{ "id": 252578, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY JOE ANDERSON, Defendant-Appellant", "name_abbreviation": "People v. Anderson", "decision_date": "1995-05-17", "docket_number": "No. 1\u201493\u20140909", "first_page": "566", "last_page": "572", "citations": [ { "type": "official", "cite": "272 Ill. App. 3d 566" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "580 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274143 ], "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0732-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "538 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "year": 1985, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "636 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "159 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781331 ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0051-01" ] }, { "cite": "827 F.2d 83", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1753984 ], "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/f2d/827/0083-01" ] }, { "cite": "461 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "101 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160452 ], "year": 1987, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0044-01" ] }, { "cite": "606 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "324" }, { "page": "324" }, { "page": "325" } ], "opinion_index": 0 }, { "cite": "238 Ill. 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BOBBY JOE ANDERSON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant was found guilty of first degree murder and was sentenced to a term of natural life imprisonment in the shooting death of William Hawkins.\nOn appeal, defendant claims: (1) he was denied effective assistance of counsel where defense counsel informed the jury of defendant\u2019s prior murder conviction; and (2) the trial court abused its discretion in denying defendant\u2019s request for a continuance in order to complete discovery. However, we affirm.\nShortly after 11 p.m. on October 16, 1979, William Hawkins, the mayor of Phoenix, Illinois, was shot to death in his driveway while exiting his car. Phoenix is a small village located in Chicago\u2019s southern suburbs. In early September of 1979, the Phoenix police department went on strike in connection with a salary dispute with the village. Defendant was a Phoenix police officer.\nEugene Wright was the only eyewitness to the shooting. At the time of the shooting, Wright was 17 years old. On the afternoon of October 16,1979, Wright observed defendant driving one of Phoenix\u2019s two unmarked police cars with Tony Childs, a Phoenix police lieutenant and a codefendant in the murder of William Hawkins, in the passenger seat.\nWright and a friend, Michael Stoudemire, had been drinking beer in a local pool room throughout the afternoon and were on their way to a liquor store to buy more beer when they saw defendant and codefendant Childs in the unmarked police car. They purchased more liquor and went to Stoudemire\u2019s house to watch the World Series.\nAfter the game ended, the two retired to the backyard of the house and smoked a marijuana cigarette. The Stoudemire yard was located across an alley from Mayor Hawkins\u2019 driveway. Standing in the yard, Wright noticed Mayor Hawkins\u2019 car pull into the driveway. As Hawkins was exiting his vehicle, Wright observed a second car, which he recognized as the unmarked police car he had seen defendant driving earlier that day, enter the driveway. Wright recognized the car\u2019s driver as defendant and its passenger as codefendant Childs.\nChilds stepped from the vehicle and Wright heard him shout toward Hawkins. Childs then raised a rifle and fired several shots at Hawkins. Wright saw the mayor fall to the ground, Childs get back in the car, and defendant drive away. Wright remained in the yard and he saw police, paramedics, and neighbors gather in the Mayor\u2019s driveway. Among the officers at the scene were defendants Anderson and Childs.\nWright was not approached about the incident, nor did he volunteer testimony, until 1983 when he was questioned by Cook County sheriff\u2019s police officer Houlihan while in custody at Cook County jail on a burglary charge. Officer Houlihan again questioned Wright in 1986 and in 1991, and in 1992 Wright formally testified in a Federal proceeding, identifying Anderson and Childs as Mayor Hawkins\u2019 killers.\nOn December 11, 1986, FBI Agents Hardman and Snow questioned defendant while he was in custody for the murder of his girlfriend. Defendant confessed to his involvement in the Hawkins murder on this occasion. Thereafter, during two subsequent interviews on December 12 and 15, defendant again confessed before FBI agents, Cook County sheriffs deputies, and Cook County Assistant State\u2019s Attorney Scott Arthur. Defendant was not charged with the murder of Mayor Hawkins until June of 1992.