People v. Baines

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People v. Baines

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0235 Rel

Case Date: 03/30/2010

Preview:SECOND DIVISION MARCH 30, 2010 1-08-0235 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHELDON BAINES, Defendant-Appellant. ) ) Appeal from the ) Circuit Court of ) Cook County. ) ) No. 05 CR 15514 ) Honorable ) Jorge Luis Alonso, ) Judge Presiding.

PRESIDING JUSTICE CUNNINGHAM delivered the opinion of the court: Following a jury trial in the circuit court of Cook County, the defendant, Sheldon Baines, was convicted of attempted first degree murder and armed robbery, receiving consecutive prison terms of 25 years and 10 years for those respective offenses. On appeal, the defendant seeks reversal of his convictions and remand for a new trial on two grounds: first, he claims that he was denied the effective assistance of counsel at trial, and, second, he asserts that the trial court erroneously allowed improper hearsay testimony identifying the defendant as a guilty party. However, the defendant also seeks an outright reversal on the basis of insufficiency of the evidence. For the following reasons, we reverse the defendant's convictions and remand the case for a new trial. BACKGROUND At trial, the victim, Anthony Deveaux (Deveaux), gave the following testimony. On December 30, 2004, at about 9 p.m., a man whom he knew by the name of Michael Wilson (Wilson) repeatedly attempted to telephone him. At the time of these calls, Deveaux only knew Wilson as "Little Mike." Deveaux had recently offered Wilson a job. When Deveaux finally answered the telephone call, Wilson asked him to come to Wilson's apartment so he could show Deveaux some

1-08-0235 tools he planned to use in his work for Deveaux. Wilson also told Deveaux that he wanted him to meet his family. Deveaux and his girlfriend, Chenita Lawson (Chenita), drove to Wilson's apartment building on South Langley Avenue in Chicago, where they saw Wilson in front of the building. Leaving Chenita in the car, Deveaux joined Wilson and they went to the second floor of the apartment building. Wilson told Deveaux to wait in the hallway, outside apartment 107, saying he wanted to make sure his mother was properly dressed. As Deveaux waited, the building janitor, Derek McGee, approached him and asked what he was doing there. Deveaux told McGee that he was waiting for someone to come out of apartment 107. McGee then walked away. Minutes later, Wilson stuck his head out of the doorway of apartment 107 and told Deveaux to come in. When Deveaux did so, Wilson closed the door behind him. Deveaux saw that the apartment was vacant, with no furniture. Suddenly, a man whom Deveaux identified in court as the defendant came out of a closet, holding a revolver. In identifying the defendant in court, Deveaux said, "This gentleman right here. I mean it's no mistaking this guy. I mean there's no mistaking him." Another man (the third man), also armed with a revolver, came out of a bedroom. Wilson was standing behind Deveaux as the two men with guns, the defendant and the third man, approached. The defendant told Deveaux not to move or call for help. Wilson took Deveaux's bracelet and money and one of the men took his cell phone. The third man kept his gun pointed at Deveaux. During the attack, Wilson grabbed Deveaux by the neck from behind, and the defendant and the third man, both still armed, also grabbed Deveaux. The defendant and Wilson repeatedly told the third man to shoot Deveaux. Wilson also produced a revolver and pointed it at 2

1-08-0235 Deveaux's head. The defendant then told Wilson to shoot Deveaux. Deveaux managed to twist Wilson's arm, but Wilson's gun went off, striking the back of Deveaux's neck and causing what was described as a through-and-through wound. Deveaux testified that during this struggle, which lasted two or three minutes, someone knocked on the door of apartment 107. Wilson went to the door, but returned without having let anyone in. When Wilson and the defendant began hitting Deveaux on the head with their gun handles, Deveaux broke free and tried to escape through a window. The defendant then fired three shots at Deveaux, striking his arm, thigh, and buttock. Deveaux escaped onto the roof of an adjoining building, which was the same height as the apartment from which he had fled. He testified that after lying there a short while, he saw that his attackers had fled. Deveaux managed to walk to the edge of the roof, from which he could see his car with Chenita inside. He began shouting that he had been robbed. When he saw that the janitor, McGee, had entered the apartment from which he had just escaped, Deveaux reentered the apartment by the same window through which he had fled. Police officers and firemen were called to the apartment, and Deveaux was taken to the hospital by paramedics. At trial, Deveaux showed the jury the gunshot wounds he had received when he was attacked. One bullet had gone through his neck and a second bullet passed through his arm. Two other bullets entered his right thigh and his right buttock and remained in his body at the time of trial. Deveaux testified that on January 6, 2005, seven days after the attack, he called Chicago police detective James Scannell and gave him the number of the telephone from which Wilson had repeatedly called him on the day of the attack. Deveaux testified that Wilson had called so many times that Deveaux 3

