People v. Murphy
| Docket Number | 4-20-0565 |
| Decision Date | 09 June 2022 |
| Citation | 2022 IL App (4th) 200565 U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIOTT T. MURPHY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Macon County No. 09CF1471 Honorable Jeffrey S. Geisler, Judge Presiding.
ORDER
KNECHT PRESIDING JUSTICE.
¶ 1 Held: The trial court did not err in finding defendant's postconviction petition was frivolous and patently without merit where defendant failed to present the gist of a constitutional claim of ineffective assistance of appellate counsel.
¶ 2 In April 2017, at his second jury trial, a jury found defendant, Elliott T. Murphy, guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) and attempt (first degree murder) (Id. §§ 8-4(a), 9-1(a)(1)).
¶ 3 In August 2020, defendant filed a petition for postconviction relief, alleging, in part, his appellate counsel was ineffective for failing to raise a claim under Batson v. Kentucky, 476 U.S. 79 (1986), on direct appeal. The trial court dismissed defendant's petition as frivolous and patently without merit.
¶ 4 On appeal, defendant argues the trial court erred in dismissing his postconviction petition where he presented the gist of a claim appellate counsel provided ineffective assistance when she failed to bring his viable claim under Batson on direct appeal. We disagree and affirm.
¶ 6 This court has set forth the underlying facts of this case on defendant's direct appeals. See People v Murphy, 2022 IL App (4th) 200249-U; see also People v. Murphy, 2019 IL App (4th) 170646, 145 N.E.3d 56; People v. Murphy, 2013 IL App (4th) 111128, 990 N.E.2d 815. Accordingly, we will set forth only those facts necessary to resolve the issue presented in this case.
¶ 8 In September 2009, the State charged defendant and several other persons with first degree murder (720 ILCS 5/9-1 (a)(1) (West 2008)), attempt (first degree murder) (id. §§ 8-4(a), 9-1 (a)(1)), aggravated battery (id. § 12-4(a)), robbery (id. § 18-1), and mob action (id. § 25-1 (a)(1)). The charges arose out of two incidents that took place in Decatur on August 24, 2009, when defendant was 16 years old. In the first incident, a group of teenage boys, including defendant battered and fatally injured Jerry Newingham near 540 West Sawyer Street. The second incident occurred shortly thereafter, in which they battered and severely injured Kevin Wilson in nearby Garfield Park. Because defendant was 16 at the time of the attacks and hence, was over the statutory age of 15, the State prosecuted him in adult criminal court pursuant to section 5-130(1) (a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-130(1) (a) (West 2008)). ¶ 9 After a trial, the jury found defendant guilty of both first degree murder and attempted murder. Defendant appealed his convictions. On appeal, this court concluded defendant was entitled to summary reversal and a new trial due to "trial counsel's per se conflict of interest in contemporaneously representing defendant and [a witness]" during the pretrial phase of defendant's case. Murphy, 2013 IL App (4th) 111128, ¶ 79.
¶ 11 In April 2017, on remand, the trial court conducted defendant's second jury trial. The jury venire consisted of 34 potential jurors. The precise racial makeup of the venire is unknown. Potential jurors were examined in groups of 14.
¶ 13 During examination of the first group, the trial court listed the potential witnesses. Potential juror Palmer stated she "might" know defendant's family and she knew some of the potential witnesses or their parents. Palmer explained she knew the parents of witnesses Brian Armour Malcom Spence, and Martin Wheeler, but she did not think it would affect her ability to act as a juror. When asked if she would "have to explain [her] verdict in any way to anybody," Palmer responded, "Yes." Palmer clarified she "wouldn't want any hard feelings," but agreed she could "put that aside and *** just decide the case on the evidence." Palmer further clarified when examined by the State she would need to explain her verdict to defendant's mother if she ran into her and it would "make [her] uncomfortable," but Palmer also stated it "would not impact [her]."
¶ 14 Prospective jurors DeVivo, Knierim, and Waller disclosed they were "casual acquaintances" with some of the witnesses.
¶ 15 The State asked prospective jurors whether, due to defendant's age, they would "hold the state to a higher standard of proof than beyond a reasonable doubt." Prospective juror Allen responded "Yes." The following colloquy occurred:
Prospective juror Palmer stated she knew how easily her 14-year-old son had been influenced by friends and responded affirmatively she would hold the State to a standard higher than beyond a reasonable doubt. All other jurors responded negatively.
¶ 16 The State asked prospective jurors, "Have you, a close friend or family member ever been accused of a violation of the law?" Seven of the fourteen jurors responded affirmatively but agreed the incidents would not influence them during trial.
¶ 17 The State asked the panel, "Is there anything about you that would cause you hesitancy in judging the conduct of another person?" Juror Allen responded, "Not really." The State asked, "When you say, 'not really,' is that-are you iffy on that?" and Allen responded, "Yes." Juror Helm responded, "I can't 100 percent be sure" but agreed at the end of trial he would be able to determine whether defendant was guilty or not guilty.
¶ 18 After examination, two jurors were removed for cause. The State used peremptory challenges on jurors Allen, Helm, and Palmer. Allen and Palmer were Black. The defense used three peremptory challenges.
¶ 20 The examination of the second panel continued similarly to the first. Two jurors were dismissed for cause prior to full examination.
¶ 21 When asked if they were acquainted with any potential witnesses or parties, jurors Burkham and Walker responded affirmatively. Burkham explained he was casually acquainted with several police officers listed as potential witnesses through his work. Walker explained he was a casual acquaintance of witness Brian Armour. Walker had also been introduced to defendant's mother through his father, who worked with defendant's mother.
¶ 22 The State again asked prospective jurors whether, due to defendant's age, they would "hold the state to a higher standard of proof than beyond a reasonable doubt." Juror Slemp responded "Maybe." He clarified he was "concerned" because "[k]ids make stupid mistakes" and he was "struggling with it morally." Juror Walker asked for clarification as to the State's use of the term "allegedly committed" but ultimately responded he would not hold the State to a higher standard. Juror Burg stated she would have "a little harder time with it" and stated she "wouldn't like it, *** it's just [she] would have to do that."
¶ 23 The State also asked prospective jurors, "Have you, a close friend or family member ever been accused of a violation of the law?" Eight of the jurors responded affirmatively. As to juror Taylor, she explained her son Taylor agreed her son was treated "fairly and professionally" by the police. As to juror Walker, he stated he had a cousin in prison for armed robbery, but he did not attend court and did not believe Assistant State's Attorney Nichole Kroncke was involved in the case. All other jurors who responded affirmatively agreed the incidents would not influence them during trial.
¶ 24 The State asked the panel, "Is there anything about you that would cause you hesitancy in judging the conduct of another person?" All the jurors on the panel answered negatively. After juror Taylor responded negatively, the State asked, and Taylor responded,
¶ 25 Two more jurors were removed for cause after examination. The State moved to use a peremptory challenge to remove juror Taylor, and defense counsel stated, "I'm starting to see a pattern here of them striking all black jurors." The trial court requested defense counsel make a prima facie case for a Batson challenge, and defense counsel argued the State had used three peremptory strikes to remove Black jurors. The court asked the State to give a race-neutral reason for excluding potential jurors Allen, Palmer, and Taylor.
¶ 26 As to juror Palmer, the State explained," [S]he knew the defendant's mother. She said she would feel uncomfortable serving on a jury and she may know the parents of two of the witnesses." As to juror Allen, the State explained juror Allen ...
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