Opinion
2-21-0298
03-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERIMIAH COCHRAN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County. No. 13-CF-265 Honorable George Bridges, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice McLaren and Justice Hudson concurred in the judgment.
ORDER
HUTCHINSON JUSTICE
¶ 1 Held: The trial court did not err in denying postconviction relief after an evidentiary hearing as none of defendant's ineffective-assistance claims had merit.
¶ 2 Defendant, Jeremiah Cochran, appeals from the dismissal of his postconviction petition after a third-stage evidentiary hearing. He contends that the trial court should have granted the petition based on several claims of trial counsel's ineffectiveness that either individually or cumulatively warranted a new trial. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The facts of this case were extensively detailed when we affirmed defendant's convictions on direct appeal and need not be repeated at length. This case involved the kidnapping, beating, and rape of defendant's former girlfriend, S.M, who is the mother of his two sons. At trial, S.M. testified that defendant hit her, forced her into a car, took her to a house in Waukegan, beat her severely, and then penetrated her anally and vaginally. Defendant testified that S.M. went with him willingly, that they had consensual sex, but later argued and he struck her (though he could not recall how many times he had punched her or what objects she was hit with). Evidence was admitted showing multiple injuries to S.M.'s head, face, neck, legs, knees, and right arm. In addition, evidence from the crime scene in Waukegan showed a large hole in the drywall as well as what appeared to be bloodstains on the walls, the carpet, the window blinds, the mattress, the bathtub, some women's clothing, a broken stick, a pair of wire cutters, and a pair of boots. The jury found defendant guilty of aggravated kidnapping (720 ILCS 5/10-2(a)(5) (West 2012)) and two counts of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(1) (West 2012)), and the trial court sentenced him to a term of 40 years' imprisonment. (The jury also acquitted defendant of counts related to oral sex; however, those charges had different elements, are not inconsistent with the guilty verdicts, and play no role in our analysis. See People v. Cooper, 194 Ill.2d 419, 437 (2000).)
¶ 5 On direct appeal, defendant challenged only his convictions for sexual assault, and asserted that the trial court abused its discretion by admitting evidence that defendant resisted when police executed a warrant to take a cheek swab. We determined that the error, if any, was harmless in light of the overwhelming evidence of defendant's guilt (People v. Cochran, 2016 IL App (2d) 140768-U), and the supreme court denied defendant's petition for leave to appeal (People v. Cochran, No. 121508 (Jan. 25, 2017)).
¶ 6 In 2017, defendant filed a pro se petition under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2016)). The trial court advanced the petition to second-stage proceedings and an amended petition was filed alleging ineffective assistance of trial and appellate counsel. The court denied the State's motion to dismiss the amended petition and held a third-stage evidentiary hearing. We confine our recitation of the hearing to the issues defendant pursues on appeal and omit those matters over which defendant has accepted the trial court's judgment.
¶ 7 At the third-stage hearing, defendant asserted that trial counsel was ineffective for: failing to seek a mistrial based on Officer Grayer's testimony that S.M. drafted a written statement while she was in the hospital that was not tendered in discovery nor was it in the State's possession, and for failing to object to testimony given by an emergency room nurse that S.M. gave defendant's name as her attacker.
¶ 8 At the hearing, Assistant Public Defender (APD) John Bailey testified that he took over defendant's case as first chair after APD LaTanya Burton left the office, which was several weeks before defendant's trial. Bailey testified that he had reviewed the discovery and any additional reports and was able to answer with confidence that he was ready for trial. Bailey testified that he did not recall Officer Grayer's examination at trial nor did he recall whether there was an order in limine barring the nurse from testifying about S.M.'s identification of defendant. Burton testified that she reviewed the pre-trial discovery and was confident that Bailey was able to manage defendant's trial before she left the office.
¶ 9 Assistant Appellate Defender (AAD) Steven Wiltgen testified that he looked into defendant's claims of trial error and found them unavailing. Accordingly, Wiltgen honed in on the issue regarding defendant's refusal to submit to DNA testing and stated that it was the only potentially meritorious argument he believed could be raise for defendant on direct appeal. Wiltgen stated that defendant wanted him to raise issues that were unsupported by the record; accordingly, he declined to do so.
