People v. House ( 2015 )

2015 IL App (1st) 110580
FOURTH DIVISION
December 24, 2015
No. 1-11-0580
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 93 CR 26477
)
ANTONIO HOUSE, ) Honorable
) Kenneth J. Wadas,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justice Reyes concurred in the judgment and opinion.
Justice Gordon concurred in part and dissented in part, with opinion.
OPINION
¶1 Defendant Antonio House appeals the trial court's second stage dismissal of his petition
for postconviction relief. Specifically, defendant argues that the trial court erred in dismissing
his postconviction petition because (1) he made a substantial showing of actual innocence based
on newly discovered evidence of the recantation of a prosecution witness's trial testimony; (2) he
made a substantial showing that his constitutional rights were violated based on (a) newly
discovered evidence of a pattern of abuse by a police detective, (b) newly discovered evidence
corroborating his allegation that police used a rival gang leader to intimidate defendant during an
interrogation, and (c) defendant's consistent claim that his confession was coerced; (3) the trial
court erred in denying postconviction counsel's request to obtain the Office of Professional
Standards (OPS) files on the detectives involved in his interrogation; (4) defendant made a
substantial showing that (a) his appellate counsel was ineffective for failing to argue on direct
appeal that the trial court erred in denying his motion to quash arrest, and (b) his trial and
No. 1-11-0580
appellate counsel were ineffective for failing to ensure all OPS files were reviewed; and (5) the
statute mandating a sentence of natural life for offenders who kill more than one victim without
considering mitigating factors, such as the offender's age and level of culpability, violates the
eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the
proportionate penalties clause of the Illinois constitution (Ill. Const. 1970, art.1, § 11).
¶2 For the reasons that follow, we affirm the trial court's dismissal of the postconviction
petition and vacate the mandatory sentence of natural life without parole and order a new
sentencing hearing.
¶3 Following a jury trial, defendant was found guilty of two counts of first degree murder
and two counts of aggravated kidnapping in the September 1993 deaths of Stanton Burch and
Michael Purham. The trial court subsequently sentenced defendant to two consecutive life
sentences for the murder convictions and two terms of 30 years for the aggravating kidnapping
convictions to run consecutive to the life sentences.
¶4 We review only those facts relevant to the issues raised on appeal. We previously
described the general circumstances of this case as follows:
"The facts of this case arise out of an intra-gang conflict
regarding the right to sell drugs on a street corner. In 1993, there
was a split in the Unknown Vice Lords (UVL) street gang. The
two warring factions were led by Tyrone 'Baby Tye' Williams and
Willie Lloyd. Artez 'Ted' Thigpen, a UVL member who remained
loyal to Williams, controlled drug sales at the corner of Springfield
Avenue and Fillmore Street in Chicago, Illinois. The victims in
this case, Stanton Burch and Michael Purnham, were UVL
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members who were loyal to Lloyd. The day before the victim[s']
deaths, Lloyd and some of his men went to the corner, where they
beat up and robbed one of Thigpen’s drug sellers. The following
day, Burch and Purham were dropped off at the corner, where they
announced to Thigpen’s drug sellers that the corner now belonged
to Lloyd. Burch and Purham then began to sell drugs. Soon
thereafter, Thigpen and an armed group of his men arrived at the
corner. Defendant allegedly was a member of this group. The
group forced Burch and Purham into a car at gun point. Burch and
Purham were then taken to a vacant field where they were shot and
killed. Defendant was arrested on October 27, 1993, and on the
following day gave a handwritten statement regarding his
involvement in the kidnapping and murder of the victims." People
v. House, No. 1-05-0994, slip op. at 2 (2007) (unpublished order
under Supreme Court Rule 23).
¶5 Prior to trial, defendant filed a motion to quash arrest and a motion to suppress
statements. In his motion to quash arrest, defendant argued that the arrest was made without an
arrest warrant and not part of a lawful search. At the hearing on the motion, Detective Luis
Munoz testified that he interviewed Eunice Clark, a witness to the homicide, and she mentioned
defendant's name as a person involved in the crimes. Sergeant Harvey Rubin testified that in
October 1993, he was a tactical police officer and was investigating the homicides of Burch and
Purham. Sergeant Rubin was looking for defendant based on information he received as part of
the homicide investigation. He received a tip that defendant was on the northwest corner of
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Springfield and Arthington and wearing a black jacket with white stripes. He requested an
additional police unit to go to that location with him and his partner. The other unit arrived first
and he heard another officer call out a chase on the police radio, but he did not participate in the
chase. He learned that defendant had been arrested. He admitted that he did not have a stop
order or an arrest warrant for defendant. Officer Dana Alexander testified that on October 27,
1993, he received information from Sergeant Rubin regarding defendant's location at Springfield
and Arthington and what he was wearing. He proceeded to that location and saw a subject fitting
the description with other individuals. As he approached and announced his office, defendant
ran from the scene. Officer Alexander gave chase and apprehended defendant, placing him
under arrest. At the time of his arrest, defendant was in possession of a handgun in his
waistband. The trial court denied defendant's motion to quash arrest.
¶6 In his motion to suppress statements, defendant asserted that his statement was not
voluntary because he never received his Miranda rights (Mirand v. Arizona, 384 U.S. 436
(1966)), and the detectives refused to honor his right to remain silent, and subjected him to
coercion and intimidation. At the hearing, defendant did not testify, but was sworn to the facts in
the motion. Defendant alleged in the motion that he was handcuffed to a wall and left for long
periods of time and he was denied food. He stated that the detectives brought rival gang leader
Lloyd into his interview room and Lloyd threatened to harm defendant and his family if he did
not give a statement. He also said that Detective Perez struck him in the forehead. He gave a
statement as a result of this intimidation.
