{ "id": 5100617, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant", "name_abbreviation": "People v. Gibson", "decision_date": "1993-04-29", "docket_number": "No. 4\u201492\u20140273", "first_page": "700", "last_page": "704", "citations": [ { "type": "official", "cite": "244 Ill. App. 3d 700" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "581 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274085 ], "weight": 2, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0479-01" ] }, { "cite": "595 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210754 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0948-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "695" }, { "page": "698" }, { "page": "2068-69" }, { "page": "690" }, { "page": "695" }, { "page": "2066" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "572 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "934" }, { "page": "934" } ], "opinion_index": 0 }, { "cite": "143 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591273 ], "weight": 2, "pin_cites": [ { "page": "218" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0210-01" ] }, { "cite": "533 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1091" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "year": 1991, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "555 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. 2d 553", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "550 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2501226 ], "year": 1990, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0534-01" ] }, { "cite": "546 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "131 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569602 ], "weight": 2, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0284-01" ] }, { "cite": "561 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2582934 ], "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0666-01" ] }, { "cite": "387 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "75 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991135 ], "year": 1990, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0001-01" ] }, { "cite": "432 A.2d 86", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "86 N.J. 525", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 338202 ], "opinion_index": 0, "case_paths": [ "/nj/86/0525-01" ] }, { "cite": "452 N.E.2d 1368", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481356 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0270-01" ] } ], "analysis": { "cardinality": 587, "char_count": 10609, "ocr_confidence": 0.779, "pagerank": { "raw": 1.149505816762927e-07, "percentile": 0.5810481614951296 }, "sha256": "f3047d80457ac9c186b1e8b122f6083792ecf5c7f0e5b35571cdb755fc23e0b5", "simhash": "1:26309df6fcb4ec5d", "word_count": 1675 }, "last_updated": "2023-07-14T19:27:37.423199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nOn May 10, 1982, following a jury trial in the circuit court of Sangamon County, defendant Sherman Gibson was convicted of the offenses of home invasion, rape, deviate sexual assault, burglary, and felony theft. (Ill. Rev. Stat. 1981, ch. 38, pars. 12 \u2014 11(a)(1), 11 \u2014 1, 11 \u2014 3, 19 \u2014 1, 16 \u2014 1(a)(1).) He was subsequently sentenced to concurrent terms of 45 years\u2019 imprisonment for home invasion, rape and deviate sexual assault and 7 years\u2019 imprisonment for burglary. This court affirmed his convictions and sentences on direct appeal. People v. Gibson (1983), 117 Ill. App. 3d 270, 452 N.E.2d 1368.\nOn December 22, 1989, defendant filed a pro se petition for post-conviction relief (Ill. Rev. Stat. 1989, ch. 38, pars. 122 \u2014 1 through 122 \u2014 8), alleging that (1) he was denied the effective assistance of counsel because he advised his attorney that Jeffrey Wilford could provide him with an alibi defense, and notwithstanding this information, counsel never contacted Wilford; and (2) the use of hypnotically refreshed testimony at trial violated principles of fundamental fairness, because such testimony was inherently unreliable and made cross-examination impossible. On March 12, 1991, the court appointed counsel to represent defendant.\nOn September 4, 1991, defendant\u2019s attorney, Jon Noll, filed an amended petition for post-conviction relief which incorporated the pro se petition and made substantially the same allegations as defendant had previously made. The amended petition added that (1) defendant\u2019s trial attorney knew Wilford was incarcerated in the Madison County jail at the time of defendant\u2019s trial and nevertheless failed to contact him; and (2) the use of the hypnotically induced recollection at trial deprived defendant of his constitutional right to cross-examine the witness.\nAttached to the amended petition were affidavits of defendant and Wilford. Defendant\u2019s affidavit indicated he told his trial attorney about Wilford and that Wilford would have testified defendant was with him at Wilford\u2019s girlfriend\u2019s house on the night of the incident. He said his counsel told him he did not know how to obtain a witness subpoena. He also said his attorney knew Wilford was in another county jail at the time of defendant\u2019s trial. Wilford\u2019s affidavit indicated he would have testified that defendant was with him at Carolyn Madison\u2019s (his girlfriend\u2019s) home on the morning of June 13, 1981 (the date of the offenses), and defendant was asleep at 5:30 a.m. when Glenda Sue Medley and Allen Medley arrived at the house with credit cards belonging to the victims. He further stated that he and defendant spent the previous night and early morning hours together, defendant did not commit a home invasion or rape, and Wilford was never contacted by any attorney for defendant.\nThe State filed a motion to dismiss the amended petition, alleging that defense counsel\u2019s performance could not be characterized as constitutionally defective, and the admission of hypnotically refreshed testimony did not violate defendant\u2019s constitutional rights. On January 16, 1992, following a hearing on the petition, the court granted the motion to dismiss.\nOn appeal, defendant\u2019s contentions center upon his theory that his rights to confrontation and due process were violated by the admission of hypnotically induced testimony. However, he also contends that the petition set forth a violation of his sixth amendment right to effective assistance of counsel, because of his trial counsel\u2019s failure to subpoena an alibi witness. We hold that the first issue has been waived, but the petition did set forth sufficient allegations to require an evidentiary hearing on the question of ineffective assistance of counsel. We reverse and remand to the trial court with directions to hold an evidentiary hearing.