{ "id": 1083785, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORY W. CALHOUN, Defendant-Appellant", "name_abbreviation": "People v. Calhoun", "decision_date": "2004-09-01", "docket_number": "No. 4\u201402\u20140944", "first_page": "1072", "last_page": "1087", "citations": [ { "type": "official", "cite": "351 Ill. App. 3d 1072" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "565 A.2d 1373", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7367435 ], "year": 1989, "pin_cites": [ { "page": "1379" } ], "opinion_index": 0, "case_paths": [ "/a2d/565/1373-01" ] }, { "cite": "639 N.W.2d 6", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9393162 ], "year": 2002, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nw2d/639/0006-01" ] }, { "cite": "474 So. 2d 309", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7604390, 7604455 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/so2d/474/0309-01", "/so2d/474/0309-02" ] }, { "cite": "739 P.2d 1161", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "pin_cites": [ { "page": "1169" } ], "opinion_index": 0 }, { "cite": "48 Wash. App. 353", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1838123 ], "year": 1987, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/wash-app/48/0353-01" ] }, { "cite": "781 N.E.2d 1237", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2003, "pin_cites": [ { "page": "1250-51" }, { "page": "1250-51" }, { "page": "1250-51" }, { "page": "1250-51" }, { "page": "1251" } ], "opinion_index": 0 }, { "cite": "438 Mass. 535", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 201265 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "551-52" }, { "page": "551-52" }, { "page": "551-52" }, { "page": "551-52" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/mass/438/0535-01" ] }, { "cite": "2004 WI 70", "category": "reporters:neutral", "reporter": "WI", "case_ids": [ 9183156 ], "weight": 4, "pin_cites": [ { "page": "\u00b643" }, { "page": "513" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/272/0488-01" ] }, { "cite": "857 F.2d 436", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10528381 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "447", "parenthetical": "noting that once defense counsel makes a motion to withdraw or allows his client to testify in the narrative, \"the die is cast. The prejudice will have occurred. At a minimum, the trial court will know of the defendant's potential perjury\"" }, { "page": "446" }, { "page": "444" }, { "page": "445" }, { "page": "445" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/f2d/857/0436-01" ] }, { "cite": "604 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602986 ], "year": 1992, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0041-01" ] }, { "cite": "342 F.3d 321", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9099812 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "326" }, { "page": "327" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/f3d/342/0321-01" ] }, { "cite": "599 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1992, "pin_cites": [ { "page": "521" }, { "page": "522" }, { "page": "522" }, { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5194633 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "559" }, { "page": "559" }, { "page": "560" }, { "page": "560" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0530-01" ] }, { "cite": "566 N.E.2d 855", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "856" }, { "page": "857" }, { "page": "857" }, { "page": "857" } ], "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548708 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "106" }, { "page": "108" }, { "page": "108" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0105-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1989, "pin_cites": [ { "page": "496" }, { "page": "497" }, { "page": "497" }, { "page": "498" }, { "page": "498", "parenthetical": "\"[a]bsent some showing that counsel's decision was unreasonable under the circumstances,\" counsel should have discretion to make a good-faith determination whether a proposed witness will testify untruthfully" }, { "page": "497" }, { "page": "498" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 8, "year": 1989, "pin_cites": [ { "page": "103" }, { "page": "104-05" }, { "page": "105-06" }, { "page": "107" }, { "page": "107" }, { "page": "105-06" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "475 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199238 ], "weight": 25, "year": 1986, "pin_cites": [ { "page": "160-61" }, { "page": "131" }, { "page": "991" }, { "page": "173" }, { "page": "138" }, { "page": "997" }, { "page": "173" }, { "page": "139" }, { "page": "997" }, { "page": "174" }, { "page": "139" }, { "page": "998" }, { "page": "174" }, { "page": "139" }, { "page": "998" }, { "page": "173-74" }, { "page": "139" }, { "page": "997-98" }, { "page": "131" }, { "page": "991" }, { "page": "189" }, { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/us/475/0157-01" ] }, { "cite": "782 N.E.2d 263", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "202 Ill. 2d 544", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442061 ], "year": 2002, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0544-01" ] }, { "cite": "737 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453260 ], "year": 2000, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0487-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "686 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "177 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317114 ], "year": 1997, "pin_cites": [ { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0368-01" ] }, { "cite": "713 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208048 ], "year": 1999, "pin_cites": [ { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0840-01" ] }, { "cite": "730 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "191 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229709 ], "year": 2000, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0168-01" ] } ], "analysis": { "cardinality": 1324, "char_count": 38757, "ocr_confidence": 0.736, "pagerank": { "raw": 4.769352610144554e-08, "percentile": 0.2992720811136093 }, "sha256": "3f62bdf8cdc3f8a6535c9ee95309528e23665c8e230e5c4cd893f04132aed29e", "simhash": "1:93c8d5a463478747", "word_count": 6341 }, "last_updated": "2023-07-14T15:22:07.473803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KNECHT, EJ., and APPLETON, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORY W. CALHOUN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nThis case requires us to determine whether criminal defense counsel may properly force his client to choose between testifying without his counsel\u2019s assistance or not testifying at all, when defense counsel\u2019s determination that his client will commit perjury on the witness stand is based solely on counsel\u2019s assessment of the evidence. We hold that he may not.\nI. BACKGROUND\nIn February 1999, the State charged defendant, Cory W. Calhoun, with residential burglary of Sarah Louderback\u2019s home. Evidence presented at defendant\u2019s May 1999 jury trial showed that on February 22, 1999, defendant, who was driving Louderback\u2019s Chevy Blazer, dropped Louderback off at work and then drove her son, David, to his baby-sitter\u2019s house. Later that day, Louderback reported to police that her Chevy Blazer and certain items from inside her home were missing. Later that night, defendant was arrested in Hannibal, Missouri, after Hannibal police spotted Louderback\u2019s Blazer, pulled it over, and found defendant at the wheel. Some of Louderback\u2019s missing items were found in the Blazer. Louderback testified at trial that she and defendant were friends but had never dated.\nThe jury convicted defendant of residential burglary (720 ILCS 5/19 \u2014 3 (West 1998)), and the trial court later sentenced him to 11 years in prison and ordered him to pay $420 in restitution and $331 in court costs. The court also ordered the Department of Corrections (DOC) to withhold 50% of defendant\u2019s DOC wages and remit those funds to the circuit clerk to be applied toward the amounts due for restitution and costs.\nDefendant appealed, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he was denied effective assistance of counsel at trial and in posttrial proceedings; and (3) the trial court lacked the authority to order the withholding of his DOC wages. This court agreed with only defendant\u2019s third argument and thus affirmed his conviction and remanded with directions. People v. Calhoun, No. 4 \u2014 99 \u2014 0560 (November 13, 2000) (unpublished order under Supreme Court Rule 23).\nIn October 2001, defendant pro se filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2000)), and the trial court later appointed postconviction counsel for defendant.\nIn February 2002, postconviction counsel filed an amended post-conviction petition, alleging that (1) defendant\u2019s trial counsel was ineffective in that he failed to (a) assist defendant in testifying in his own defense, (b) obtain phone records to impeach a State witness, and (c) perfect defendant\u2019s appeal of his sentence; (2) defendant was denied due process in that the amount he was ordered to pay in restitution was not supported by the evidence; and (3) defendant\u2019s 11-year sentence constituted cruel and unusual punishment. Later in February 2002, the State filed a motion to dismiss defendant\u2019s amended postconviction petition.\nFollowing a February 2002 hearing, the trial court granted the State\u2019s motion to dismiss defendant\u2019s amended postconviction petition as to all of defendant\u2019s claims except his claim that his trial counsel provided ineffective assistance when he refused to assist defendant in presenting his testimony. As to that claim, the trial court granted defendant an evidentiary hearing.\nAt the July 2002 evidentiary hearing, defendant testified that he and his trial counsel, Randall Prizy, first discussed whether defendant would testify after the trial court denied his motion for a directed verdict. In the trial court\u2019s chambers following that denial, Prizy informed the court that the defense would not be putting on any evidence and he did not believe defendant would be testifying. Defendant interrupted and stated that he \u201chad\u201d to testify. The court then gave defendant and Prizy time to discuss the matter outside chambers.\nIn the hallway outside the trial court\u2019s chambers, Prizy explained to defendant that it would not be wise for him to testify because if he did so, all of his prior convictions would hurt him. Defendant and Prizy argued \u201cvehemently.\u201d When they returned to the court\u2019s chambers, the court explained to defendant that his prior convictions could be a grave concern. The court asked the prosecutor what defendant\u2019s prior convictions were, and he informed the court of a few but did not have a complete listing with him. Defendant said that he needed to testify, and he and Prizy again stepped outside chambers. Prizy began by saying to defendant, \u201cHow is it going to look if you get up to testify and I got no questions to ask you?\u201d Defendant was \u201cstunned\u201d and went back into the court\u2019s chambers and said that he was not going to testify. Defendant acknowledged that the court had earlier admonished him regarding his right to testify.