People v. Lester

No. 2--96--0940

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Respondent-Appellee, ) No. 84--CF--664
)
v. )
)
CHESTER S. LESTER, ) Honorable
) Melvin E. Dunn,
Petitioner-Appellant. ) Judge, Presiding.
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JUSTICE THOMAS delivered the opinion of the court:
Petitioner, Chester S. Lester, was convicted of first degree
murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9--1(a)(1), (a)(2) (now
codified, as amended, at 720 ILCS 5/9--1(a)(1), (a)(2) (West
1996))) and sentenced to 40 years' imprisonment. He appealed his
conviction, and we affirmed. People v. Lester, 145 Ill. App. 3d
720 (1986) (Lester I). Petitioner filed a petition for post-
conviction relief, and the trial court dismissed it without an
evidentiary hearing. We remanded the cause for an evidentiary
hearing to determine if defendant received ineffective assistance
of counsel. People v. Lester, 261 Ill. App. 3d 1075 (1994) (Lester
II). Following a hearing, the court denied the petition.
Petitioner appeals, and we affirm.
The facts of this case are adequately set out in our previous
opinions, and we will not repeat them here except as is necessary
to resolve the issue petitioner raises. In Lester II, we remanded
the cause for an evidentiary hearing on whether defendant received
the effective assistance of counsel. Petitioner alleged that his
attorney told him that he should not testify because it might hurt
his appeal. We suggested that that statement, if made before
trial, might be ineffective assistance of counsel because
petitioner's attorney would be assuming the trial was lost before
it began. See Lester II, 261 Ill. App. 3d at 1079-80.
At the hearing, petitioner's trial attorney, Tom McCulloch,
testified that petitioner had convictions that McCulloch believed
would have been brought out if petitioner had testified. McCulloch
testified that he had several discussions with petitioner about his
right to testify. These discussions took place throughout
McCulloch's representation and continued up until petitioner told
the trial judge that he chose not to testify. McCulloch told
petitioner that he had a right to testify and that no one could
stop him from testifying. He also told him that, if he did so, he
could expect to be impeached with his convictions and to be cross-
examined about statements he gave the police and hospital
personnel.
When asked if he told petitioner that testifying would harm
his chances on appeal, McCulloch stated "No, I didn't say that to
him. And I, if he took it that way, then I would guess he took it
that way. I can't control what he does construe that way."
McCulloch also pointed out that petitioner had been consistent in
his denials, but not in the details, and that the State had already
introduced his denials into evidence. McCulloch testified that his
opinion was that, as a matter of strategy, petitioner should not
testify. He explained to petitioner that petitioner had a right to
testify and that no one could prevent him from doing so.
Petitioner made the ultimate decision not to testify.
Petitioner testified that he maintained his innocence
throughout the case and continued to do so. According to
petitioner, McCulloch told him right before trial that he did not
think he should take the stand, although they had already agreed he
would. When petitioner asked why, McCulloch told him that it would
hurt his appeal. McCulloch then asked petitioner what he wanted to
do, and petitioner asked what he should do. McCulloch told him
that he could go to the judge's office and refuse to take the
stand. Petitioner then went to the judge's chambers, and, with a
court reporter present, told the judge that he was giving up his
right to testify and that he had not been threatened. Petitioner
also testified that McCulloch told him he should not testify
because of his convictions.
The transcript of the judge's questioning of petitioner at his
trial was also introduced into evidence. The transcript shows that
petitioner and McCulloch appeared before the judge, who told
petitioner that he understood that petitioner was giving up his
right to testify. The judge advised petitioner of his right to
testify and of his right not to testify, and asked if he was
exercising his right not to testify. Petitioner responded "Yes,
sir." The judge asked if he had any questions about that right,
and petitioner responded "No, sir, I don't." The judge then told
petitioner that he would accept that as what petitioner wanted to
do, and petitioner responded "Yes, sir."
Following arguments, the trial judge ruled that petitioner had
made an informed decision not to testify. The trial judge also
noted that petitioner had the chance to decide to testify, as late
as when he addressed the judge. The trial judge later stated that
"even taking the argument a step further and saying the decision
was not the defendant's, even if it was by counsel or on advice of
counsel, the decision was clearly trial strategy and sound trial
strategy." Accordingly, the trial judge denied the post-conviction
petition.