1-08-0235 memorized the telephone number from which Wilson placed the calls. On January 30, 2005, Deveaux was shown a group of photographs. He identified a photograph of Wilson as one of his attackers. He again identified Wilson in a lineup on May 2, 2005. On May 26, 2005, he was shown additional photographs, including one of the defendant, but was unable to identify anyone. On June 15, 2005, after viewing a lineup for about five minutes, Deveaux identified the defendant as one of his attackers. Deveaux testified during the trial that he had prior convictions for burglary in 1998 and robbery in 1994. He admitted that sometime after he identified Wilson on January 30, 2005, he reported to the police that he had seen one of his attackers in a Home Depot store. This information was elicited by defense counsel in an indirect manner after he had asked Deveaux a series of questions which the trial court said were confusing. It had been established by the police prior to trial that a man named Hedley, whom Deveaux saw at a Home Depot store and reported to the police as one of his attackers, had a firm alibi because a videotape established that he was working at the Home Depot store at the time of the attack. Nonetheless, at trial Deveaux testified that he still believed that Hedley was "possibly" involved in the attack. Deveaux testified that he thought it was Hedley who was the third man who had come out of the bedroom. Deveaux also testified that he was 5 feet 9 inches tall, and he believed that the defendant was 6 feet 1 inch, or 6 feet 2 inches tall. The record establishes that the defendant was 6 feet 6 inches tall. Deveaux testified that he was able to quickly identify the defendant because, "When you're wrestling with somebody for a couple of minutes and they're trying to shoot you, you have a hard time forgetting their face." However, Deveaux had previously identified Hedley as the man who had shot him as they wrestled. He had 4

1-08-0235 also testified that it was Wilson who first shot him during this struggle. At trial, it was defense counsel who elicited from Deveaux that he had told the police that two of the attackers had something wrong with their teeth. Deveaux stated that the defendant had "teeth that weren't looking right inside of his mouth." However, at the time of trial, Deveaux could not recall whether there was anything wrong with the teeth of Hedley, the person he saw at the Home Depot store and believed to be one of his attackers. Derek McGee, the building janitor, testified at trial and corroborated Deveaux's testimony about encountering him in the hallway outside of apartment 107 prior to the attack. McGee testified that he was suspicious when Deveaux told him he was waiting for someone in apartment 107 because McGee knew that the apartment was vacant. McGee later returned and knocked on the door of apartment 107. He testified that he heard someone say "[Y]'all and [sic] ain't got to do this. Don't do this. Please. Please." A person whom McGee identified at trial as Wilson then opened the door. McGee went to another floor to consult with a fellow janitor, and then telephoned the police. When McGee returned to his apartment, he heard four to six gunshots coming from the vicinity of apartment 107. McGee's wife looked through the peephole in their front door and saw two men fleeing the building. McGee then entered apartment 107, where he saw Deveaux on an adjoining roof, "hollering." McGee helped Deveaux, who was covered in blood, reenter the apartment. Shortly thereafter the police and paramedics arrived. Chenita testified that she drove Deveaux to the South Langley address. Deveaux left her in the car, met a man at the apartment building entrance, and entered the building with that man. A few minutes later, Chenita heard gunshots and then heard Deveaux screaming her name. She saw him 5