\nDefendant further testified that (1) he never told Prizy that he was guilty and had not told Prizy what he would testify to if he took the stand; (2) he and Prizy did not discuss whether his testimony would be truthful, only that his prior convictions would hurt him; and (3) he did not testify because Prizy would not help him do so. Defendant also testified that he did not tell the trial court that Prizy said he would not help him testify and explained as follows: \u201cWell I was stunned. I wish I would have now.\u201d\nPrizy testified as follows regarding his first conversation with defendant following the trial court\u2019s denial of the motion for directed verdict.\n\u201cGenerally it was one in which it was my advice to him not to take the stand generally because of his prior convictions. He had quite a few felony convictions we had dealt with. I didn\u2019t do a motion to see if we could get any of those felonies thrown out because it was my intention and my hope that [defendant] elected [sz'c] not to take the stand because I wasn\u2019t comfortable with his felony convictions and I also wasn\u2019t comfortable with his version of the events of that particular day where he was charged with theft and the residential burglary. So I was leaning towards advising him not to take the stand.\u201d\nPrizy did not remember the conversation exactly but stated that they did discuss his discomfort with defendant\u2019s version of events. Prizy acknowledged that he learned defendant\u2019s version of events months earlier \u2014 three or four days after he was appointed to represent defendant and prior to defendant\u2019s preliminary hearing. Between the preliminary hearing and trial, Prizy and defendant discussed defendant\u2019s version of events \u201cnumerous times.\u201d Defendant\u2019s version was consistent each time they discussed it.\nDuring their second conversation outside the trial court\u2019s chambers, Prizy and defendant covered the same ground. Defendant told Prizy that (1) he wanted the jury to hear his story; (2) Louder-back was lying; and (3) the jury would believe him. When asked whether a discussion occurred about the way the trial would proceed if defendant testified, Prizy replied, as follows:\n\u201cWhen the situation comes to that, sometimes \u2014 I sometimes will tell a defendant, and I don\u2019t remember if I told [defendant] this, but I may have told him that if by chance he testified, that it might be a narrative form because I still wasn\u2019t at all comfortable with his testimony. And I may have told him that he may have a better chance at telling the jury anything and everything that he wanted to, but it would be a narrative, it wouldn\u2019t be a question and answer period from me, it would be me getting up and asking him to give his own version, but we needed the [c]ourt\u2019s consent to do that. And if we did that and that was allowed, it was my opinion to him that the jury would sense that something funny was going on and they might not like it and they would more so scrutinize his testimony.\u201d\nPrizy did not recall whether he said this to defendant. At the end of their conversation, defendant decided not to testify. Defendant never appeared to be shocked, upset, or alarmed by what Prizy told him. Prizy acknowledged that on the day of trial, he and defendant had some heated conversations and were unhappy with each other. He further acknowledged that defendant was convinced of the truth of his version of events.\nPrizy also testified that (1) he was convinced that defendant was going to commit perjury; and (2) he did not want defendant to get into any more legal trouble. When asked what it was about defendant\u2019s version of events that caused Prizy to believe it would be perjurious, Prizy replied, as follows:\n\u201cA lot of very simple things to a lot of complicated things. [Defendant] maintained that he and [Louderback] were boyfriend, girlfriend. [Louderback] said that was not remotely true, that they were friends, no more no less, but because of this that they were no longer friends.\nShe had a son by the name of [David]. [Defendant] had asked me to talk to him and subpoena him, I believe he was nine or ten years old at the time, that he would support [defendant\u2019s] story. That he would say that they went back to the house and everything was fine and he was taking care of him, that he didn\u2019t take anything in the house and there was no problem, but \u2014 basically [defendant] told me that he was a normal good kid who loved his mother and he and [defendant] were good friends. I met with [David] and his mother three or four days before trial, it was extremely obvious to me that he had large behavior problems. He could not sit still. He hit or kicked or slapped his mother five or six times. *** And [defendant] told me that he was a normal, well-behaved child and that just wasn\u2019t true.\n[Louderback] insisted that she was \u2014 that [defendant] had took [sic] the car \u2014 that [defendant] took her car that morning. The understanding between them was ti .at he was supposed to take her to work and then he was supposed to take [David] to the babysitter. And according to [defendant,] they did that, and he was supposed to drop the car off at the house, but he went to Hannibal, Missouri, and beyond. And he didn\u2019t have permission to take the car there and it just didn\u2019t match up at all with what [Louderback] said. And along with [Louderback], from my point of view, she seemed to be telling the truth. I had to match that up against [defendant\u2019s] version along with his multiple felony convictions, it seemed to me that he could be in a perjury situation.