THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CINDI WHITING, Defendant-Appellant, 365 Ill. App. 3d 402

JUSTICE McLAREN delivered the opinion of the court: This appeal results from defendant Cindi Whiting’s conviction on an aggravated battery indictment. The trial court denied defendant’s posttrial motion for a new trial. Defendant has raised the issue of ineffective assistance of trial counsel, arguing her trial counsel overbore her decision to testify on her own behalf at trial. Accordingly, defendant claims she was deprived of her constitutional right to testify on her own behalf.

Defendant asserts she did not knowingly and voluntarily waive her right to testify, and there is nothing in the record indicating the trial court either admonished defendant about her right to testify or inquired of her if she knowingly and voluntarily waived her right to testify on her own behalf regardless of any advice given to her by her counsel. For the reasons stated below, we determine that defendant did not receive the effective assistance of counsel, and we determine defendant was prejudiced, because the error was not harmless beyond a reasonable doubt.

We reverse the trial court’s denial of defendant’s motion for a new trial, vacate the judgment of conviction, and remand the case to the trial court for a new trial. Defendant’s indictment was a by-product of an incident that involved defendant’s son and local police a day or two before Department of Children and Family Services (DCFS) employee Mary Anne Zimmer arrived at defendant’s home on the late morning of February 22, 2004. Defendant’s husband answered the door and allowed Ms. Zimmer entrance into the house, after Ms. Zimmer identified herself as an investigator for DCFS. Ms.

Zimmer removed her boots and proceeded up the stairway of the house to look for defendant’s 16-year-old son. Ms. Zimmer also asked to see defendant’s younger daughter. The testimony of the prosecution and defense witnesses differed considerably at trial. The State’s primary witness, Ms. Zimmer, indicated that she entered defendant’s son’s room and that defendant was agitated and told her son not to speak with Ms. Zimmer. Ms. Zimmer testified that defendant pushed her out of the bedroom and told her to get out of the house. Ms. Zimmer further stated that defendant followed Ms.

Zimmer down the staircase, while pushing Ms. Zimmer. Ms. Zimmer testified that, as she was putting on her boots, defendant was verbally and physically aggressive toward her and grabbed her face and her elbow to push her out the door. Two witnesses were called to testify on behalf of defendant. Defendant’s husband, who was present throughout the entire encounter between defendant and Ms. Zimmer, contradicted the testimony of Ms. Zimmer by testifying that it was Ms. Zimmer who initially raised her voice and that Ms. Zimmer started jabbing her finger at defendant while all the parties were in the son’s bedroom.

Defendant’s husband also stated he and defendant had asked Ms. Zimmer as many as 12 times to leave the residence. Defendant’s husband testified that defendant never pushed Ms. Zimmer while in the bedroom. Defendant’s husband said that Ms. Zimmer threatened defendant that defendant was going to be arrested because of her actions. Finally, defendant’s husband indicated that Ms. Zimmer continued to shout at defendant while Ms. Zimmer was beginning her exit from the residence and that defendant had not touched Ms. Zimmer at any time. Defendant’s 16-year-old son also testified.

His testimony in large measure corroborated the testimony of defendant’s husband. In particular, he testified that he promised his mother that he “would plead the fifth.” Defendant’s son testified that he did not see defendant push or shove Ms. Zimmer while they were in his room. He added that he did not see defendant shove Ms. Zimmer at the entryway to the home, either. The case was presented to a jury, the jury returned a guilty verdict, and the court entered judgment thereon.

Within a month after the trial and prior to sentencing, defendant obtained the services of new counsel, who filed a motion for a new trial and a subsequent amended motion for a new trial. The amended motion for a new trial included the assertion that defendant had expressed to her trial counsel her desire to testify on her own behalf and to tell her own version of the events on the date of the alleged offense. Defendant’s amended motion stated that her trial counsel had advised her that she could not testify on her own behalf at trial.

Defendant, according to the amended motion for a new trial, indicated that she was unaware of her constitutional right to present testimony on her own behalf, in light of her counsel’s insistence that she could not testify. Defendant accordingly argued in her amended motion that she had not knowingly or voluntarily personally waived her right to testify on her own behalf to rebut the testimony of Ms. Zimmer.

