People v. Elam
| Decision Date | 05 November 2018 |
| Docket Number | No. 1-15-3205,1-15-3205 |
| Citation | 2018 IL App (1st) 153205 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEANINE ELAM, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
Honorable Thomas V. Gainer, Jr., Judge Presiding.
¶ 1 Held: Defendant made a substantial showing, sufficient to survive a motion to dismiss, that her privately retained trial counsel was ineffective for failing to call the only witness who would have corroborated her defense at trial, so we remand for a third-stage evidentiary hearing on that issue. But defendant failed to show that any of the remaining claims in her pro se postconviction petition had merit, so we affirm the circuit court's dismissal of those claims.
¶ 2 Defendant Jeanine Elam appeals from the circuit court's dismissal of her petition for relief pursuant to the Post-Conviction Hearing Act (735 ILCS 5/122-1 et seq. (West 2014)) at the second stage of proceedings. On appeal, Ms. Elam contends that (1) the circuit court's dismissal of her petition should be reversed because she made a substantial showing that she received ineffective assistance of trial counsel, based on counsel's failure to call the only witness who could have supported Ms. Elam's claim of self-defense, and (2) her petition should be remanded for new second-stage proceedings on her other claims of trial court error because she received unreasonable assistance when postconviction counsel failed to amend the petition to include a claim of ineffective assistance of appellate counsel and thereby avoid forfeiture of the remaining issues in her petition. For the following reasons, we affirm in part and reverse in part. We agree with Ms. Elam that she is entitled to an evidentiary hearing on her claim that she received ineffective assistance of trial counsel in the failure to call a witness that could have corroborated significant aspects of her defense. We agree with the State that the trial court properly dismissed Ms. Elam's other claims of trial court error.
¶ 4 Ms. Elam was convicted of first degree murder and unlawful use of a weapon by a felon. She was found to have personally discharged a firearm that proximately caused the death of James Taylor on July 25, 2005. We summarized the evidence in detail in our order affirming her conviction on direct appeal (People v. Elam, No. 1-07-0980 (2009) (unpublished order under Supreme Court Rule 23)) and summarized it again in our reversal of the trial court's dismissal of Ms. Elam's postconviction petition at the first stage of proceedings (People v. Elam, 2012 IL App (1st) 101486-U). We briefly restate those facts relevant to this appeal.
¶ 6 On July 25, 2005, a fight began in the alley near Ms. Elam's house between Ms. Elam's neighbor, Ifeamyi Odum, and several members of the Four Corner Hustlers street gang, including the victim, James Taylor. Ms. Elam, Ifeamyi's brother Charles, the Odums' mother, Ms. Elam's mother Vertenna Elam (who we will refer to as Vertenna), and Ms. Elam's auntMary Baker, were all present for part or all of the fight. During the fight, Ms. Elam drew a gun, and shot Mr. Taylor twice. At that point, everyone dispersed and Ms. Elam disguised herself and hid. Within hours, however, she called the police and turned herself in. Later that day, Mr. Taylor died from his injuries.
¶ 7 The dispute at trial centered on what happened before the shooting and whether Mr. Taylor was one of the aggressors. The State's theory of the case was that Mr. Taylor was trying to break up the fight when Ms. Elam approached him with a gun and shot him. The defense theory was that Ms. Elam shot Mr. Taylor in self-defense, to protect herself and her mother from the retaliation that Mr. Taylor threatened her with during the fight and that the gang had threatened her with when, several days earlier, she stood up to the gang leader.
¶ 9 The State's witnesses included Reverend Robin Hood who was driving by at the time of the fight. The reverend testified that he stopped his car about 15 to 20 feet away from the fight and saw Mr. Taylor and a woman trying to break up the fight. Reverend Hood said that he then saw Ms. Elam approach the fight holding a gun, extended out, and pointing the gun between Mr. Taylor and the other two young men. He heard her say "get your hands off of my mother," then saw her fire the gun. Reverend Hood stated that at least three shots were fired, and that by the time the second shot was fired, he could tell Mr. Taylor had been hit somewhere in the "head area."
