                             No. 3--03--0952
                       Filed January 25, 2006
_________________________________________________________________

                                          IN THE

                                          APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                          A.D., 2005

THE PEOPLE OF THE STATE                       )   Appeal from the Circuit Court
OF ILLINOIS,                                  )   of the 21st Judicial Circuit,
                                              )   Kankakee County, Illinois,
       Plaintiff-Appellee,                )
                                   )
       v.                          ) No. 02--CF--605
                                   )
DELMIRO G. EGGLESTON,              ) Honorable
                                   ) Clark Erickson,
     Defendant-Appellant.       )Judge, Presiding.
_________________________________________________________________

     JUSTICE BARRY delivered the Opinion of the court:
_________________________________________________________________

       Defendant, Delmiro G. Eggleston, was charged in the Kankakee County circuit

court with home invasion (720 ILCS 5/12--11(a)(3) (West 2002)) and unlawful use of

weapons by a felon (720 ILCS 5/24--1.1(a)(West 2002)). In a bench trial, the trial court

found defendant not guilty of home invasion and guilty of unlawful use of weapons by a

felon. Defendant was sentenced to 16 years' incarceration in the Illinois Department of

Corrections (IDOC). Defendant appeals his conviction and sentence, arguing that the

trial court abused its discretion by refusing to appoint independent counsel to

investigate his posttrial allegations of ineffective assistance of counsel. We hold that



                                              1
the trial court properly denied defendant's request for new counsel. Accordingly, we

affirm the judgment of the circuit court of Kankakee County.

                                        FACTS

      At the bench trial, Tasha Jackson testified that she was 29 years old, and she

lived in a house in Kankakee. Lakiva Byrd lived around the corner from her. The

defendant's cousin, Donnell Eggleston (Donnell), was Byrd's boyfriend. On October 1,

2002, Jackson went to Byrd's house twice to buy cocaine. She made her first trip

around 10 a.m. Donnell was in the house with defendant. Jackson had known Donnell

for about three months, and she had purchased cocaine from him previously. She did

not know defendant at the time. She bought cocaine from Donnell and returned home.

Approximately 30 minutes later, Jackson went back to Byrd's house to buy additional

cocaine from Donnell. Jackson returned home once again.

      At approximately 1:30 p.m., Jackson encountered Donnell while she was out

walking. He told Jackson that someone had broken into Byrd's home, and that he

believed that she was responsible. She told him he was wrong. Donnell then told her

that he needed to search her house. She consented to the search.

      Defendant joined them outside of Jackson's house. Jackson allowed Donnell to

enter her house. Defendant also entered the house with Donnell. Defendant and

Donnell proceeded to ransack Jackson's house. The two went upstairs for

approximately 15 to 20 minutes. Jackson's father and her two children were in the

house.

      Jackson observed Donnell place a telephone call on his cellular phone.

Defendant told Jackson that if he had a gun he would shoot both her and her father.

                                           2
Donnell told her that he was looking for a gun, jewelry, narcotics and money that had

been taken from Byrd's house. Donnell slapped Jackson twice across her face.

      Approximately 30 minutes later, a man named Demarco Hampton arrived at

Jackson's house. Donnell made Jackson sit in her living room and did not allow her to

move. Donnell opened the front door and allowed Hampton inside. Jackson observed

Hampton produce two guns from his waist. He gave one gun to Donnell and the other

gun to defendant. Hampton had a third gun, which he kept himself. Hampton then left

the house.

      Defendant then took Jackson's father into a bedroom and tied him up with

Christmas lights. Jackson became afraid that defendant and Donnell were going to kill

her. She suggested that they go to see her cousin, Sampson Jackson (Sampson),

because he might know something about the burglary. She and defendant then left the

house and got into a car that had been parked outside. Donnell remained in Jackson's

house.