1-08-0235 leaning over the roof of an adjoining building. Deveaux told her he had been shot. The police quickly arrived and Chenita entered the apartment with them. Deveaux was sitting on the floor, bleeding from a number of wounds. Chicago police officer David Holliday testified for the State that on the date in question he was on patrol with his partner in a marked vehicle, in the vicinity of the crime. Officer Holliday heard someone calling "police, police." He saw Deveaux on the roof of a building. Deveaux called out that he had been shot. Because Deveaux was covered in blood, Officer Holliday called for medical services. He and his partner went up to apartment 107, where Deveaux was now inside on the floor. Deveaux told the police officers that three people had robbed and shot him. He had sustained several gunshot wounds. According to Officer Holliday, it was difficult to get information from Deveaux because of his wounds, one of which was to his throat. Deveaux did describe one of his attackers as a black male, age 20 to 24, about 5 feet 11 inches. He described the other two offenders' heights as 5 feet 7 inches, and 5 feet 11 inches. Deveaux was then transported to the hospital. Chicago police detective James Scannell testified that he was assigned to investigate the crime. In early January, 2005, Deveaux called and gave him the telephone number of one of the three attackers. Deveaux said he had memorized the number because this person had called him many times before the crime. Detective Scannell's investigation established that the telephone number belonged to Wilson. Deveaux subsequently viewed a photographic array and identified Wilson as one of his attackers. Wilson was arrested on May 1, 2005, and the next day Deveaux identified him in a lineup as one of the men who had attacked him. Without objection from defense 6

1-08-0235 counsel, Detective Scannell testified that he spoke to Wilson and then began searching for the defendant. On May 5, 2005, Deveaux was shown a photographic array which included the defendant's photograph. Deveaux could not make an identification from the photographic array. However, the defendant was arrested on June 14, 2005. On June 15, 2005, Deveaux viewed a lineup and identified the defendant as one of his attackers. On cross-examination by defense counsel, Detective Scannell testified that on the day of the attack he interviewed Deveaux at the hospital. Deveaux told him that a man named "Little Mike" and two other men had attacked him. Deveaux said the two other attackers were each 5 feet 11 inches tall. Detective Scannell acknowledged that the defendant was in fact 6 feet 6 inches tall. Defense counsel also introduced into evidence a photograph of the lineup of June 15, 2005, in which Deveaux had identified the defendant as one of his attackers. Height markers in the photograph show that the defendant was the tallest man in the lineup, at 6 feet 6 inches, with the next two tallest men each being approximately 5 feet 11 inches tall. Defense counsel presented the testimony of Chicago police detective Richard Kelly, who was one of the police officers who investigated the crime. Detective Kelly testified that sometime in February, 2005, Deveaux alerted him that he had seen one of his attackers working at a Home Depot store. Deveaux told Detective Kelly that he was "100 per cent" certain of his identification of that man. Detective Kelly later learned that the man's name was Hedley. Deveaux also told Detective Kelly that he would never forget Hedley's face, as he believed that Hedley shot him as they were face to face during the struggle. However, at trial Deveaux testified that it was Wilson who shot him during the face-to-face struggle. Detective Kelly testified that, upon investigation, the police 7

1-08-0235 determined that Hedley could not have been one of Deveaux's attackers, because they had videotape evidence which conclusively established that Hedley had been at work at the Home Depot store at the time of the attack. Nonetheless, according to Detective Kelly's testimony, Deveaux continued to insist that he was "standing by" his identification of Hedley as the third man who attacked him. Testifying on his own behalf, the defendant admitted that he had been convicted of two prior felonies: possession of a stolen motor vehicle in 1994, and unlawful use of a weapon in 1995. He testified that he had not heard of the attack on Deveaux until he was arrested on June 15, 2005. He could not recall where he was on the day of the crime. He also admitted that he had given the police a number of different alibis. He had told the police that he had been at a family gathering; with his girlfriend; at his mother's house; and at a birthday party. The defendant admitted, under questioning by his own defense counsel, that although he had previously told the police that he did not know who Wilson was, in fact he knew Wilson "very well." During questioning by his defense counsel the defendant acknowledged having damaged teeth, thereby seeming to support the testimony of Deveaux that one of his attackers had damaged teeth. At the conclusion of trial, the defendant was convicted of attempted first degree murder and armed robbery, receiving consecutive prison terms for those respective offenses of 25 years and10 years. The defendant then filed this appeal from those convictions. ANALYSIS The defendant contends that his defense counsel at trial conducted his defense in such a manner as to deny him his constitutional right to the effective assistance of counsel. The standard which a defendant must meet in establishing such ineffective assistance of counsel as to require 8

