People v. Krankel

• Decision Date: 11 April 1983
• Docket Number: No. 482-0296,482-0296
• Parties: , 69 Ill.Dec. 692 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. KRANKEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1379

447 N.E.2d 1379

113 Ill.App.3d 992, 69 Ill.Dec. 692

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. KRANKEL, Defendant-Appellant.

No. 482-0296.

Appellate Court of Illinois Fourth District.

April 11, 1983.

After Carr retained an attorney to commence divorce proceedings against the defendant, she admitted the crime to Detective Huston in Morton, and was prosecuted for forgery in Tazewell County. On cross-examination, she acknowledged that when she was first contacted by the police she denied any knowledge of her husband's burglary. She denied that her husband had been stuck in the mud near a river in Pekin, Illinois, on the night of July 30, and further denied striking a deal with the authorities in Tazewell County for her testimony against the defendant. She did not indicate how the police became aware of her involvement in the incident but stated that the police had wanted to talk to her as early as October of 1980. Carr explained that she did not want to talk to the police until January because she was pregnant and her parents did not want her to become involved until she delivered the baby. Ms. Carr admitted she had difficulty in serving the defendant in the divorce action, but denied that she had contacted the police so that their location of defendant would make it easier for her to serve him with process.

The State's final witness was Detective Huston. Huston stated that he was contacted by Sergeant Poynter of Peoria who received information from Kevin Carr, defendant's ex-brother-in-law, regarding the television set. Huston stated he talked to Carr and the Browns in January of 1981, and requested the Browns to file a report with McLean County authorities. On cross-examination, he admitted that when he first talked to Carr she denied any knowledge of where the card came from but stated that later she admitted forging the signature on the credit card draft.

This was all the evidence presented by the State. No evidence was offered by the defense.

The jury found the defendant guilty and he received an extended term sentence of 14 years to run consecutively to sentences defendant received in Peoria and Bureau Counties. No evidence was offered in defendant's behalf at his sentencing hearing.

The only claim of error argued by defendant which we consider is his contention that he was denied the effective assistance of counsel. Prior to sentencing, defendant filed a pro se post-trial motion which alleged that he was denied the effective assistance of counsel because of his appointed attorney's failure to investigate an alibi witness on his behalf. At a hearing on this motion, defendant stated to the court that five months prior to trial he informed his attorney of an alibi witness and contacted the witness to inform him that his attorney would be in touch. The trial court inquired of defendant's appointed counsel on the validity of this claim:

"THE COURT: All right.

In ruling on the post-trial motion--or prior to ruling on it, is there anything you wish to say, Mr. O' Rourke with respect to the alleged alibi?

MR. O'ROURKE: I did not talk to the man, Judge. That is all I would say. I did not talk to the man, I was never able to contact him.

MR. KRANKEL: That witness was in business in Pekin, Illinois, Tazewell Towing Co. it wasn't just an individual.

THE COURT: Is there any indication, Mr. O'Rourke of the time you were notified as to the existence of this gentleman in Pekin?

MR. O'ROURKE: I assume what Mr. Krankel says is correct.

MR. KRANKEL: It was on our first meeting.

MR. O'ROURKE: I don't remember Judge, what the exact chronology of the events were.

MR. KRANKEL: And, Your Honor, I believe one of your conditions in your considering of that is if it is, in fact, new evidence or original evidence--it is original evidence, it is not new evidence--the attorney was informed. I even made a call from the County Jail to the witness."

The trial court denied the defendant's pro se motion for a new trial. We reverse.

Arguing in favor of the trial court's ruling, the State responds that counsel's decision of whether to call an alibi witness was a matter of trial strategy not amounting to ineffective assistance of counsel. The State also contends that defendant has presented insufficient proof of the identity of the alibi witness and his alleged testimony. We disagree.

The test for determining whether a defendant has been deprived of the effective assistance of counsel guaranteed under both the United States Constitution and the Illinois Constitution (U.S. Const. amends. VI, XIV; Ill. Const.1970, art. I, sec. 8), is whether the defendant's appointed counsel is actually incompetent as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice without which the outcome of the trial would probably have been different. People v. Greer (1980), 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203; People v. Royse (1982), 107 Ill.App.3d 326, 63 Ill.Dec. 30, 437 N.E.2d 679; People v. Reynolds (1982), 105 Ill.App.3d 698, 61 Ill.Dec. 421, 434 N.E.2d 776; People v. Robinson (1979), 70 Ill.App.3d 24, 26 Ill.Dec. 284, 387 N.E.2d 1114; People v. Elder (1979), 73 Ill.App.3d 192, 29 Ill.Dec. 140, 391 N.E.2d 403.

In Greer, the supreme court indicated that "[t]he failure to interview witnesses may indicate actual incompetence [citation], particularly when the witnesses are known to trial counsel and their testimony may be exonerating [citation]." (79 Ill.2d 103, 123, 37 Ill.Dec. 313, 322-23, 402 N.E.2d 203, 212-13.) Despite counsel's failure to interview the witnesses in Greer, the supreme court found no reversible error because defendant had not pointed to any favorable testimony the witnesses would have produced, and did not demonstrate any prejudice without which the trial would have been different. In Greer, it was clear that the witness whom defendant wished his counsel would have interviewed would have been unable to give any favorable testimony toward establishing any viable defense.

In People v. Howard (1979), 74 Ill.App.3d 138, 30 Ill.Dec. 120, 392 N.E.2d 775, the appellate court held that appointed counsel's failure to discover psychiatric records of a defendant who was on trial for aggravated battery, and whose only defense was insanity, amounted to ineffective assistance of counsel which resulted in substantial prejudice to the defendant. There, the records at issue came to light only after defendant was convicted at trial and revealed that she had previously been committed to a mental institution for committing a similar aggravated battery. The appellate court indicated that defense counsel's failure to introduce any evidence of insanity at trial and the failure to discover the records to offer at defendant's competency hearing substantially prejudiced the accused. As in Howard, here the undiscovered evidence was crucial to the only defense available and no other evidence was offered on behalf of the defendant. The Howard court noted that the records discovered after trial contradicted the expert's opinion relied upon by the trial court in determining defendant's competency to stand trial. Here, the prejudice to the defendant is similar. The only witness able to contradict Carr's testimony was the defendant's alibi witness, and Carr was the only witness whose testimony connected defendant with the burglary.

In Howard, defendant's counsel admitted his failure to investigate evidence crucial to the defendant's only possible defense. Here, counsel's admitted failure to investigate the witness, in light of the evidence against defendant, cannot be said to be insignificant and without prejudice to him. Although it is true that the substance of the alibi testimony may not exist or be true, this at least should have been a matter to be verified by trial counsel. According to the defendant, the witness was the operator of a tow-truck service in Pekin, Illinois, and had been contacted by him prior to trial. On cross-examination, Kelly Carr denied that her ex-husband was stuck in the mud along a river near Pekin on the night of July 30, 1980. The tow-truck operator, if defendant's statements are believed, could have testified that defendant's vehicle was being freed from the mire on the date of the alleged burglary. We disagree with the State's argument that defendant failed to identify the witness, or the nature of the testimony. Compare People v. Tate (1981), 94 Ill.App.3d 192, 50 Ill.Dec. 54, 418 N.E.2d 1048.

We do not agree that counsel's failure to investigate the witness was a matter of trial strategy. The cases relied upon by the State for the proposition that errors in judgment or trial strategy, such as the decision of whether to call or not to call a witness, do not amount to ineffective assistance of counsel are inapposite. (See People v. Witherspoon (1973), 55 Ill.2d 18, 302 N.E.2d 3; People v. Elder (1979), 73...