On appeal, petitioner argues that this matter must again be
remanded because the trial judge misinterpreted the purpose of our
remand. Petitioner points out that the issue was not whether he
made an informed decision not to testify, but whether he received
ineffective assistance of counsel because his attorney told him
that testifying would hurt his appeal. According to petitioner,
the trial judge did not decide whether the comment was in fact
made.
Before addressing petitioner's argument, we must clarify one
of the trial judge's statements. In Lester II, we admonished the
trial judge that the decision whether a defendant should testify is
the defendant's own decision and is not a strategic decision to be
made by defense counsel. See Lester II, 261 Ill. App. 3d at 1079.
We note that the trial judge again made this misstatement.
However, this time it was made in the context of an alternative
ruling, after the judge had already made his decision. While the
trial judge is correct that the attorney's advice on whether a
defendant should testify is a matter of strategy, the decision is
for the defendant. As our supreme court recently stated:
"We recognize that the decision whether to take the witness
stand and testify in one's own behalf ultimately belongs to
the defendant [citations], but it should be made with the
advice of counsel [citations]. Thus, in the instant case,
defendant's decision not to testify must be viewed as strategy
with which he agreed." People v. Smith, 176 Ill. 2d 217, 235-
36 (1997).
Turning to the merits, we have carefully reviewed the judge's
findings and believe that it was implicit in his ruling that he
found McCulloch more credible than petitioner. Further, we do not
believe the trial judge misconstrued the issue. When he began his
remarks, he specifically stated that the issue was whether
petitioner had received the ineffective assistance of counsel.
In any event, what this court intimated in our previous
decision was that petitioner may have received ineffective
assistance of counsel if his attorney told him before trial that
testifying would hurt his appeal, because that might indicate that
his attorney believed the trial was lost before it began. However,
it is clear from the record that, even if such a statement were
made, it was made not before trial but after the State had
presented its entire case. This is clear even from petitioner's
testimony. When asked when the conversation happened, petitioner
described the incident and then said "at that time, we went
upstairs, back into the holding cell, until they carried all the
prisoners upstairs, went back into the judge [sic] chambers, and
that's when *** he asked me, was I *** threatened or anything about
*** not taking the stand." The conversation with the judge
occurred after the State rested its case, and at that time
petitioner's attorney would have been able to assess the relative
strengths and weaknesses of the case. As an experienced trial
attorney, McCulloch would have been able to make an informed guess
as to what the outcome would be, and it would not have been
improper for him to tell petitioner that he believed petitioner
would be convicted and that if he testified it could hurt his
chances on appeal. So, even if McCulloch made the statement, the
timing of it shows that it would not have been improper.
As a final matter, we wish to emphasize that our decision in
Lester II should not be read as creating a per se rule that an
attorney renders ineffective assistance of counsel by telling a
client that testifying could hurt his chances on appeal. Lester II
followed People v. Nix, 150 Ill. App. 3d 48 (1986), in which the
attorney did not tell his client that he had a right to testify or
the right to decide whether to testify. The Nix court remanded the
cause for an evidentiary hearing because of the attorney's alleged
"incomplete or inaccurate information." Nix, 150 Ill. App. 3d at
51. Nevertheless, telling a client that his testimony would hurt
him on appeal is far different from not informing a client of his
right to testify or that it is his decision to make. To the extent
that our reliance on Nix in Lester II may have blurred the
distinction between not telling a client of his rights and advising
a client on how to proceed, we wish to now make clear our
recognition of this critical distinction. An attorney wants his
client to make the most informed decision possible on whether to
testify. If the attorney believes that the State has a powerful
case, that his client will in all likelihood be convicted, and that
if the client does testify that it will hurt his chances in a
potential appeal, then there is nothing wrong with the attorney so
informing the client. The attorney would not be assuming the trial
was lost before it began, but rather would be advising his client
of all of the potentialities so that the client could make an
informed decision.
We are bound by law of the case considerations to follow
Lester II here. We have reviewed the proceedings below and found
that the court properly acted within the scope of our remand.
Assuming for the purposes of this case only that it might be
ineffective assistance of counsel for an attorney to advise a
client before trial that testifying might hurt him on appeal, the
record clearly shows that, even if the statement were made, it was
made not before trial, but after the State rested its case. We
find that the trial court did not err in denying the petition for
post-conviction relief.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
COLWELL and RATHJE, JJ., concur.