¶ 10 Officer Gary Grayer of the North Chicago Police Department testified that he was the first officer to speak with S.M. at the hospital in 2013, and that he gave her a blank form on which she could write a statement. S.M. later returned the form to Grayer, but he did not recall whether he read the statement or what it said. After Grayer received the statement, he placed it in a box for the detectives and never saw it again. Grayer recalled having given the same testimony at defendant's trial. Assistant State's Attorney Matthew DiMartini, who prosecuted the case, also testified that he did not recall having received any handwritten statement from S.M. and that if he had received such a writing, he would have promptly disclosed it to the defense in discovery. The parties then stipulated that the State conducted a diligent search of its records and was unable to find any evidence of S.M.'s written statement.
¶ 11 After the hearing, the trial court took the matter under advisement and later issued a 38-page memorandum decision, which addressed each of defendant's arguments. The court rejected each of defendant's ineffective-assistance claims and defendant appealed.
¶ 12 II. ANALYSIS
¶ 13 Before this court, defendant has abandoned several of his ineffective-assistance claims from the third-stage hearing, and elected to pursue only a few isolated claims, which he asserts compel a new trial. As in the trial court, the State maintains that none of trial counsel's actions was professionally unreasonable and that any claimed errors would not have altered the result of defendant's trial or appeal. For the reasons that follow, we agree with the State.
¶ 14 Under the state and federal constitutions, a criminal defendant is entitled to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To prevail on a claim of ineffective assistance, a defendant must show both that (1) counsel's performance was deficient in that it was professionally unreasonable and (2) the deficient performance prejudiced defendant such that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill.2d 504, 526 (1984). We do not examine claimed errors in isolation however. See Strickland, 466 U.S. at 690-96; Albanese, 104 Ill.2d at 526-28. Rather, we examine the entirety of the record, as well as the defense's approach to the charges at trial, "because the question is not whether the lawyer's work was error-free, or the best possible approach, or even an average one, but whether the defendant had the 'counsel'" (Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009)) that the state and federal constitutions guarantee. It is the defendant's burden to prove both deficient performance and prejudice, else the claimed error is a constitutional nonevent. People v. Rogers, 2021 IL 126163, ¶ 17; see also Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) ("the Constitution entitles a criminal defendant to a fair trial, not a perfect one").
¶ 15 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) enables an Illinois criminal defendant to collaterally attack their conviction and sentence on constitutional grounds. At third-stage proceedings, the trial court conducts an evidentiary hearing and the defendant bears the burden of showing, by a preponderance of the evidence, a substantial violation of a constitutional right. People v. Coleman, 2013 IL 113307, ¶ 92. The circuit court has wide discretion in deciding what evidence to consider (People v. Coleman, 206 Ill.2d 261, 278 (2002)) and acts as the finder of fact at the evidentiary hearing (People v. Domagala, 2013 IL 113688, ¶ 34). Where factual findings are involved, we review the trial court's decision for manifest error, and where the issue presents only a question of law, our review is de novo. People v. Pendleton, 223 Ill.2d 458, 471 (2006).
¶ 16 Defendant's primary contention is that trial counsel "failed to enforce [his] discovery rights." Specifically, defendant asserts that the non-disclosure of S.M.'s written statement denied him a fair trial, and trial counsel further erred by failing to seek a discovery sanction against the State.
¶ 17 Curiously, at the third-stage hearing, the parties and the trial court addressed this issue as a potential violation of the rule announced in Brady v. Maryland, 373 U.S. 83 (1963), that the prosecution has the duty to disclose evidence favorable to the defendant upon request. Over time, the Brady rule was expanded to include favorable evidence that has not been specifically requested by the defense (United States v. Agurs, 427 U.S. 97, 110-11 (1976)), as well as favorable evidence known to agents of the state, such as the police (Kyles v. Whitley, 514 U.S. 419, 437-38 (1995)). Here, the trial court found that the non-disclosure of S.M.'s purported written statement did not constitute a Brady violation, because, among other things, there was no evidence of bad faith on the part of the prosecution or the police. However, the parties and the trial court, at least in part, applied the wrong analysis.
¶ 18 The Brady framework applies to the improper suppression of material evidence "irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. But Brady requires that the evidence in question ultimately surfaces after trial, so that its materiality and exculpatory character can be meaningfully assessed alongside the trial evidence. Here, S.M.'s written statement was never recovered; the parties stipulated that it was lost and no witness testified to its contents. As such, its value, if any, could not be appropriately assessed.