      A woman named Asia Wilson was in the driver's seat of the car. Defendant sat in

the front passenger seat, and Jackson rode in the back. They traveled to the house of

Sampson's girlfriend. Jackson and defendant got out of the car. Jackson went into the

house to see Sampson.

      Sampson testified that he was at his girlfriend's house at approximately 4:30 p.m.

when Jackson arrived. He observed defendant standing behind Jackson. Sampson

agreed to go with Jackson and defendant. Jackson, Sampson, and defendant got into

the car, and Wilson drove them back to Jackson's house.



                                           3
       While in the car, defendant asked Sampson where the gun was. Sampson

replied that he did not know. When they arrived at Jackson's house, Jackson, Sampson

and defendant got out. Wilson drove away. Sampson observed, for the first time,

defendant with a gun in his hand. Inside the house, Donnell asked Sampson if he had

broken into Byrd's home. Sampson answered that he had not. Defendant and Donnell

went outside. Jackson then ran out of the back door to a neighbor's house and called

the police, who arrived shortly thereafter. Defendant and Donnell had left the area.

       Jackson and Sampson made statements to the police, which they each signed.

       Kankakee City Police Detective Earl Cote testified that he was dispatched to

Jackson's house at approximately 4:15 p.m. on October 1, 2002. He observed clothing

strewn about the floor upstairs and downstairs. Later that day, he interviewed Sampson

and reduced his statements to writing. He showed the typewritten statement to

Sampson and told him to sign it only if it was truthful and accurate.

       Kankakee City Police Detective Peter Nicholos testified that he was dispatched to

Jackson's house at approximately 4:08 p.m. on October 1, 2002. At about 5:15 p.m., he

interviewed Jackson and reduced her statements to writing. He showed the typewritten

statement to Jackson and asked her to sign it if it was accurate. The statement

indicated that Hampton drew two guns from his waist, and that he gave one gun to

Donnell and kept the other for himself. The statement made no mention of Jackson's

father being tied up by defendant. Detective Nicholos asked Jackson to have her father

come to the police station to make a statement. Jackson's father did not contact the

police. Jackson identified photographs of defendant, Donnell, and Demarco Hampton



                                             4
from a series of photos. When she selected defendant's photograph, she told Detective

Nicholos that she had seen defendant in her house with a gun.

      Kankakee City Police Detective Patrick Kane testified that he was dispatched to

Jackson's house at approximately 4:08 p.m. on October 1, 2002. He interviewed

Jackson's neighbors, including Lakiva Byrd. Byrd told him that her house had been

burglarized. Detective Kane obtained information as to defendant's possible

whereabouts and sent an officer to a residence in Kankakee in search of defendant.

      Sergeant Charles Curwick of the Kankakee City Police testified that on October

1, 2002, Detective Kane directed him to proceed to a residence in Kankakee with other

officers at approximately 7:50 p.m. At the residence, Officer Curwick and others were

allowed inside by Yakisha Butler. Officer Curwick discovered defendant standing in the

shower, clothed. Officer Curwick placed defendant under arrest.

      The parties stipulated that defendant had been convicted of a felony in Illinois

and was on parole on October 1, 2002. The parties further stipulated that Yakisha

Butler and Lakiva Byrd would testify that they observed, and were with, defendant at

various times on October 1, 2002, and that they did not observe a gun on his person.

      Defendant testified that he was 26 years old and lived in Rock Island. He

admitted to having been convicted of aggravated car jacking and delivery of a controlled

substance. He further admitted that he was on parole. He traveled to Kankakee a

couple of days before October 1, 2002, to check on an outstanding warrant. He stayed

the night of November 30, 2002, at Byrd's house with his cousin, Donnell. Jackson

came to the house twice on the morning of October 1, 2002. On the second visit,

Jackson brought a gym bag filled with meat and offered to trade it for cocaine or money.

                                           5
Jackson subsequently performed oral sex on defendant and Donnell, and she obtained

cocaine from Donnell.

