Opinion
No. 1-15-0588
12-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BARLOW, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 06 CR 16939 Honorable Charles P. Burns, Judge Presiding. JUSTICE ROCHFORD delivered the judgment of the court.
PRESIDING JUSTICE REYES and JUSTICE LAMPKIN concurred in the judgment.
ORDER
¶ 1 Held: Summary dismissal of defendant's postconviction petition affirmed where defendant failed to state an arguable claim of ineffectiveness of trial and appellate counsels. ¶ 2 Defendant-appellant, Larry Barlow, appeals the summary dismissal of his pro se petition seeking relief under the Postconviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2012)) (petition) which, as relevant to this appeal, claimed that trial counsel was ineffective for failing to investigate potential alibi witnesses and for failing to retain an expert to digitally clarify a surveillance video presented at trial, and that appellate counsel was ineffective for failing to raise these issues of ineffectiveness. We affirm the dismissal of the petition. ¶ 3 Following a jury trial in 2011, defendant was convicted of the first degree murder of Antoinette Means in connection with a 2006 robbery and shooting at a Kentucky Fried Chicken restaurant (the KFC), located at 83rd Street and South Chicago Avenue, where Ms. Means was a manager. ¶ 4 Prior to trial, the State brought a motion in limine seeking the admission at trial of video footage from the KFC surveillance camera which showed a portion of the incident and defendant entering the KFC at times prior to the incident. The State acknowledged that the "quality of the computer system that captures the event is not that good and so it sort of skips parts and actually skips the part of the shooting." Trial counsel, an Assistant Public Defender (APD), responded:
"Your Honor, my position is it has minimal, at best, evidentiary value because of the way it's chopped up. It does not show the homicide, it does not show a number of things. [Specifically], it's not contemporaneous with the 911 call that the State did speak of. So there is a surveillance video taken from two different camera angles, and it's taken in a particular fashion akin to that type of machine. The video would have minimal evidentiary value, but obviously it does present the crime scene to some degree."¶ 5 The trial court found that the video was admissible and stated:
"Since it does go to a material issue [here], and that's the identity of the defendant, I believe it would be admissible. Whatever the weight to be given will be determined by the trier of fact, the jury in this matter. And obviously the [d]efense has an opportunity to cross-examine [whomever] is laying the foundation, assuming a foundation can be laid, with regard to the fact that it is not a total or a complete video."¶ 6 Trial counsel renewed his objection to the admission of the video and asserted that "the alleged perpetrator's face is never visible in the video." The court replied: "Again, that goes [more to] the weight." ¶ 7 At the trial, the State presented testimony from four KFC employees who were on duty on the day of the incident—Tanisha Horton, Diamond Harper, Corey Mason, and Kelvin Dudley—as well as a drive-through customer at the time of the incident, James Williams. ¶ 8 Tanisha Horton, testified that she is an employee of the KFC and Ms. Means' cousin. At about 5 p.m. on June 25, 2006, Ms. Horton was working at the KFC drive-through window when a man approached the cashier, demanded money, jumped over the counter, and went toward a back office. Ms. Means came out of her office and gave the man money out of the cash register. The man jumped back over the counter and was leaving the KFC when, Mr. Dudley, who was standing next to Ms. Means, said: "This some b***h a** s**t." The man turned around and fired his gun toward Mr. Dudley and Ms. Means, shooting Ms. Means in the chest and killing her. The man wore a hat, white shirt or white jacket, and a black bandana which covered his nose and mouth. Ms. Horton testified that the man had entered the KFC earlier that day, but did not purchase any food. ¶ 9 On June 27, 2006, Ms. Horton identified defendant as the offender in a police photo array. On June 29, 2006, she identified defendant in a police lineup. Ms. Horton also identified defendant in court. ¶ 10 Mr. Mason and Mr. Dudley testified that they also work at the KFC. Mr. Mason testified that the gunman wore a long shirt and baseball cap with a scarf covering the bottom half of his face. He identified defendant in a police lineup on June 29, 2006. Later, however, in the State's presentation of its case, a detective testified that Mr. Mason did not select anyone in a lineup. Mr. Dudley's