People v. Shamlodhiya

• Citation: 986 N.E.2d 204,2013 IL App (2d) 120065,369 Ill.Dec. 255
• Decision Date: 26 April 2013
• Docket Number: Docket No. 2–12–0065.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ashwani K. SHAMLODHIYA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120065

986 N.E.2d 204

369 Ill.Dec. 255

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Ashwani K. SHAMLODHIYA, Defendant–Appellant.

Docket No. 2–12–0065.

Appellate Court of Illinois,

Second District.

Feb. 26, 2013.

Rehearing Denied April 26, 2013.

Peter A. Carusona and Thomas A. Karalis, both of State Appellate Defender's Office, of Ottawa, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lawrence M. Bauer and Mary Beth Burns, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice HUDSON delivered the judgment of the court, with opinion.

¶ 1 I. INTRODUCTION

¶ 2 Following a jury trial in the circuit court of Du Page County, defendant, Ashwani K. Shamlodhiya, was convicted of first-degree murder and residential arson. Defendant filed a postconviction petition, raising a number of issues. See 725 ILCS 5/122–1 et seq. (West 2008). The trial court summarily dismissed the petition, and this court reversed ( People v. Shamlodhiya, No. 2–08–0449 (2007) (unpublished order under Supreme Court Rule 23)). Following remand, the trial court dismissed a number of defendant's claims following second-stage postconviction proceedings. See People v. Tate, 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100. One claim proceeded to the third stage (see id.), after which the trial court denied defendant's petition. Defendant now appeals, raising two issues. First, he contends that his attorneys' failure to disclose to him that they would not argue for the lesser included offense of involuntary manslaughter rendered him incapable of making a knowing decision regarding whether to seek a second-degree murder conviction in a bench trial (the trial judge believed second-degree murder would be an appropriate result). Second, he argues that during closing argument his attorney, without consulting him, effectively abandoned his request that the jury consider involuntary manslaughter. For the reasons that follow, we affirm.

¶ 3 II. BACKGROUND

¶ 4 The full factual background of this case is set forth in an earlier order ( People v. Shamlodhiya, No. 2–05–0200, 373 Ill.App.3d 1165, 348 Ill.Dec. 14, 943 N.E.2d 339 (2007) (unpublished order under Supreme Rule 23)), and we will not restate it here. Instead, as the issues defendant raises are somewhat narrow, we will set forth only those facts necessary to resolve these issues. Both issues pertain to trial counsel's closing argument.

¶ 5 In 2004, defendant was tried on several counts of residential arson and murder. He was found guilty of arson, but the jury could not arrive at a verdict on the various murder counts. The trial court declared a mistrial. The parties contemplated a bench trial on stipulated evidence. Subsequently, defendant was retried before another jury. During the instruction conference of the second trial, defense counsel requested the trial court to instruct the jury on involuntary manslaughter. Defendant participated in this decision. Defendant responded affirmatively when the trial court asked whether he wished to decline an instruction on second-degree murder. The trial court abided by defendant's wishes, giving the former instruction but not the latter.

¶ 6 During closing argument, defense counsel addressed involuntary manslaughter as follows:

“[The j]udge will give you the choice of looking at involuntary manslaughter and deciding whether or not that is the charge that [defendant] is truly guilty of.

I consider that a compromised verdict. This has been a trial of self defense. We started with self defense and we are ending with self defense, because that is the truth; and every piece of physical evidence from the hinges on the door to the money in the gas tank, the rice cooker to the fact that the cooker was plugged in supports [defendant's] version of what occurred; and that is self defense.

Now, the State may try to argue to you yet, but the evidence still supports involuntary manslaughter. They may argue, why don't you compromise? We are not asking you that. It's a case of self defense.

I don't want a compromised verdict, and I don't want first degree murder, because the State can't prove it.”

Defendant now contends that this argument amounted to an abandonment of his request that the jury consider the lesser included offense of involuntary manslaughter. He also contends that, had he known the details of this argument, he would have requested the trial court to conduct a bench trial on stipulated evidence and sought a conviction of second-degree murder.