\nBefore trial, defendant moved for a continuance, alleging that discovery had not been completed. The motion was denied.\nIn an oral motion in limine, defendant requested that the State be barred from mentioning defendant\u2019s prior murder conviction to impeach him should defendant choose to testify or, in the alternative, that the State at least be precluded from mentioning the nature of the prior offense. The motion was denied in its entirety.\nDuring opening statements, defense counsel stated that defendant had been convicted for the murder of his girlfriend and was currently serving a sentence for that conviction. Defense counsel made or elicited several additional references to that prior conviction, including one made in counsel\u2019s closing argument. During trial, the court questioned defendant about his decision not to testify. The court also questioned defendant as to whether he understood and agreed with the decision to advise the jury of the prior murder conviction. Defendant responded that he understood and had consented in both instances.\nDefendant and codefendant Childs were tried concurrently but with separate juries. Defendant was convicted of first degree murder and codefendant Childs was acquitted.\nDefendant first contends he was denied effective assistance of counsel where defense counsel informed the jury that he had a prior conviction for the murder of his girlfriend. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness, as measured by reference to prevailing professional standards, and that the quality of defendant\u2019s representation so prejudiced the defendant as to deny him a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.\nA reviewing court should indulge a strong presumption that the challenged action of counsel falls within the wide range of reasonable professional assistance. People v. Gonzalez (1992), 238 Ill. App. 3d 303, 331, 606 N.E.2d 304, 324.\nIt bears repeating that a defendant is entitled to competent, not perfect, representation, and the fact that in retrospect a tactic proved unsuccessful does not demonstrate incompetence. (Gonzalez, 238 Ill. App. 3d at 331, 606 N.E.2d at 324.) In examining counsel\u2019s performance, a reviewing court should not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. Gonzalez, 238 Ill. App. 3d at 331-32, 606 N.E.2d at 325.\nDefendant argues that admission of the prior conviction was prejudicial and denied him a fair trial. The State argues that, even conceding prejudice, defendant cannot claim ineffective assistance where (1) counsel\u2019s admission of the earlier conviction was a matter of trial strategy and (2) was one which was fully understood and consented to by defendant.\nThe State correctly notes that defendant\u2019s pretrial motion seeking to bar the State from impeaching defendant with the prior conviction, or in the alternative from mentioning the nature of the conviction, was denied by the trial court. Therefore, the State argues, faced with the prospect that defendant would be impeached with the prior conviction if he testified, it was reasonable strategy to inform the jury \"up front\u201d in anticipation of defendant\u2019s testimony.\nThis is a common enough strategy, and one which would justify the introduction of the prior conviction. However, though initially plausible, the State\u2019s strategy theory does not explain the subsequent and repeated mention of the prior conviction after it was determined that defendant would not take the stand.\nHowever, the record supports another reasonable trial strategy that explains the later disclosures. The record indicates that counsel was attempting to show that defendant\u2019s confession to the Hawkins murder, which included naming Childs and other higher ranking Phoenix police officers, was in exchange for concessions in his treatment in connection with the murder for which he had been previously convicted as to sentencing and transfer from Stateville Penitentiary to the Metropolitan Correctional Center, a Federal facility. The inference to be drawn is that the confession, because it was bargained for or induced, is unreliable. Accordingly, additional references to the prior conviction were necessary to challenge the legitimacy of defendant\u2019s confession.\nThe following colloquy concerning defendant\u2019s confession between defense counsel, Mr. Rago, and the prosecutor, Mr. Linehan, which took place during closing argument, bears this out:\n\"MR. RAGO: Why would the most damning words that can come out of a person\u2019s mouth be uttered? Ladies and gentleman, my client went to the penitentiary after September of 1986.\nMr. LINEHAN: Objection, Judge.\nMR. RAGO: The reasonable inference is, why, in December. He has already spent time in the Stateville Penitentiary. He was a cop. You know what the environmental factors are in the penitentiary for an ex-cop.\nMr. LINEHAN: Objection.