\nDefendant argues initially that the use of the victim\u2019s post-hypnosis testimony at trial violated his constitutional rights to confrontation and due process.\nOn direct appeal, defendant argued that the hypnotically enhanced testimony was inadmissible because (1) the prior hypnosis of the victim rendered her incompetent to testify to subjects inquired into under hypnosis; and (2) the witness\u2019 testimony should have been excluded because the hypnosis did not satisfy the safeguards for the admission of hypnotically enhanced testimony set out in State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86. Defendant did not argue the admission of hypnotically enhanced testimony worked a denial of his constitutional rights to confrontation and due process. It is well settled that in evaluating post-conviction petitions, affirmance on direct appeal is res judicata as to all issues that were raised, or could have been raised, in that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335; People v. Seidler (1990), 203 Ill. App. 3d 666, 669, 561 N.E.2d 386, 388.) We conclude defendant could have raised this issue on direct appeal, and by failing to do so, has waived any right to present the issue in his post-conviction petition.\nMoreover, notwithstanding that the issue has been waived, defendant may not challenge the introduction of this testimony based upon the Illinois Supreme Court\u2019s decision in People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513. There, the supreme court changed the law respecting the admission of hypnotically enhanced testimony, concluding it was inherently unreliable and, other than such testimony of the defendant, is not admissible in Illinois. (Zayas, 131 Ill. 2d at 295, 546 N.E.2d at 518.) However, the court specifically stated that this ruling would not affect those cases that have been finally determined on direct appeal.\nIn People v. Smrekar (1990), 193 Ill. App. 3d 534, 540, 550 N.E.2d 3, 7, appeal denied (1990), 132 Ill. 2d 553, 555 N.E.2d 384, this court refused the defendant\u2019s request to find that Zayas should be applied retroactively. This court concluded that Zayas was unambiguous in its holding that the ruling would have no retroactive effect on collateral attacks. We reaffirm that conclusion.\nAlthough we are not reversing because of the introduction of hypnotically enhanced testimony, we conclude nevertheless that defendant has raised a sufficient question of error as to his claim that his trial counsel was ineffective for failing to subpoena an alibi witness.\nIn order to prevail under the Post-Conviction Hearing Act, a defendant \u201cmust establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois.\u201d (People v. Caballero (1989), 126 Ill. 2d 248, 259, 533 N.E.2d 1089, 1091; see also People v. Spreitzer (1991), 143 Ill. 2d 210, 218, 572 N.E.2d 931, 934.) A defendant is entitled to an evidentiary hearing on the petition if the allegations \u201care supported by the trial record, accompanying affidavits, and make a substantial showing that a defendant\u2019s rights have been violated.\u201d Spreitzer, 143 Ill. 2d at 218, 572 N.E.2d at 934.\nThe Supreme Court has determined that in order to establish the defendant was denied his constitutional right to effective assistance of counsel, he must show: (1) counsel\u2019s performance was deficient in that he made errors so serious that counsel was not functioning as \u201ccounsel\u201d guaranteed by the sixth amendment; and (2) the deficient performance prejudiced the defense and deprived defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,104 S. Ct. 2052, 2064.\nAssuming a defendant can show a deficiency of counsel, he must still demonstrate prejudice. Under Strickland, a defendant must show not only that his counsel\u2019s performance fell below the prevailing professional norms, but also that \u201cthere is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.\u201d Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.\nDefendant cites People v. Truly (1992), 230 Ill. App. 3d 948, 595 N.E.2d 1230, where the defendant was granted a new trial based on a finding that his trial attorney had been ineffective for failing to investigate and subpoena alibi witnesses. He also cites People v. Skinner (1991), 220 Ill. App. 3d 479, 581 N.E.2d 252, where the appellate court held that Skinner was denied effective assistance of counsel, because his trial counsel failed to call as witnesses the defendant\u2019s parents, who would have corroborated Skinner\u2019s testimony. The court concluded that the failure to call witnesses who would support an otherwise uncorroborated defense amounted to ineffective assistance of counsel. Skinner, 220 Ill. App. 3d at 485, 581 N.E.2d at 256.\nTraditionally, courts have not reviewed an attorney\u2019s choices when made on the basis of strategic considerations. However, these strategic decisions may be made only after there has been a \u201cthorough investigation of law and facts relevant to plausible options.\u201d Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.\nHere, on direct appeal, this court determined that although error occurred in the admission of the identification testimony of the victim, the admission of Glenda Medley\u2019s prior consistent statement to the police, and in the exclusion of a response to a question propounded to defendant\u2019s expert, the errors were harmless in light of the \u201coverwhelming\u201d evidence of defendant\u2019s guilt. Had defendant presented Wilford\u2019s alibi testimony, the evidence might not have been overwhelming.\nAlthough defendant\u2019s trial attorney may have decided, as a matter of strategy, not to call Wilford because of his possible involvement in the incident, including his alleged use of the victims\u2019 credit cards, we cannot say as a matter of law that was the attorney\u2019s reasoning. It could, as defendant maintains, have been pure incompetence. Once evidence is heard on the subject, the circuit court will be in a better position to determine whether a Strickland deprivation of counsel occurred.\nAccordingly, we reverse and remand for further proceedings.\nReversed and remanded.\nKNECHT and COOK, JJ., concur.", "type": "majority", "author": "JUSTICE GREEN" } ], "attorneys": [ "Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Donald M. Cadagin, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 92\u20140273\nOpinion filed April 29,1993.\nDaniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nDonald M. Cadagin, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0700-01", "first_page_order": 720, "last_page_order": 724 }