¶ 19 As the State's brief correctly points out, and as defendant appears to acknowledge, the proper test for lost or destroyed evidence is set forth in Arizona v. Youngblood, 488 U.S. 51 (1988), not Brady. See, e.g., People v. Sutherland, 223 Ill.2d 187, 235 (collecting cases) (noting that Brady analysis is "ill-suited" where evidence has been lost or destroyed). We say that defendant's brief only "appears" to acknowledge Youngblood's applicability because, after citing it, defendant takes a long, circuitous trip away from Youngblood, and chooses to barely acknowledge it or Brady again. Instead, to elide the Youngblood inquiry altogether, defendant attempts a strained analogy to the First District's decision in People v. Kladis, 403 Ill.App.3d 99 (2010), aff'd, 2011 IL 110920-but as the State notes, Kladis presented a horse of a different color.
¶ 20 In Kladis, a misdemeanor DUI case, discovery was governed by non-constitutional principles under Illinois Supreme Court Rules 412 and 415, and there, a discovery sanction was discretionarily imposed at the defendant's trial for the destruction of dashcam footage and the State appealed, certifying that with the sanction, it could not move forward with its DUI prosecution at trial. See id., 2011 IL 110920, ¶ 1. Here, however, defendant is seeking relief from a judgment of conviction, in a collateral challenge, which is limited to addressing constitutional violations. See supra ¶ 15. Furthermore, as the State notes, we are not being asked to review the reasonableness of a sanction that was imposed, but instead being asked to opine on the professional reasonableness and potential prejudice where no sanction was ever sought. Undoubtedly, the State is correct. Kladis simply does not stand for the proposition that a discovery sanction was appropriate or even mandatory in this case. Accordingly, Kladis is beside the point, and defendant's attempts to avoid Youngblood must be rejected.
¶ 21 As the State asserts, defendant's argument on appeal seems a tacit admission that defendant, on this record, simply cannot meet the Youngblood standard, and therefore cannot substantiate his claim that trial counsel was ineffective. We agree with the State. In Youngblood, the Supreme Court stated that it did not wish to impose on the police "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58. Rather, the court held that a criminal defendant must show bad faith on the part of the police when confronted with the lost or destruction of evidence. Id. As the court held, "requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines" granting relief only "to that class of cases where the interests of justice most clearly require it ***." Id.
¶ 22 The Youngblood test requires that we carefully consider (1) the degree of negligence or bad faith by the State in losing the evidence and (2) the importance of the lost evidence relative to the evidence at trial. Youngblood, 488 U.S. at 58. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id.; see also People v. Hobley, 159 Ill.2d 272, 307-08 (1994). Under the circumstances, we conclude that a sanction against the State simply was not called for. First, defendant has failed to show, or even allege, any bad faith on the part of the State or the police. Under Youngblood, that alone is dispositive.
¶ 23 More importantly, at most, S.M.'s written statement would have been cumulative. That is, even if we were to assume that S.M.'s supposed written statement was favorable to defendant on the issue of consent, there was additional evidence that S.M. had previously said as much. At trial, the jury heard several times that S.M. vacillated in her accusation against defendant and stated that she had consensual sex with defendant. In fact, on cross-examination, S.M. testified that she had stated, to a defense investigator, that she had consensual sex with defendant that night, which led to the following exchange:
"Q. Why did you tell them that you consented?
A. I told them that because I was feeling bad because -- I was feeling bad because
I didn't want him to have a whole bunch of years for this heinous crime that he did to me. So I told him that because I didn't want him to have a lot of time and I felt bad for him.
Q. Well, the question is did you consent to this?
A. No.
Q. Why did you have sex with him?
A. Because -- I had sex with him because I didn't want him to beat me more than what he was already doing."
¶ 24 It was for the jury, as the trier of fact, to assess S.M.'s credibility and reconcile the inconsistencies between her prior statements and her trial testimony. See People v. Siguenza-Brito, 235 Ill.2d 213, 224-25 (2009). We note, too, that defendant is the father of S.M.'s two young sons, and in that context, her initial reluctance to accuse defendant was not unreasonable. Obviously, the jury's verdict reflects its determination that S.M.'s testimony was credible; it found that she did not consent to sex with defendant and the evidence amply supported the verdict. Therefore, even if we were to assume that S.M.'s supposed written statement were favorable to defendant on the issue of consent, we cannot conclude that evidence of her written statement would have altered the result of defendant's trial. As defendant has failed to show prejudice, or that any sanction was warranted, we agree with the trial court's ultimate conclusion that trial counsel was not ineffective in this regard.
