People v. Nelson

2017 IL 120198

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 120198)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
MIESHA NELSON, Appellant.

Opinion filed June 15, 2017.

JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
Theis concurred in the judgment and opinion.

OPINION

¶1 Defendant, Miesha Nelson, and her three codefendants, Carmelita Hall, Tiffany
Cox, and Rosalinda Ball, were tried jointly but in severed bench trials for the armed
robbery and stabbing death of Morris Wilson. All four defendants were found
guilty. On appeal, defendant contended that she was denied her sixth amendment
right to conflict-free counsel where attorneys from the same law firm represented
defendant and codefendant Hall and defendant’s attorneys, in making their choice
 of defenses, decided to forgo asserting an innocence defense in favor of pursuing a
joint defense of self-defense. The appellate court rejected this contention and
affirmed defendant’s convictions. 2015 IL App (1st) 132157-U. For the reasons
that follow, we affirm the judgment of the appellate court, but on different grounds.

¶2 BACKGROUND

¶3 In February 2009, Morris Wilson was found beaten and stabbed to death in the
courtyard of an apartment building located at 8147 South Drexel Avenue in
Chicago. Defendant, Miesha Nelson, Tiffany Cox, Rosalind Ball, and Carmelita
Hall, were charged with five counts of first degree murder and one count of armed
robbery in connection with Wilson’s death. Defendant was represented by Richard
Kling and Susana Ortiz, both from the Law Offices of Chicago-Kent College of
Law. Hall was represented by Daniel Coyne, also from the Law Offices of
Chicago-Kent. 1

¶4 The Cook County circuit court conducted severed but simultaneous bench
trials. The following evidence was adduced at defendant’s trial. The State first
presented the testimony of five eyewitnesses, three of whom lived in the building at
8147 South Drexel Avenue. Their testimony was generally consistent and relayed
that on February 1, 2009, at approximately 2 a.m., a young African-American man
was repeatedly beaten by four African-American women in the courtyard. While
the man lay on the ground, one of the women stabbed him as the others continued to
beat him. At some point, one of the women removed the man’s jacket and searched
it. Thereafter, the four women left the courtyard.

¶5 Chicago police officer Michael Dearborn was the first to arrive at the scene. At
trial, he testified that he observed blood on the sidewalk leading to the courtyard
and in the snow. After entering the courtyard, he saw a man, later identified as
Wilson, lying on the ground. Wilson was not responsive, was not breathing, and
had blood on his face. Dearborn called for emergency personnel and secured the
scene. On cross-examination, Dearborn stated he found a cell phone charger lying

1
Because this case was originally a capital case, these attorneys were appointed by the
court under the now repealed Capital Crimes Litigation Act. 725 ILCS 124/5 (West 2008).

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 near Wilson’s head and a “shiny object” on the ground near Wilson’s body. A piece
of a glass liquor bottle was also recovered from the scene.

¶6 Chicago police officer Cleveland Jones testified that he was en route to a
domestic dispute call when he saw four women, whom he identified in court as the
four defendants, walking in a single file from the 8100 block to the 8200 block on
Drexel Avenue. The women drew his attention because they were underdressed for
the weather. While dealing with the domestic dispute, Jones monitored a radio call
about a man down at 8147 South Drexel Avenue. Jones then drove to that address.

¶7 Upon arrival, Jones observed Wilson’s body on the ground and saw he was
unresponsive and had blood on his face and clothing. Jones saw a trail of blood
from Wilson’s body to the sidewalk. Jones followed the blood trail to the sidewalk
out of the courtyard and south on Drexel Avenue. At the northeast corner of 82nd
Street and Drexel Avenue, where he had previously seen the four women, he
observed a pile of clothing and a knife sticking out of the snow. He continued to
follow the trail of blood, crossed 82nd Street, and ended up in front of an apartment
building at 8207 South Drexel Avenue. Jones then observed the same four females
he had seen earlier standing in a second-floor window, looking down at him. Jones
returned to the courtyard complex to inform Chicago police officers West, Gaines,
and Pickens that he might know where the suspects were.