Defendant’s motion argued that her trial counsel’s actions in preventing her from testifying contributed to a deprivation of her right to effective assistance of counsel, as guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV). On February 22, 2005, the trial court considered defendant’s uncontroverted testimony relative to her amended motion for a new trial, which included her claim of ineffective assistance of counsel, particularly as it pertained to her desire to testify on her own behalf at trial.

Defendant claimed that she had wanted to testify, that she had practiced her testimony with her counsel before trial, and that she had continued to inform her counsel that she wanted to testify on her own behalf. Despite that, she said, her counsel told her that she could not testify at trial. Defendant further indicated that she did not personally make an objection when her counsel advised the court that the defense had no further witnesses, because it was her understanding that she could not speak directly to the court while being represented by counsel.

In effect, defendant understood that she had a right to testify, but only if her counsel would allow her to testify. The trial court, after considering the uncontroverted evidence and allegedly following People v. Smith, 176 Ill. 2d 217 (1997), found that the decision not to have defendant testify was a strategic decision in which defendant concurred and that defendant had waived her right to testify. See People v.

Smith, 176 Ill. 2d 217 (1997) (inter alia, the right to testify was raised for the first time on appeal and was deemed waived for failure to raise the issue in a postsentencing motion in the trial court). Additionally, the trial court found that, by failing to make a contemporaneous assertion of her right to testify at the time of trial, defendant waived her right to contest a waiver of her right to testify.

Accordingly, the trial court found that there was no sixth amendment violation and that defendant’s counsel’s performance was not deficient and that defendant was not prejudiced by any deficiencies in her counsel’s performance. Thus the trial court never considered whether prejudice to defendant’s constitutional rights arose, having determined there was no violation of the right to testify. The trial court denied the amended motion for a new trial and proceeded to sentencing, sentencing defendant to 18 months’ probation, with fines, assessments, and counseling and related requirements.

Defendant filed a timely notice of appeal, pursuant to Illinois Supreme Court Rule 604(b) (210 Ill. 2d R. 604(b)). The standard of review for determining whether an individual’s constitutional rights were violated is de novo. People v. Carini, 357 Ill. App. 3d 103, 113 (2005). However, because this is a direct appeal from an evidentiary hearing, we review the findings of fact to determine if they are against the manifest weight of the evidence. “ ‘In a bench trial, the trial court must weigh the evidence and make findings of fact.

In close cases, where findings of fact depend on the credibility of witnesses, it is particularly true that a reviewing court will defer to the findings of the trial court unless they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124 (1985). *** A decision is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence.’ ” People v. A Parcel of Property Commonly Known as 1945 North 31st Street, 217 Ill. 2d 481, 507 (2005), quoting Eychaner v.

Gross, 202 Ill. 2d 228, 251-52 (2002). It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors, including most constitutional violations, that were harmless beyond a reasonable doubt. United States v. Hasting, 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983). Our supreme court has set standards for such determinations in People v. Smith, 38 Ill. 2d 13, 15 (1967), in recognizing that if there was constitutional error at trial, a reviewing court must be able to declare that, beyond a reasonable doubt, the error did not contribute to the finding of guilty.

See also People v. Merideth, 152 Ill. App. 3d 304 (1987) (the standard of review for whether error affected the defendant’s constitutional right to a fair trial is whether the error was harmless beyond a reasonable doubt, which standard determines whether there is a reasonable possibility that any error might have contributed to the accused’s conviction). The critical aspect of the case presently before us is whether defendant was deprived of a constitutional right, particularly whether she knowingly and voluntarily waived the right to testify on her own behalf.

Illinois courts have consistently recognized a criminal defendant’s right to testify on his own behalf at trial as being fundamental. The right is so fundamental that the decision to testify or to decline to testify can be made only by the defendant, regardless of counsel’s advice to the contrary. People v. Clemons, 277 Ill. App. 3d 911 (1996). However, a defendant who claims on appeal he was precluded from testifying at trial must have contemporaneously asserted his right to testify by informing counsel at the time of trial. People v. Brown, 54 Ill. 2d 21, 24 (1973).

We distinguish this case from Brown, 54 Ill. 2d at 24, and People v. Thompkins, 161 Ill. 2d 148, 177-78 (1994), because in this case there were repeated uncontroverted statements and references by defendant at the motion hearing regarding her desire to testify on her own behalf, along with her testimony that her trial counsel told her she could not testify, and that she did not believe she, personally as a layperson, could raise the issue with the court at trial. All of defendant’s testimony was uncontroverted, with no objection being raised.