\nThere were a couple of other witnesses that he wanted me to talk to, which I did. Casey Wellman, the other name will come to me [in] a minute. I can\u2019t remember. I talked to both of those gentlemen, and [defendant] said they would support his version of everything. [Wellman] told me that he worked with [defendant] for two or three days, months before, that was it. He didn\u2019t know [Louderback], He didn\u2019t know anything about it. He didn\u2019t even know why I called him. And the other gentleman, I can\u2019t remember his name, he \u2014 I talked to him and he basically more or less said the same thing; that he didn\u2019t have anything to do with [Louder-back] or [defendant] and he didn\u2019t know anything about this theft or burglary. *** And all the witnesses that [defendant] gave me I talked to and none of them helped him in his defense.\u201d\nPrizy acknowledged that his sense that defendant would be committing perjury was based on the conflict between what defendant said and what the other witnesses said. Defendant never told Prizy that his version was a lie, nor does the record indicate that defendant deviated in what he wanted to tell the jury from what he had been telling Prizy.\nFollowing the July 2002 hearing, the trial court entered a written order denying defendant\u2019s amended postconviction petition. Specifically, the court found that (1) Prizy had made a good-faith determination that defendant would commit perjury if he testified; and (2) thus, he did not provide ineffective assistance of counsel.\nThis appeal followed.\nII. DEFENDANT\u2019S INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM\nDefendant argues that the trial court erred by denying his petition for postconviction relief because he received ineffective assistance of counsel when Prizy refused to assist him in testifying. Specifically, he contends that Prizy did not have sufficient knowledge that he would commit perjury so as to justify withdrawing the assis ' anee of counsel. We agree.\nA. Standard of Review\nAt the third stage of postconviction proceedings, we will not reverse the trial court\u2019s decision to deny a petitioner\u2019s claim after conducting an evidentiary hearing unless it is manifestly erroneous. People v. Childress, 191 Ill. 2d 168, 174, 730 N.E.2d 32, 35 (2000). \u201cA decision is manifestly erroneous only if it contains error that is \u2018clearly evident, plain, and indisputable.\u2019 \u201d People v. Frieberg, 305 Ill. App. 3d 840, 847, 713 N.E.2d 210, 216 (1999), quoting People v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997).\nB. Ineffective Assistance of Counsel\nTo establish ineffective assistance of counsel, a defendant must satisfy the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Strickland test requires a defendant to show that (1) his counsel\u2019s performance was so seriously deficient as to fall below an objective standard of reasonableness under the prevailing professional norm; and (2) the deficient performance so prejudiced defendant as to deny him a fair trial. People v. Nieves, 192 Ill. 2d 487, 494, 737 N.E.2d 150, 154 (2000). To successfully claim ineffective assistance of counsel, a defendant \u201cmust overcome a strong presumption that the challenged actions of counsel were the product of sound trial strategy.\u201d People v. Metcalfe, 202 Ill. 2d 544, 561, 782 N.E.2d 263, 274 (2002).\nC. Nix v. Whiteside\nIn Nix v. Whiteside, 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988 (1986), the United States Supreme Court discussed how defense counsel should proceed upon learning that a client will commit perjury upon taking the witness stand. In that case, the defendant, who was charged with the murder of Calvin Love, raised the theory that he stabbed Love in self-defense. Up until shortly before the defendant\u2019s trial, the defendant consistently told his attorney that although he was convinced that Love had a gun in his hand at the time of the stabbing, he had not actually seen a gun. However, about a week before trial, while preparing for his direct testimony, the defendant stated that he had seen something metallic in Love\u2019s hand. When asked about this, the defendant responded, in essence, that he had to say he saw a gun in order to win his case. Defense counsel explained to the defendant that he could not assist him in testifying falsely and ultimately persuaded the defendant not to testify that he had seen a gun. Whiteside, 475 U.S. at 160-61, 89 L. Ed. 2d at 131, 106 S. Ct. at 991.\nOn collateral attack of his conviction for second-degree murder, the defendant argued that his rights to counsel and to testify in his own defense had been violated because, although he took the stand, his trial counsel had coerced him into not testifying that he had seen a gun. The Supreme Court held that neither of the defendant\u2019s rights was violated because the right to testify does not \u201cextend to testifying falsely\u201d (emphasis omitted) (Whiteside, 475 U.S. at 173, 89 L. Ed. 2d at 138, 106 S. Ct. at 997), and the right to counsel does not include the \u201cright to have a lawyer who will cooperate with planned perjury\u201d (Whiteside, 475 U.S. at 173, 89 L. Ed. 2d at 139, 106 S. Ct. at 997). In so holding, the Court wrote that an attorney\u2019s duty of confidentiality does not extend to a client\u2019s \u201cannounced plans to engage in future criminal conduct.\u201d Whiteside, 475 U.S. at 174, 89 L. Ed. 2d at 139, 106 S. Ct. at 998. The Court further wrote that \u201c[w]hen an accused proposes to resort to perjury or to produce false evidence, one consequence is the risk of withdrawal of counsel.\u201d Whiteside, 475 U.S. at 174, 89 L. Ed. 2d at 139, 106 S. Ct. at 998. Accordingly, \u201c[flor defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully.