People v. Whiting, 2-05-0306.

Citation849 N.E.2d 125
Decision Date17 May 2006
Docket NumberNo. 2-05-0306.,2-05-0306.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cindi WHITING, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michelle L. Moore, Law Office of Michelle L. Moore, Wheaton, for Cindi Whiting.

Louis A. Bianchi, McHenry County State's Attorney, Woodstock, Martin P. Moltz, Deputy Director, Cynthia N. Schneider, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

This appeal results from defendant Cindi Whiting's conviction on an aggravated battery indictment. The trial court denied defendant's posttrial motion for a new trial. Defendant has raised the issue of ineffective assistance of trial counsel, arguing her trial counsel overbore her decision to testify on her own behalf at trial. Accordingly, defendant claims she was deprived of her constitutional right to testify on her own behalf. Defendant asserts she did not knowingly and voluntarily waive her right to testify, and there is nothing in the record indicating the trial court either admonished defendant about her right to testify or inquired of her if she knowingly and voluntarily waived her right to testify on her own behalf regardless of any advice given to her by her counsel.

For the reasons stated below, we determine that defendant did not receive the effective assistance of counsel, and we determine defendant was prejudiced, because the error was not harmless beyond a reasonable doubt. We reverse the trial court's denial of defendant's motion for a new trial, vacate the judgment of conviction, and remand the case to the trial court for a new trial.

Defendant's indictment was a by-product of an incident that involved defendant's son and local police a day or two before Department of Children and Family Services (DCFS) employee Mary Anne Zimmer arrived at defendant's home on the late morning of February 22, 2004. Defendant's husband answered the door and allowed Ms. Zimmer entrance into the house, after Ms. Zimmer identified herself as an investigator for DCFS. Ms. Zimmer removed her boots and proceeded up the stairway of the house to look for defendant's 16-year-old son. Ms. Zimmer also asked to see defendant's younger daughter.

The testimony of the prosecution and defense witnesses differed considerably at trial. The State's primary witness, Ms. Zimmer, indicated that she entered defendant's son's room and that defendant was agitated and told her son not to speak with Ms. Zimmer. Ms. Zimmer testified that defendant pushed her out of the bedroom and told her to get out of the house. Ms. Zimmer further stated that defendant followed Ms. Zimmer down the staircase, while pushing Ms. Zimmer. Ms. Zimmer testified that, as she was putting on her boots, defendant was verbally and physically aggressive toward her and grabbed her face and her elbow to push her out the door.

Two witnesses were called to testify on behalf of defendant. Defendant's husband, who was present throughout the entire encounter between defendant and Ms. Zimmer, contradicted the testimony of Ms. Zimmer by testifying that it was Ms. Zimmer who initially raised her voice and that Ms. Zimmer started jabbing her finger at defendant while all the parties were in the son's bedroom.

Defendant's husband also stated he and defendant had asked Ms. Zimmer as many as 12 times to leave the residence. Defendant's husband testified that defendant never pushed Ms. Zimmer while in the bedroom. Defendant's husband said that Ms. Zimmer threatened defendant that defendant was going to be arrested because of her actions. Finally, defendant's husband indicated that Ms. Zimmer continued to shout at defendant while Ms. Zimmer was beginning her exit from the residence and that defendant had not touched Ms. Zimmer at any time.

Defendant's 16-year-old son also testified. His testimony in large measure corroborated the testimony of defendant's husband. In particular, he testified that he promised his mother that he "would plead the fifth." Defendant's son testified that he did not see defendant push or shove Ms. Zimmer while they were in his room. He added that he did not see defendant shove Ms. Zimmer at the entryway to the home, either.

The case was presented to a jury, the jury returned a guilty verdict, and the court entered judgment thereon. Within a month after the trial and prior to sentencing, defendant obtained the services of new counsel, who filed a motion for a new trial and a subsequent amended motion for a new trial. The amended motion for a new trial included the assertion that defendant had expressed to her trial counsel her desire to testify on her own behalf and to tell her own version of the events on the date of the alleged offense. Defendant's amended motion stated that her trial counsel had advised her that she could not testify on her own behalf at trial.

