{ "id": 2693117, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIAM PEARSON, Petitioner-Appellant", "name_abbreviation": "People v. Pearson", "decision_date": "1989-09-05", "docket_number": "No. 1-86-1748", "first_page": "518", "last_page": "527", "citations": [ { "type": "official", "cite": "188 Ill. App. 3d 518" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "419 U.S. 522", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176665 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/419/0522-01" ] }, { "cite": "454 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "97 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515941 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/97/0252-01" ] }, { "cite": "457 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "99 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163788 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/99/0135-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "148 Cal. Rptr. 890", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "583 P.2d 748", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "22 Cal. 3d 258", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2282118 ], "opinion_index": 0, "case_paths": [ "/cal-3d/22/0258-01" ] }, { "cite": "380 U.S. 202", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524661 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/380/0202-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "265 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "47 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2902885 ], "weight": 2, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0312-01" ] }, { "cite": "423 N.E.2d 1185", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3110796 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/1005-01" ] }, { "cite": "292 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926773 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/53/0465-01" ] }, { "cite": "518 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 742", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3583189 ], "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0742-01" ] }, { "cite": "272 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "48 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907689 ], "year": 1987, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0500-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "697" }, { "page": "699" }, { "page": "2069" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "426 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101016 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0973-01" ] }, { "cite": "388 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990104 ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0282-01" ] }, { "cite": "129 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567042 ], "weight": 2, "pin_cites": [ { "page": "308" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0303-01" ] }, { "cite": "507 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "489 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167488 ], "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0283-01" ] }, { "cite": "129 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567220 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "279" }, { "page": "279" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0265-01" ] }, { "cite": "263 N.E.2d 83", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "46 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/46/0153-01" ] }, { "cite": "440 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "430 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071487 ], "weight": 2, "pin_cites": [ { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0732-01" ] } ], "analysis": { "cardinality": 805, "char_count": 19244, "ocr_confidence": 0.759, "pagerank": { "raw": 7.011288093947085e-08, "percentile": 0.4233741040500817 }, "sha256": "5c54f62098218612b313a061b2752cafa31fff4db9e60d7b47beae7bca0354a8", "simhash": "1:231b9444f4b435f0", "word_count": 3057 }, "last_updated": "2023-07-14T17:36:06.130198+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIAM PEARSON, Petitioner-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nPetitioner-appellant William Pearson was convicted by a jury in 1979 of murder, three counts of armed robbery, attempted armed robbery, unlawful use of weapons, and armed violence. He was sentenced to imprisonment for concurrent terms of 40 years for murder, 20 years for each armed robbery, 10 years for attempted armed robbery and 5 years for unlawful use of weapons. No sentence was entered on the armed violence conviction. He now appeals from an order of the circuit court dismissing his petition for post-conviction relief.\nThe issue raised on this appeal is whether the trial court properly dismissed the post-conviction petition without an evidentiary hearing, where petitioner alleged ineffective assistance of counsel based on (1) trial counsel\u2019s failure to call as a witness a physician who would have testified that on the night of the crime petitioner was struck by two bullets of different calibers, thereby corroborating petitioner\u2019s defense theory that he was the victim, rather than the perpetrator, of the crime; (2) appellate counsel\u2019s failure to raise the issue of the trial court\u2019s refusal to allow a defense witness to testify for the purpose of impeaching a State\u2019s witness with a prior inconsistent statement; and (3) appellate counsel\u2019s failure to raise the issue of systematic exclusion of blacks during jury selection.