\u201d\nEach time counsel sought to explore this possibility at trial, the court would intervene. Counsel\u2019s attempt to challenge the reliability of defendant\u2019s confession, by far the most damaging evidence of guilt, was arguably sound trial strategy. That the strategy proved unsuccessful in no way suggests ineffective representation. Errors in judgment or trial strategy do not establish incompetence (People v. Eddmonds (1984), 101 Ill. 2d 44, 70, 461 N.E.2d 347), \"even if clearly wrong in retrospect\u201d (United States v. Yancey (7th Cir. 1987), 827 F.2d 83, 90).\nCounsel\u2019s decision to mention the prior conviction was not only permissible trial strategy, but was strategy which was discussed with, and consented to, by defendant. The trial court made a point of asking defendant if he concurred with the decisions not to testify and to inform the jury of his prior conviction. Defendant unequivocally expressed his agreement with those decisions.\nWhere a defendant knowingly and intelligently consents to defense counsel\u2019s strategy, he normally cannot claim ineffective assistance of counsel for the actions of defense counsel in furtherance of that strategy. (People v. Fair (1994), 159 Ill. 2d 51, 636 N.E.2d 455.) There is nothing to suggest that defendant\u2019s consent was not knowing and intelligent, particularly given the fact that defendant was acquainted with the trial process, having been both a police officer and prison guard.\nDefendant next argues that the trial court abused its discretion in denying his requests for continuance. Whether to grant a continuance is within the sound discretion of the trial court (People v. Young (1989), 128 Ill. 2d 1, 27, 538 N.E.2d 453), and a reviewing court will not interfere with the trial court\u2019s grant or denial of a continuance absent clear abuse of discretion. People v. Collins (1985), 106 Ill. 2d 237, 281, 478 N.E.2d 267.\nDefendant made two pretrial motions for continuance alleging incomplete discovery and reiterated this request on the first day of trial. The trial court denied each of defendant\u2019s motions. Defendant contends that he was prejudiced by the denials.\nThis action is unusual in that 13 years separate the crime and the indictment. Defendant was afforded six months to prepare for trial, a period, he argues, insufficient where the prosecution had 13 years within which to prepare. Though the numbers suggest inequality, the fact is that almost nothing of evidentiary value happened or was discovered in the interim between crime and trial. The State did not use the 13 years to amass a mountain of evidence for its prosecution of defendant. Their case was made in 1986, when Wright identified Anderson and Childs, and when defendant first confessed.\nAlso, defendant fails to point to specific manifestations of prejudice caused by the trial court\u2019s ruling. Defendant maintains that discovery was not completed, yet the items specifically requested by defendant, photographs of Mayor Hawkins\u2019 house and driveway, an audiotape pertaining to codefendant Childs, and transcripts of a related Federal proceeding, were either tendered by the State or were immaterial to the issue of defendant\u2019s innocence. Further, the trial court entertained extensive arguments from both sides on each motion for continuance and twice barred the State from admitting evidence and testimony which spoke to the murder weapon in this case because it found discovery violations by the State.\nTo establish a discovery violation which would warrant a new trial, a defendant bears the burden of establishing (1) that the evidence was favorable to him, (2) that the prosecutor failed to disclose the evidence after a specific request, and (3) that the evidence was material. (People v. Blount (1991), 220 Ill. App. 3d 732, 745, 580 N.E.2d 1381.) Defendant is unable to meet this burden or show the requisite prejudice to sustain a claim of abuse of discretion.\nBecause defendant is unable to show ineffective assistance of counsel or abuse of discretion, we affirm his conviction for first degree murder.\nAffirmed.\nTULLY and CERDA, JJ., concur.\nThe Federal proceeding concerned the Federal Bureau of Investigation\u2019s (FBI\u2019s) investigation of public corruption in the south suburbs, including Phoenix, Illinois. No Federal charges resulted from the investigation of Hawkins\u2019 murder.", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "Charles K. Piet, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Latisha Foster, and Cathleen A. Dillon, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY JOE ANDERSON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 93\u20140909\nOpinion filed May 17, 1995.\nCharles K. Piet, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Latisha Foster, and Cathleen A. Dillon, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0566-01", "first_page_order": 584, "last_page_order": 590 }