¶8 The four officers returned to 8207 South Drexel Avenue, where Jones again
observed the four women still standing in the window. At trial, Jones identified
these four women as the defendants. Officers Gaines and Pickens went to the rear
of the apartment building while Jones and West remained at the front. Jones and
West went through a gate in front of the building, and Jones noticed a trail of blood
continued to the front door. Upon entering the building, they went to the second
floor and observed broken glass in front of the door. The glass appeared to match
the glass found near Wilson’s body. Jones knocked, and when Cox opened the
door, he arrested her.

¶9 Officer Pickens testified at trial. He confirmed that he went with the other
officers from the courtyard complex to 8207 South Drexel Avenue, that he
observed four women looking out the window, and that he and Officer Gaines went
to the rear of the apartment. Pickens testified when they got there, they observed
three females and a male with a young child going from the second floor to the third

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 floor. The three women were the same women he observed in the window earlier.
Pickens identified all four defendants in court as the four women he saw in the
window and defendant, Hall, and Ball as the three women he observed in the rear of
the building. Pickens and Gaines arrested the three women and returned them to the
second-floor apartment. Cox was in the apartment under arrest. The officers then
returned to 82nd Street and Drexel Avenue with the women and turned them over
to other officers, who transported them to the police station.

¶ 10 Evidence technician William Jackson collected and preserved evidence from
the two scenes. He took photographs and videotapes of both scenes, which he
identified in court and described. He recovered blood evidence and broken glass
from 8147 South Drexel Avenue. He recovered blood evidence, a jacket, and a
knife at the corner of 82nd Street and Drexel Avenue. Lastly, he recovered blood in
the stairway leading to the second floor at 8207 South Drexel Avenue, broken glass
in front of the apartment door, blood near the couch, and blood from the kitchen
garbage container.

¶ 11 The parties then stipulated: (1) Wilson’s and Hall’s DNA were recovered from
the knife, (2) Wilson’s DNA was on a pair of green pants recovered from Cox,
(3) Wilson’s and Ball’s DNA were on a pair of jeans recovered from Ball,
(4) Cox’s DNA was on Wilson’s jacket, (5) Wilson’s and Hall’s DNA were on
defendant’s hand, and (6) blood recovered from the sidewalk and Cox’s apartment
belonged to Hall. The parties also stipulated that the medical examiner’s report
found the cause of Wilson’s death was multiple stab and incision wounds.

¶ 12 The State’s next witness was emergency room physician Dr. Melissa Urides,
who treated Hall for injuries to her hand on February 1, 2009. Her testimony was
admitted in defendant’s case as a statement against penal interest under Illinois
Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011). Urides stated, in pertinent part:

“The patient [Hall] is a 25 year old black female who comes to the
emergency room in police custody with a chief complaint today of a cut finger.

The patient claims she cut her first finger as well as her right, second and
third digits [while] in a fight. The patient[ ] states she cut herself with a knife.
She said she was stabbing someone.

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 ***

Apparently, she was involved in an altercation with four other women and
one gentleman.”

¶ 13 Detective Nannette Ansley then testified that on February 1, 2009, at
approximately 2:35 p.m., she, along with Assistant State’s Attorney Scott Clark,
conducted a videotape interview of defendant. Ansley authenticated the video,
which was then played in court.

¶ 14 In this videotaped interview, defendant stated she, Cox, Ball, Hall, and Wilson
bought a fifth of gin and went to Cox’s apartment to hang out. The four women
began arguing with each other. Defendant asked Wilson to fix her broken cigarette,
and after he did, he tried to smoke it. Defendant took the cigarette back from him,
and according to defendant, “he kept talking crazy to us and then all of us was
talking crazy to him.” The women then told him to get out. They pushed him out
into the hall, but he tried to push his way back into the apartment. Defendant and
Hall grabbed empty glass liquor bottles from a garbage can. Defendant threw her
bottle at Wilson as he walked down the stairs. The bottle hit him in the face but did
not break. Wilson came back upstairs and threw the bottle back. The women again
threw the bottle at Wilson. He again threw the bottle back, and this time, it broke
when it hit Cox’s apartment door. Defendant said Wilson told them he was going to
“beat our ass” as he left the apartment.

