People v. Rippatoe

No. 3--09--0983

Opinion filed March 11, 2011
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2011

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 06--CF--163
)
DARRELL RIPPATOE, ) Honorable
) Edward R. Danner,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Presiding Justice Carter and Justice O’Brien concurred in
the judgment and opinion.
________________________________________________________________

OPINION

The defendant, Darrell Rippatoe, appeals from an order of

the circuit court of McDonough County denying his posttrial

claims of ineffective assistance of counsel and denying his

request for appointment of new counsel. This is the second time

that the defendant’s posttrial claim of ineffective assistance of

trial counsel has been brought before this court. We previously
remanded this matter to the circuit court with directions to

conduct an appropriate inquiry into whether new counsel should be

appointed to present the defendant’s claim of ineffective

assistance of trial counsel. People v. Rippatoe, No. 3--07--0646

(2009) (unpublished order under Supreme Court Rule 23).

FACTS

A jury found the defendant guilty of home invasion (720 ILCS

5/12--11(a)(6) (West 2006)) and resisting or obstructing a peace

officer (720 ILCS 5/31--1(a) (West 2006)). At the sentencing

hearing, the defendant raised allegations of ineffective

assistance of counsel. The trial judge, Judge Larry Heiser, did

not address the defendant’s claims of ineffective assistance of

trial counsel. The court sentenced the defendant to 6½ years for

home invasion and 364 days for resisting or obstructing a peace

officer, the sentences to run concurrently.

In a pro se motion filed after sentencing, the defendant

again raised allegations of ineffective assistance of counsel,

asking the trial court to appoint another attorney to represent

him. By this time, Judge Heiser had retired and Judge Edward

Danner presided over defendant’s motion. Judge Danner ruled

that, based upon his review of the transcript of the prior

proceedings, there was no merit to the defendant’s ineffective

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assistance claims. The trial court then summarily denied the

request to appoint new counsel.

The defendant appealed, maintaining that the trial court had

failed to conduct an adequate inquiry into the factual basis of

his pro se ineffective assistance claim. See People v. Krankel,

102 Ill. 2d 181, 188 (1984). This court reversed and remanded

the matter to the trial court with directions to conduct an

inquiry into the factual basis of the defendant’s pro se

posttrial claims in order to determine whether new counsel should

be appointed to investigate those claims. This court held that

the defendant’s claims of ineffective assistance could not be

adequately addressed by merely reviewing the transcripts of the

trial.

Following remand from this court, the defendant was

transported from a Department of Corrections facility to the

McDonough County courthouse where he was brought before Judge

Danner with his legs shackled together and his arms shackled to a

waist belt. When asked to raise his right hand to be sworn, the

defendant exhibited extreme difficulty in doing so due to the

presence of the shackles. After some effort to overcome the

weight and encumbrance of the shackles, the defendant was able to

raise his right hand sufficiently to swear an oath of truth.

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After the defendant successfully raised his right hand, there was

no further mention of the shackles, which remained on the

defendant throughout the hearing.

The defendant testified that he told his defense counsel

that an individual named Floyd Robinson could testify that the

defendant had asked him to watch his two-year-old son, Ezekiel,

while the defendant went to the alleged victim’s house on the day

in question. This testimony would have contradicted the

testimony of the victim and the victim’s adult son that the

defendant had brought Ezekiel with him to the victim’s house.

The defendant alleged that counsel did not call Robinson to

testify because of his race. The defendant also testified that

his counsel had failed to ask a number of questions of the

prosecution witnesses that he had requested be asked.

Attorney Douglas Miller, defendant’s trial counsel, was

called by the court to give testimony regarding his

representation of the defendant at trial. Miller testified that

the defendant had given him the name of Floyd Robinson as a

potential witness. Miller thereafter arranged for Robinson to

come to the courthouse during the defendant’s trial. Outside the

courtroom, Miller asked Robertson if, on the day in question, the

defendant had taken Ezekiel to Robinson’s house so that Robinson

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could watch the child. Robinson told Miller that he could not be

sure that the defendant had gone to the victim’s house while he

was watching the child or if the defendant had picked the child

up before going to see the victim. Robinson claimed that he

watched the child for approximately an hour that day, but he

could not pinpoint the time of day when he was watching the

child. Miller recalled that both the victim and her son

testified that Ezekiel was with the defendant when he invaded the

victim’s home and attempted to sexually assault her.

Although Miller indicated that he had no concerns about

Robinson’s credibility as a witness, he decided not to call

Robinson to testify because he did not believe that Robinson’s

testimony would support a claim that the State’s witnesses were

not truthful when they testified that Ezekiel was with the

defendant. In view of the fact that Robinson could not establish

what time of day he was watching the child, Miller surmised that

it was possible the defendant had picked up the child prior to

going to the victim’s house.