\nThe evidence presented at petitioner\u2019s trial established that, on December 3, 1978, petitioner had been drinking and gambling at an \u201cafter hours\u201d bar in Chicago. Petitioner announced a hold-up, brandished a sawed-off shotgun and pistol, and fired several shots into the ceiling. The other patrons in the bar dove for cover, more shots were fired, and petitioner fled with a large sum of money. Sammy Priest was fatally wounded during the hold-up.\nPetitioner denied committing the robberies. He claimed that he was robbed and shot after winning money in a dice game. Petitioner admitted that he fired some shots, but claimed that he fired in self-defense.\nDuring the State\u2019s case in chief, Sherry McWoodson testified that on the night of the hold-up, petitioner arrived at her home with money and guns and stated that he had shot someone and that he hoped that person was dead. Two. days after her testimony, defense counsel requested leave to add Maggie Sprott to the list of defense witnesses. Defense counsel told the court that he had learned that Sprott, a friend of both petitioner and McWoodson, had a conversation with McWoodson before McWoodson testified. Defense counsel made an offer of proof that Sprott would testify that McWoodson admitted to her that petitioner never stated that he had shot someone. The trial court denied defense counsel\u2019s request to allow Sprott to testify on the ground that no foundation had been laid on cross-examination for impeaching McWoodson by confronting her with a prior contrary statement. Defense counsel did not request leave to recall McWoodson for the purpose of laying a foundation.\nOn Friday, September 21, 1979, after the State rested, petitioner\u2019s attorney informed the court that he intended to call a certain physician, believed to be petitioner\u2019s treating physician, to testify that petitioner had been struck twice by bullets of different calibers. Petitioner\u2019s attorney indicated that he had not anticipated the need to call petitioner\u2019s physician until after a State\u2019s witness had testified that petitioner had been shot only once. Petitioner\u2019s attorney requested a continuance to locate the doctor and his request was granted until the following Monday. On Monday morning, petitioner\u2019s attorney informed the court that he had learned that a different physician, Dr. Richard Pearson, appeared to have treated petitioner, but that Dr. Pearson needed to review his records to determine whether he had examined petitioner. Petitioner\u2019s attorney requested a one-day continuance to bring in Dr. Pearson. That request was denied.\nThe record reflects that petitioner\u2019s attorney had known about Dr. Pearson for some time, but never subpoenaed him or any other physician. In his motion for a new trial, petitioner submitted a letter written by Dr. Pearson, stating that Dr. Pearson had removed two bullets from petitioner that, \u201cto the best of [Dr. Pearson\u2019s] recollection,\u201d were of different calibers.\nPetitioner\u2019s appellate counsel raised two issues on appeal: first, whether the trial court erred in denying the request for a one-day continuance; and second, whether the trial court erred in denying petitioner\u2019s motion for a new trial based on the State\u2019s failure to honor his request for disclosure of arrest records of certain State witnesses. However, petitioner\u2019s convictions and sentences were affirmed. (People v. Pearson (1981), 102 Ill. App. 3d 732, 430 N.E.2d 304.) Significantly, the court did not find any abuse of discretion in the trial court\u2019s denial of the motion for a continuance because of \u201cthe obvious lack of diligence of defense counsel in determining the identity of the treating physician\u201d and the \u201clack of certainty surrounding [Dr. Pearson\u2019s] expected testimony.\u201d People v. Pearson (1981), 102 Ill. App. 3d 732, 737, 430 N.E.2d 304.\nThe Illinois Supreme Court denied petitioner leave to appeal. (People v. Pearson (1982), 91 Ill. 2d 564, 440 N.E.2d 126.) On February 17, 1984, the United States District Court denied petitioner\u2019s pro se habeas corpus petition. On January 21, 1985, the district court\u2019s order was affirmed on appeal.\nOn August 26, 1985, petitioner filed his petition in the circuit court for post-conviction relief. Petitioner alleged ineffective assistance of trial counsel based on defense counsel\u2019s failure to subpoena Dr. Pearson or take other measures to compel his attendance; to present evidence corroborating petitioner\u2019s theory that he was framed; to request a ballistics examination to determine the caliber of the bullet inside Sammy Priest\u2019s skull; to move to suppress incriminating statements elicited from petitioner in violation of his Miranda rights; and to request a voluntary manslaughter instruction.\nPetitioner also alleged that he was denied due process of law by the trial court\u2019s denial of his motion for a continuance; the trial court\u2019s failure to take action sua sponte to secure Dr. Pearson\u2019s attendance; the trial court\u2019s failure to order a hearing sua sponte regarding petitioner\u2019s statements elicited in violation of Miranda-, the trial court\u2019s refusal to permit Maggie Sprott to testify; the State's failure to disclose the arrest records of certain witnesses; and defense counsel\u2019s failure to request a voluntary manslaughter instruction. Petitioner alleged further that he was denied an impartial jury by the systematic exclusion of blacks during jury selection. Finally, petitioner alleged ineffective assistance of appellate counsel based on appellate counsel\u2019s failure to rise on appeal each of the above contentions.\nThe State filed a motion to dismiss the petition. On June 12, 1986, the State\u2019s motion was granted and the petition was dismissed without an evidentiary hearing.