People v. Connery

May 1, 1998
No. 3--97--0164
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of the 21st
Plaintiff-Appellee, ) Judicial Circuit,
) Kankakee County Illinois
)
v. ) No. 95-CF-438
)
CHRISTOPHER CONNERY, ) Honorable
) David Youck
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________

JUSTICE HOLDRIDGE delivered the Opinion of the Court:
________________________________________________________________

Following a jury trial, the defendant was convicted of first
degree murder (720 ILCS 5/9-1(a)(1)(West 1992)) and concealment of
a homicidal death (720 ILCS 5/9-3.1(a)(West 1992)). He was
sentenced to natural life imprisonment on the first degree murder
conviction and five years imprisonment on the concealment of a
homicidal death conviction. On appeal, defendant maintains that:
(1) the trial court committed reversible error in admitting
evidence of his statements made during a hearing in which a guilty
plea to the charges at issue was entered of record; (2) he was
afforded ineffective assistance of counsel; (3) his natural life
sentence was excessive. We affirm.
Facts
The defendant and James Rogers were charged in the stabbing
death of Melissa Osman. While awaiting trial, the defendant
confessed to police in a video-taped statement that both he and
Rogers stabbed Osman after each had sex with her.
In March 1996, the defendant entered into a plea agreement
with the People, agreeing to exchange his truthful testimony
against Rogers for a 55 year sentence on the murder charge and the
dismissal of all other charges against him. At a hearing for the
purpose of entering the agreed plea, the trial court accepted the
agreement and entered judgment on the plea. After entering
judgment, the trial court permitted the People to examine the
defendant, under oath, to elicit testimony that his video-taped
confession was both truthful and voluntary. The defendant's
counsel did not object to this questioning.
At the time the trial court entered judgment, it was agreed
that sentencing would be deferred until after the Rogers trial.
However, the defendant was never called to testify at the Rogers
trial.
Subsequently, the defendant filed a motion to vacate his
guilty plea, which the trial court denied. He then requested that
a sentence of 55 years be imposed in accordance with the plea
agreement. The People maintained, however, that they were not
bound to the plea agreement since defendant had not testified at
the Rogers trial. The court then held that in fundamental fairness
the defendant should be permitted to withdraw his guilty plea.
At defendant's jury trial, the People presented testimony
establishing that in the early morning hours of July 12, 1995, the
defendant, Rogers, and Osman left a tavern together. Osman and the
defendant were also seen near a car in the tavern's parking lot,
and Rogers was observed sitting in the passenger seat of the car.
On July 14, 1995, Osman was reported missing. The next day, her
partially-clad body was found in a rural area not far from her
home, lying under some plastic garbage bags filled with leaves.
Pathologist, Dr. Joseph Sapala, testified that Osman died from
approximately 26 stab wounds to her body, which he opined were
inflicted by two different knives, one a double-edged and the other
a single-edged knife.
Physical evidence linking the defendant to the murder was also
introduced during the People's case, including blood stained
clothing and two knives found in the defendant's car, two latent
fingerprints of the defendant's found on one of the plastic garbage
bags, and blood taken from the defendant's sandals that matched
Osman's DNA.
The defendant's testimony at trial was that he did not know
Osman, but met her when he and Rogers went to the tavern were they
were seen together by the People's witnesses. He testified that
Osman told him that she had missed her ride and he offered her a
ride home. She accepted the offer, and the three (Osman, Rogers
and the defendant) left the tavern in the defendant's car.
According to the defendant, Rogers directed him to a rural area
where he parked the car. The defendant stated that, at Rogers'
request, he got out of the car to give Osman and Rogers some
privacy. After about ten minutes, he returned to the car where he
saw Osman wearing only her shirt and bra, while Rogers was
allegedly pulling up his pants.
According to the defendant, Osman then beckoned him to have
sex with her. When they finished, he got out of the car and walked
a short ways. He next saw Rogers and Osman standing along the
front fender of the car. Rogers was holding a knife and the
defendant watched as Rogers stabbed Osman in the back. Rogers then
handed the knife to the defendant and told him to stab Osman.
Defendant stated that he was unable to do so, and he returned the
knife to Rogers, who continued stabbing Osman. The defendant
denied stabbing Osman.
The defendant then testified that he and Rogers placed garbage
bags on top of Osman's body and left the area. He testified that
the two drove around for awhile until they found a pond in which to
clean up, then went to a store and then to a restaurant. Defendant
stated that he did not contact the authorities, and continued his
association with Rogers out of his fear of Rogers.
During his direct examination, the defendant recanted his
video-taped confession. He attributed his false confession to his
lack of sleep, the effect of recent nightmares about the incident,
and his remorse for not trying to stop Rogers from stabbing Osman.
On cross-examination, however, the People impeached the defendant
with his statements that the confession was true and voluntary,
which had been given under oath at the hearing where his guilty-
plea and been entered an accepted. Defense counsel did not object
to this impeachment. Defendant was convicted, sentenced to natural
life, and brought this appeal.