¶ 15 Defendant stated Hall had two cell phones and they thought Wilson had taken
one of them. Hall was apparently in the kitchen crying, “He have my phone. He
have my phone.” Defendant went into the kitchen, at which time Hall stated “I’m
gonna go out there and get my phone.” According to defendant, “We were like no,
we tried to tell her don’t go out there cause he might try to beat us up.” Defendant
then grabbed a knife from the kitchen. The women started to exit Cox’s apartment,
and Hall grabbed the knife from defendant. All four women then left the apartment.
Once downstairs, defendant stated, she told the others they should not follow
Wilson, but Ball was already down the street so they all followed.

¶ 16 According to defendant, once they got to 8147 South Drexel Avenue, Wilson
tackled Ball, who was pregnant, so defendant grabbed Wilson and started hitting
and kicking him. Defendant knew Hall had the knife but did not see it at that time

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 because she was fighting. Defendant then stated all four women were hitting
Wilson with their fists and feet. After a while, defendant saw Hall stab Wilson. All
four continued to hit and kick Wilson. Defendant stated she grabbed Wilson’s hood
at one point so he could not get up. Defendant said she told Hall, “[M]an stop, let’s
go. C’mon, let’s go. And then we get up to leave, he get up and he’s like man, y’all
stabbing me? And then [Hall] asked him where her phone was? And then he just
fell.” Defendant stated she tried to grab the knife from Hall while Hall was stabbing
Wilson.

¶ 17 Defendant admitted she went through Wilson’s pockets looking for Hall’s cell
phone but did not find it. She only found a phone charger, which she threw on the
ground. Defendant removed Wilson’s jacket and also threw it to the ground.

¶ 18 According to defendant, the women then returned to Cox’s apartment.
Defendant tried to get Hall’s hand to stop bleeding, at which time Hall told her she
had thrown away the knife. Defendant stated she never saw Wilson with a knife and
never found any weapons in his pockets. Defendant also acknowledged Wilson was
walking away when she and her friends went outside after him. Defendant stated
that, when police came to the door, she grabbed Cox’s daughter and went out the
back with Hall and Ball.

¶ 19 Sergeant Dania Ward testified she transported defendant to the police station.
Ward testified that defendant started talking to herself in the back of the car.
According to Ward, defendant stated she was drinking and partying with her
friends at an apartment and an argument ensued. Defendant said Wilson left and
threw a glass bottle at the apartment door. Then, Hall grabbed a knife and said she
was going to get him for what he had done. Defendant stated she told Hall, “[n]o,
let’s go beat him up.” All four women then followed Wilson and beat him up.
Defendant said she assumed Hall had the knife while they beat Wilson. They then
fled.

¶ 20 At the conclusion of Ward’s testimony, the State rested.

¶ 21 The defense then presented stipulated evidence pursuant to People v. Lynch,
104 Ill. 2d 194 (1984), of Wilson’s character that Wilson had struck his mother, two
former girlfriends, and a man named Roger Smith, as well as evidence he yelled

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 obscenities at and threatened to shoot a man named Gill Frazier. After the trial court
confirmed defendant had knowingly waived her right to testify, defendant rested.

¶ 22 The State argued to the court in closing that the confrontation that took place
inside Cox’s apartment was over when Wilson left. All four defendants, the State
maintained, then chased Wilson down and assaulted him. Further, according to the
State, the evidence showed that three of the women, including defendant, kicked
and struck Wilson, which aided and abetted Hall when she stabbed him.
Accordingly, the State contended that each defendant was accountable for her
codefendants’ actions in the armed robbery and first degree murder of Wilson.

¶ 23 In response, defendant’s counsel argued that the attack on Wilson occurred only
because the women were protecting Bell after she had been tackled by Wilson.
Thus, according to defendant’s counsel, defendant acted in self-defense or defense
of others. Counsel also argued that Wilson’s act of pushing Ball down could have
resulted in a sudden and intense provocation that would justify reducing the offense
of first degree murder to second degree murder.

