People v. Bone
| Citation | 506 N.E.2d 1033,154 Ill.App.3d 412,107 Ill.Dec. 142 |
| Decision Date | 10 April 1987 |
| Docket Number | No. 3-86-0243,3-86-0243 |
| Parties | , 107 Ill.Dec. 142 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven BONE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Robert Agostinelli, Deputy Defender, Office of the State Appellate Defender, Ottawa, Karen Munoz, Asst. Defender, Office of State Appellate Defender, Springfield, for Steven Bone.
John A. Barra, State's Atty. of Peoria County, Peoria, Rita Kennedy Mertel, States' Attys. Appellate Prosecutor, Ottawa, for people.
The petitioner, Steven Bone, was convicted of murder, felony murder, and two counts of armed robbery. (Ill.Rev.Stat.1979, ch. 38, par. 9-1(a)(2), 9-1(a)(3) and 18-2.) On direct appeal, this court vacated the felony murder conviction and remanded the case for resentencing. On resentencing, the trial court imposed concurrent sentences of 40 years for murder and 20 years for armed robbery. This court affirmed the sentences.
The petitioner then filed a pro se petition for post-conviction relief. The trial court ordered that counsel be appointed to represent the petitioner and gave defense counsel 45 days to file an amended petition. Following a hearing on the petition, the court granted the State's motion to dismiss the post-conviction petition. The petitioner appeals the order of dismissal.
On appeal, the petitioner first argues that he was denied effective assistance of counsel when his attorney, in his closing argument, conceded the petitioner's guilt of felony murder and armed robbery. Further, the petitioner contends that his appellate counsel was also ineffective in not raising the issue on direct appeal.
The record shows that the petitioner pleaded not guilty to all of the charges. The State's evidence, presented in part through the testimony of one eyewitness and the stipulated testimony of two other eyewitnesses, showed that the petitioner walked into a gas station, shot and killed an attendant without provocation, then demanded that the other attendant give him the money in the cash registers. The State also presented evidence that the weapon belonged to the petitioner and that the petitioner was in the immediate vicinity of the station before and after the offenses.
After the State rested its case, the petitioner expressly refused to take the witness stand, despite his counsel's advice that he should testify. The petitioner confirmed his decision to the judge out of the presence of the jury. Having no witnesses, the defense rested its case.
During closing arguments, defense counsel argued at length that the evidence left a reasonable doubt regarding whether the petitioner had shot the attendant intentionally or accidentally. The essence of counsel's argument was that the State had not proved the intent element necessary to convict the petitioner of murder. While making this argument, which defense counsel repeatedly stated was limited to the murder charge, counsel said, "Well, you heard the evidence and I heard the evidence, and I certainly would agree that he did perform the acts that caused the death of [the victim]."
The petitioner's attorney made no arguments or admissions specifically regarding the felony murder and armed robbery charges. The petitioner argues, however, that the quoted statement admitted by implication the petitioner's guilt of felony murder and armed robbery.
Our analysis of this case proceeds from People v. Hattery (1985), 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513. In Hattery, the defendant was charged with murder and pleaded not guilty. Nonetheless, the defendant's trial counsel admitted during his opening statement that the defendant had done everything the prosecution alleged in its opening statement. The defense counsel went so far as to state that the defense was not asking the jury to find the defendant not guilty and that in fact the jury would find him guilty. During the trial, the defense counsel advanced no theory of defense, presented no evidence, and made no closing argument. Instead, counsel attempted to show through cross-examination that the defendant had murdered three people because he believed a co-defendant would have murdered the defendant's family if he did not do so.
On appeal, the defendant argued that he received ineffective assistance of counsel. The Illinois Supreme Court first noted the traditional test for determining ineffective assistance of counsel claims as set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under the Strickland test, a defendant must show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different.
The Hattery court went on to find, however, that some acts of counsel are so likely to prejudice the accused that prejudice will be presumed. In this category, the court included a defense counsel's failure to subject the prosecution's case to meaningful adversarial testing, thus denying the defendant his Sixth Amendment rights and making the adversarial process itself presumptively unreliable. 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513, citing United States v. Cronic (1984), 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668.
The Hattery court then stated that in the case at bar the defense attorney's concession of the defendant's guilt was unequivocal. Further, the court stated that the defendant's counsel had, in fact, offered no defense since compulsion was not a defense to an offense punishable by death, but was only a possible mitigating factor which might preclude imposition of the death penalty. The defense counsel's trial strategy, said the court, was totally at odds with the defendant's earlier plea of not guilty. There was no evidence that the defendant had consented to his attorney's strategy; and such consent would not be presumed from a silent record. Accordingly, concluded the court, even when no theory of defense was available, given the decision to stand trial, counsel must hold the prosecution to its heavy burden of proof beyond a reasonable doubt. Counsel could not concede his client's guilt in hope of obtaining a more lenient sentence where a plea of not guilty had been entered, unless the record adequately showed that the defendant knowingly and intelligently consented to his counsel's strategy. The court held that such a concession by counsel was per se ineffective assistance of counsel. 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513.
In Hattery, the Illinois Supreme Court delineated a per se exception to the general case-by-case analysis set forth in Strickland. Problems and abuses could stem from this exception if it were to be too loosely applied. For instance, a defense counsel who had conducted a completely adversarial trial could see that the State had a particularly strong case. During closing arguments, such counsel, while essentially arguing that the...
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