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 the 14th Judicial Circuit,
Mercer County, Illinois,
Appeal No. 3-12-0718
Circuit No. 04-CF-39
James G. Conway, Jr.,
JUSTICE delivered the judgment of the court.
Justices O'Brien and Schmidt concurred in the judgment.
¶ 1 Held: The trial court properly denied defendant's amended postconviction petition without an evidentiary hearing, where defendant's claim of ineffective assistance of counsel failed to make a substantial showing of a constitutional violation. ¶ 2 Following a bench trial, defendant, Kristopher Lee Jones, was convicted of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)), and was sentenced to 30 years and 1 day of imprisonment. Defendant subsequently filed a postconviction petition, which the trial court denied without an evidentiary hearing. On appeal, defendant argues his postconviction claim that trial counsel was ineffective for failing to interview and present the testimony of three defense witnesses was sufficient to require an evidentiary hearing. We affirm.
¶ 3 FACTS
¶ 4 On July 11, 2005, after several amendments to the charging document, defendant was charged by information with three counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)) and three counts of heinous battery (720 ILCS 5/12-4.1(a) (West 2004)). Each count alleged that defendant threw a flammable substance on the victim, Tanya Jones, but the counts differed on how Tanya caught fire. Counts I and II alleged that defendant lit her on fire, counts III and IV alleged that defendant threw the flammable substance on Tanya while she was igniting her lighter, and counts V and VI alleged that defendant threw the flammable substance on Tanya while she was smoking a cigarette. ¶ 5 On July 12, 2005, the case proceeded to a bench trial. The evidence indicated that defendant and his wife, Tanya, had been having marital problems, and Tanya had been having an extramarital affair since the fall of 2003 with John Danforth. Early on June 4, 2004, defendant was searching for Tanya and found her at a motel with Danforth and Katina Stiles. Defendant called Tanya numerous times and disabled Tanya's vehicle by removing the battery from it. At approximately 11 a.m., Stiles saw defendant outside the motel and called the police. Defendant was subsequently ordered to leave the premises, but instead remained nearby. Soon thereafter, Tanya, Danforth, and Stiles left the motel in Stiles' vehicle. Defendant pursued the vehicle for approximately 15 minutes, driving erratically in an attempt to stop the vehicle. Defendant eventually forced the vehicle to stop, talked with Danforth, and then demanded that Tanya get into his vehicle. Tanya complied. Defendant drove Tanya to a remote farm location that had a pond on the property. ¶ 6 While at this location, defendant threw gasoline onto Tanya, and she subsequently became engulfed in flames. Tanya went into the pond to extinguish the flames. Defendant then drove her to a nearby fire station to get medical attention. Emergency medical technicians first observed defendant pouring water onto Tanya outside of his truck by the fire station. Tanya had burn injuries from her thighs up to the top of her head. She also had an overpowering smell of gasoline emanating from her. Tanya was frantic and in severe pain, but was alert and coherent. Tanya was transported by ambulance to a local hospital and then to the University of Iowa Burn Center, where she was treated by Dr. Lee Faucher. ¶ 7 Faucher testified that Tanya arrived with extensive burns to 46% of her body and had a strong smell of gasoline on her. Faucher opined that Tanya's injuries were caused by a high volume accelerant because of the way Tanya's burns were spread over the anterior part of her body and between the insides of her thighs and around her back. Tanya's injuries did not show signs of sparing or little spots of burns caused by a splash of gasoline. Faucher opined that Tanya's burns were consistent with patients that had been doused with gasoline, not splashed. Tanya also suffered lung damage from the intense heat of the fire, which very few patients suffer from when experiencing such injuries outdoors. ¶ 8 There was conflicting evidence presented at trial regarding how Tanya caught fire. According to statements made by defendant, he drove Tanya to the remote location so they could work out their problems. Defendant explained that he was pouring gasoline on some logs that he had piled up and was attempting to light a fire. Tanya came over and kicked dirt toward him. Defendant reacted by splashing gasoline on her, and Tanya started on fire. Defendant thought Tanya started on fire because she was smoking a cigarette at the time. Defendant tried to put the fire out with his shirt, but when that did not work he threw Tanya into the pond. ¶ 9 Following the incident, the police took defendant to the scene. The police found no signs that defendant had attempted to build a fire. However, there were cattle tracks located in the area that could have destroyed the scene. The police did locate sunglasses, a hat, two knives, two lighters, and some burnt clothing. Defendant claimed the lighter belonged to Tanya because he was not a smoker. Additionally, in the bed of defendant's truck, the police found two gas cans, each capable of holding 2 gallons and 12 ounces of gas. One of the gas cans was empty and one was almost full. ¶ 10 Tanya testified that when she and defendant walked to the pond, he asked her twice to remove her clothes. Tanya refused both times. Tanya then felt a splash of liquid on the left side of her body