1-08-0235 reversal of a criminal conviction is a high one. A two-pronged test is applied. First, the defendant must demonstrate that his trial counsel's representation was so unprofessional that it fell below an objective standard of reasonableness; then, the defendant must establish that he was prejudiced by this ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Hamilton, 361 Ill. App. 3d 836, 847, 838 N.E.2d 160, 170 (2005). Ineffective assistance of counsel is a contention that is often raised by defendants on appeal from a criminal conviction. The cases in which Illinois courts of review have found counsel to be ineffective, requiring reversal of a criminal conviction and remand for a new trial or a new evidentiary hearing on a postconviction petition, involve many different acts or omissions by trial counsel. As we have noted, this is a high standard and the facts of each case are different. Therefore, it has been useful to review all cases, decided in Illinois in the past two decades, in which the appellate court reversed criminal convictions and remanded the case for a new trial or remanded for a new evidentiary hearing on a postconviction petition, based on ineffective assistance of counsel. In the case before us, it is evident from the record that there is merit to the defendant's contention that his representation fell below an acceptable standard. Turning immediately to the defendant's assertion on appeal regarding the many instances of his trial counsel's ineffectiveness, we note that when defense counsel had completed his direct examination of the defendant, the following exchange occurred between defense counsel and the defendant: "Q. Mr. Baines [the defendant], is there anything else you'd like to add? 9

1-08-0235 A. It's a bunch of things I would like to add. Q. Okay. Well, start with one and then we'll go into that area. MS. GUDINO [assistant State's Attorney]: Objection THE COURT: Overruled. THE WITNESS: If you look on my sheet, my arrest report sheet where I made statements, I would like you to ask me questions off of there. THE COURT: Go ahead. MR. KAMIN: Thanks. All right." From this exchange it is clear that the defendant is guiding his defense counsel in how to conduct the direct examination in order to elicit relevant information. This is most unusual, as one would expect the lawyer to develop the strategy that guides the questions. However, the record in this case is replete with examples of unusual behavior by defense counsel. It was at this juncture that defense counsel elicited from the defendant a damning admission. Under questioning by defense counsel, the defendant admitted that although he had earlier told the police that he did not know Wilson, his alleged accomplice in the crime, in fact he knew Wilson "quite well." This evidence is clearly harmful to the defendant. And, a review of the record reveals that the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State's case. The defendant asserts, and argued strenuously during oral argument on appeal before this 10

1-08-0235 court, that defense counsel was "clumsy" in eliciting an admission from Deveaux that he (Deveaux) had misidentified an innocent man, Hedley, as the third man who attacked him. As the defendant points out on appeal, this was clearly an extremely important fact in attacking the strength of Deveaux's identification testimony. A review of the transcript confirms the defendant's assertion of an extremely clumsy cross-examination by defense counsel in which counsel clearly did not know the facts surrounding Deveaux's misidentification of Hedley as the third man who participated in the attack. Defense counsel asked many questions during this part of the trial but never clearly or unequivocally established the crucial point, which is the weakness of Deveaux's identification of the defendant. Although lengthy, it is useful to reproduce an excerpt of defense counsel's crossexamination of Deveaux in order to illustrate how it was conducted and the harm it caused the defendant. The following excerpt speaks for itself: "MR. KAMIN [defense counsel]: Mr. Deveaux, let's start with identifications. Now, let's see. You were shown photographs on January 30, 2005, right? A. I believe so. Q. And that was [Wilson], you identified [Wilson]? A. On this photograph, correct. Q. And you were shown about six photographs? A. I believe so. Q. And you were shown them one at a time? A. I don't recall. I don't think it was one at a time. I thought 11

1-08-0235 they were all on the same sheet. Q. But did you look at each one carefully? A. Yes. Q. Now, after you viewed a lineup with [Wilson] in it, you viewed another lineup, a physical lineup, correct? A. That's correct. Q. That was about in March[1] of 2005? A. I believe so. Q. And you said that person, that you were 100 percent sure that person had been involved in the robbery? A. I believe so. Q. Based on your identification the police did an

investigation of that person? MS. DAWKINS [assistant State's Attorney]: Objection THE COURT: Sustained. A. I don't know anything about that part. THE COURT: Wait for the next question. MR. KAMIN:

Defense counsel was apparently attempting to elicit testimony about when Deveaux saw a person named Hedley at a Home Depot store whom he believed to be one of his attackers. This actually occurred in February of 2005. Deveaux was never asked to identify Hedley in a lineup. 12

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1-08-0235 Q. You never learned of what the police had done after that? A. Not to my recollection, no. Q. Your identification, did you ever talk to them about that identification? MS. DAWKINS: Objection. THE COURT: Overruled. A. Did I ever talk to them about

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