\u201d Whiteside, 475 U.S. at 173-74, 89 L. Ed. 2d at 139, 106 S. Ct. at 997-98.\nAlthough Whiteside established that a defendant\u2019s constitutional rights are not violated when his trial counsel takes steps to avoid assisting him in committing perjury, it did not address the precise issue now before us. In Whiteside, the defendant told his attorney he intended to testify about an exculpatory matter that he had never previously mentioned. The Court\u2019s opinion addressed the appropriate action for an attorney to take under those circumstances. Whiteside thus did not address what, if anything, short of a defendant\u2019s announced intention to commit perjury, constitutes a sufficient basis upon which defense counsel can conclude that his client intends to commit perjury and take those steps the Court deemed appropriate. This is essentially the question now before us \u2014 that is, was the information known to Prizy sufficient to show that defendant\u2019s testimony would be perjurious so as to justify Prizy\u2019s act of persuading defendant not to testify by threatening to withdraw his assistance? Although the United States Supreme Court has not addressed this question, Illinois and other state and federal courts have.\nD. Illinois Law\nThe Supreme Court of Illinois interpreted Whiteside in People v. Flores, 128 Ill. 2d 66, 538 N.E.2d 481 (1989). In that case, the defendant claimed in his postconviction petition and argued on appeal that he had received ineffective assistance of trial counsel when his counsel (1) refused to permit him to testify to a particular alibi and (2) failed to interview or call several witnesses (members of the defendant\u2019s family) who would have testified to the same alibi. Flores, 128 Ill. 2d at 103, 538 N.E.2d at 496. At an evidentiary hearing on the defendant\u2019s postconviction petition, defense counsel testified that he had decided not to call the alibi witnesses because their proposed testimony would not have been helpful in light of conflicting admissions the defendant had made. Flores, 128 Ill. 2d at 104-05, 538 N.E.2d at 497. Defense counsel also testified that (1) the defendant\u2019s purported alibi conflicted with statements the defendant had made to the police and (2) the defendant had previously provided defense counsel with three different explanations for his whereabouts at the time of the crime. Flores, 128 Ill. 2d at 105-06, 538 N.E.2d at 497. The Flores court then wrote the following:\n\u201cConfronted with the contradictions between what the members of the defendant\u2019s family would testify to and what defendant himself had told counsel, [defense counsel] could reasonably have concluded that the presentation of this testimony would have been improper on his part. ***\nThe defendant argues, however, that unless defense counsel had actual knowledge that the testimony was perjurious, his mere suspicion is insufficient grounds to refuse to call an alibi witness. We disagree, as defense counsel should have discretion to make a good-faith determination whether particular proposed witnesses for the defendant would testify untruthfully Absent some showing that counsel\u2019s decision was unreasonable under the circumstances, we cannot say that the defendant was denied a fair trial as a consequence of counsel\u2019s election not to call the members of his family to present an alibi. For the same reason, defense counsel was not incompetent in refusing to permit the defendant to testify to the purported alibi.\u201d Flores, 128 Ill. 2d at 107, 538 N.E.2d at 498.\nIn People v. Bartee, 208 Ill. App. 3d 105, 106, 566 N.E.2d 855, 856 (1991), the Second District Appellate Court considered whether the defendant received ineffective assistance of counsel and was denied a fair trial when the trial court ordered him to testify in the narrative after his defense counsel informed the court that he had to withdraw from the case due to a Whiteside \u201cproblem.\u201d Citing Flores, the Second District held that defense attorneys are afforded \u201cgreat discretion\u201d in determining whether a client\u2019s testimony will constitute perjury. Bartee, 208 Ill. App. 3d at 108, 566 N.E.2d at 857. Accordingly, the Second District rejected the defendant\u2019s argument that he was entitled to a hearing at which his defense counsel would have to show a firm factual basis for his belief that the defendant would' testify falsely. Bartee, 208 Ill. App. 3d at 108, 566 N.E.2d at 857. The court thus concluded that the defendant had not been denied a fair trial or effective assistance of counsel when he was ordered to testify in the narrative. Bartee, 208 Ill. App. 3d at 108, 566 N.E.2d at 857.\nThe Second District addressed the issue again in People v. Taggart, 233 Ill. App. 3d 530, 599 N.E.2d 501 (1992). In that case, prior to presenting the defense, defense counsel went on the record to explain in great detail his investigation of the defendant\u2019s purported alibi. Defense counsel concluded that he could not present any alibi witnesses. Taggart, 233 Ill. App. 3d at 559, 599 N.E.2d at 521. Later, when the defendant indicated that he would testify, defense counsel stated that based on his conversations with the defendant and ethical considerations, he would only ask the defendant his name and to tell his version of events. Taggart, 233 Ill. App. 3d at 559, 599 N.E.2d at 522.