People v. Mendez

• Decision Date: 05 November 1991
• Docket Number: No. 1-89-2620,1-89-2620
• Citation: 164 Ill.Dec. 321,221 Ill.App.3d 868,582 N.E.2d 1265
• Parties: , 164 Ill.Dec. 321 The PEOPLE of the State of Illinois, Respondent-Appellee, v. Rene MENDEZ, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 1265

582 N.E.2d 1265

221 Ill.App.3d 868, 164 Ill.Dec. 321

The PEOPLE of the State of Illinois, Respondent-Appellee, v. Rene MENDEZ, Petitioner-Appellant.

No. 1-89-2620.

Appellate Court of Illinois,

First District, Second Division.

Nov. 5, 1991.

Daniel J. Stohr, Chicago, for petitioner-appellant.

Jack O'Malley, State's Atty., Cook County, Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, of counsel), for respondent-appellee.

Justice HARTMAN delivered the opinion of the court:

Petitioner, Rene Mendez, was convicted by a jury of murder and attempted murder (Ill.Rev.Stat.1983, ch. 38, pars. 9-1(a), 8-4(a)) and sentenced to concurrent terms of 35 and 15 years in custody of the Department of Corrections. His conviction was affirmed on January 14, 1986, in an unpublished Rule 23 Order. (See People v. Trinidad (1st Dist.1986), 138 Ill.App.3d 1162, 104 Ill.Dec. 378, 502 N.E.2d 875 (unpublished order under Supreme Court Rule 23) ¹.) On July 23, 1987, he filed a petition pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.), which sought an evidentiary hearing. The circuit court dismissed the petition, concluding that there was insufficient evidence to warrant an evidentiary hearing. This appeal followed. Petitioner argues here that (1) his trial and appellate counsel provided ineffective assistance; (2) he was denied a fair trial due to the admission of evidence of his gang affiliation; and (3) he was prejudiced by an improper instruction for attempted murder.

The evidence adduced at trial revealed that on October 21, 1983, shortly after 10 p.m., several men were gathered on South Hermitage in Chicago when a car sped around a corner and proceeded toward them. As the car approached, one of the group shouted "Souls." Shots were fired from inside the car, killing one man and wounding another, and the car drove away.

Four members of the group testified at trial. Two of them, Daniel Gomez and Mario Garcia, gave eyewitness accounts of the incident, having seen the car and the shooters; they identified petitioner in court, and had previously identified him from both a photographic array and a lineup. The other two occurrence witnesses substantially corroborated the testimony regarding the shots fired from the passing car.

Chicago Police Detective Wayne Drish testified that codefendant, Henry Trinidad, made a post-arrest statement in which he explained that earlier on October 21, 1983, he and Ricardo Rodriguez (Kiki) were in a car when a man on the street flashed a gang sign at them. The man ultimately shot at the car, wounding Kiki. Chicago Police Detective David Jarmusz, a gang crimes specialist, testified over objection that two rival gangs, the Latin Souls and the Latin Saints, existed in the area of the shooting. Petitioner and Kiki were both members of the Latin Souls. The individuals in the group fired upon belonged to an organization known as the "D-Boys."

The issue raised in this appeal is whether the circuit court erred in dismissing petitioner's post-conviction petition without an evidentiary hearing.

A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment, the scope of which is limited to issues which have not been, and could not have been, previously adjudicated. (People v. Owens (1989), 129 Ill.2d 303, 307-08, 135 Ill.Dec. 780, 544 N.E.2d 276.) To secure an evidentiary hearing, petitioner must make a substantial showing that his constitutional rights were violated and the record or accompanying affidavits support the allegations in the petition. ( Owens, 129 Ill.2d at 308, 135 Ill.Dec. 780, 544 N.E.2d 276.) All well-pleaded facts in the petition and accompanying affidavits are to be taken as true. (People v. Caballero (1989), 126 Ill.2d 248, 259, 128 Ill.Dec. 1, 533 N.E.2d 1089.) Denial of an evidentiary hearing on a post-conviction petition will not be reversed absent an abuse of discretion. People v. Barr (1990), 200 Ill.App.3d 1077, 1081, 146 Ill.Dec. 815, 558 N.E.2d 778.

I.

Petitioner claims that he is entitled to a hearing because he was deprived of his right to effective assistance of counsel during his trial and direct appeal.

In a post-conviction proceeding, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived. (People v. Stewart (1988), 123 Ill.2d 368, 372, 123 Ill.Dec. 927, 528 N.E.2d 631.) Petitioner's arguments regarding trial counsel's representation were matters of record which could have been raised on direct appeal. These issues, therefore, have been waived. See People v. Jones (1985), 109 Ill.2d 19, 24, 485 N.E.2d 363, 92 Ill.Dec. 552, 485 N.E.2d 363.