Analysis
Admissibility of guilty-plea hearing testimony.
Defendant first maintains that the trial court committed
reversible error when it allowed into evidence statements the
defendant made during the hearing at which his guilty-plea was
accepted by the trial court. Specifically, defendant contends it
was error for the jury to hear of his statements under oath
acknowledging the veracity and voluntary nature of the confession
wherein he admitted to stabbing Osman. Defendant contends that the
use of this testimony was in direct violation of Supreme Court Rule
402(f) (134 Ill. 2d R. 402(f)), which provides in pertinent part
that:
"If a plea discussion does not result in a
plea of guilty, or if a plea of guilty is not
accepted or is withdrawn, or if judgment on a plea
of guilty is reversed on direct or collateral
review, neither the plea discussion nor any
resulting agreement, plea, or judgment shall be
admissible against the defendant in any criminal
proceeding." 134 Ill. 2d R. 402(f).

The purpose of Rule 402(f) is "'to protect communications made
by a defendant in the bargaining process from being turned into a
weapon of the State at a later trial.'" (Emphasis added.)
People v. Benniefield, 88 Ill. App. 3d 150, 154, citing People v.
Morris, 79 Ill. App. 3d 318, 332 (1979). In the instant matter,
the defendant maintains that the statements at issue where made
during the bargaining process, and thus are protected by Rule
402(f). The People maintain, however, that because the statements
at issue where given after the defendant's guilty plea was entered
and accepted by the trial court, the protection afforded by Rule
402(f) do not apply. After careful review of case law interpreting
Rule 402(f), we must agree with the People that the statements made
by the defendant were not of the type intended to be protected by
Rule 402(f).
In People v. Bennett, 222 Ill. App. 3d 188 (1991), the court
found that Rule 402(f) did not reach testimony given by a defendant
at a hearing on her motion to withdraw her guilty plea. The court
reasoned that the central policy behind Rule 402(f) is to prevent
a jury from hearing of any statements made by a defendant during
the process of attempting to reach a plea agreement, or the fact
that a defendant had reached an agreement to plead guilty. Since
the plea bargain process is completed when the plea is entered,
statements made after an agreement has been reached and the plea
has been entered are not covered by Rule 402(f). See, Bennett, 222
Ill. App. 3d at 198. In People v. Benniefield, unlike in the
instant matter, the appellate court held to be inadmissible
statements made by a defendant in the process of negotiating a
guilty plea. Benniefield, 88 Ill. App. 3d at 154-55.
Here, the record indicates that the statements made by the
defendant were made after his plea had been fully negotiated and
the plea had been entered and accepted by the trial court. Under
these circumstances, we find that no reversible error occurred in
defendant's admission of the veracity of his confession. We note,
however, that had the statements been made prior to entry of the
plea and its acceptance by the trial court, our analysis may have
been different.