\nOn appeal, the defendant claimed that he had been deprived of his sixth amendment right to counsel. In rejecting the defendant\u2019s claim, the Second District concluded that defense counsel\u2019s reference to \u201cethical considerations\u201d and explanation for his belief that no basis existed for an alibi defense evinced his good-faith determination that the defendant was going to commit perjury. Taggart, 233 Ill. App. 3d at 560, 599 N.E.2d at 522. Thus, the court further concluded that the Flores standard was satisfied. Taggart, 233 Ill. App. 3d at 560, 599 N.E.2d at 522. The Second District also noted, however, that \u201c[i]n these types of cases, it is important to identify on the record the basis for counsel\u2019s belief [that his client will commit perjury] so a proper determination of its reasonableness can be made.\u201d Taggart, 233 Ill. App. 3d at 560, 599 N.E.2d at 522.\nE. Defendant\u2019s Ineffective-Assistance Claim\nIn light of Flores, Bartee, and Taggart, we conclude that the trial court in this case applied the correct standard in considering defendant\u2019s postconviction claim \u2014 namely, whether Prizy\u2019s decision to offer defendant the choice of testifying in the narrative or not at all was based on a good-faith determination that defendant was going to commit perjury. We disagree, however, with the trial court\u2019s decision because we conclude that Prizy\u2019s determination that defendant was going to commit perjury was not reasonable under these circumstances. See Flores, 128 Ill. 2d at 107, 538 N.E.2d at 498 (\u201c[a]bsent some showing that counsel\u2019s decision was unreasonable under the circumstances,\u201d counsel should have discretion to make a good-faith determination whether a proposed witness will testify untruthfully).\nNothing in the record shows that defendant would have committed perjury had he testified. Throughout defendant\u2019s discussion of this case with Prizy, defendant\u2019s version of events did not waver. Prizy acknowledged that defendant (1) never told him that he was going to lie and (2) never changed his story. Prizy also testified that defendant believed his version of events to be truthful. According to Prizy\u2019s own testimony, his determination that defendant would commit perjury was based on (1) his belief that Louderback was more credible than defendant; (2) the discrepancy between (a) defendant\u2019s description of David and (b) Prizy\u2019s assessment that David would be a poor witness; and (3) Prizy\u2019s assessment that two other suggested witnesses would not have been helpful to defendant\u2019s case. In sum, Prizy was not \u201ccomfortable\u201d with defendant\u2019s story.\nAlthough our supreme court has held that defense counsel has \u201cbroad discretion\u201d in determining when a client will commit perjury, such discretion is not unlimited. A good-faith determination that a client will commit perjury cannot be based merely on defense counsel\u2019s assessment of the evidence. The simple fact that the testimony of other witnesses will contradict the defendant\u2019s version of events cannot serve as the basis for defense counsel\u2019s conclusion that his client will commit perjury. To conclude otherwise would effectively be to give defense counsel unlimited discretion to reach such a conclusion, given that such testimonial conflicts arise in most, if not all, criminal cases. Such conflicts are for the jury to resolve. Moreover, defense counsel\u2019s responsibility to zealously represent his client does not dissipate simply because counsel does not believe his client\u2019s story or the weight of the evidence lies in the State\u2019s favor. We thus hold that defense counsel\u2019s good-faith determination that his client will commit perjury must rest on some articulable basis, apart from counsel\u2019s assessment of the evidence.\nIn so holding, we note that the circumstances of this case fall far short of those at issue in Whiteside. In that case, the defendant announced to defense counsel his intent to testify about an exculpatory matter that he had never previously mentioned. Whiteside, 457 U.S. at 160-61, 89 L. Ed. 2d at 131, 106 S. Ct. at 991. The facts of this case are also not analogous to the facts in Flores, in which the defendant had provided defense counsel with several conflicting stories. Flores, 128 Ill. 2d at 105-06, 538 N.E.2d at 497.\nInstead, the facts of this case are similar to those in United States v. Midgett, 342 F.3d 321 (4th Cir. 2003). In that case, the defendant never indicated to his defense counsel that he would testify falsely and never changed his story. Midgett, 342 F.3d at 326. The Fourth Circuit Court of Appeals considered whether the information known to defense counsel was sufficient to show that the defendant\u2019s testimony would be perjurious. In concluding that the trial court had impermissibly forced the defendant to choose between his right to testify and his right to counsel, the Fourth Circuit drew a distinction between \u201cknown perjury,\u201d which the trial court has an obligation to keep from the jury, and testimony that the court merely believes is outweighed by other evidence. Midgett, 342 F.3d at 327. In so concluding, the court analyzed the facts of the case, as follows:\n\u201c[The defendant] had apparently been consistent in his interviews with his lawyer that a third person committed the [c]ount [o]ne crime and that he did not. Defense counsel\u2019s responsibility to his client was not dependent on whether he personally believed [the defendant], nor did it depend on the amount of proof supporting or contradicting [the defendant\u2019s] anticipated testimony regarding how the incident happened. In this situation, [the defendant] never indicated to his attorney that his testimony would be perjurious. Thus, his lawyer had a duty to assist [him] in putting his testimony before the jury, which would necessarily include his help in [the defendant\u2019s] direct examination. [Whiteside,] 475 U.S. at 189, [89 L. Ed. 2d at 149,] 106 S. Ct. [at 1005] (Blackmun, J., concurring) (\u2018Except in the rarest of cases, attorneys who adopt the role of the judge or jury to determine the facts pose a danger of depriving their clients of the zealous and loyal advocacy required by the [s]ixth [a]mendment\u2019. (internal quotation marks, citations, and punctuation omitted)).