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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN DAVIS, Defendant-Appellant."
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        "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nDefendant Steven Davis was found guilty of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 \u2014 1(a)) and burglary of an automobile (Ill. Rev. Stat. 1985, ch. 38, par. 19 \u2014 1(a)) in a bench trial and sentenced to three years\u2019 probation. Defendant was charged along with codefendant Brian Coleman, who is not a party to this appeal. On appeal, defendant argues that (1) he was denied effective assistance of counsel; (2) he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of defense counsel; and (3) he did not knowingly and understanding^ waive his right to a jury trial. We affirm.\nAt approximately 5:30 p.m. on November 24, 1986, Carmen DeVivies was driving northbound on Pulaski Road in Chicago, Illinois, when she stopped her automobile for a red light at the intersection of Pulaski and Madison streets. While stopped at the red light, the front passenger window of her automobile was shattered and simultaneously a man reached through the broken window and grabbed onto DeVivies\u2019 purse. After a brief struggle, the offender succeeded in wrestling the purse from DeVivies and ran away from the scene of the crime. DeVivies immediately drove away and later called the police. DeVivies testified that she was unable to observe the face of the offender.\nJames Lemon, a member of two neighborhood crime-watch organizations, was patrolling the intersection of Pulaski and Madison streets along with three other individuals because of the recent increase in \u201csmash and grab\u201d incidents that had occurred at that intersection. From his observation point in the parking lot of a liquor store located 75 feet south of the intersection, Lemon observed defendant smash the front passenger window of DeVivies\u2019 red Nissan Sentra and reach into the automobile while codefendant stood two to three feet away surveying the area. After defendant retrieved the purse, Lemon observed defendant and codefendant flee south on Pulaski Road and turn east on Monroe Street. Lemon and the three others chased after defendant and codefendant, but were unable to catch the offenders as they headed eastbound on Monroe Street. Moments later, an unmarked Chicago police vehicle which had been assigned to patrol Pulaski Road for \u201csmash and grab\u201d incidents was flagged down by Lemon. Lemon told the police officers what he and the others had observed and gave them a description of defendant and codefendant.\nThe police officers began to search for the individuals that Lemon described. When defendant and codefendant spotted the police, they started running northbound on Pulaski Road, but were immediately apprehended. The police officers returned defendant and codefendant to the scene of the crime, where Lemon identified them as the individuals whom he had observed smash the window of the red Nissan Sentra and steal the occupant\u2019s purse. A search of defendant and co-defendant did not recover any of the stolen items.\nThe trial court appointed Public Defenders Steven Venit and Paula Lundberg to represent defendant and codefendant in this matter. When defendant requested a bench trial and codefendant requested a jury trial, separate representation of defendant and codefendant became necessary because of the potential for a conflict of interest involving their differing defenses. Following defendant\u2019s jury waiver, Venit, who had been the lead attorney working up both defendant and codefendant\u2019s cases, assumed sole representation of co-defendant, while Lundberg, Venit\u2019s partner at the public defender\u2019s office, assumed sole representation of defendant.\nFollowing a bench trial, defendant was convicted of robbery and burglary of an automobile and sentenced to one year\u2019s intensive probation followed by two additional years of felony probation. Defendant filed a petition for post-conviction relief, alleging that he was deprived of his right to effective assistance of counsel. Following a hearing, the trial court denied defendant\u2019s post-conviction petition. This appeal followed.\nDefendant first argues that he was denied his right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution. We disagree. Recently in People v. Eddmonds (1991), 143 Ill. 2d 501, 510-11, 578 N.E.2d 952, 956, our supreme court reaffirmed the application of the two-part test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for evaluating whether a defendant has received effective assistance of counsel. (See also People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Under the Strickland test, a defendant must prove in a post-conviction hearing that defense counsel\u2019s errors were so objectively incompetent that counsel was not functioning as \u201ccounsel\u201d as guaranteed by the sixth amendment. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Furthermore, if defense counsel\u2019s incompetence is proven, a defendant must also demonstrate that counsel\u2019s deficient performance substantially prejudiced his or her defense so that \u201cbut for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) After reviewing the record of defense counsel\u2019s representation of defendant in its totality, we hold that defendant failed to prove that defense counsel\u2019s representation was incompetent.\nDefendant argues that defense counsel committed various errors demonstrating the incompetency and ineffectiveness of counsel, including defense counsel\u2019s failure to make an opening statement, her limited cross-examination of DeVivies, Lemon and Officer Zielinski, her failure to use any exhibits or photos at trial, her failure to visit the scene of the crime, her failure to meet with defendant or interview witnesses before trial, her failure to make an argument in support of her motion for a directed verdict, her failure to call defendant\u2019s aunt to testify as an alibi witness and her failure to allow defendant to testify in his own behalf. We will address each of these contentions separately.