¶ 10 The State also called Ralph Sewell, who was a member of the Four Corner Hustlers street gang. Mr. Sewell testified that the fight involved "four guys on the sidewalk," including Ifeamyi and Charles Odum. He did not recognize the other two individuals. As Mr. Sewell moved closer to the fight, he saw Ms. Elam's mother, the Odums' mother, and Mr. Taylor trying to break it up. Mr. Sewell testified that he then heard Ms. Elam say Mr. Sewell was five to ten feet away from Ms. Elam, and saw her pull a handgun from her purse. She fired once at Mr. Taylor while Mr. Taylor was facing her, then "just continued to shoot" as Mr. Taylor tried to turn and run. The second time Ms. Elam fired the gun, she shot Mr. Taylor in the side of the head.
¶ 12 At the time of the shooting, Ms. Elam had difficultly moving as the result of a prior severe car accident and, on a separate occasion, being pushed down the stairs—by her ex-boyfriend, a fact which was revealed by the pre-sentence investigation report. As Ms. Elam explained at trial, she had eight screws and a plate in her right ankle, six screws and a plate in her left ankle, a rod from her knee to her hip, and "three plates, twelve screws and wires in [her] face." She was not able to run or sprint, but, according to her testimony, could "limp pretty fast."
¶ 13 The defense witnesses included Ms. Elam's mother Vertenna, Ifeamyi Odum, and Ms. Elam herself. The defense account begins four days before the shooting. Ms. Elam testified that on, July 21, 2005, she and her cousin, "Deloco," approached Ralph Sewell in an attempt to diffuse a situation between Deloco and the Four Corner Hustlers street gang. Before she started talking to Mr. Sewell, however, Chavez—who Ms. Elam testified was the head of the Four Corner Hustlers—interrupted and "muff[ed]" Ms. Elam on her face, meaning he grabbed her head with his hand and pushed her. In response, Ms. Elam sprayed him in the face with pepper spray. Ms. Elam testified that as she started walking to her car that day, Chavez said "I'm fixing to shoot you, B****." Mr. Sewell pulled a gun from underneath his shirt and tried to hand it to Chavez, but another individual, "KC," grabbed the gun and said not to shoot Ms. Elam. Ms. Elam got into her car, but was blocked in by a truck and a van. A bunch of men got out of the van, Chavez said, "get that b****, pull her out." Then, as Ms. Elam maneuvered her car to escape, Chavez punched in the driver-side window as Mr. Taylor and "Church Boy" threw glassbottles at her car. Ms. Elam's mother Vertenna testified that she saw Chavez punch out the driver-side window of the car with his fist while Ms. Elam was "trying to get away." Ifeamyi did not see the incident but saw that Ms. Elam's car window was damaged. Ms. Elam testified that after the incident on July 21, she bought a gun to protect herself and hid at her cousin's house. She returned to her mother's house on July 23 to see if "everything had died down," but saw Mr. Taylor, Church Boy, and Fame, "[g]iving [her] real dirty looks" and pointing. She then returned to her cousin's house where she stayed that night and the following night. She returned to her home just before the incident on July 25 and she was standing in the alley behind her house when the fight began.
¶ 14 Vertenna, Ms. Elam's mother, testified that she was inside her house with Ms. Elam's aunt, Mary Baker, when the fight began. They saw three men, including Mr. Taylor, attacking Ifeamyi. They stepped out onto their front porch and the fighting stopped. Ifeamyi then walked toward his own home, which was a few houses south on the same side of the street. Vertenna stated that two of the three men immediately followed Ifeamyi, but Mr. Taylor stayed behind for a minute and said something that Vertenna did not hear to Ms. Elam, who was standing outside. Mr. Taylor then followed the other two men who were going after Ifeamyi. Vertenna testified that she told Ms. Elam to stay on the porch as she and Ms. Baker followed the men to the Odum house.
¶ 15 Ifeamyi testified that when they were in front of his house, his brother Charles was attacked by Fame, Church Boy, and Mr. Taylor, but that Ifeamyi was no longer a part of the fight. Vertenna's recollection was that Ifeamyi was attacked again in front of his house, and she testified that Charles and the Odums' mother were also attacked.
¶ 16 Ms. Elam testified that Mr. Taylor threatened her by saying "You next bitch," before following the other two gang members to the front of the Odum house. After her mother and auntwent to the Odums', Ms. Elam left her porch and followed the others. At that point, she saw Mr. Sewell coming toward her "with a few other guys." Ms. Elam explained: She testified that she did not intend to shoot Mr. Taylor but that she was shaking so bad that the gun accidentally went off....
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