Petitioner argues, nevertheless, that his trial counsel's joint representation of him and codefendant Trinidad was prejudicial in that it constituted a conflict of interest.

Ineffective assistance of counsel is established by showing that counsel's performance fell below an objective standard of reasonableness, and that but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674.) Joint representation of codefendants is not a per se violation of the right to effective assistance of counsel. (People v. Howard (1988), 166 Ill.App.3d 328, 332, 116 Ill.Dec. 767, 519 N.E.2d 982.) Generally, defendants who are jointly indicted are to be tried jointly unless a separate trial is necessary to avoid prejudice to one of them. (People v. Olinger (1986), 112 Ill.2d 324, 345, 97 Ill.Dec. 772, 493 N.E.2d 579.) Prejudice occurs in two recognized situations: first, when a hearsay admission of a codefendant implicates the other defendant, and second, when codefendants' defenses are so antagonistic that a severance is necessary to assure a fair trial. Olinger, 112 Ill.2d at 345-46, 97 Ill.Dec. 772, 493 N.E.2d 579; People v. Lee (1981), 87 Ill.2d 182, 187-88, 57 Ill.Dec. 563, 429 N.E.2d 461.

Petitioner at bar has alleged neither of the traditional forms of prejudice. Neither petitioner nor Trinidad testified or accused each other of participation in the crime. Their defenses were each based upon the State's inability to establish their identification beyond a reasonable doubt. Petitioner makes only general allegations of prejudice and relies upon People v. Horton (1979), 73 Ill.App.3d 9, 29 Ill.Dec. 235, 391 N.E.2d 498. Horton did not involve joint representation of codefendants, but held that defendant was denied effective assistance of counsel because his trial counsel had acted previously as an assistant state's attorney in defendant's case. (Horton, 73 Ill.App.3d at 15, 29 Ill.Dec. 235, 391 N.E.2d 498.) Nor did United States ex rel. Tonaldi v. Elrod (7th Cir.1983), 716 F.2d 431, hold that joint representation of codefendants is inconsistent with minimum standards of competent representation. That case reversed the district court's grant of habeas corpus relief, holding in part that the petitioner was aware of his attorney's possible conflict of interest, and knowingly and intelligently waived his right to counsel free from such conflict. Elrod, 716 F.2d at 437-39.

In this case, petitioner has not shown that an actual conflict of interest existed at trial. (See Howard, 166 Ill.App.3d at 333-35, 116 Ill.Dec. 767, 519 N.E.2d 982.) Further, neither petitioner nor Trinidad ever filed a motion for severance prior to trial. Even if not waived, therefore, petitioner's argument would fail because his defense counsel was not acting under a conflict of interest.

Petitioner's trial counsel was not ineffective for failing to locate and interview alibi witnesses. (See People v. Stepheny (1970), 46 Ill.2d 153, 158-59, 263 N.E.2d 83.) In such a case, petitioner must attach to his post-conviction petition affidavits showing the potential testimony of those witnesses and explaining its significance. (Barr, 200 Ill.App.3d at 1080, 146 Ill.Dec. 815, 558 N.E.2d 778.) Here, petitioner submitted his own affidavit, which attested to the truth of the contents of his petition. He also attached a copy of his amended answer to the State's motion for discovery, which stated that petitioner was with three named alibi witnesses at the time of the shooting. Without affidavits of the witnesses themselves, however, there is no evidence to support petitioner's allegations. (See Barr, 200 Ill.App.3d at 1080, 146 Ill.Dec. 815, 558 N.E.2d 778; People v. Smith (1985), 136 Ill.App.3d 300, 302, 91 Ill.Dec. 309, 483 N.E.2d 655.) Further, petitioner's counsel indicated that he was unable to locate any of the three witnesses. The conclusional statements in the petition, therefore, do not merit an evidentiary hearing.

Petitioner also argues that his trial counsel failed to contest evidence of his gang affiliation, object to an improper instruction for attempted murder, and suppress a prior statement made by petitioner. These arguments are meritless. The issues regarding petitioner's gang affiliation, as will be shown, are res judicata; even if they are not, the evidence adduced was properly admitted. The failure to object to the improper attempted murder instruction does not establish a reasonable probability that the result of petitioner's trial would have been different. Also, the decision to file a motion to suppress is a matter of trial tactics which seldom have any bearing on issues of incompetency of counsel. (People v. Purnell (1984), 126 Ill.App.3d 608, 624, 82 Ill.Dec. 87, 467 N.E.2d 1160.) Petitioner has not shown that such a motion would have been granted, nor that the outcome would have differed had it been granted. (See Purnell, 126 Ill.App.3d at 624, 82 Ill.Dec. 87, 467 N.E.2d 1160.) Finally, counsel's representation was not deficient at sentencing; he argued for the minimum sentence based upon petitioner's youth...