Miller also testified that he decided against calling

Robinson as a witness regarding Ezekiel because he believed there

was a strategic advantage to the defendant in arguing that

Ezekiel’s presence would have made it highly unlikely that the

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defendant would invade the victim’s home and attempt to sexually

assault her with his two-year-old son in tow. Miller testified

that, as he recalled, he had in fact made this argument to the

jury. Miller further testified that he did not consider

Robinson’s race in the decision not to call him as a defense

witness.

Miller also testified that he did not use the questions that

the defendant had asked him to pose to prosecution witnesses

because they were argumentative and unnecessary to the defense.

Miller further testified that he had been an assistant public

defender for approximately 21 years and had tried 40 to 50 jury

trials.

After Miller testified, the defendant was allowed to

question Miller. The defendant asked two questions of Miller,

both of which addressed a conversation between the defendant and

Miller regarding Robinson’s potential testimony.

At the conclusion of the testimony, the trial court sought

argument from the Assistant State’s Attorney, from Miller, who

made note of the difficulty in arguing his own ineffectiveness,

and from the defendant, who presented a brief argument on his own

behalf. The trial court then ruled that the defendant’s claims

of ineffective assistance of counsel did not warrant appointment

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of new counsel. The court determined, based upon the testimony

of the defendant and Miller, that there was no indication that

Miller’s performance had been deficient. The court found that

the substance of Robinson’s proposed testimony would not have

conclusively indicated that, at the time of the alleged home

invasion, Ezekiel was with Robinson and not, as the victim had

testified, with the defendant. The court also found there was a

strategic reason not to call Robinson as a witness, noting that

it preserved Miller’s ability to argue that the defendant would

not have conducted a home invasion and sexual assault with his

child present. Moreover, the court found no support for the

defendant’s claim that Miller refused to call Robinson as a

witness because of his race.

At one point in the proceedings, the trial judge commented

that, in his previous personal experience with attorney Miller,

the judge had never known Miller to be deficient in his

performance. The judge then recalled a case where Miller’s

representation of a particular defendant had, in the opinion of

Judge Danner, effectively gotten a not guilty verdict for a

defendant who was probably guilty. Specifically, Judge Danner

observed as follows:

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"The court has, in over 30 years, has had

[sic] experience of seeing wide ranges of

ability of various counsel. This court did

sit here in 2007 and had [sic] opportunity

from time to time and occasion to occasion to

observe Mr. Miller conduct court on behalf of

his clients. The court’s previous experience

with Mr. Miller has been that he customarily

was acquainted with his cases. Did legal

research. Asked questions. Actually, I

remember one case Mr. Miller conducted in

front of me that I knew, as well as I was

sitting on the bench, there had been a fellow

that walked out of the door with a couple of

packs of tobacco, but it could not be shown

with the identification marks and I found the

defendant not guilty, who was a habitual

shoplifter over here at McDonough County, but

Mr. Miller had done some excellent research

talking about the act with specificity the

items coming from a particular establishment.

This court found Mr. Miller to be a

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 respectable member of the Bar, and officer of

the Court, and to have always been candid

with this court."

The trial judge then announced his finding that the

defendant had failed to establish the need to appoint new counsel

to further investigate the defendant’s ineffective assistance of

counsel claims.

ANALYSIS

On appeal, the defendant raises two claims of reversible

error by the trial court: (1) permitting him to be in shackles

throughout the hearing on his posttrial claim of ineffective

assistance of counsel; and (2) referring to defense counsel’s

performance on other matters before the court in ruling that the

defendant’s allegations of ineffective assistance of counsel were

insufficient to require appointment of new counsel.

As a preliminary matter, we note that neither of these two

allegations of error was raised by objection during the hearing.

Ordinarily, an issue is forfeited on appeal if it was not raised

in the trial court through both a contemporaneous objection and a

written motion. People v. Enoch, 122 Ill. 2d 176 (1988); People

v. Allen, 222 Ill. 2d 340, 350-51 (2006). In order to overcome a

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claim of forfeiture, we must determine whether the alleged errors

can be reviewed under the so-called "plain-error doctrine."

People v. Hillier, 237 Ill. 2d 539, 542 (2010). This doctrine

proceeds in two steps. First, we must determine whether a clear

and obvious error occurred. People v. Piatkowski, 225 Ill. 2d

551, 565 (2007). If we find that an error occurred, we must then

determine whether the error was reversible. There are two ways

to determine whether the error constituted reversible error.

Reversible error occurs "when (1) a clear or obvious error

occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that

it affected the fairness of the defendant’s trial and challenged

the integrity of the judicial process, regardless of the

closeness of the evidence." Piatkowski, 225 Ill. 2d at 565. In

the first instance, the defendant must show that he was

prejudiced by the error, i.e., the evidence was so closely

balanced that the error threatened to ?