dissenting:
I believe the defendant, William Gary, was denied a fair trial because he did not receive effective assistance of counsel. I therefore respectfully disagree with the contrary conclusion reached by my colleagues.
The majority opinion fully sets forth the pertinent facts as well as the applicable legal principles.
Defendant contends he was denied the effective assistance of counsel because for all practical purposes his appointed counsel during closing arguments pleaded him guilty and because his appointed counsel failed to pursue and investigate an allegedly valid theory of defense and allow defendant to testify to establish that defense.
In my opinion People v. Carter, 41 Ill. App. 3d 425, 354 N.E.2d 482, and People v. Redmond, 50 Ill. 2d 313, 278 N.E.2d 766, in which cases convictions were reversed because of ineffective assistance of counsel, are persuasive authorities supporting my position that in this case the defendant was denied the effective assistance of counsel because of the final argument of his counsel.
While the language of defense counsel’s final argument quoted at length in the majority opinion requests a not guilty verdict on two of the counts, in the same breath it admits the defendant’s guilt on the lesser included offenses of reckless conduct and aggravated battery. It does so either by telling the jury that defendant has admitted his guilt to his attorney, by stating that defendant is guilty, or by requesting the jury to bring back guilty verdicts on the lesser included offenses. Without examining the matter further, I note that defense counsel might well have breached his client’s privilege of confidentiality by telling the jury of alleged admissions of guilt by his client on two of the charges.
In People v. Carter, 41 Ill. App. 3d 425, 354 N.E.2d 482, the court concluded that defendant had been denied effective assistance of counsel primarily because of defense counsel’s closing argument. The court found that not only had counsel’s summation failed to perform its function of presenting the defense’s theory, “but was tantamount to an admission of his client’s guilt.” Without embarking upon a verbatim comparison between the closing argument in Carter and here, suffice it to state that while the language in Carter found to constitute an admission of guilt was somewhat obscure and vague, the admission of guilt in the present case is clear and unequivocal. It was tantamount to pleading defendant guilty in open court without any of the safeguards provided by statute or rule to insure that a guilty plea is the result of the defendant’s own volition. In addition, Carter was tried without a jury whereas the present case was before a jury. Presumably, since a trial judge sitting as a trier of fact has a greater ability to disregard improper statements made during trial than does a jury, it would seem that less prejudice to the defendant was established in Carter than here. Nevertheless, the Carter court did find defendant had been denied effective assistance of counsel and remanded the cause for a new trial.
In the present case, counsel told the jury that defendant had admitted his guilt to him on two charges, but asked for leniency on the two remaining charges. Yet, the lesser offenses of aggravated assault and reckless conduct arose out of the same conduct as the two greater offenses of armed violence and armed robbery. A jury quite naturally would consider such an admission when reaching a verdict on all four counts. Hence, counsel’s closing argument effectively destroyed whatever defense the defendant had to all of the charges. As such, it constituted more than a mere error in judgment or trial strategy.
My colleagues concede that defense counsel did plead the defendant guilty to the offenses of aggravated assault and reckless conduct. They fail to show from any view of the evidence how the defendant could have been guilty of the lesser offenses without being guilty of the more serious offenses. They characterize the plea of guilty as an appeal for clemency thereby justifying such argument as a matter of strategy or professional judgment. The final argument in the Carter case could similarly be considered a plea for leniency. Yet, the Carter court reached the conclusion the defendant did not receive the effective assistance of his counsel. In distinguishing Carter the majority believes it significant that the defendant here did not testify and claim his innocence, whereas in Carter, the defendant’s testimony supported a theory of innocence, a theory which his counsel ignored during closing argument. In light of defendant’s willingness to go to trial on all charges, as well as the presumption of innocence given every defendant, I believe that just as in Carter, the defendant here proclaimed his innocence only to have that position repudiated by his counsel during closing argument.
In People v. Redmond, 50 Ill. 2d 313, 278 N.E.2d 766, our supreme court reversed a murder conviction on the ground the defendant had been denied effective assistance of counsel, reasoning that counsel’s closing argument was “totally confusing and incoherent” and therefore “meaningless.” I believe defense counsel’s closing argument in the instant case was confusing, most notably because of the inconsistent positions counsel took between admitting his client’s guilt on the two lesser included offenses and urging his innocence on the two greater offenses. The conduct of counsel in this case requires a decision that defendant was denied effective assistance of counsel.
The defendant has also argued he was denied effective assistance of counsel because his counsel failed to pursue and investigate an allegedly valid theory of defense and allow defendant to testify to establish that defense. From the testimony of the defendant given at the sentencing hearing, it appears the defendant claimed he had been cheated at a crap game by the complaining witness. On this appeal defense counsel has devoted a considerable portion of his brief to the argument that the self-help principle to recover gambling losses occurring as the result of cheating is a defense to charges based on such self-help. Consequently, according to the defendant, he should have been advised of this potential defense, given an opportunity to testify about it, and have the jury instructed on the defense.
My colleagues have ignored the self-help issue and I think properly so, because in this regard, the factual basis for evaluating the conduct of trial counsel is outside the record. In other words, whether defense counsel even considered whether such a defense existed or whether he advised defendant about it or whether he advised the defendant not to testify even if such defense could be proved, are all matters outside the record. I make note of this problem because of the troublesome question which sometimes arises when part of an issue appears to have been urged and argued on a direct appeal when in fact complete resolution of the issue may require other evidence more appropriately presented in a post-conviction proceeding. I make the special observation that the issue relating to the self-help defense and the adequacy of defense counsel’s conduct with respect to such defense are not appropriately decided on this direct appeal.