      At approximately 2 p.m., Latrell Lowe, a friend of defendant, drove defendant and

Donnell around town for about half an hour. Lowe drove to an unspecified location, and

Donnell exited the car. Lowe then returned defendant to Byrd's house. He placed a

telephone call to Donnell, who came to the house. A search of the house revealed that

Byrd's jewelry, a gun, and money were missing.

      The two went to Jackson's house and questioned her about the missing items.

Jackson denied taking anything from Byrd's house, and she allowed defendant and

Donnell to enter her house and search it. Byrd was also in Jackson's house during the

search. Jackson was "high" and frantic. Defendant recovered rings and a chain with

Byrd's name on it in the closet. Jackson denied taking the items. She said she knew

who took the jewelry, and she asked to be taken to Sampson's house. Defendant

telephoned Asia Wilson and asked her for a ride. Wilson arrived at Jackson's house,

and she drove defendant and Jackson to Sampson's house.

      At Sampson's house, Sampson answered the door. Jackson told Sampson to

return the items he had taken and asked him why he had broken into Byrd's house.

Sampson denied the accusation. He then took $400 from his pocket, gave it to

defendant, and said that "Pooter" had given the money to him. Defendant asked him if

he had the gun. Sampson said that he would take them to it. Sampson, Jackson and

defendant got into Wilson's car, and Wilson drove them to Jackson's house. Inside

Jackson's house, Sampson removed a gun from his back pocket and gave it to Donnell.



                                          6
Donnell identified the gun as belonging to him. Donnell then told Byrd to call the police,

and he and defendant left.

       Defendant denied possessing a gun on October 1, 2002. He stated that Donnell

did not have a gun until Sampson handed the gun to him. Defendant knew Demarco

Hampton. He stated that Hampton was not at Jackson's house. Defendant admitted

that he told the police that he was not in Jackson's house on October 1, 2002. He

stated that he did not inform the police as to what happened in Jackson's house

because he was scared.

       On rebuttal, Sampson denied giving $400 to defendant and giving a gun to

Donnell. Jackson denied offering to exchange a bag of meat for cocaine and

performing oral sex on either defendant or Donnell. She also denied that any stolen

jewelry was recovered in her house. She further denied observing Sampson give $400

to defendant or a gun to Donnell.

       At the close of the trial, the trial court found defendant guilty of unlawful use of

weapons by a felon and not guilty of home invasion.

       At the sentencing hearing, on November 5, 2003, the trial court denied

defendant's motion for a new trial. Defendant then exercised his right of allocution. He

stated that, at Donnell's trial, Jackson testified that defendant did not have a gun. He

also asserted that Byrd's stipulated testimony was inadequate. He claimed that Byrd

would have testified that she was at Jackson's house and that she did not observe any

guns. Additionally, he believed that Jackson's father should have been called as a

witness because he was present in Jackson's house and could testify that defendant

and Donnell recovered stolen property there.

                                              7
       The trial court asked defense counsel about defendant's arguments regarding

potential witnesses who were not called to testify. Defense counsel stated that, though

his recollection was unclear, his decisions regarding witnesses were a matter of trial

tactics. He stated that he based his decisions upon his assessment of the relationships

of all who were involved in the case and his belief that the State had failed to present

sufficient evidence to convict defendant beyond a reasonable doubt. The trial court

found that the claims defendant raised in his allocution statement were a matter of trial

tactics. The trial court then sentenced defendant to 16 years' incarceration in the IDOC.

       On December 1, 2003, the trial court received a letter from defendant questioning

defense counsel's alleged failure to call several witnesses who may have bolstered his

defense. In response to the letter, the trial court conducted a hearing pursuant to

People v. Baltimore, 292 Ill. App. 3d 159, 685 N.E.2d 627 (1997), on December 16,

2003. The purpose of the hearing was to determine whether new counsel should be

appointed to represent defendant in investigating his allegations. The trial court read

defendant's letter into the record and noted that the letter would be incorporated into

defendant's motion to reconsider.