Ineffective assistance of counsel.
The defendant next contends that he received ineffective
assistance of counsel. Specifically, the defendant alleges his
counsel was ineffective in: (1) that he admitted the defendant's
guilt and gave the jury no theory upon which to return a not guilty
verdict; (2) that he failed to object to an accountability
instructions given to the jury; (3) that he called the defendant to
testify; and (4) that he failed to subject the People's case to
adversarial challenge by failing meaningfully cross-examine the
People's witnesses, failing to object to hearsay testimony and
testimony without foundation, failing to move for a mistrial,
failing to object to the People's use of defendant's testimony at
his plea agreement hearing, failing to object to comments made
during the People's closing argument, and failing to file post-
trial motions.
To prove ineffective assistance the defendant must first
demonstrate that his counsel's performance failed to meet
reasonable professional standards. Second, the defendant must
demonstrate a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In this case we are unable to
conclude that counsel's performance failed to meet reasonable
professional standards. Even were we to so conclude, we find that
any defects in counsel's performance were not so severe as to
demonstrate a reasonable probability of a different result absent
the defects.
First, we find that counsel did not admit the defendant's
guilt to the jury as he alleges. The record reflects that after
commenting to the jury that "much of the evidence you will hear
will be exactly as [the People] described," defense counsel added,
"[t]here is no doubt that Melissa Osman was brutally murdered."
Simply acknowledging that the victim's death was a brutal murder,
is not a concession of defendant's guilt. Defense counsel also
commented to the jury that "when you have heard all of the
evidence, you'll find that James Rogers committed this murder by
his own hand." We find that these comments, rather than
acknowledging the defendant's guilt, instead reflect defense
counsel's effort to shift total responsibility for the murder to
Rogers.
Defense counsel's strategy, given the overwhelming physical
evidence placing him at the murder scene, was to paint the picture
of the defendant as an unwilling observer of Rogers' evil deed.
Counsel argued strenuously against the pathologist's theory that
Osman was stabbed by two different knives, and vigorously cross-
examined the pathologist and other witnesses on this point.
Counsel also elicited testimony from the defendant that upon
witnessing Rogers' brutal attack upon Osman, he became deathly
afraid of Rogers to the point of being unable to act to stop
Rogers, or report his actions to the authorities. In view of the
evidence against the defendant, we cannot say that counsel was
unprofessional in pursuing this theory over any other theory, and
we will not find a trial counsel ineffective simply because he
failed to contrive a leek-proof theory of innocence in the face of
overwhelming evidence. People v. Shatner, 174 Ill. 2d 133, 148
(1996).
The defendant next asserts that, although his counsel
suggested that there was doubt as to whether he actually stabbed
the victim, he was ineffective in failing to object when the court
gave an accountability instruction. See, People v. Chandler, 129 Ill. 2d 233, 247 (1989). We disagree. While defense counsel
failed to object to the giving of an accountability instruction,
the record indicates that he nonetheless presented evidence against
holding the defendant accountable for Rogers' actions, and he
attacked the accountability theory in his closing argument. We
find that the defendant has failed to establish that he was
prejudiced by his counsel's failure to object to the accountability
instruction. Thus, he has failed to carry his burden of showing
prejudice under the second prong of the Stickland test, which
requires "a reasonable probability of a different result, not
merely a possibility" of a different result. People v. Gacy, 125 Ill. 2d 117, 129-30 (1988).
Defendant also asserts that his counsel was ineffective for
calling him to testify. Calling the defendant as a witness can be
ineffective assistance where no exculpatory evidence is introduced
in defendant's testimony, and no logical reason for counsel to have
called defendant as a witness can be perceived by a reviewing
court. See, People v. Salgado, 200 Ill. App. 3d 550, 553 (1990).
In the instant matter, however, the defendant's testimony appears
to have been presented to introduce exculpatory evidence and to
advance the defendant's theory that, while he was present at the
murder, he took no part in it. We cannot say that there was,
therefore, no logical reason for counsel to have called the
defendant as a witness. We also note that ultimately, the
decision to testify rested with the defendant. People v.
Brocksmith, 162 Ill. 2d 224, 227 (1994).
As his final ineffective assistance argument, the defendant
contends that his counsel, by several cumulative errors, failed to
subject the People's case to adversarial challenge. People v.
Hattery, 109 Ill. 2d 449, 463 (1985). We have reviewed the record
and determined that counsel subjected the People's case to a
meaningful adversarial challenge. The record reveals that defense
counsel presented an opening statement and closing argument in
which he asserted a plausible theory of defense, cross-examined the
People's witnesses, challenged the credentials of one of the
People's witnesses to testify as an expert. Defense counsel moved
for a mistrial on one occasion, and objected strenuously to the
admission of adverse evidence. He presented witnesses in defense
and sought to minimize defendant's involvement and shift the blame
to Rogers. Based upon our review of the record, we find that
defense counsel exhibited the hallmarks of a meaningful adversarial
challenge to the People's case. See, People v. Shatner, 174 Ill. 2d at 146-48.