and saw defendant walking to his truck. At that point, Tanya attempted to light her cigarette, but was instantly engulfed in flames. Tanya maintained that defendant did not start her on fire with a lighter. Tanya acknowledged accusing defendant of setting her on fire in two prior interviews at the hospital on July 14 and July 29, 2004. Tanya stated that she told the police what she had believed at the time. ¶ 11 The State introduced Tanya's videotaped interviews as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115-10.1 (West 2004). In her July 14, 2004, interview, Tanya told the police that defendant poured gasoline on her and lit her on fire with a lighter. On July 24, 2004, Tanya said that after defendant told her to take her clothes off and she refused, defendant walked away and got a gas can from his truck. Defendant poured gasoline on her left side and lit her with a lighter. ¶ 12 The State also presented prior inconsistent statements made by Tanya to impeach her trial testimony. Trooper Stephen Danay testified that he spoke to Tanya when she was being treated in the ambulance. He asked Tanya if defendant had done this to her. Tanya responded yes. Lisa Payden, a nurse at the hospital, stated that she asked Tanya what happened when she was brought in. Tanya said defendant poured gasoline on her and lit her. Officer Leonard Mendoza stated he spoke with Tanya on August 24, 2004. Tanya told him defendant lit her on fire, but said she did not want to see defendant punished for his entire life. ¶ 13 While at the hospital, Tanya also told several friends and family that defendant threw gasoline on her and then lit her on fire with a lighter. Tanya told this to her aunts, Kelly Merrit and Cindy Root, her friend, Natalie Long, and her brother, Travis Cole. Tanya also told Ryan Stanley, who Tanya stayed with for a few months after being released from the hospital, that defendant lit her on fire with a lighter, but said she was going to change her story to claim she was smoking a cigarette when defendant threw gas at her. ¶ 14 Following the State's presentation of evidence, the defense called Tanya. Tanya testified that she was on numerous medications while she was hospitalized, including when she was interviewed. These pain medications made her hallucinate. ¶ 15 The trial court took the matter under advisement. On July 25, 2005, the court found defendant guilty of one count of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)) (count I) and one count of heinous battery (720 ILCS 5/12-4.1(a) (West 2004)) (count II), in that defendant poured gasoline onto Tanya and lit her on fire. In finding defendant guilty, the court found Tanya's trial testimony incredible, noting that Tanya told a credible and consistent story in her prior interviews and to several credible witnesses. Additionally, Dr. Faucher testified that Tanya's injuries were consistent with patients that have been doused, not splashed, in accelerant. ¶ 16 After denying defendant's motion for new trial, the trial court merged the heinous battery conviction into the attempted first degree murder conviction and sentenced defendant to 30 years and 1 day of imprisonment. On direct appeal, this court affirmed defendant's conviction for first degree murder and modified the mittimus to reflect the proper amount of credit for time defendant spent in presentence custody. People v. Jones, No. 3-06-0044 (2008) (unpublished order under Supreme Court Rule 23). ¶ 17 On October 6, 2008, defendant filed a pro se postconviction petition, which was later amended by appointed counsel. The State filed a motion to dismiss defendant's petition, which the trial court granted. Defendant appealed, and this court remanded the case so that postconviction counsel could comply with Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). People v. Jones, No. 3-10-0165 (2011) (unpublished order under Supreme Court Rule 23). ¶ 18 On April 17, 2012, defendant's postconviction counsel filed a second amended petition and incorporated the claims set out in defendant's prior petition. Relevant to this appeal, defendant alleged that trial counsel was ineffective for failing to investigate and present the testimony of three of defendant's family members. Defendant claimed that the testimony of these witnesses would have rehabilitated and supported Tanya's trial testimony, where she claimed to have accidentally lit herself on fire. Defendant attached affidavits from his brother, Kyle Jones, his mother, Dora Corwin, and his sister, Kara Hurst. Kyle averred that while visiting Tanya in the hospital following the incident, Tanya stated that defendant had thrown gasoline on her after several attempts to get her to take her clothes off. Tanya said she lit her cigarette and the next thing she knew defendant was telling her to drop and roll and pushed her into the pond. Corwin and Hurst averred that after Tanya was released from the hospital, she told them that she accidentally caught herself on fire because when defendant threw gasoline on her she lit a cigarette. ¶ 19 On May 29, 2012, the trial court held a hearing on defendant's amended petition, and the State reargued its motion to dismiss. On August 20, 2012, the court entered a written order granting the State's motion. The court found that defendant waived the claim by failing to raise it on direct appeal. Additionally, the court found defendant's ineffective assistance claim without merit, noting that Kyle's affidavit had a defective oath and Corwin and Hurst's affidavits showed that they would have corroborated parts of the State's case. Defendant appeals.