       The trial court then questioned defendant about the allegations in his letter.

Defendant stated that: (1) Asia Wilson would have testified that she did not see him with

a gun, and that the situation in the car was not "hostile"; (2) Latrell Lowe would have

supported defendant's testimony that Jackson tried to sell them meat at Byrd's house;

and (3) Demarco Hampton would have denied bringing guns to Jackson's house and

giving them to defendant and Donnell. Defendant admitted that he did not talk to any of

these witnesses as to what their testimony would be, and that he gave defense counsel

                                             8
these names one hour before his trial was to begin. He claimed to have attempted to

send a letter to defense counsel in advance of the trial with this information, but the

letter was returned to him.

       Defense counsel stated that he discussed trial tactics with defendant, including

the sufficiency of evidence necessary to support a conviction. He also stated that he

had sufficient time to meet with defendant prior to trial to review the evidence and

prepare the case. He could not recall when or how often he met with defendant. The

assistant State's Attorney reminded the trial court that defendant had an opportunity to

continue his case before the trial began, due to the original judge's schedule conflict,

but, instead, defendant demanded to have his trial, which began the next day.

       The trial court found that there was no basis to appoint new counsel to represent

defendant in his posttrial allegations of ineffective assistance of counsel.

                                        ANALYSIS

       On appeal, defendant contends that the trial court erred by not appointing him

new counsel to investigate his pro se post-trial claims of ineffective assistance of

counsel. Defendant contends that his trial counsel failed to call certain witnesses and

present impeachment evidence. We disagree.

       A defendant's assertion that trial counsel was ineffective does not guarantee him

new counsel. Baltimore, 292 Ill. App. 3d 159, 685 N.E.2d 627. However, when a

defendant raises a pro se claim of ineffective assistance of counsel, the trial court

should review the factual basis for the claim. People v. Bull, 185 Ill. 2d 179, 705 N.E.2d

824 (1998). When conducting a preliminary investigation of a defendant's pro se claim

of ineffective assistance of counsel, the trial court may base its evaluation of the

                                             9
defendant's allegations on its knowledge of defense counsel's performance at trial and

the insufficiency of the defendant's allegations on their face. People v. Gilmore, 356 Ill.

App. 3d 1023, 828 N.E.2d 293 (2005).

       Where the trial court determines that the defendant's claims pertain only to

matters of trial strategy, the pro se motion may be denied without appointing new

counsel. Bull, 185 Ill. 2d 179, 705 N.E.2d 824. Matters such as whether to put a

witness on the stand at trial are typically matters of trial strategy. People v. Enis, 194 Ill.

2d 361, 743 N.E.2d 1 (2000). The trial court's finding that it is unnecessary to appoint

new counsel to present a defendant's claims of ineffective assistance will not be

disturbed on appeal unless the court's ruling is manifestly erroneous. People v.

Woodson, 220 Ill. App. 3d 865, 581 N.E.2d 320 (1991).

       In the instant case, the judge reviewed each allegation in defendant's allocution

statement and in his pro se letter. At the sentencing hearing, and again at the Baltimore

hearing, the trial court discussed the allegations with defendant and with defense

counsel. The trial court determined that there was no factual basis for defendant's

claims, and as a result, he did not appoint new counsel to represent defendant.

       On appeal, defendant alleged in his opening brief that Jackson testified at

Donnell's trial that defendant did not have a gun on October 1, 2002, and that testimony

should have been introduced for impeachment purposes. Defendant further alleged

that the following witnesses should have been called to testify: (1) Lakiva Byrd; (2)

Jackson's father, Walter Westbrook; (3) Asia Wilson; and (4) Demarco Hampton.

        As to Jackson's testimony at Donnell's trial, defendant concedes that the trial

transcript refutes his claim. Jackson testified, at both trials, that she observed Hampton

                                              10
give a gun to both defendant and Donnell. Thus, there was no factual basis for this

claim.