testimony was largely consistent with that of the other KFC employees, but he also testified that the gunman wore a white shirt, a blue bandana, and "some glasses." Mr. Dudley did not view a lineup. ¶ 11 The State showed a portion of the surveillance video during the testimony of Ms. Horton, Mr. Mason, and Ms. Harper. Each of the witnesses identified defendant as the person depicted in the video, who entered the KFC at about 5 p.m., demanded money from the cashier, and shot Ms. Means. The State also showed Ms. Horton and Ms. Harper other portions of the video which depicted defendant entering the KFC on June 25, 2006 at 4:10 p.m., and again at 4:23 p.m. Each time defendant entered the KFC, he would stand in the store, and then leave. ¶ 12 James Williams testified that he was in his vehicle at the KFC drive-through window at the time of the incident. He heard a female employee say that a man had jumped over the counter with a gun. Mr. Williams called 9-1-1 to report the incident and remained in his car in the drive-through for "a minute or so" before going through the drive-through and into the street. Mr. Williams stopped his vehicle when a black man ran in front of it, about 15 to 20 feet away. In court, Mr. Williams identified defendant as this man. Defendant wore a black bandana with white markings over the lower half of his face and a dark hat. The bandana was black with white markings. Defendant slipped and dropped a bag. The bandana fell from his face and he pointed a gun at Mr. Williams. ¶ 13 As defendant fled, Mr. Williams followed in his vehicle. Mr. Williams lost sight of defendant, but then saw him emerge from an alley. Mr. Williams again viewed defendant's face. He remained in the alley and again saw defendant from a distance of about four car lengths when defendant returned to the alley with his face uncovered. ¶ 14 Paris McGee testified that he saw defendant, whom he recognized from the neighborhood, walking in an alley near the KFC just after the incident and he identified defendant in a police photo array in 2006 or 2007. Mr. McGee acknowledged that he was on probation in a robbery case. ¶ 15 Chicago police detective Steven Lazzara testified that a "dark-colored" bandana was recovered from defendant upon his arrest. The bandana was entered into evidence at trial, and Ms. Horton, Mr. Mason and Mr. Williams identified the bandana as the one worn by defendant. ¶ 16 The State presented a video recording of defendant's June 30, 2006, interview with police. During the interview, defendant states that he was at his parents' house the entire day on the date of the incident. ¶ 17 The State then introduced the testimony of Tony Braxton, who said defendant stayed at his house the night of June 24, 2006, and that defendant left between 6 a.m. and 8 a.m. on June 25, 2006. At approximately 11 a.m. or 11:30 a.m. Mr. Braxton drove to Maxwell Street Grill, located at 79th Street and South Chicago Avenue, to buy food. Mr. Braxton testified that he saw defendant near the intersection of 85th Street and Yates Boulevard when he stopped his vehicle. They went to the Maxwell Street Grill and, later, they returned to Mr. Braxton's house. Defendant left there between 12:15 and 12:25 p.m. Mr. Braxton did not see defendant for the rest of the day. ¶ 18 On June 29, 2006, Mr. Braxton made a statement to an Assistant State's Attorney (ASA). In his statement, Mr. Braxton told the ASA that defendant left Mr. Braxton's home on June 25, 2006, wearing a jacket that was "white on one side and black on the other and that it [was] reversible." ¶ 19 The State also called defendant's mother, Elizabeth Barlow, as a witness. The State introduced Ms. Barlow's grand jury testimony that defendant was not at her home between 2:30 p.m. and 8 p.m. on June 25, 2006. At trial, she testified that her memory was failing and that she could no longer remember the day of the robbery or her grand jury testimony. ¶ 20 Defendant presented no witnesses. In closing argument, trial counsel argued, in part, that the surveillance video did not prove the offender was defendant, or even that the offender had a gun. Trial counsel attacked the identification testimony as inconsistent and unconvincing. ¶ 21 The jury found defendant guilty of first degree murder and that, in the course of the murder, he personally discharged a firearm resulting in the death of Antoinette Means. ¶ 22 The trial court sentenced defendant to 55 years' imprisonment for first degree murder, with a 25-year enhancement for personally discharging a firearm, for a total term of 80 years' imprisonment. On direct appeal, this court granted appellate counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and directed the clerk of the circuit court to correct