\nI\nPetitioner maintains that the ineffective assistance of counsel allegations in his post-conviction petition were sufficient to withstand a motion to dismiss and to require an evidentiary hearing. Petitioner asserts first that an evidentiary hearing was required on his claim of ineffective assistance of trial counsel because his trial counsel never called Dr. Pearson as a witness even though he had access to petitioner\u2019s medical records and knew about Dr. Pearson prior to the trial. In support of his argument, petitioner relies on People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83. In that case, the defendant was convicted of voluntary manslaughter for killing someone in a dispute over a \u201ccrap\u201d game. Defense counsel failed to call two witnesses who would have testified that the deceased had a gun, a reputation for violence, and had threatened the defendant. The court held that the allegations in the petition for post-conviction relief were sufficient to withstand a motion to dismiss and to require an evidentiary hearing, because the expected testimony corroborated the defendant\u2019s testimony and its cumulative effect might have resulted in a not guilty finding. Petitioner asserts that, like the expected testimony in Stepheny, Dr. Pearson\u2019s testimony was \u201ccrucial\u201d to his defense, because Dr. Pearson would have testified that petitioner was shot twice by bullets of different calibers, thereby corroborating petitioner\u2019s claim that he was a victim of the robbery and fired shots only in self-defense.\nA post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 279; People v. James (1986), 111 Ill. 2d 283, 291, 489 N.E.2d 1350.) An evidentiary hearing is allowed only if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits. (People v. Del Vecchio, 129 Ill. 2d at 279; People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830.) Generally, the issue of a trial counsel\u2019s competence is waived where the defendant\u2019s appellate counsel fails to raise the issue on direct appeal. (People v. Owens (1989), 129 Ill. 2d 303, 308.) However, the waiver rule is relaxed where the facts relating to the issue of incompetency do not appear on the face of the record (People v. Owens, 129 Ill. 2d at 308), or where fundamental fairness so requires (People v. Del Vecchio, 129 Ill. 2d at 280; People v. Burns (1979), 75 Ill. 2d 282, 388 N.E.2d 394).\nIn this case, petitioner was represented by appellate counsel different from trial counsel (see People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340), and the facts relating to petitioner\u2019s claim of incompetency were contained in the record. Accordingly, petitioner has waived the issue of ineffective assistance of trial counsel by not raising it on direct appeal.\nFundamental fairness does not require relaxation of the waiver rule in this case, because the record does not support petitioner\u2019s claim of ineffective assistance of trial counsel in violation of the sixth amendment. To prevail on such a claim, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel\u2019s errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A claim of ineffective assistance of counsel may be disposed of on the ground of lack of sufficient prejudice without considering whether counsel\u2019s performance was deficient. Strickland v. Washington, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Albanese, 104 Ill. 2d at 527, 473 N.E.2d 1246.\nIn this case, the record does not support petitioner\u2019s contention that his trial counsel\u2019s conduct was deficient. Unlike trial counsel\u2019s alleged conduct in People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83, relied on by petitioner, trial counsel in this case plainly made efforts to procure Dr. Pearson as a witness. Indeed, in arguing on direct appeal that the trial court erred in denying his motion for a one-day continuance, petitioner urged, contrary to his position here, that his trial counsel was diligent in his efforts to procure Dr. Pearson as a witness.\nThe record also does not support petitioner\u2019s contention that he was prejudiced by his trial counsel\u2019s failure to call Dr. Pearson as a witness. Had Dr. Pearson been called as a witness, he would have testified that petitioner was struck by two bullets of different calibers. Petitioner claims that this testimony would have corroborated his theory at trial that he was winning at gambling and fired shots in self-defense only after he was robbed and shot at by another disgruntled gambler.\nHowever, the testimony that petitioner had been shot twice would have been cumulative, because one of the State\u2019s witnesses had already testified that petitioner was in the hospital for a gunshot wound and petitioner himself testified that he had been shot twice. Moreover, the expected testimony regarding the calibers of the bullets was uncertain, because Dr. Pearson indicated that he was not sure if the bullets were of different calibers and the medical records submitted by petitioner in support of his motion for a new trial do not indicate that the bullets were of different calibers. Finally, four State witnesses testified that petitioner, without provocation, announced a hold-up, brandished two guns, fired shots and fled with the money. Unlike the expected testimony of the witnesses in Stepheny, Dr. Pearson\u2019s testimony would not have contradicted that other evidence of petitioner\u2019s guilt. Given the evidence presented at trial that petitioner was shot, the uncertain nature of the testimony regarding the calibers of the bullets, and the overwhelming evidence of petitioner\u2019s guilt, it is not likely that Dr. Pearson\u2019s testimony would have changed the outcome of the trial.