\nDefense counsel\u2019s mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse [the defendant\u2019s] need for assistance in presenting his own testimony.\u201d Midgett, 342 F.3d at 326.\nWe find the Midgett court\u2019s analysis persuasive and thus conclude that the trial court\u2019s findings that (1) Prizy made a good-faith determination that defendant would commit perjury and (2) defendant thus did not receive ineffective assistance of counsel were manifestly erroneous. Accordingly, we reverse the court\u2019s denial of defendant\u2019s postconviction claim and remand with directions to grant defendant a new trial. In light of our decision, we need not address the other arguments defendant raises.\nF. Further Discussion\nDespite our conclusion that Prizy\u2019s conduct in this case did not satisfy Illinois\u2019 good-faith-determination standard, we nevertheless invite our supreme court to reconsider the appropriateness of that standard. Although the Flores court clearly set that standard when it held that \u201cdefense counsel should have discretion to make a good-faith determination\u201d as to whether a defendant will commit perjury, the court\u2019s analysis was enmeshed with its analysis of defense counsel\u2019s strategic decision not to call certain witnesses. Flores, 128 Ill. 2d at 107, 538 N.E.2d at 498. Yet, that strategic decision is entirely defense counsel\u2019s to make (see People v. Ramey, 152 Ill. 2d 41, 54, 604 N.E.2d 275, 281 (1992)) and creates no sixth amendment issues. This, of course, is in stark contrast to issues concerning the defendant\u2019s own testimony, but the Flores court did not acknowledge the constitutional and ethical ramifications that arise when the defendant\u2019s testimony is at issue. See Midgett, 342 F.3d at 326 (citing a defendant\u2019s sixth amendment right to assistance of counsel and constitutional right to testify on his own behalf as implicated when client-perjury issues arise). Nor did the Flores court address the significant risk of unfair prejudice that results when defense counsel reveals that he believes his client will testify falsely. See United States v. Long, 857 F.2d 436, 447 (8th Cir. 1988) (noting that once defense counsel makes a motion to withdraw or allows his client to testify in the narrative, \u201cthe die is cast. The prejudice will have occurred. At a minimum, the trial court will know of the defendant\u2019s potential perjury\u201d). In addition, Flores provides no guidance to trial courts and attorneys as to (1) whether or when defense counsel should bring concerns about client perjury to the trial court\u2019s attention, (2) whether or when the prosecutor should become involved, (3) whether the defendant has a right to be present when defense counsel notifies the court that he believes the defendant will commit perjury, or (4) the making of a record on these matters.\nFurther, we note that no other jurisdiction has adopted Illinois\u2019 good-faith-determination standard. Instead, our research has revealed that standards adopted by other jurisdictions include the following: (1) actual knowledge, meaning that the defendant has made an \u201cunambiguous\u201d statement directly to the attorney regarding the intent to commit perjury (State v. McDowell, 2004 WI 70 \u00b643, 681 N.W.2d 500, 513; (2) a \u201cfirm factual basis\u201d for believing that the defendant will testify falsely (Long, 857 F.2d at 446; see also Commonwealth v. Mitchell, 438 Mass. 535, 551-52, 781 N.E.2d 1237, 1250-51 (2003); State v. James, 48 Wash. App. 353, 367, 739 P.2d 1161, 1169 (1987)); (3) \u201ccompelling support\u201d for the attorney\u2019s conclusion regarding what is true and what is not true (Sanborn v. State, 474 So. 2d 309, 313 n.2 (Fla. App. 1985)); (4) \u201cgood cause to believe the defendant\u2019s proposed testimony would be deliberately untruthful\u201d (State v. Hischke, 639 N.W.2d 6, 10 (Iowa 2002)); and (5) knowledge beyond a reasonable doubt that the defendant has committed, or is going to commit, perjury (Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989)). Many of the decisions cited above provide insightful analysis on this issue.\nMost recently, the Supreme Court of Wisconsin adopted the stringent \u201cactual[-]knowledge\u201d standard. In McDowell, 2004 WI \u00b643, 681 N.W.2d at 513, that court held, as follows:\n\u201c[A]n attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client\u2019s expressed admission of intent to testify untruthfully.\u201d\nThe court further explained that any such admission must be \u201cunambiguous\u201d and \u201cdirectly made to the attorney.\u201d McDowell, 2004 WI \u00b643, 681 N.W.2d at 513.\nIn this court\u2019s view, the actual-knowledge standard adopted by the Supreme Court of Wisconsin is too high. Circumstances foreseeably could arise in which defense counsel has knowledge that his client intends to testify falsely even absent the client\u2019s unambiguous statement made directly to defense counsel. Nevertheless, we believe that before defense counsel may take steps that jeopardize his client\u2019s rights to representation and to testify, defense counsel should be able to articulate some basis for the belief that his client will commit perjury apart from his assessment of the evidence.