Excessive sentence.
The defendant lastly contends that his sentence of natural
life imprisonment was excessive. A court of review will not
overturn a sentence imposed by a trial court as excessive unless
the trial court abused its discretion in imposing such a sentence.
People v. Saunders, 235 Ill. App. 3d 661 (1992).
A court may sentence a defendant to natural life imprisonment
for first degree murder if it finds that the defendant's conduct
was exceptionally brutal or heinous behavior indicative of wanton
cruelty. 730 ILCS 5/5-8-1(a)(1)(b) (West 1994). Our supreme court
in People v. La Pointe, 88 Ill. 2d 482, 501 (1991) defined brutal
conduct as grossly ruthless, devoid of mercy or compassion, cruel
and cold-blooded. Likewise heinous conduct was described as
conduct that is hatefully or shockingly evil, grossly bad,
enormously and flagrantly criminal." La Pointe, 66 Ill. 2d at
501.
The defendant contends that the trial court abused its
discretion in finding that his conduct was exceptionally brutal or
heinous. We disagree. While all murders are brutal and heinous to
a certain degree, based upon the evidence that Osman was alive
during the time she received more that 26 stab wounds, was covered
with garbage and left to die, and defendant's callous attitude and
complete lack of remorse immediately after the stabbing, we are
satisfied that the trial court did not abuse its discretion in
imposing the natural life sentence.
The defendant also asserts that the trial court failed to
consider certain mitigating factors, including his rehabilitative
potential, when it imposed the sentence of natural life. On
review, however, it is presumed that the trial court considered all
mitigating factors, including rehabilitative potential, and the
burden is upon the defendant to show the contrary. People v.
McClellan, 232 Ill. App. 3d 990 (1992). A review of the record
establishes that the trial court considered all mitigating factors.
We note that rehabilitation potential is a factor in sentencing,
but the court is not required to give it greater weight than other
factors. See, People v. Fort, 229 Ill. App. 3d 336, 341-42 (1992).
Based upon our review of the record, we find that the trial court's
imposition of a natural life imprisonment sentence was not an abuse
of its discretion.
Based on the foregoing, the circuit court of Kankakee County
is affirmed.
Affirmed.
McCUSKEY, P.J., concurs. LYTTON, J., specially concurs.
JUSTICE LYTTON specially concurring:
It is the policy of this state to encourage plea agreements
when properly administered. People v. Evans, 174 Ill. 2d 320, 325,
673 N.E.2d 244, 247 (1996). Prosecutors often negotiate these
agreements with defendants to obtain testimony in other cases. I
am concerned that the improper use of plea agreements would hinder
the State's ability to get important evidence.
The majority holds that defendant's testimony after the
acceptance of his guilty plea was admissible at his subsequent
trial. While I concur based on the record in this case, this
decision should be narrowly construed.
Thus, if the plea agreement had been contingent on defendant
giving self-incriminating testimony immediately after the
acceptance of the plea, fundamental fairness would require this
testimony to be excluded from his later trial. Otherwise, because
of the timing of the sworn testimony, the State could time the
defendant's admissions so that they could later be used against the
defendant if the plea were vacated. Such a procedure could lead to
radical changes in the strategies of defense attorneys, which would
significantly reduce the number of these plea agreements and limit
the evidence obtained by prosecutors.
For the reasons stated, I specially concur in the majority's
reasoning only as it applies to the specific facts of this case.