Background
Lavangelis Powell was convicted after a jury trial of attempted first-degree murder for driving a van that cut off Dejuan Robinson while codefendant Larry Southern shot Robinson nine times. Robinson identified Powell as the driver and Southern as the shooter. Robinson’s injuries left him quadriplegic, and Powell received a 28-year sentence.
In postconviction proceedings, Powell alleged that trial counsel Frank Himel was ineffective for failing to investigate and call alibi witnesses. At a third-stage evidentiary hearing, Powell’s girlfriend, sister, and mother testified that he was at home in Chicago when the shooting occurred. Himel testified that neither Powell nor his family told him before trial about alibi witnesses. The circuit court found the proposed alibi fabricated, found the defense witnesses not credible, and denied relief.
The Court’s Holding
The appellate court affirmed. It held that Powell did not overcome the presumption that the postconviction judge was impartial. The court found that the judge’s evidentiary rulings, questions during argument, and skepticism about a photograph offered to support the alibi did not show personal animosity, hostility, or bias. The record instead showed that Powell was allowed to present his case and that the judge’s ruling rested on the evidence and credibility findings.
The court also held that denial of the ineffective-assistance claim was not manifestly erroneous. Powell had offered inconsistent accounts of his whereabouts, including an initial claim that he was in Atlanta and later versions claiming he was at home in Chicago with differing groups of people. The circuit court could credit Himel’s testimony that he had not been informed of alibi witnesses. Because counsel cannot be ineffective for failing to investigate witnesses he did not know existed, Powell failed to prove deficient performance under Strickland.
Key Takeaways
- At a third-stage postconviction hearing, the trial court resolves witness credibility and evidentiary conflicts.
- Adverse rulings and probing questions do not establish judicial bias without evidence of deep-seated antagonism or inability to judge fairly.
- An ineffective-assistance claim based on uncalled alibi witnesses fails where the court credits counsel’s testimony that no one identified those witnesses before trial.
Why It Matters
The decision illustrates the substantial deference appellate courts give to credibility determinations after a full postconviction evidentiary hearing. A defendant must show more than evidence supporting a different result; the opposite result must be clearly evident.
It also underscores that a claimed alibi’s internal inconsistencies and changing accounts may support a finding that counsel was never given a reliable alibi to investigate.