We disagree with the dissent’s argument that defendant’s testimony can be rejected because it was “inherently improbable, contrary to the laws of nature, or contains its own impeachment.” 365 Ill. App. 3d at 411. We cannot find anything in defendant’s testimony that could reasonably be characterized as the dissent suggests. We also disagree that the witnesses called by defendant at trial sufficed as surrogate witnesses, capable of replacing defendant’s own testimony by expressing defendant’s position, from which the jury could have made any inferences about the merits of defendant’s testimony.

The dissent’s reference to defendant’s statements about self-incrimination and its resulting claim that defendant was sophisticated regarding her constitutional rights leads the dissent to then erroneously conclude the trial court could have concluded defendant also was aware of her right to testify at trial. The dissent fails to cite to any authority that would support its conclusion that knowledge of a constitutional right, contrary to uncontroverted evidence herein, constitutes knowledge and waiver of another constitutional right.

Also, we note that defendant promptly objected to the waiver of her right to testify, via the motion for new trial. From what we can discern, this case is unprecedented in that defendant raised this issue prior to sentencing. All the cases referenced herein by the majority and the dissent involved collateral, postconviction proceedings. This defendant acted in a timely fashion, prior to sentencing (“Final judgment in a criminal case is not entered until the imposition of the sentence; the final judgment in a criminal case is the sentence.” People v.

Warship, 59 Ill. 2d 125, 130 (1974)), in an attempt to exercise her constitutional right to testify on her own behalf. This case has a fact pattern not apparent in virtually any other reported case, including Thompkins and Brown. We believe, contrary to the dissent, that all the facts contained in the record, including the uncontroverted testimony of defendant, clearly establish that there is no evidence to contradict defendant’s claim that the failure to testify was not the result of strategy and that she did not knowingly and voluntarily waive her constitutional right to testify.

And we believe that this error resulted in prejudice. The issue of whether the right to testify has been violated is raised by asserting the ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The basis for determining whether trial counsel was ineffective in his performance is set forth in Strickland and recognized by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984).

Strickland sets forth a two-part test for determining whether a defendant’s counsel was ineffective, including (1) whether counsel’s performance fell below an objective standard of reasonableness and (2) whether the defendant was prejudiced. A defendant must demonstrate that counsel’s errors were so serious that counsel was not functioning as guaranteed by the sixth amendment. However, the court need not determine whether counsel was deficient before examining whether the defendant was sufficiently prejudiced by the alleged deficiencies (Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2069).

In dealing with the second part of the Strickland test, the defendant must demonstrate a reasonable probability that, but for the defense counsel’s deficient performance, the result of the trial would have been different. In the present case, defendant was the only person who was in a position to fully express her mental state and to directly rebut the testimony of Ms. Zimmer regarding defendant’s interaction with Ms. Zimmer in defendant’s home. Certainly, the denial of defendant’s opportunity to present testimony that only she was capable of presenting cannot be deemed to be harmless beyond a reasonable doubt.

This would seem to be particularly true because the two defense witnesses who did testify were seemingly impeached by their relationship with defendant and the State’s argument that their testimony was compromised by their desire to keep defendant out of trouble. As noted, defendant testified at the hearing on her amended motion for a new trial that she believed that while she was represented by counsel she could not address the court about her desire to testify. We believe that the evidence in this case was close and that a different result upon retrial is reasonably probable. See People v. Park, 245 Ill.

App. 3d 994, 1003 (1993) (where the only evidence of guilt was found in the accusation of the victim, the case was deemed “close”). The dissent incorrectly determines that this is not a close case and employs a non sequitur to rationalize how harmless error could arise. The dissent relates, “In all criminal cases, it is reasonable for the jury, in assessing witness credibility, to conclude that a defendant who elects to testify is doing so out of the desire to keep himself or herself ‘out of trouble.’ ” 365 Ill. App. 3d at 416.

As such, there is no reason to believe that, if the jury rejected the husband’s and son’s testimony as being biased, it would not have treated defendant’s testimony in the same manner. The dissent then cites to multiple cases relating to the deference given to juries’ findings of fact and weighing of evidence. To suggest that a trier of fact is free to reject a defendant’s testimony prior to its presentation disregards the defendant’s presumption of innocence. 365 Ill. App. 3d at 416.