¶ 24 The circuit court found all four defendants guilty. In so ruling, the court found
that the confrontation in Cox’s apartment was over when Wilson left and that, after
getting a knife from the kitchen, the four women pursued the victim. The court also
found no evidence to support the defendant’s contention that the women were
merely coming to the aid of Ball after she had been tackled by Wilson. The court
stated that none of the eyewitnesses to the incident could corroborate that Ball was
attacked and there was no physical evidence offered to support that version of
events. The court also reviewed the law of accountability in Illinois and concluded
that all four defendants were guilty of the armed robbery and first degree murder of
Wilson. Following the denial of defendant’s motion for a new trial, the court
sentenced defendant to 25 years’ imprisonment for murder and 7 years’
imprisonment for armed robbery, to be served consecutively.

¶ 25 On appeal, defendant argued, in part, that her convictions should be reversed
because her attorneys, who were part of the same clinic that represented
codefendant Hall, labored under an actual conflict of interest. According to
defendant, her statement to the police set out a plausible, alternative defense of
actual innocence, based on a lack of accountability, which was hostile to Hall’s
defense of self-defense. Defendant maintained that her attorneys could have

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 pursued this alternative defense but did not do so because they were constrained by
their loyalty to Hall.

¶ 26 The appellate court concluded defendant failed to show an actual conflict of
interest and thus, counsels’ joint representation did not warrant reversal of
defendant’s convictions. 2015 IL App (1st) 132157-U, ¶ 27. In reaching its
decision, the appellate court relied, in part, on the rule announced in People v.
Echols, 74 Ill. 2d 319 (1978). 2015 IL App (1st) 132157-U, ¶ 27 (citing People v.
Powers, 260 Ill. App. 3d 163, 170-73 (1994)). In Echols, this court held that the
mere availability of a strategy that would have helped the defendant at the expense
of a codefendant does not create hostility between the interests of the two. 74 Ill. 2d
at 327-28.

¶ 27 We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan.
1, 2015).

¶ 28 ANALYSIS

¶ 29 The sixth amendment right to effective assistance of counsel includes the right
to conflict-free representation. Holloway v. Arkansas, 435 U.S. 475, 481 (1978);
People v. Hernandez, 231 Ill. 2d 134, 142 (2008). “For purposes of conflict of
interest analysis, the law considers the representation of codefendants by law
partners or associates the same as the representation of codefendants by one
attorney.” People v. Mahaffey, 165 Ill. 2d 445, 456 (1995). However, the mere fact
of joint representation of multiple defendants does not create a per se violation of
the right to effective assistance of counsel. People v. Orange, 168 Ill. 2d 138, 156
(1995) (citing Holloway, 435 U.S. at 482). Moreover, the Supreme Court has noted
that, when joint representation is undertaken but the defendants are tried separately,
it is less likely counsel will face a conflict. Burger v. Kemp, 483 U.S. 776, 784
(1987).

¶ 30 When, as here, a defendant does not raise a conflict of interest until after trial,
the claim is governed by Cuyler v. Sullivan, 446 U.S. 335 (1980). Sullivan holds
that, in order to establish a violation of the sixth amendment, a defendant “must
demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.” Id. at 348.

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¶ 31 The appellate court, in rejecting defendant’s contention that her attorneys
labored under an actual conflict of interest, did not cite Sullivan. Instead, the court
relied on the “well-established rule” in Illinois that “the mere availability of a
strategy that would have helped one defendant at the expense of another does not
create hostility between the interests of criminal defendants.” 2015 IL App (1st)
132157-U, ¶ 27. That is, according to the appellate court, even assuming that
defendant had a plausible, alternative defense that could have been pursued by her
attorneys, that fact could not establish her interests were hostile to those of her
codefendant Hall. So long as there was a viable joint defense, the interests of
codefendants were not hostile. Defendant asserts this categorical rule, which
derives from People v. Echols, 74 Ill. 2d 319 (1978), is at odds with Sullivan and
must be abandoned. In support, defendant points to the Seventh Circuit Court of
Appeals decision, Taylor v. Grounds, 721 F.3d 809 (7th Cir. 2013).

¶ 32 In Taylor, defense counsel represented both the defendant and his brother at
their severed but simultaneous jury trials. Defense counsel refused to call the
defendant’s proffered witnesses who would have testified that the defendant’s
brother was the only one involved in the shooting. Instead, counsel argued that the
State had failed to prove either defendant’s guilt beyond a reasonable doubt.
Defendant subsequently filed a postconviction petition that raised a
conflict-of-interest claim. The circuit court denied the defendant’s petition
following a hearing, and this court subsequently affirmed. See People v. Taylor,
237 Ill. 2d 356 (2010).