Defendant, according to the amended motion for a new trial, indicated that she was unaware of her constitutional right to present testimony on her own behalf, in light of her counsel's insistence that she could not testify. Defendant accordingly argued in her amended motion that she had not knowingly or voluntarily personally waived her right to testify on her own behalf to rebut the testimony of Ms. Zimmer. Defendant's motion argued that her trial counsel's actions in preventing her from testifying contributed to a deprivation of her right to effective assistance of counsel, as guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV).

On February 22, 2005, the trial court considered defendant's uncontroverted testimony relative to her amended motion for a new trial, which included her claim of ineffective assistance of counsel, particularly as it pertained to her desire to testify on her own behalf at trial. Defendant claimed that she had wanted to testify, that she had practiced her testimony with her counsel before trial, and that she had continued to inform her counsel that she wanted to testify on her own behalf. Despite that, she said, her counsel told her that she could not testify at trial. Defendant further indicated that she did not personally make an objection when her counsel advised the court that the defense had no further witnesses, because it was her understanding that she could not speak directly to the court while being represented by counsel. In effect, defendant understood that she had a right to testify, but only if her counsel would allow her to testify.

The trial court, after considering the uncontroverted evidence and allegedly following People v. Smith, 176 Ill.2d 217, 223 Ill.Dec. 558, 680 N.E.2d 291 (1997), found that the decision not to have defendant testify was a strategic decision in which defendant concurred and that defendant had waived her right to testify. See People v. Smith, 176 Ill.2d 217, 223 Ill.Dec. 558, 680 N.E.2d 291 (1997) (inter alia, the right to testify was raised for the first time on appeal and was deemed waived for failure to raise the issue in a postsentencing motion in the trial court). Additionally, the trial court found that, by failing to make a contemporaneous assertion of her right to testify at the time of trial, defendant waived her right to contest a waiver of her right to testify. Accordingly, the trial court found that there was no sixth amendment violation and that defendant's counsel's performance was not deficient and that defendant was not prejudiced by any deficiencies in her counsel's performance. Thus the trial court never considered whether prejudice to defendant's constitutional rights arose, having determined there was no violation of the right to testify.

The trial court denied the amended motion for a new trial and proceeded to sentencing, sentencing defendant to 18 months' probation, with fines, assessments, and counseling and related requirements. Defendant filed a timely notice of appeal, pursuant to Illinois Supreme Court Rule 604(b) (Official Reports Advance Sheet No. 4 (February 16, 2005), R. 604(b), eff. February 1, 2005).

The standard of review for determining whether an individual's constitutional rights were violated is de novo. People v. Carini, 357 Ill.App.3d 103, 113, 293 Ill.Dec. 134, 827 N.E.2d 1015 (2005). However, because this is a direct appeal from an evidentiary hearing, we review the findings of fact to determine if they are against the manifest weight of the evidence.

"`In a bench trial, the trial court must weigh the evidence and make findings of fact. In close cases, where findings of fact depend on the credibility of witnesses, it is particularly true that a reviewing court will defer to the findings of the trial court unless they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill.2d 120, 124 [89 Ill.Dec. 869, 481 N.E.2d 712] (1985). * * * A decision is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence.'" People v. A Parcel of Property Commonly Known as 1945 North 31st Street, 217 Ill.2d 481, 507, 299 Ill.Dec. 196, 841 N.E.2d 928 (2005), quoting Eychaner v. Gross, 202 Ill.2d 228, 251-52, 269 Ill.Dec. 80, 779 N.E.2d 1115 (2002).

It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors, including most constitutional violations, that were harmless beyond a reasonable doubt. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Our supreme court has set standards for such determinations in People v. Smith, 38 Ill.2d 13, 15, 230 N.E.2d 188 (1967), in recognizing that if there was constitutional error at trial, a reviewing court must be able to declare that, beyond a reasonable doubt, the error did not contribute to the finding of guilty. See also People v. Merideth, 152...

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