the mittimus but, otherwise, affirmed the judgment. See People v. Barlow, 2013 IL App (1st) 120161-U. ¶ 23 In 2014, defendant filed the petition claiming, inter alia, that he was denied effective assistance of trial counsel for failing to investigate and call alibi witnesses and pursue enhancement of the surveillance video. ¶ 24 Specifically, as to the alibi witnesses, defendant claimed in the petition that he told trial counsel prior to trial that Harry Hubbard, Archie Haynes, and Nick Dumas would verify that he was with them "at the time of the incident." Defendant stated that he was "unable to submit the affidavits of [Mr. Hubbard, Mr. Haynes and Mr. Dumas] at this time," and that "[d]ue to his incarceration he cannot locate them to obtain [their] sworn statement." Defendant offered his own affidavit "in support" of this claim, stating that his affidavit was sufficient if he explained the absence of other supporting materials. In his affidavit, defendant asserted that, in September 2006, he told an APD that he did not commit the robbery and murder, and that he "was on the block of 84 Paxton Street hanging out with" Mr. Hubbard, Mr. Haynes and Mr. Dumas at the time of the incident, and the APD said "he would investigate the alibi witness[es]." In 2007, the APD told defendant "that his office was having budget problems and he was not sure he could get an investigator to locate the alibi witnesses." ¶ 25 Additionally, defendant asserted in the petition that his trial counsel failed to "investigate the video footage" from the KFC surveillance camera "for enhancement and clarity" and to retain a technical expert to increase the clarity of the video. Defendant also argued that he was prejudiced by this omission because an enhanced video would have "discredited" the testimony of the KFC employees. Defendant claimed in his affidavit that he "told [the APD] that the [surveillance video] had to be wrong because I was never in the KFC" and the APD said "he would check on it." Defendant also claimed that appellate counsel was ineffective for not raising trial counsel's ineffectiveness on appeal. ¶ 26 On December 22, 2014, the circuit court summarily dismissed defendant's postconviction petition. Initially, the court noted that defendant's claims of trial counsel's ineffectiveness should have been raised on direct appeal and were forfeited. However, the court examined the merits of those claims. In doing so, as relevant to this appeal, the court found that defendant did not state an arguable claim that trial counsel was ineffective for failing to investigate and present alibi witnesses in that there were no affidavits from those witnesses. The court further found that trial counsel was not deficient in failing to enhance the surveillance video because the identification evidence against defendant was "overwhelming," and that enhancing the video could have allowed a clearer view of the perpetrator and provide additional evidence against defendant. Defendant has appealed. ¶ 27 On appeal, defendant argues his postconviction petition raised arguable claims of ineffectiveness because his trial counsel failed to investigate the three alibi witnesses named in the petition, and failed to have the KFC surveillance video enhanced by an expert before it was presented at trial. ¶ 28 The Act provides a criminal defendant with a remedy for substantial violations of their constitutional rights which occurred at trial or sentencing. People v. Allen, 2015 IL 113135, ¶ 20. When a petition is filed under the Act, the circuit court can summarily dismiss the petition within 90 days of its filing if the court determines the allegations therein are frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2012). If the petition is not dismissed at that stage, it is docketed for further consideration and counsel may be appointed for defendant. 725 ILCS 5/122-2.1(b) (West 2012). ¶ 29 A petition may be dismissed as frivolous or patently without merit only if the petition "has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 16 (2009). For a petition to have no arguable basis in law or fact, it must rely on "an indisputably meritless legal theory or a fanciful factual allegation." Id. A meritless legal theory is one that is completely contradicted by the record. Id. This court reviews the circuit court's dismissal of a postconviction petition de novo. Allen, 2015 IL 113135, ¶ 19. ¶ 30 Because most postconviction petitions are submitted pro se, with little or no legal basis or supporting authority, a petition "need only present a limited amount of detail." Hodges, 234 Ill. 2d at 9. Still, a defendant must supply sufficient support to show the allegations in the petition are "capable of objective or independent