¶ 33 This court held that the defendant’s proffered witnesses “merely raised the
possibility that the interests of defendant and [codefendant] may diverge.” Id. at
376. In finding that defense counsel’s strategy of arguing reasonable doubt did not
establish a conflict of interest under Sullivan, this court stated that “[t]he mere
availability of a strategy that would have helped one criminal codefendant at the
expense of another does not create hostility between their interests.” Id. at 376-77.

¶ 34 At a subsequent habeas corpus proceeding in the same case, the Seventh
Circuit Court of Appeals found this court’s application of Sullivan to be an
unreasonable application of clearly established federal law. Taylor v. Grounds, 721
F.3d at 818. The Seventh Circuit concluded that, in applying the Echols rule, this
court “failed to recognize that a common defense for two clients does not

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 necessarily demonstrate the absence of a conflict between their interests.” Id. While
it is true the interests of multiple defendants may be served by a common defense,
this is not always the case. Id. at 818-19. “The presentation of a united front may
not be consistent with one defendant’s interest if it requires the abandonment of a
plausible defense that benefits him at the expense of his codefendant.” Id. at 819.
The Seventh Circuit emphasized that Supreme Court precedent requires courts to
“evaluate the strength of the putative defense discarded by his attorney and whether
its presentation would harm the interests of a codefendant represented by the same
attorney.” Id. However, the Echols rule forecloses this inquiry. Further, according
to the Seventh Circuit, without an assessment of the discarded defense and its
relationship to the interests of the defendant’s brother, it was impossible to
“determine whether or not [defendant’s] interests were at odds with [his brother’s]
in the context of choosing a defense to pursue at trial.” Id. Thus, the Seventh Circuit
concluded that this court had “unreasonably declined to perform any analysis of
[defendant’s] potential defense in assessing his Sixth Amendment claim.” Id. If this
court had, we “would have arrived at the inescapable conclusion that [defendant’s]
potential strategy was sufficiently plausible such that his interests were at odds with
those of his brother in deciding whether to pursue a unified assault on the State’s
evidence.” Id. The Seventh Circuit remanded to the district court for a
determination of whether the conflict adversely affected counsel’s performance. Id.
at 824.

¶ 35 Relying on Taylor v. Grounds, defendant contends that the Echols rule is at
odds with Sullivan and must be abandoned and, therefore, the appellate court’s
analysis in this case cannot be sustained. The State, in response, concedes that
Echols is no longer good law.

¶ 36 This is the first time this court has been asked to address the continuing validity
of Echols in light of Sullivan. Having considered the matter, we agree with the
parties that the categorical rule of Echols cannot stand. As the Seventh Circuit
observed, the Echols rule fails “to recognize that a common defense for two clients
does not necessarily demonstrate the absence of a conflict between their interests.”
Taylor v. Grounds, 721 F.3d at 818. The rule does not take into account the fact that
a conflict of interest may arise when defense counsel must make the choice of
strategy or defense to pursue in representing defendant. Or, to put it another way,
the Echols rule does not afford courts the opportunity to assess whether the interests

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 of the codefendants actually are at odds with each other in a particular case and,
therefore, whether a conflict of interest exists. The Echols rule is therefore in
conflict with the Sullivan standard for establishing an actual conflict and must be
overruled.

¶ 37 Having rejected the Echols rule, we must now consider whether defendant has
established an actual conflict under Sullivan. In order to establish that an actual
conflict of interest adversely affected counsel’s performance, a defendant

“[f]irst, *** must demonstrate that some plausible alternative defense strategy
or tactic might have been pursued. He need not show that the defense would
necessarily have been successful if it had been used, but that it possessed
sufficient substance to be a viable alternative. Second, he must establish that the
alternative defense was inherently in conflict with or not undertaken due to the
attorney’s other loyalties or interests.” United States v. Fahey, 769 F.2d 829,
836 (1st Cir. 1985).