         However, defendant further asserts that evidence adduced at Donnell's trial

about a prior statement made by Jackson should have been introduced at his trial. At

Donnell's trial, Jackson admitted to signing a written statement which indicated that: (1)

she did not observe defendant with a gun; (2) the matter was a misunderstanding; and

(3) she would like to drop the charges. Jackson further stated that she wrote and gave

this signed and notarized statement to Byrd because she was harassed "every day" by

phone calls and personal visits at her home made by "people" trying to coerce her into

dropping the charges. Although Jackson admitted that she would generally be willing to

lie in order to stop being harassed, she did not indicate that the police coerced her into

filing charges. Rather, Jackson implied that defendant, Byrd or individuals closely

associated with defendant pressured her into writing that she wanted to drop the

charges.

         Moreover, Jackson did not give her statement to the police. Instead, she gave

the statement to Byrd. That defense counsel chose not to use this statement was a

matter of trial strategy. Had he introduced the statement, the State would likely have

been able to show that defendant coerced her into writing it. Thus defendant's

credibility, and not Jackson's, would have been at risk.

         We further note that at defendant's trial Detective Nicholos testified that the

statement he took from Jackson indicated that Hampton drew two guns from his waist,

and that he gave one to Donnell and kept the other for himself. Thus, the statement

that defendant argues his counsel should have introduced into evidence would have

                                              11
been merely cumulative at best. Though Nicholos also stated that Jackson told him that

she had seen defendant in her house with a gun, the evidence of a prior written

statement introduced in the instant case better served the purpose of attempting to

discredit Jackson than the statement Jackson gave to Byrd.

       As to the other witnesses, defendant claims that Lakiva Byrd was present at

Jackson's house, and that she would have testified that she did not see any guns. At

trial, the parties stipulated to Byrd's testimony. The stipulation indicated that Byrd would

testify that she was with defendant at various times on October 1, 2002, and she did not

observe him with a gun. Byrd's live testimony would not have added any more than the

stipulation already covered. Moreover, it would have subjected Byrd to cross-

examination, which may have discredited her testimony, based on her involvement in

the case. Byrd was Donnell's girlfriend, and also the victim of an alleged burglary.

Defendant and Donnell blamed Jackson for the burglary. A cross-examination of Byrd

may have exposed Byrd's bias against Jackson. Defense counsel stated that he took

into account the relationships of the individuals involved in the case in determining

which witnesses to call. It is reasonable to conclude that counsel perceived an

advantage to introducing Byrd's testimony by stipulation. Thus, the decision to proceed

by stipulation was one of trial strategy.

       With regard to the remaining witnesses, defendant's assertions are based

entirely on speculation. Defendant alleges that Walter Westbrook would have testified

whether he observed defendant in possession of a gun, and whether defendant tied him

up. Defendant did not know what Westbrook would have testified to. Westbrook did not

give a statement to police. Defendant has not provided an affidavit or any other

                                            12
evidence of what Westbrook's testimony would have been. Thus, there is no factual

basis for this claim.

       Additionally, defendant asserts that defense counsel was negligent for failing to

call Asia Wilson to testify. Wilson was the driver of the car that transported defendant

and Jackson to Sampson's girlfriend's house, and then back to Jackson's house.

Wilson did not enter Jackson's house at any time. In fact, there is no evidence in the

record that Wilson ever got out of her car. She drove away after dropping off defendant,

Jackson, and Sampson at Jackson's house. Thus, her proposed testimony that she did

not see defendant with a gun may have merely been cumulative to Sampson's

testimony that he did not see a gun in the car. Sampson did not observe defendant in

possession of a gun until after they got out of the car at Jackson's house. Moreover,

this argument is mere speculation on defendant's part, as he admitted that he did not

communicate with Wilson as to whether she would testify or what her testimony would

be. Thus, there is no factual basis for this claim.