corroboration." Allen, 2015 IL 113135, ¶ 19 (quoting People v. Collins, 202 Ill. 2d 59, 67 (2002)). As our supreme court has noted, the Act requires a postconviction petition be accompanied by "both a verification affidavit and supporting evidence." Id. ¶ 26. ¶ 31 Section 122-2 of the Act provides that a postconviction petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2012). The Act's requirement of an evidentiary affidavit demonstrates that the allegations are "capable of objective or independent corroboration." Collins, 202 Ill. 2d at 67. In addition, an evidentiary affidavit accompanying a postconviction petition serves to "identify with reasonable certainty the sources, character and availability of the alleged evidence supporting the petition's allegations." People v. Delton, 227 Ill. 2d 247, 254 (2008). In the absence of an affidavit from a proposed witness, a reviewing court cannot determine whether that witness could have provided testimony or information that was favorable to the defendant, thus preventing further review of the defendant's claim. People v. Enis, 194 Ill. 2d 361, 380 (2000). Thus, a petitioner must explain why such supporting evidence was not available. 725 ILCS 5/122-2 (West 2012); Collins, 202 Ill. 2d at 68. ¶ 32 Here, defendant attached his own verification affidavit to the petition to support his claims, but did not further support his claims with affidavits from the named individuals: Mr. Hubbard, Mr. Haynes, and Mr. Dumas. Rather, defendant asserted only that he could not submit those affidavits because of his incarceration. Defendant does not state in the petition that he made any attempt to contact the three potential witnesses to obtain their sworn statements or provide additional explanation for the unavailability of their affidavits or why his incarceration prevented him from obtaining the affidavits. Even if we assumed that defendant had adequately accounted for the absence of affidavits from those individuals named in his petition, he has not presented an arguable claim of ineffectiveness of trial counsel. ¶ 33 "To prevail on a claim of ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show both that counsel's performance 'fell below an objective standard of reasonableness' and that the deficient performance prejudiced the defense." Hodges, 234 Ill. 2d at 17 (2009) (quoting Strickland, 466 U.S. 668, 687-88 (1984)). At the first stage of postconviction proceedings, a postconviction petition which alleges ineffectiveness of counsel may not be summarily dismissed if "(i) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." People v. Petrenko, 237 Ill. 2d 490, 497 (citing Hodges, 234 Ill.2d at 17). Where a defendant has not suffered prejudice, we need not address whether counsel's actions were objectively reasonable. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011). ¶ 34 This incident occurred at about 5 p.m. on June 25, 2006. The State presented defendant's custodial statement that he was with his parents when the offense occurred. The State then rebutted defendant's account with the testimony of defendant's mother that he was not at home from 2:30 to 8 p.m. on June 25, 2006. Defendant now avers that Mr. Hubbard, Mr. Haynes, and Mr. Dumas would have testified that, at the time of the incident, they were "hanging out" on the 8400 block of South Paxton Street, in contradiction to defendant's own statement to the police. Defendant does not state in his affidavit any further details as to the substance of the purported testimony of these individuals, in particular, regarding the exact time period when they were "hanging out;" their distance from the KFC; and whether anyone, including defendant, left the group at any point. In light of the overwhelming identification testimony and, even accepting defendant's averment that these witnesses would testify that they were with him at the time of the incident, we conclude that defendant has not made a claim that he was arguably prejudiced by any failure to call these purported alibi witnesses. ¶ 35 Accordingly, defendant has not raised an arguable claim of trial counsel's ineffectiveness for failing to present the testimony of the three witnesses named in the petition. ¶ 36 Defendant also argues that trial counsel was arguably deficient in failing to present at trial an enhanced version of the KFC surveillance video. Defendant asserts that the video, as it was shown at trial, was "too grainy" to allow the gunman to be identified and, had the footage shown the offender's face more clearly, the video would have established his innocence. ¶ 37 Defendant did not raise this particular claim of ineffectiveness on direct appeal. "Proceedings on a postconviction petition are collateral to conviction; 'issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata; issues that could have been raised, but were not, are considered waived.' " Allen, 2015 IL 113135, ¶ 20 (citing People v. Pitsonbarger, 205 Ill.2d 444, 456 (2002)); People v. Tate, 2012 IL 112214, ¶ 8. As to ineffectiveness claims, this default rule applies to an "ineffective assistance claim based on what *** counsel did, in fact, do." Id. ¶ 14. In People v. Veach, 2017 IL 120649, our supreme court admonished that ineffectiveness claims should be raised on direct appeal if apparent on the record. Id. ¶ 46. ¶ 38 Defendant's claim is based upon trial counsel's decision to not correct the clarity of the surveillance video before it was presented to the jury. Any issue as to the quality of the video, however, would have been obvious at trial and by viewing the portions of the video admitted into evidence. In fact, the State, in seeking admission of the video, acknowledged that the "quality of the computer system that captures the event [was] not that good." This claim of ineffectiveness was apparent on the record, but was not raised on direct appeal. We conclude that defendant's claim as to the video evidence has been defaulted. ¶ 39 Defendant argues that we may consider this claim as the petition also raised the issue in the context of ineffectiveness of appellate counsel. The doctrine of res judicata and forfeiture in postconviction proceedings are relaxed where the forfeiture "stems from the ineffective assistance of appellate counsel, or where the facts relating to the claim do not appear on the face of the original appellate record." People v. Williams, 209 Ill. 2d 227, 233 (2004) (citing People v. Whitehead, 169 Ill.2d 355, 371-72, 215 (1996)). We may consider this claim in the context of appellate counsel's ineffectiveness. ¶ 40 The issue is whether appellate counsel was ineffective for failing to raise on direct appeal the ineffectiveness of trial counsel for failing to have the surveillance video enhanced. We determine whether appellate counsel was ineffective under the Strickland standard. People v. English, 2013 IL 112590, ¶ 33 (citing Strickland, 466 U.S. at 694). Under that standard, at the first stage, a defendant must show that it is arguable both "that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful." Id. ¶ 41 In the pretrial discussion about the State's use of the video, defense counsel argued that the video should not be shown to the jury because the "alleged perpetrator's face is never visible in the video." Counsel also stated that "during the actual homicide robbery, that person is wearing a mask." Our review of the surveillance video confirms that the offender's face was not only blurred, but also covered by a bandana during the incident and was, therefore, obscured in the video. Defendant's conclusions, that the video could be enhanced and the enhancement would show that he was not the offender, are speculative, unsupported, and self-serving. Any enhancement of the video may only have served to increase the weight of this evidence and runs contrary to the defense at trial that the offender cannot be identified in the video because his face is covered and the quality and clarity of the video is poor. ¶ 42 Defendant was identified as the gunman in a photo array, a police lineup, as well as in court by KFC employee Ms. Horton and KFC customer Mr. Williams. Mr. Williams had opportunities to view defendant's face without the bandana. Defendant was placed at the scene by Mr. McGee, who knew defendant from the neighborhood. Moreover, the State's witnesses consistently described the offender's clothing, including the bandana covering his face, and that a bandana was recovered from defendant at the time of his arrest. Defendant has not made an arguable claim of a reasonable probability that the result of the direct appeal would have changed if this issue of trial counsel's ineffectiveness had been raised. ¶ 43 In conclusion, defendant has not stated an arguable claim that trial counsel was ineffective as to the absence of the three witnesses named in his petition; his claim that trial counsel was ineffective for failing to present an enhanced version of the KFC surveillance video was defaulted by a failure to raise this issue on direct appeal; and he did not raise an arguable claim of ineffectiveness of appellate counsel as to the video. ¶ 44 Accordingly, the circuit court's summary dismissal of defendant's petition is affirmed. ¶ 45 Affirmed.
In his reply brief, defendant states that the claim of trial counsel's ineffectiveness as to the alibi witnesses could not have been raised on direct appeal. Therefore, we will not consider the issue as one of appellate counsel ineffectiveness. --------