Thus, to determine whether defendant’s and codefendant Hall’s interests were
hostile in this case, we first must evaluate the strength of the putative defense, if
any, discarded by defendant’s attorneys and determine whether its presentation
would harm the interests of Hall. As the Seventh Circuit has stated, “[t]he
presentation of a united front may not be consistent with one defendant’s interest if
it requires the abandonment of a plausible defense that benefits him at the expense
of his codefendant.” Taylor v. Grounds, 721 F.3d at 819.

¶ 38 Defendant contends that a plausible, alternative defense existed in this case that
was at odds with Hall’s self-defense strategy. Defendant asserts that, in her
statement to police, she established that Hall suddenly and without explanation
stabbed Wilson while he was on the ground, that defendant tried to stop Hall when
she discovered Hall was stabbing Wilson, and that defendant did not know Hall
intended to kill Wilson. From this, defendant asserts a defense of innocence based
on a lack of accountability was of “ ‘sufficient substance to be a viable alternative’
to self-defense.” We disagree.

¶ 39 Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally
accountable for the criminal conduct of another if “[e]ither before or during the
commission of an offense, and with the intent to promote or facilitate such

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 commission, he [or she] solicits, aids, abets, agrees or attempts to aid, such other
person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West
2008). This statute incorporates the common-design rule. People v. Terry, 99 Ill. 2d
508, 515 (1984). People v. Kessler, 57 Ill. 2d 493, 496-97 (1974).

¶ 40 Under the common-design rule, if “two or more persons engage in a common
criminal design or agreement, any acts in the furtherance thereof committed by one
party are considered to be the acts of all parties to the common design and all are
equally responsible for the consequences of such further acts.” Kessler, 57 Ill. 2d at
496-97. See also People v. Fernandez, 2014 IL 115527, ¶ 13; In re W.C., 167 Ill. 2d
307, 337 (1995); People v. J.H., 136 Ill. 2d 1, 17 (1990); Terry, 99 Ill. 2d at 514;
People v. Cole, 30 Ill. 2d 375 (1964); People v. Marx, 291 Ill. 40, 48 (1919);
Hamilton v. People, 113 Ill. 34 (1885). Where there is a common design to do an
unlawful act, then “whatever act any one of them [does] in furtherance of the
common design is the act of all, and all are equally guilty of whatever crime was
committed.” People v. Tarver, 381 Ill. 411, 416 (1942). Thus, a defendant may be
charged with murder based on a theory of accountability where the defendant
enters a common design to commit only a battery yet a murder is committed during
the course of the battery. Terry, 99 Ill. 2d at 515. See also Brennan v. People, 15 Ill.
511, 516-17 (1854) (accomplice held liable for murder even without showing his
intent to kill).

¶ 41 Defendant’s own statement established that the four women left Cox’s
apartment to go after Wilson after the initial confrontation had ended and Wilson
had left the building. Defendant admitted she was the one who initially grabbed the
knife from the kitchen and was aware at all times during the incident that Hall was
in possession of it. Defendant also admitted to physically attacking Wilson and
grabbing his hood to hold him down. Thereafter, defendant went through Wilson’s
pockets and removed his jacket to search for Hall’s phone. Defendant then returned
with the others to Cox’s apartment. At no time did defendant attempt to escape the
incident or separate herself from the group or remove herself from the attack.

¶ 42 If the four codefendants’ common design was to commit a criminal assault on
Wilson, then it would not matter under Illinois law whether Hall “suddenly”
stabbed Wilson during the attack or whether, at some point, defendant told Hall to
stop and attempted to grab the knife. On this record, defendant is guilty of first

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 degree murder under the common-design rule. See, e.g., People v. Phillips, 2014 IL
App (4th) 120695. Accordingly, defendant’s proposed alternative defense was
simply not available.

¶ 43 Based on the foregoing, we find defendant has failed to show that an innocence
defense based on a lack of accountability was a plausible alternative defense.
Accordingly, defendant has not shown an actual conflict of interest.

¶ 44 CONCLUSION

¶ 45 For the foregoing reasons, the judgments of the appellate and circuit courts are
affirmed.

¶ 46 Appellate court judgment affirmed.

¶ 47 Circuit court judgment affirmed.

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