\nWe find more persuasive Long, 857 F.2d 436, and Mitchell, 438 Mass, at 551-52, 781 N.E.2d at 1250-51, two cases that provide thoughtful analysis and adopt the \u201cfirm[-]factual[-]basis\u201d standard. In Long, the defendant claimed that he was denied effective assistance of trial counsel when his counsel coerced him into not testifying. The record showed that when the State rested its case, defense counsel told the trial court that (1) the defendant wanted to testify; (2) counsel advised the defendant against testifying; and (3) counsel was concerned about the defendant\u2019s testimony. At that point, the court excused the jury, and defense counsel elaborated that his withdrawal from the case might be appropriate given what he thought the defendant might say on the witness stand. The court then explained to the defendant that if he took the stand and counsel found his testimony to be untruthful, defense counsel would withdraw from questioning him. Defense counsel and the defendant apparently again discussed the matter and then informed the court that the defendant had decided not to testify. Long, 857 F.2d at 444.\nOn review, the Eighth Circuit Court of Appeals concluded that the defendant was entitled to an evidentiary hearing on his ineffective-assistance-of-counsel claim. The court explained that based on the United States Supreme Court\u2019s reference to a defendant\u2019s \u201cannounced plans\u201d to commit perjury in Whiteside, a \u201cclear expression of intent to commit perjury is required before an attorney can reveal client confidences.\u201d Long, 857 F.2d at 445. The Long court further explained, as follows:\n\u201cAs Justice Blackmun observes [in his concurring opinion in Whiteside], an attorney who acts on a belief of possible client perjury takes on the role of the fact finder, a role which perverts the structure of our adversary system. A lawyer who judges a chent\u2019s truthfulness does so without the many safeguards inherent in our adversary system. He likely makes his decision alone, without the assistance of fellow fact finders. He may consider too much evidence, including that which is untrustworthy. Moreover, a jury\u2019s determination on credibility is always tempered by the requirement of proof beyond a reasonable doubt. A lawyer, finding facts on his own, is not necessarily guided by such a high standard.\u201d Long, 857 F.2d at 445.\nAccordingly, the Long court held that when an attorney brings a client-perjury concern to the trial court\u2019s attention, the court should \u201cimpress upon defense counsel and the defendant that counsel must have a firm factual basis\u201d for believing the defendant will commit perjury before refusing to present the defendant\u2019s testimony. Long, 857 F.2d at 446. The Long court further suggested that trial courts should specifically inform a defendant of the possible consequences of false testimony \u2014 namely, that (1) defense counsel may reveal to the trial court what he believes to be false; (2) counsel may refrain from referring to the false testimony in closing argument; and (3) the defendant may be prosecuted for perjury. Long, 857 F.2d at 446 n.8.\nIn Mitchell, 438 Mass, at 551-52, 781 N.E.2d at 1250-51, the Supreme Judicial Court of Massachusetts (that state\u2019s highest court) also adopted a standard requiring that the attorney act in good faith and have \u201ca firm basis in objective fact.\u201d In so holding, the court wrote, as follows:\n\u201c[W]hen the question of perjured testimony by a defendant arises, we require *** that the lawyer *** act in good faith and have a firm basis in objective fact. Conjecture or speculation that the defendant intends to testify falsely are not enough. Inconsistencies in the evidence or in the defendant\u2019s version of events are also not enough to trigger the [lawyer\u2019s obligation not to elicit false testimony], even though the inconsistencies, considered in light of the Commonwealth\u2019s proof, raise concerns in counsel\u2019s mind that the defendant is equivocating and is not an honest person. Similarly, the existence of strong physical and forensic evidence implicating the defendant would not be sufficient. Counsel can rely on facts made known to him, and is under no duty to conduct an independent investigation.\u201d Mitchell, 438 Mass, at 551-52, 781 N.E.2d at 1250-51.\nThe Mitchell court also provided the following guidance for trial courts:\n\u201cOnce the matter is called to the [trial] court\u2019s attention, the judge should instruct the lawyer on how to proceed. (In evaluating the situation, the judge will have to rely on the representations of counsel, which of necessity will be cryptic, because counsel is the one who must make the disclosure while maintaining client confidences and allowing for continued zealous advocacy at trial). Before giving' instruction, the judge is not required to hold an evidentiary hearing, to appoint an independent lawyer for the defendant, or to conduct a colloquy, although the latter may be appropriate if it appears that the defendant does not clearly understand the situation he has created.\u201d Mitchell, 438 Mass, at 552, 781 N.E.2d at 1251.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand with directions to grant defendant a new trial.\nReversed and remanded.\nKNECHT, EJ., and APPLETON, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Michael J. Pelletier and Terry Louisa Campos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Barney S. Bier, State\u2019s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, 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. CORY W. CALHOUN, Defendant-Appellant.\nFourth District\nNo. 4\u201402\u20140944\nOpinion filed September 1, 2004.\nMichael J. Pelletier and Terry Louisa Campos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBarney S. Bier, State\u2019s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1072-01", "first_page_order": 1090, "last_page_order": 1105 }