\nDefendant first contends that he received ineffective assistance of counsel because defense counsel failed to make an opening statement. This contention is without merit. There is a strong presumption that counsel has performed in a professionally competent manner, and a defense counsel\u2019s decision to make or waive an opening statement on behalf of a defendant is a question of judgment in strategy or tactics that will not, in and of itself, demonstrate the ineffectiveness of counsel. (People v. Whittaker (1990), 199 Ill. App. 3d 621, 627-28, 557 N.E.2d 468, 472; People v. Georgev (1967), 38 Ill. 2d 165, 169, 230 N.E.2d 851, 854.) Only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant\u2019s right to effective assistance of counsel. People v. Kubik (1991), 214 Ill. App. 3d 649, 661, 573 N.E.2d 1337, 1345.\nAn opening statement is useful to elucidate issues in a jury trial or in a case where the issues are particularly complex. In the present case, however, defendant was not being tried by a jury and the issues were not unduly complex. Moreover, codefendant\u2019s counsel made an introductory statement to the court. Thus, any additional statement by defendant\u2019s counsel would merely have been repetitive. Accordingly, we conclude that defense counsel\u2019s failure to make an opening statement did not violate defendant\u2019s right to effective assistance of counsel.\nDefendant\u2019s second contention is that he received ineffective assistance of counsel because defense counsel failed to effectively cross-examine the State\u2019s prosecution witnesses. This contention is also without merit. Our review of the record reveals that defense counsel\u2019s cross-examination of the State\u2019s prosecution witnesses was sufficiently comprehensive to satisfy an objective standard of competency.\nFirst, during the cross-examination of DeVivies, defense counsel attempted to establish that her ability to view and perceive the crime was impeded by darkness. Additionally, defense counsel elicited from the complaining witness that she could not positively identify defendant as the individual who broke the window of her automobile and stole her purse.\nSecond, during the cross-examination of Lemon, the only identifying witness presented by the State, defense counsel attempted to undermine his credibility by eliciting from him that because it was 5:30 p.m. and the streetlights had already come on, he could have been mistaken as to defendant\u2019s identity. Furthermore, defense counsel elicited from Lemon that there were many people in the area at the time of the offense, and presented the possibility to the trier of fact that the offender could have been someone else other than defendant. Finally, defense counsel extracted from Lemon that the location of his van may have been so far away from the scene of the crime that he could not have been close enough to make a positive identification of defendant.\nThird, during the cross-examination of Officer Zielinski, defense counsel elicited from the witness that he did not at any time observe defendant or codefendant in possession of a purse, that none of the contents of DeVivies\u2019 purse were found in either defendant\u2019s or codefendant\u2019s possession, and that he did not witness defendant commit the theft of DeVivies\u2019 purse. We, therefore, hold that there is nothing incompetent about defense counsel\u2019s cross-examination of the State\u2019s prosecution witnesses. Defense counsel attempted to impeach, undermine and obfuscate the witnesses\u2019 testimony during their direct and cross-examination. Her questioning was thorough, comprehensive and effective, eliciting responses that raised pertinent questions as to defendant\u2019s guilt. Accordingly, we conclude that defense counsel did not fail to vigorously cross-examine the State\u2019s prosecution witnesses so as to violate defendant\u2019s right to effective assistance of counsel.\nDefendant\u2019s third contention is that his right to effective assistance of counsel was violated because defense counsel failed to use any exhibits or photos at trial even though a photo of the crime scene taken by codefendant\u2019s counsel was available for use at trial. This contention is also without merit. Defense counsel\u2019s decision to use or not to use an exhibit or photo is clearly a strategic or tactical decision that will not be disturbed on review. Accordingly, we conclude that defense counsel\u2019s decision not to use exhibits or photos at defendant\u2019s trial did not violate his right to effective assistance of counsel.\nDefendant\u2019s fourth contention is that defense counsel\u2019s failure to visit the scene of the crime violated his right to effective assistance of counsel. There are circumstances in which we would find that defense counsel\u2019s failure to visit the scene of the accident or crime would not meet the objective standard of competence set forth in Strickland. In the present case, however, where the facts, legal issues and crime scene are so elementary, we conclude that defendant was not prejudiced by defense counsel\u2019s failure to visit the crime scene. Accordingly, defendant\u2019s right to effective assistance of counsel was not violated by defense counsel\u2019s failure to visit the scene of the crime.