       Finally, defendant argues that defense counsel should have called Demarco

Hampton as a witness, because he would have allegedly testified that he did not bring

guns to Jackson's home. Again, defendant speculates as to what Hampton's testimony

might have been. Defendant does not have any affidavits or other evidence that would

support a claim of ineffective assistance of counsel for failure to call witnesses whose

testimony would support an otherwise uncorroborated defense.

       In People v. Redmond, 341 Ill. App. 3d 498, 793 N.E.2d 744 (2003), the court

rejected the defendant's claim of ineffective assistance of counsel under circumstances

similar to the instant case. We recognize that the court in Redmond decided the issue

                                            13
of whether defense counsel rendered ineffective assistance, rather than whether new

counsel should be appointed to investigate the defendant's posttrial claims of ineffective

assistance. Redmond, 341 Ill. App. 3d 498, 793 N.E.2d 744. However, we find the

reasoning of that court instructive.

       In its opinion, the court stated, "[D]efendant merely speculates as to the contents

of the potential witnesses' testimony. He does not have any affidavits or other evidence

that would support a claim of ineffective assistance of counsel for failure to call

witnesses whose testimony would support an otherwise uncorroborated defense."

Redmond, 341 Ill. App. 3d at 516, 793 N.E.2d at 759. The same issue exists in the

instant case. Defendant has not produced any evidence whatsoever to support his

claims. Defendant's argument as to what other witnesses would testify is insufficient.

       We conclude there was no showing that defense counsel neglected defendant's

case. People v. Ramey, 152 Ill. 2d 41, 604 N.E.2d 275 (1992). Our review of the

record persuades us that defense counsel vigorously and ably represented his client.

Notably, defendant was found not guilty of home invasion. Since the trial court correctly

determined that there was no factual basis to support defendant's ineffective assistance

of counsel claims, it was not required to appoint new posttrial counsel to assist

defendant.

                                       CONCLUSION

       For the reasons stated, the judgment of the circuit court of Kankakee County is

affirmed.

       Affirmed.

       SCHMIDT, P.J. concurring. MCDADE, J. dissenting.

                                             14
              JUSTICE McDADE, dissenting:

       ________________________________________________________________

_




              The majority affirms the decision of the circuit court of Kankakee County

refusing to appoint independent counsel to investigate defendant=s posttrial allegations

of ineffective assistance of counsel and upholding his conviction for unlawful use of

weapons by a felon and his sentence of 16 years in the Illinois Department of

Corrections. For the reasons that follow, I cannot agree with that holding and therefore

respectfully dissent.

              The issue before us is whether there was a sufficient factual basis to

warrant the appointment of independent counsel to investigate and present defendant=s

ineffective assistance claims. We do not consider whether he would have prevailed on

his allegations, as was the issue in People v. Redmond, 341 Ill. App. 3d 498, 793

N.E.2d 744 (2003), on which the majority significantly relies. There is, at this point, no

need for defendant to satisfy either prong of the test for ineffective assistance

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).



                                            15
              It seems to me that the "instruction" the majority garners from Redmond

mandates the appointment of independent counsel. The Redmond court found -- as

does the majority -- that defendant=s claims of his attorney=s shortcomings were too

speculative to warrant a finding of ineffective assistance because he "does not have any

affidavits or other evidence that would support a claim of ineffective assistance of

counsel for failure to call witnesses whose testimony would support an otherwise

uncorroborated defense." Redmond, 341 Ill. App. 3d at 516, 793 N.E.2d at 759.

Although the majority acknowledges that the issue in Redmond is different from that we

have on review in this case, it nonetheless contradicts itself to conclude: "The same

issue exists in the instant case. Defendant has not produced any evidence whatsoever

to support his claims. Defendant=s argument as to what other witnesses would testify is

insufficient." Slip opinion at page 16.

              The majority and the State fault a pro se, incarcerated defendant for a

failure to produce affidavits and other evidence of ineffective assistance. Is that not

exactly what independent counsel is supposed to do?

