviction stage, or raised them differently. We reject the claim that Frankel should have argued that trial counsel should have cross-examined a state witness about the victim's gun because it would not have benefited the defense. Zareski's counsel on appeal has not provided a legal basis on which trial counsel could have moved to suppress the statements of state witnesses, so we will not say that Frankel should have raised this claim. Zareski cannot show that he was prejudiced by Frankel's raising claims in postconviction that were barred by res judicata. Since Zareski has not raised a colorable claim of actual innocence, we cannot hold that Frankel was ineffective for failing to make that claim "freestanding." Finally, Zareski asserts that Frankel should have raised an ineffective assistance of counsel claim for his trial counsel's failure to apprise him of the sentencing range, so that Zareski could make a proper waiver of his right to a second degree murder instruction. His assertion is without merit because a defendant does not have the right to decide whether he or she wants the instruction on the lesser-mitigated offense of second degree murder, and does not need to knowingly waive the instruction.

¶ 5 BACKGROUND

¶ 6 Trial Proceedings

¶ 7 At his trial, Zareski was represented by privately retained counsel.

¶ 8 Chicago police officer Hallinan testified that on April 15, 2008, he was on duty, driving his squad car north on Laramie Avenue. Shortly before midnight, he heard gunshots, and as he passed through the intersection of Roscoe Street and Laramie, he saw people running. Hallinan stopped and found a man (the victim, Jonathan Nieves) lying face down in front of the door of 3405 North Laramie, bleeding from a large hole in the back of his head. Next to Nieves lay a handgun. Hallinan called for help and stayed with the body.

¶ 9 Police detective Edward Schak arrived and recovered the handgun. It was unloaded, and there were no bullets in the chamber or in the magazine. The parties stipulated that the handgun was a semiautomatic firearm with no ammunition, and it was inoperable because the thumb safety lever and firing pin were broken. Bullet fragments found at the scene did not come from that gun. No fingerprints were on the gun, although gunshot residue was found on Nieves's hand.

¶ 10 Orlando Crespo testified that he met Nieves through a mutual friend and had known him about a month. On April 15, 2008, he was in Nieves's apartment using the computer. Nieves's girlfriend, Krystle LaBombard, was in another room with her children. Crespo heard a commotion outside and people talking; Nieves went to the window, and Crespo followed, looking over Nieves's shoulder. The window faced the corner of Roscoe and Laramie. Crespo saw a man (whom he identified as Zareski) standing on the corner; the man was arguing about "gang related issues" with Nieves. Zareski flashed gang signs at Nieves, and Nieves yelled back "deuce killer." Nieves told Crespo "that's Brandon down there that used to be a four."

¶ 11 Nieves went downstairs. Crespo followed. When Crespo got outside, he saw Zareski standing on the corner and firing a handgun in Crespo's direction. Crespo heard between four and six shots. Crespo had never seen Zareski before that night. The shooter was light-skinned, but Crespo could not tell his nationality, and wearing a white or light gray sweater with different colored patches. He had old English numbers (a 9, 6, or 4) tattooed on his hands. Crespo saw a charcoal gray Malibu, with its headlights out, moving east on Roscoe. He told police that two people were in the front seat and at least one in the back seat, and the driver stuck his left arm out the window and put up four fingers (as a gang sign for the Four Corner Hustlers).

¶ 12 Crespo saw Nieves trying to run back to the apartment building door. Crespo started to run upstairs but then saw Nieves lying on the ground. Crespo did not see where Zareski went after the shooting. Crespo went to LaBombard and told her that Nieves had been shot; LaBombard began to cry and pulled the blinds to see outside. Crespo did not see Nieves with the gun until after the shooting and had not seen Nieves pick up a gun before leaving the apartment.

¶ 13 The police arrived quickly. Crespo gave a written statement, and a few hours later, he identified Zareski in a photo array. On May 21, 2008, Crespo identified Zareski at a lineup. Crespo also testified at the grand jury. He admitted that in his previous statements, he had not said that Zareski had fired the gun at him or that he had gone outside the building.

¶ 14 Crespo was asked whether Nieves's nickname, "Pun," was gang-related and short for "Punisher." Crespo denied this but said that the commotion outside the building was gang-related "from my knowledge, yeah. I don't gang bang."

¶ 15 The parties stipulated that Crespo previously stated that Nieves had been arguing with Zareski from the window, then Nieves stated that he would "fuck with him" before rushing out of the apartment. Crespo testified that he did not remember Nieves saying this.

¶ 16 Krystle LaBombard testified that she lived in the apartment with Nieves and her children. That evening, LaBombard awoke in bed when she heard noises and people talking outside, the sound of someone going downstairs, then two gunshots. LaBombard ran out of the bedroom and met Crespo entering the apartment; Crespo told her that Nieves was downstairs. LaBombard pulled the blinds off the front window, which looked out on Laramie, and saw someone (whom she identified as Zareski) aiming a gun towards the building's front door. She saw sparks coming from the gun. The shooter was wearing a white hooded sweatshirt with designs on it. LaBombard also saw a dark colored car driving east on Roscoe with its lights off. She saw Nieves on the ground, and Zareski going towards the car and getting inside.

¶ 17 LaBombard went downstairs and was met by police; she told them that "Grumpy" was the shooter. She saw the gun on the ground, but told police that she had never seen that gun before and had not seen Nieves with a gun that day. She had previously heard Nieves talk about the shooter driving near their home. A few hours later, she identified Zareski in a photo array, and identified him in a lineup. LaBombard admitted that she had told the police that she had heard only one gunshot.

¶ 18 Police also testified that a gray Chevrolet Malibu was registered to Zareski's home address and was found in the garage. The parties stipulated that the Malibu was registered to Zareski's parents. Police also testified that LaBombard told them the shooter's nickname was "Grumpy" and police constructed the photo array based on that nickname.

¶ 19 At the jury instruction conference, the State prepared an instruction on second degree murder, and the trial court offered to give it. Zareski's trial counsel stated that he did not want a second degree instruction, and the trial court asked if he had discussed it with Zareski. Counsel stated that he had discussed it, but would do so...