\nDefendant\u2019s fifth contention is that defense counsel\u2019s failure to meet with defendant or interview witnesses before trial violated his right to effective assistance of counsel. Defendant testified that he did not meet with or discuss any of the facts of the case with Lundberg before his trial began. Lundberg testified, however, that she first met with defendant in March 1987, more than one month before defendant\u2019s trial began, and had interviewed defendant at length about his defense.\nDefendant relies on People v. Wallace (1982), 106 Ill. App. 3d 580, 435 N.E.2d 1322, a pre-Strickland case where the court held that defendant was denied the effective assistance of counsel when he met his attorney for the first time on the day of the trial and proceeded immediately to trial shortly thereafter.\nAssuming arguendo that we adopt defendant\u2019s version that he had never met Lundberg prior to the day of trial, Wallace is still distinguishable from the present case. Unlike in Wallace, where the attorney had absolutely no familiarity with the facts and legal issues of the case, Lundberg had complete understanding of the factual and legal issues of defendant\u2019s case. Lundberg was\" Venit\u2019s partner at the public defender\u2019s office and she had been working up the case with Venit. Venit had been to the scene of the crime, interviewed witnesses, taken photographs and otherwise become acquainted with the relevant facts and legal issues involved. Lundberg\u2019s familiarity with the case was clearly illustrated by her cross-examination of the State\u2019s prosecution witnesses, where she brought out and articulated for the trial court the weaknesses in the State\u2019s case against defendant. We, therefore, conclude that defense counsel\u2019s failure to meet with defendant or interview witnesses before trial did not violate defendant\u2019s right to effective assistance of counsel.\nDefendant\u2019s sixth contention is that defense counsel\u2019s failure to make an argument in support of a directed verdict violated his right to effective assistance of counsel. We disagree. As discussed previously, only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant\u2019s right to effective assistance of counsel. (Kubik, 214 Ill. App. 3d at 661, 573 N.E.2d at 1345.) Defense counsel made a motion for a directed verdict, thus preserving all of defendant\u2019s post-trial rights. Accordingly, we conclude that defense counsel\u2019s failure to make an argument in support of defendant\u2019s motion for a directed verdict does not violate defendant\u2019s right to effective assistance of counsel.\nDefendant\u2019s seventh contention is that defense counsel\u2019s failure to call defendant\u2019s aunt as an alibi witness violated his right to effective assistance of counsel. This contention is also without merit.\nThe decision of whether to call a witness is a tactical and strategical decision in which defense counsel is given wide latitude in making decisions. (People v. Flores (1989), 128 Ill. 2d 66, 85-86, 538 N.E.2d 481, 485-86; see also Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Defense counsel testified that she informed defendant\u2019s aunt that it could possibly hurt defendant\u2019s case if she testified at trial because Officer Zielinski, the arresting officer, had previously testified that defendant was in custody at the time in which she was prepared to testify that defendant was at home with her in her basement lifting weights. We conclude that defense counsel could have reasonably concluded as a matter of trial strategy that defendant\u2019s aunt\u2019s testimony would not have aided in defendant\u2019s case. Accordingly, defense counsel\u2019s failure to call defendant\u2019s aunt as an alibi witness did not violate defendant\u2019s right to effective assistance of counsel.\nDefendant\u2019s eighth contention is that defense counsel rested defendant\u2019s case without calling him to testify in his own defense after he repeatedly asked defense counsel for the opportunity to testify. This contention is also without merit. The trial court ruled following the post-conviction hearing that defense counsel advised defendant that \u201c[I]t was his decision and only his decision whether to testify or not. The defendant on his own elected not to testify.\u201d We hold that the trial court\u2019s ruling is not contrary to the manifest weight of the evidence.\nAt the post-conviction hearing, defense counsel testified that she discussed with defendant on numerous occasions whether he should take the stand in his own defense. Defense counsel testified that she thought that argument of the facts would be the best method to create a reasonable doubt as to defendant\u2019s guilt and that defendant\u2019s testimony, in her opinion, would only be damaging to his case. Defense counsel further testified that she advised defendant that she did not know what probative value defendant\u2019s testimony would have since it would be a strict denial of what had happened, but left the choice of testifying up to defendant.\nDefendant testified at the post-conviction hearing that he repeatedly asked defense counsel when he was going to be able to testify after she had explained to him that he had a right to testify in his own defense. Defendant further testified that he did not ask the judge if he could testify because defense counsel told him to \u201cbe quiet.\u201d\nWe find defense counsel\u2019s testimony at the post-conviction hearing to be more credible than defendant\u2019s testimony. Defense counsel had more than six years of experience with the public defender\u2019s office, including more than I1/2 years in the felony trial division. Defense counsel\u2019s testimony is clear and consistent. Defense counsel would have little reason not to call defendant to testify in his own defense if he asked to testify, even if he was jeopardizing his chances for acquittal. On the other hand, defendant\u2019s credibility is suspect. Defendant\u2019s testimony throughout the hearing was unbelievable and self-serving, corroborated by the fact that defendant had little to lose by not telling the truth. We, therefore, conclude that defense counsel did not prevent defendant from testifying in his own defense at trial.