Until a jury is given the opportunity to weigh the testimony of the defendant, any conclusion drawn regarding deference is premature speculation. In cases that involve deprivation of constitutional rights in criminal proceedings, defendants are entitled to a reasonable level of assurance of counsel’s effectiveness. People v. Lyles, 217 Ill. 2d 210 (2005).

Considering the uncontroverted evidence that defendant had informed her trial counsel she wanted to testify, there was nothing of record to establish that defendant was informed that she was required to raise a contemporaneous objection under the circumstances, and she promptly raised the issue upon acquisition of new counsel prior to sentencing rather than in postconviction proceedings. The trial court’s determination that defense counsel’s waiver of defendant’s right to testify was a matter of trial strategy was against the manifest weight of the evidence.

Because we find the trial court’s determination that defense counsel’s waiver of defendant’s right to testify was a matter of trial strategy was against the manifest weight of the evidence, we determine the trial court erred.

Further, because there is no record of defendant’s knowing and voluntary waiver of her right to testify, especially in light of defendant’s uncontroverted testimony at the hearing on her post-trial motion, her prompt action in hiring new counsel to raise that issue, and the other facts already stated regarding the potential impact of defendant’s testimony at trial, we determine that a lack of prejudice is not established beyond a reasonable doubt. The dissent relates the law of other jurisdictions in an attempt to support its position that no error arose or that any error was not prejudicial.

We believe the law in this state is clear and controlling and therefore believe that mention of any jurisdiction other than federal is immaterial. In our assessment, we have considered the benefits of a trial court’s clarification of whether a defendant has knowingly waived this important constitutional right to testify, either by an admonishment by the court on the record or on-the-record questioning of the defendant regarding the defendant’s knowing waiver of that right, against the court’s failure to do so. We are cognizant of cases such as People v. Shelton, 252 Ill.

App. 3d 193 (1993), which indicate that a trial court has no duty to admonish a defendant or ensure an on-the-record waiver on this issue. However, when the minimal burden on the trial court in taking the time to place the matter on the record is weighed against the assurance that the constitutional right of a defendant has not been lost, it is clear the most reliable, judicially economical procedure would be to simply inquire of the defendant.

If the defendant is not going to testify, the record should reflect that the defendant is aware that the right to testify belongs to the defendant; that it is neither a matter of strategy nor the prerogative of counsel. We believe it is preferable for the court to admonish or otherwise act regarding this specific constitutional right, even if there is no fixed formula of recitation or obligation to do so. Contrary to the claim of the dissent, the Illinois Supreme Court did not limit the use of admonishments; it merely decided they were not required. People v. Smith, 176 Ill. 2d 217 (1997).

By creating a record that the defendant was aware that the right and decision to testify were his alone, a trial court would avoid creating a situation, such as exists in the present case, in which there is substantial doubt as to whether the defendant knowingly and voluntarily waived the right to testify on his or her own behalf. The dissent’s suggestion that admonishments of this sort be limited to “sophisticated” defendants (providing guidance to already-knowing defendants), while denying admonishments to unsophisticated defendants (those who most need the admonishments), is problematic.

Our rationale is consistent with People v. Frieberg, 305 Ill. App. 3d 840, 852 (1999), in which the court made a recommendation that, after the State has rested its case-in-chief and before the presentation of the defense case, the defendant be personally admonished that he alone possesses the right to choose whether to testify on his own behalf and that he should make that decision after consulting with counsel. The dissent argues at considerable length as to how Smith controls the outcome of this case. The dissent also claims that “the analysis in Frieberg is flawed.” 365 Ill. App. 3d at 420.

We respectfully disagree. The supreme court in Smith stated, inter alia, “a majority of jurisdictions, and our own appellate court, have found that a trial court has no duty to advise a defendant, represented by counsel, of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred.” Smith, 176 Ill. 2d at 234. Thus, if counsel were ineffective, the defendant would be effectively without counsel, and an admonishment would implicitly be required unless the record reflected a knowing, voluntary waiver of the right to testify.

For the foregoing reasons, we reverse the order of the circuit court of McHenry County denying defendant’s motion for a new trial, vacate the judgment of conviction, and remand the cause for a new trial. Reversed and vacated; cause remanded. BYRNE, J., concurs.