¶ 7 During postconviction proceedings, Robert Miller, one of defendant's trial attorneys, testified that he spoke with defendant about whether to ask the trial court to instruct the jury on involuntary manslaughter. They, along with another attorney who was present (Thomas Ost), discussed the issue, and defendant decided to ask the trial judge to give that instruction. Miller further testified that it was not his intention to abandon the involuntary-manslaughter option during closing argument. If that had been his intent, he would have asked the trial judge to refrain from giving the instruction. Rather, his main goal was to seek a not-guilty verdict based on a self-defense theory. Miller characterized his decision as strategy. Miller believed that arguing for involuntary manslaughter would undermine the credibility of his attempt to secure a not-guilty verdict. Therefore, he tried to imply to the jury that it was the judge who had decided to tender the involuntary-manslaughter instruction. On cross-examination, Miller acknowledged that he told the jury that he did not want a compromised verdict (referring to involuntary manslaughter). Miller further acknowledged that he did not argue or attempt to show how the facts could support involuntary manslaughter. Furthermore, Miller did not discuss the details of his closing argument with defendant, including that he intended to refer to involuntary manslaughter as a “compromised verdict” and that he would not be arguing that the facts supported involuntary manslaughter. During redirect examination, Miller stated that he “felt to argue the involuntary manslaughter would have taken away everything I was arguing with regard to the self-defense.” In response to a question from the trial judge, Miller stated that he sought to give the jury the impression that the involuntary-manslaughter instruction came from the trial judge, because when jurors are attempting to compromise they do not wish to feel as if they are giving either side a benefit. During the second stage of postconviction proceedings, Miller had submitted an affidavit averring that it was his strategy to focus on securing an acquittal through self-defense while still allowing the jury to consider involuntary manslaughter.

¶ 8 Defendant also testified during postconviction proceedings. He stated that his attorneys never informed him of their intent to ask the jury to ignore the involuntary-manslaughter instruction. Rather, Miller told defendant that he would argue that defendant was guilty of involuntary manslaughter instead of first-degree murder. Defendant testified that, had he known that counsel would ask the jury to disregard the involuntary-manslaughter instruction, he would have accepted a bench trial on stipulated evidence in order to secure a conviction of second-degree murder. Defendant never consented to the withdrawal or abandonment of an involuntary-manslaughter instruction.

¶ 9 The trial court found that defense counsel did not discuss his closing argument with defendant or inform defendant that he intended to abandon the involuntary-manslaughter instruction. It further found that counsel's argument did not amount to a withdrawal of the involuntary-manslaughter instruction. Moreover, it noted that the manner in which counsel argued the case was a strategic decision. The trial court also found that defendant was not prejudiced by counsel's argument in that, given that the victim had suffered multiple blunt force injuries to the head, it was “highly improbable” that the jury would have returned a verdict of guilty of involuntary manslaughter, as that crime requires a reckless act.

¶ 10 III. ANALYSIS

¶ 11 Defendant raises two arguments on appeal. First, he contends that, had he known the content of trial counsel's closing argument, he would have chosen a bench trial on stipulated evidence where he would have been found guilty of second-degree murder (the trial court manifested its belief that second-degree murder would have been appropriate). Second, defendant contends that the argument constituted a withdrawal of the involuntary-manslaughter instruction and that whether to make such a withdrawal was a question only he could decide. The first issue comes to us following a dismissal during second-stage postconviction proceedings, so our review is de novo. People v. Pendleton, 223 Ill.2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). Regarding the latter issue, an evidentiary hearing was held. Therefore, to the extent that fact-finding and determinations of credibility are involved, we apply the manifestly-erroneous standard. People v. Beaman, 229 Ill.2d 56, 72, 321 Ill.Dec. 778, 890 N.E.2d 500 (2008). Under this standard, we will reverse a decision of the trial court only where it has committed plain, evident, and indisputable error. People v. Guerrero, 2012 IL 112020, ¶ 13, 357 Ill.Dec. 511, 963 N.E.2d 909. Where such considerations are not at issue, as on questions of law, we conduct our de novo review. Id. On such questions, we owe the trial court no deference and may freely substitute our judgment for that of the trial court. People v. Douglas, 2011 IL App (1st) 093188, ¶ 20, 356 Ill.Dec. 486, 961 N.E.2d 875. We now turn to defendant's first issue.

¶ 12 Defendant first argues that he would have pursued the bench trial on stipulated evidence had he known that counsel would abandon his request that...