              Defendant has not, in fact, produced affidavits. What he has produced,

however, is the testimony of his trial counsel that:

              (1)    his trial strategy was based on the relationships of the parties and

                     his belief that the State=s evidence was insufficient to prove

                     defendant guilty beyond a reasonable doubt (from which a

                     reasonable inference may be drawn that he did not anticipate the

                     need for nor prepare for the presentation of an aggressive

                     defense); and

                                             16
                (2)   his recollection was not clear at the hearing but he "guess(ed)" his

                      decision as to which witnesses to call was a matter of tactics.

                      There was also no indication that he even interviewed some of the

                      witnesses whose testimony, even if not exculpatory, might have

                      affected an assessment of defendant=s credibility.

                In addition, defendant has presented claims of possible neglect by trial

counsel that warranted further investigation by independent counsel. Specifically he

asserts that:

                (1)   by stipulating to the testimony of Lakiva Byrd rather than calling her

                      as a witness, counsel gave up defendant=s possible opportunity to

                      elicit, on either direct or cross examination, that she did not see

                      defendant with a gun at any time or times the State deems relevant;

                (2)   by not calling Walter Westbrook, or apparently even interviewing

                      him (although counsel knows Tasha Jackson claimed defendant

                      had tied up Westbrook after he had allegedly been given the gun by

                      Demarco Hampton), counsel gave up defendant=s possible

                      opportunity to show Westbrook was never tied up by defendant or

                      ever saw him with a gun;

                (3)   by not calling, or apparently even interviewing, Demarco Hampton,

                      counsel gave up defendant=s possible opportunity to show that

                      Hampton brought only two guns to Jackson=s house and had not

                      given one to defendant (as Jackson claimed in her initial sworn

                      statement); and

                                             17
                (4)    by not calling Asia Wilson, counsel gave up defendant=s possible

                       opportunity to secure her testimony that she did not see him with a

                       gun at any time that day and that there was no "hostile situation" in

                       the car as she was driving Tasha, Sampson and defendant back to

                       Tasha=s house.

                Defendant -- incarcerated pro se -- is in no position to support his claims in

the requisite manner without representation. The majority argues, in circular fashion,

that a record that lacks allegedly relevant testimony is sufficient to refute defendant=s

claim that his attorney was ineffective because he failed to produce that relevant

testimony. The majority suggests that if an investigation by independent counsel were

to show that:

                (1)    Byrd was present in the house and did not see defendant with a

                       gun there;

                (2)    Westbrook was not tied up by defendant and did not see defendant

                       with a gun; and

                (3)    Hampton would testify that he did not give a gun to defendant.

       That testimony, together with the earlier testimony of Byrd, Wilson, and

defendant that he did not have a gun, would not be sufficient to overcome the trial

testimony of Jackson that contradicted her earlier sworn statement that defendant did

not in fact have a gun.

                The record is clear that Tasha Jackson lied under oath. Either she lied at

trial or she lied in her earlier directly contradictory sworn statement. Indeed, the trial

court noted that corroboration was "important because Tasha Jackson=s testimony

                                              18
standing alone is suspect." 1 She was clearly the strongest witness for the State. In

light of this, I think defendant=s claim that there were witnesses with relevant testimony

that his attorney did not interview and did not call warrants investigation by someone in

a position and with the knowledge to investigate completely. Clearly defendant, pro se

and incarcerated, was not that someone.

              I believe counsel should have been appointed to investigate defendant=s

claims of ineffective assistance and therefore I respectfully dissent from the majority=s

contrary decision.




       1
      Defendant points out that the corroboration specifically
mentioned by the court was the agreement between Tasha and her
cousin Sampson Jackson that the hair color of the driver (Asia
Wilson) was black and blonde. Defendant suggests that
information provided by trial counsel in a posttrial motion that
Tasha had testified at Donnell=s trial that the driver=s hair was
reddish blonde might have shaken the court=s already-strained
acceptance of her credibility.




                                            19