\nFor all the foregoing reasons, we conclude that defense counsel\u2019s representation of defendant did not fall below an objective standard of competency so as to deprive defendant of a fair trial. To the contrary, the record demonstrates that defense counsel\u2019s representation was anything but incompetent. Defense counsel demonstrated a strong knowledge of the facts of the case and the legal issues involved. Defense counsel\u2019s tactics with regard to omitting to call defendant\u2019s aunt to testify as an alibi witness or to call defendant to testify in his own defense were strategically sound. Her objections to the prosecutor\u2019s examination of the State\u2019s prosecution witnesses were timely and correct, and her cross-examination of these witnesses elicited the weaknesses and inconsistencies in the State\u2019s case. Accordingly, we hold that defendant was not denied his right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution.\nDefendant\u2019s second argument on appeal is that he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of public defenders. We disagree.\nFirst, the record does not support defendant\u2019s supposition that he was not consulted about the nature and circumstances surrounding Venit\u2019s separation from his case. Defendant was present during all court proceedings and was present when the court cursorily explained the necessity of Venit\u2019s separation from defendant\u2019s case. While the record does not demonstrate that a detailed explanation was made to defendant of the necessity for Venit\u2019s separation from the case, it can reasonably be inferred that defendant, an 18-year-old man, was fully aware and apprised of the circumstances involving Venit\u2019s separation from the case.\nSecond, the record is devoid of any evidence that defendant objected to the removal of Venit as his counsel. Defendant failed to mention or imply to either Venit, Lundberg or the trial court that he did not understand why Venit was no longer working on his behalf or that he was dissatisfied that Lundberg was acting as his sole defense counsel. The record reflects that defendant cooperated in toto with Lundberg at trial, and it was only after defendant was convicted of the charges that defendant became displeased with her representation. The fact that defendant mentioned for the first time on appeal that he did not understand and was not consulted about Venit\u2019s separation from the case can only be interpreted to mean that defendant fully consented to the separation. Accordingly, we conclude that defendant\u2019s argument that he was denied a fair trial when he was not consulted about the nature and circumstances surrounding the substitution of public defenders is without merit.\nDefendant\u2019s final argument on appeal is that his waiver of the right to a jury trial was not knowingly and understandingly made in light of the substitution of attorneys immediately following his jury waiver. This argument is also without merit.\nIt is undisputed that defendant made a waiver of his right to a jury trial in open court. Defense counsel Venit informed the court that defendant intended to waive his right to a jury trial. The trial court then inquired of defendant whether he clearly understood his right to a jury trial, and the following dialogue took place in open court:\n\u201cTHE COURT: All right. Mr. Davis, is that correct, as your attorney has indicated that you wish to waive your right to have a jury trial and have this case tried in front of myself as the judge sitting without a jury and I will determine whether you\u2019re guilty or not.\nDEFENDANT: Yes, sir.\nTHE COURT: Do you understand what a jury trial is?\nDEFENDANT: Yes, sir.\nTHE COURT: I\u2019ve been handed this document; is this your signature?\nDEFENDANT: Yes, sir.\nTHE COURT: Do you understand by signing this document and filing this document with the court that you are waiving or giving up your right to have a jury trial on this matter?\nDEFENDANT: Yes, sir.\u201d\nDefendant contends, however, that his waiver of the right to a jury trial was not knowingly and understandingly made because he waived the right to a jury trial while he believed that he would be represented by Venit, and that the decision to waive his right to a jury trial was based on and intertwined with the confidence and trust that he had in Venit. This argument is logically and legally meritless. Defendant cites various cases in support of his argument; however, none of the cases stands for the proposition of law which defendant seeks for us to adopt. We, therefore, hold that defendant\u2019s waiver of his right to a jury trial, given voluntarily in open court, was made knowingly and understandingly.\nAccordingly, the judgment of the circuit court is affirmed.\nAffirmed.\nTULLY and CERDA, JJ., concur.\nJustice White heard oral arguments in this case prior to his retirement. Justice Tully was designated the third member of the panel and has read the record, brief and listened to the tapes.",
        "type": "majority",
        "author": "JUSTICE RIZZI"
      }
    ],
    "attorneys": [
      "Chester L. Blair, of Chicago, for appellant.",
      "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Margaret Iwerebon, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN DAVIS, Defendant-Appellant.\nFirst District (3rd Division)\nNos. 1\u201487\u20142482, 1\u201489\u20141778 cons.\nOpinion filed March 31, 1992.\nChester L. Blair, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Margaret Iwerebon, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0123-01",
  "first_page_order": 143,
  "last_page_order": 153
}