¶ 25 Relatedly, defendant also argues that trial counsel was ineffective for failing to "fully impeach" S.M. This argument asserts that counsel failed to more effectively "highlight" S.M.'s statements to defense investigators acknowledging that she smoked cannabis with defendant the night she was attacked; that she and her children had been involved with the Department of Children and Family Services (DCFS); and that she had consented to have sex with defendant. We agree with the State and the trial court that these lines of inquiry fall within the purview of trial strategy and are generally immune to challenge. See Strickland, 466 U.S. at 686-87. Furthermore, all of this evidence was presented to the jury by defense counsel to impeach S.M. It must be remembered that the constitution "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might [now] wish." (Emphasis omitted.) Delaware v. Fensterer, 474 U.S. 15, 20 (1985). There are myriad reasons counsel might not have further pressed S.M. on these matters, as aggressively questioning the complaining witness in a sexual assault case might have stirred the jurors' sympathy for the victim and anger at the defendant. And, as explained above, S.M.'s recantations on the issue of consent were thoroughly put before the jury. At any rate, we need not evaluate prejudice as counsel's decision on how and to what degree to impeach S.M. were reasonable matters of trial strategy.
¶ 26 Next, defendant argues that trial counsel was ineffective for failing to object to testimony admitted in violation of a pretrial motion in limine concerning the admission of identification testimony and prior bad acts evidence. We begin with the identification testimony. At a pretrial hearing, the court ruled that Victoria Viroglio, the emergency room nurse who first treated S.M., could not testify that S.M. had identified defendant as the person who had inflicted her injuries. The court found that such testimony fell outside the hearsay exception for statements by victims of sex offenses to medical personnel as the identification of defendant was not "reasonably pertinent to diagnosis or treatment" of S.M.'s injuries. See 725 ILCS 5/115-13 (West 2014). At trial, Viroglio testified that S.M. identified defendant as her attacker, and trial counsel did not object.
¶ 27 In his postconviction petition, defendant called Viroglio's testimony "devastating" to the defense. That assertion was hyperbolic in the extreme. At trial, S.M. testified prior to Viroglio's testimony, and S.M. detailed the kidnapping and sexual assault in precise detail. Viroglio then briefly testified about S.M.'s hospital admission. Later, defendant testified that he had sex with S.M. and had beaten her. Consequently, we agree with the trial court that any error in the admission of Viroglio's testimony was harmless as it was merely cumulative of S.M.'s testimony and defendant's testimony. See, e.g., People v. Hall, 235 Ill.App.3d 418, 436 (1992). Furthermore, as Viroglio's testimony was not a material factor in defendant's conviction, it did not prejudice defendant, and counsel was not ineffective for failing to object to it.
¶ 28 As noted, defendant also complains that counsel was ineffective for failing to object to prior bad acts evidence concerning past violence he inflicted on S.M. Before trial, the court ruled that evidence of defendant's prior attack on S.M. would be admissible only on the issue of consent. At trial, however, the court admitted the evidence to "show the [type of] relationship that the parties had in this case" and gave the jury a limiting instruction to that effect. See Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000). Defense counsel did not object. We agree with the trial court that this was not an example of counsel's ineffectiveness. It is axiomatic that evidence may be admitted for more than one proper purpose, and evidence concerning the prior attack- which was minimal in comparison to the charged offenses-was not of such a degree or character as to have played a significant part in defendant's conviction. Furthermore, defendant did present a consent defense, meaning that the prior attack would have been admitted anyhow. Here, too, we reject defendant's claim that counsel was ineffective for failing to object.
¶ 29 Last, defendant raises a challenge, for the first time, to trial counsel's closing argument. Specifically, defendant asserts that trial counsel should have more effectively countered the State's closing argument about defendant's initial denials regarding S.M.'s assault during his custodial statement to the police. We agree with the State that as this argument was not raised in defendant's postconviction petition, it is forfeited. See People v. Jones, 211 Ill.2d 140, 148 (2004). Furthermore, defendant's belated challenge to counsel's closing argument is quintessentially a matter of trial strategy, which cannot substantiate a claim of ineffective assistance. See Strickland, 466 U.S. at 686-89.
¶ 30 III. CONCLUSION
¶ 31 In sum, we affirm the judgment of the Circuit Court of Lake County. This was a thoroughly litigated trial, followed by a direct appeal, and now a thoroughly litigated postconviction proceeding. In the first appeal, we stated that the evidence of defendant's guilt-particularly S.M.'s testimony and the evidence of her significant injuries-was overwhelming (Cochran, 2016 IL App (2d) 140768-U, ¶ 41), and that is no less the case today. After carefully reviewing the record, we agree with the trial court that none of defendant's postconviction claims showed a constitutional violation or warrant a new trial because none of the alleged errors would have altered the result of the trial defendant received.
¶ 32 Affirmed.