\nII\nPetitioner maintains next that an evidentiary hearing was required on his claim of ineffective assistance of appellate counsel based on appellate counsel\u2019s failure to raise the issue of the trial court\u2019s refusal to allow Maggie Sprott to testify that Sherry McWoodson had perjured herself. Petitioner argues that Sprott should have been allowed to testify despite defense counsel\u2019s failure to confront McWoodson with her prior contrary statements, because defense counsel learned of the prior contrary statements after McWoodson testified. Petitioner maintains that his case was devastated by McWoodson\u2019s testimony, so that he was substantially prejudiced by his inability to impeach McWoodson with Sprott\u2019s testimony.\nAppellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence to refrain from raising an issue counsel believes to be without merit unless counsel\u2019s appraisal of the merits is clearly wrong. (People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25.) In order to support a claim of ineffective assistance of appellate counsel in a post-conviction proceeding, the petitioner must establish substantial prejudice which likely affected the outcome of the case. People v. Adams (1987), 164 Ill. App. 3d 742, 747, 518 N.E.2d 266.\nIn this case, appellate counsel was not clearly wrong in his appraisal of the merits of the issue regarding the trial court\u2019s preclusion of Sprott\u2019s testimony. Generally, a proper foundation must be laid before prior inconsistent statements of a witness can be offered for purposes of impeachment. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409; People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.) The purpose of this rule is to protect the witness against unfair surprise and to provide an opportunity for the witness to correct, explain, or deny the statement. (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876.) Where a proper foundation was not laid originally because counsel was not then aware of the prior inconsistent statement, it is within the discretion of the trial court to permit the witness to be recalled for the purpose of perfecting the foundation. (People v. Henry (1970), 47 Ill. 2d 312, 322, 265 N.E.2d 876.) Failure to permit the witness to be recalled may constitute reversible error. People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.\nTrial counsel in this case was not aware of McWoodson\u2019s prior inconsistent statement until after McWoodson testified. However, trial counsel did not request leave to recall McWoodson in order to lay a foundation for impeachment. Accordingly, the court properly precluded Sprott\u2019s testimony regarding McWoodson\u2019s prior inconsistent statement on the ground that no foundation had been laid. In any event, the overwhelming evidence of petitioner\u2019s guilt suggest that any error in the trial court\u2019s ruling regarding Sprott\u2019s testimony would have been harmless. (See Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431.) Thus, petitioner was not substantially prejudiced by appellate counsel\u2019s failure to raise the issue on direct appeal.\nIll\nFinally, petitioner maintains that an evidentiary hearing was required on his claim of ineffective assistance of appellate counsel based on appellate counsel\u2019s failure to raise the issue of systematic exclusion of blacks during jury selection. Petitioner argues that, even though Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, was controlling during the pendency of his appeal, appellate counsel should have urged the appellate court to follow cases such as People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, or to apply the sixth amendment fair-cross-section requirement to petit juries.\nWe hold that appellate counsel appropriately refrained from raising the issue of systematic exclusion of blacks during jury selection. During the pendency of petitioner\u2019s direct appeal, Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, had not been decided and the Swain standard controlled over fourteenth amendment claims of exclusion of blacks during jury selection. During voir dire in petitioner\u2019s case, the State excused 10 blacks, leaving only one black juror. Defense counsel moved for a mistrial, alleging systematic exclusion of blacks. The trial court denied the motion, stating that it could not find \u201can intentional exclusion of persons as a pattern, because there [had] been some blacks accepted by the State and one black excluded by the defense.\u201d Given this record and the heavy burden of proof under the standard set forth in Swain, appellate counsel appropriately concluded that petitioner would not prevail on a fourteenth amendment claim of systematic exclusion of blacks during jury selection.\nAppellate counsel also appropriately refrained from raising the issue as a sixth amendment claim. In People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, and People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, the Illinois Supreme Court declined to extend the sixth amendment fair-cross-section requirement, enunciated in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, to petit juries. We do not believe appellate counsel was patently wrong in failing to raise a claim that would have ultimately been rejected by the Illinois Supreme Court.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nBILANDIC, P.J., and HARTMAN, J., concur.", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIAM PEARSON, Petitioner-Appellant.\nFirst District (2nd Division)\nNo. 1 \u2014 86\u20141748\nOpinion filed September 5, 1989.\nRandolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0518-01", "first_page_order": 540, "last_page_order": 549 }