¶ 20 ANALYSIS
¶ 21 Defendant argues the trial court erred in dismissing his amended postconviction petition without an evidentiary hearing where he alleged trial counsel was ineffective for failing to interview and present the testimony of three defense witnesses who would have challenged the State's theory of the case. ¶ 22 The Post-Conviction Hearing Act provides for a three-stage review process for criminal defendants who challenge their convictions based on constitutional violations. 725 ILCS 5/122-1 et seq. (West 2012); People v. Domagala, 2013 IL 113688. In order to proceed to a third-stage evidentiary hearing, the allegations set forth in the petition, as supported by the record or accompanying affidavits, must make a substantial showing of a constitutional violation. People v. Rissley, 206 Ill. 2d 403 (2003). In making this determination, all well-pleaded facts in the petition and affidavits are to be taken as true. Id. We review de novo the dismissal of a petition without an evidentiary hearing. People v. Pendleton, 223 Ill. 2d 458 (2006). ¶ 23 To prevail on a claim of ineffective assistance of counsel, defendant must show that: (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. People v. Manning, 241 Ill. 2d 319 (2011); Strickland v. Washington, 466 U.S. 668 (1984). Decisions regarding whether to call a particular witness is one of trial strategy, which are generally immune from claims of ineffective assistance of counsel. People v. Enis, 194 Ill. 2d 361 (2000). The failure to interview witnesses may indicate incompetence when trial counsel knows of the witnesses and that their testimony may be exonerating. People v. Bell, 152 Ill. App. 3d 1007 (1987). Whether trial counsel was ineffective for failing to investigate is generally determined by the value of the evidence that was not presented and the closeness of the evidence that was presented. People v. Morris, 335 Ill. App. 3d 70 (2002). ¶ 24 In this case, defendant alleges counsel's ineffectiveness for failing to investigate and present the testimony of his brother, mother, and sister. Defendant contends that these witnesses would have provided crucial testimony consistent with Tanya's testimony at trial, namely that she accidentally lit herself on fire after defendant threw gasoline on her. Although the testimony of defendant's relatives would have supported Tanya's trial testimony, trial counsel could have considered that their close familial relationship to defendant could cause the trier of fact to afford their testimony little weight. See People v. Lacy, 407 Ill. App. 3d 442 (2011) (finding counsel's decision not to call defendant's aunt a strategic one in light of the close relationship). Additionally, defendant's brother averred that Tanya told him the incident was an accident when she was still in the hospital. Counsel could have determined that this testimony would have been unhelpful to defendant's case, because at trial, counsel attempted to undermine Tanya's prior inconsistent statements as unreliable by claiming she was under the influence of pain medications when she gave said statements. See People v. Guest, 166 Ill. 2d 381 (1995) (defense attorney may exercise discretion not to call a witness whose testimony may be harmful to defendant). As such, we cannot say that trial counsel's decision to refrain from investigating or calling defendant's relatives was objectively unreasonable. ¶ 25 Even assuming trial counsel's performance in this matter was deficient, defendant cannot show there was a reasonable probability that the result of the trial would have been different had the witnesses testified. See Manning, 241 Ill. 2d 319. Tanya testified at trial that after defendant threw gasoline on her, she attempted to light her cigarette and accidentally lit herself on fire. This was rebutted, however, by Tanya's prior inconsistent statements at two videotaped interviews, where she accused defendant of lighting her on fire with a lighter. Tanya's trial testimony was also impeached by several witnesses, including two police officers, who stated that Tanya informed them that defendant had lit her on fire. Specifically, Stanley testified that although Tanya told him defendant lit her on fire with a lighter, she said she was going to change her story to claim she was smoking a cigarette when defendant threw gas on her. The court also specifically found Tanya's trial testimony incredible in light of her more persuasive statements in the videotaped interviews and the credible witnesses that impeached her trial testimony. Given the evidence before the court supporting defendant's guilt, we find defendant cannot show that he was prejudiced by trial counsel's alleged error. Consequently, we hold that the trial court properly denied defendant's amended postconviction petition without an evidentiary hearing.
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, the judgment of the circuit court of Mercer County is affirmed. ¶ 28 Affirmed.