Appellate court affirmed dismissal of petition where prior inconsistent statements were admissible
The appellant in People v. Wesley, 2019 IL App (1st) 170442, appealed the trial court’s order dismissing his post-conviction petition at the first stage of post-conviction proceedings, on the grounds that he was denied due process and effective assistance of counsel by both his trial and appellate counsel. The appellate court affirmed.
Terrell Wesley was charged and convicted of first degree murder for a 2008 shooting outside a grocery store in Maywood, Illinois. At his 2010 bench trial, Wesley was only identified by one witness, Jason Ervin, who testified that he’d seen Wesley leaving the store, walking backwards, and holding a firearm. Ervin also identified the vehicle Wesley left the scene in by make, color and plate number. Id. at ¶ 4. Wesley was described by Ervin as a “black man with short dreads.” In addition to Ervin, two other witnesses observed a man matching Ervin’s description leaving the grocery store with a firearm pointed at the store and entering the vehicle described by Ervin. Id. at ¶ 5.
During trial proceedings, Wesley’s girlfriend, Shara Cannon, provided inconsistent testimony before the grand jury and at trial regarding Wesley’s hairstyle, whether or not he was riding in her vehicle on the day of the shooting, and whether or not she was present at the time of the shooting. Id. at ¶ 7. Another associate of Wesley’s, Pierre Robinson, also provided testimony inconsistent with his statements to the grand jury during trial.
When pressed at trial, Robinson claimed police threatened to charge him with the murder if he did not implicate Wesley in the shooting. Id. at ¶ 9. At the trial’s conclusion, the court determined that Cannon and Robinson’s trial testimony was not credible; however, it found their grand jury testimony to be admissible as substantive evidence. Welsey was found guilty. Id. at ¶ 10.
Wesley then filed a motion for a new trial, alleging that neither Cannon nor Robinson had personal knowledge of the matter and that the court erred in considering their testimony as substantive. The court disagreed and denied the motion for a new trial. Id.at ¶ 11. Wesley was sentenced to 50 years’ imprisonment, and Wesley appealed. On direct appeal, Wesley alleged that he was deprived his right to a fair trial and his right to counsel because the court decided the case before the presentation of closing arguments. The appellate court affirmed the circuit court’s ruling, finding that the court acknowledged its error, permitted the parties to give closing arguments, and reconsidered everything in light of those arguments before issuing its ruling. Id. at ¶ 12.
Wesley then filed a pro se post-conviction petition, arguing among other things, that the admission of Cannon’s and Robinson’s prior inconsistent statements was a constitutional error depriving him of his due process rights. Wesley also alleged ineffective assistance of trial and appellate counsel for failing to bring this error to the court’s attention Id. at ¶ 13. The circuit court summarily dismissed the petition as frivolous and patently without merit, as counsel had objected to the admission of the testimony in question. Wesley then moved to file a late notice of appeal, which was allowed by the court and became the substance of this appeal.
On appeal, the appellate court acknowledged that a petition at the first stage of post-conviction proceedings must meet a low survival threshold, which allows courts to dismiss petitions only if they are frivolous or patently without merit, or, having “no arguable basis either in law or fact” or reliant on “indisputably meritless legal theories or fanciful factual allegations.” Id. at ¶ 17.
On the claim of ineffective assistance of counsel, the court noted that in order to prevail, an appellant must show that counsel’s performance was deficient, and that the resulting deficient representation was prejudicial. Id. at ¶ 20. Wesley argued that his counsel’s failure to object to the admission of Cannon’s and Robinson’s testimony on the basis that they lacked personal knowledge of the murder rendered counsel’s assistance ineffective. Id. at ¶ 21. Substantively, both witnesses admitted that they heard Wesley admit to shooting someone. Wesley did not assert the inconsistency of statements made before the grand jury and at trial, but rather that their testimony was simply inadmissible because neither witness had direct knowledge of the shooting.
The court noted that Wesley failed to take into consideration section 115-10 of the Code of Criminal Procedure, which does not require a witness’ testimony to be based on personal knowledge. Id. at ¶ 24. As a result, the court found that both individual’s testimony satisfied the rule under section 115-10 of the Code and Rule 602. Id. at ¶ 26. Moreover, the inclusion of the videotaped and written statements from both witnesses in closing statements, acknowledged by the appellate court to be inadmissible, was considered by the court to be a “harmless error” which had no reasonable probability of resulting in an acquittal absent inclusion. Id. at ¶ 27-28.
Ultimately, the court held that Wesley’s arguments, both in the context of due process and ineffective assistance of counsel claims, lacked even superficial legal merit and ruled that the post-conviction petition was properly dismissed. Id. at ¶ 30. The appellate court affirmed.