¶7 Detectives Ann Chambers and Alfred Perez each testified regarding defendant's
interview. Detective Chambers stated that she first met with defendant around 9 a.m. on October
28, 1993. Defendant was in an interview room and was not in handcuffs. She read defendant his
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No. 1-11-0580
Miranda rights and offered him a snack. The first interview lasted approximately 30 minutes.
Detective Chambers returned around 1 p.m. and gave defendant lunch from McDonald's. Later
that afternoon, at around 4:30 p.m., Detective Kriston Kato came on duty for the next shift and
her partner Detective Perez went home. She interviewed defendant with Detective Kato at
approximately 5:30 p.m. for about an hour. They contacted the felony review unit of the State's
Attorney's office around 8:30 p.m. and an assistant State's Attorney (ASA) arrived around 9:30
p.m. Detective Chambers was present when defendant gave a handwritten statement to the ASA.
Detective Chambers denied all the allegations in defendant's motion, including that defendant
was ever placed in handcuffs, that defendant was threatened to give a statement, that defendant
requested an attorney, that Detective Perez and Detective Kato were present at the same time for
an interview, that Lloyd was ever brought into the interview room and allowed to threaten
defendant, and that Detective Perez struck defendant. Detective Perez testified that he was only
present for the interview with defendant at 9:30 a.m. He denied striking defendant in the
forehead. The trial court denied defendant's motion to suppress his statements.
¶8 Prior to trial, defendant caused a subpoena duces tecum to be issued and served on the
Chicago Police Department for the OPS records on Detectives Kriston Kato, Alfred Perez, Ann
Chambers, and Officer Michael Cronin. In February 1998, the trial court granted the City of
Chicago’s motion to quash the subpoena.
¶9 At trial, the State presented the testimony of Eunice Clark and her boyfriend Barry
"Smurf" Williams (Barry). Clark admitted that at the time of trial, she was serving an 11 year
sentence for two attempted murder convictions. Clark testified that in September 1993, she was
16 years old and a member of the Traveling Vice Lords gang. At around 10 a.m. on September
12, 1993, Clark was at the corner of South Springfield Avenue and West Fillmore Street in
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No. 1-11-0580
Chicago. She was at that location to sell drugs for Thigpen and Williams with several other drug
dealers, including "Smurf." That day, Clark saw Lloyd and his bodyguards call over one of the
drug dealers, "Larry." Lloyd and his bodyguards beat up Larry and took Larry's drugs and
money.
¶ 10 The next day, on September 13, 1993, Clark was on the same corner with other dealers
waiting to sell drugs. Lloyd then drove up and dropped off Burch and Purham. Burch and
Purham began selling drugs. Later, Thigpen and Williams drove by the corner. They returned a
short time later with two additional men in the car. Clark testified that several other men ran
over from nearby railroad tracks. She stated that all of the men were armed with a handgun.
Clark identified defendant as one of those men. Thigpen and the men surrounded Burch and
Purham and forced them into Thigpen's vehicle at gunpoint. Clark heard a loud noise inside the
car, but was not positive if it was a gunshot.
¶ 11 Clark testified that Thigpen told her that if anyone asked where Burch and Purham were,
that she was to say that the police picked them up. Thigpen got into his car and drove off. The
rest of the men returned to the area near the railroad tracks on foot. Later that day, Clark told
Burch's girlfriend what happened. That evening, Clark was approached by Burch's mother and
the police. Clark was taken to the Area 4 police station and spoke with detectives. She returned
and gave a signed statement on September 16, 1993.
¶ 12 Clark also testified that on October 12, 1993, she was walking near 18th Street and St.
Louis Avenue when she saw defendant and another individual in a gray vehicle. They pulled the
car over and asked Clark to get into the car. Clark refused, and the men tried to force her into the
car with one man striking her in the back of the neck. When the men let go, defendant told her
that he did not want her to testify. Clark said she told them that she had to testify.
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No. 1-11-0580
¶ 13 Clark admitted that she received a total of $1,200 in relocation expenses from the State,
but she used the majority of the money on clothes and personal items.
¶ 14 Barry testified at trial that he also went by the name Aaron Lamar. At the time of trial, he
was serving a six year sentence for a narcotics conviction. In September 1993, he was 23 years
old and was in a relationship with Clark. Barry was a member of the UVL gang. Barry was
unable to recall most of his prior statements and testimony, but his handwritten statement and
grand jury testimony were introduced at trial. His prior statements corroborate Clark's testimony
regarding the events of September 13, 1993, including defendant's involvement.
¶ 15 Barry stated that on the morning of September 13, 1993, he was waiting for Thigpen to
bring drugs for him to sell on the corner of Springfield and Fillmore with Clark and two other
individuals. Another car approached the intersection and two men got out of the vehicle. He did
not recognize these individuals. According to Barry, the men said that location was no longer
Thigpen's, and now belonged to Lloyd. The two men then proceeded to sell drugs at that
location. Thigpen drove by the location and then returned approximately 10 minutes later with
two men in the car. Several other men approached the intersection at that time, including
defendant. The men were armed with handguns. They surrounded the two men selling drugs
and forced them into Thigpen's car. Thigpen drove away and the other men returned the way
they came.
¶ 16 ASA Solita Pandit testified at trial that she took defendant's handwritten statement on
October 28, 1993, and published the statement to the jury. Defendant stated that he was a
member of the UVL gang. He worked for Thigpen to sell drugs at the corner of Springfield and
Fillmore. Defendant said that Lloyd used to be the "head boss" of the UVL, but there was
fighting regarding that position. He had heard that one of Thigpen's workers had been robbed by
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No. 1-11-0580
Lloyd and his men on September 12, 1993. On September 13, 1993, defendant was on
Springfield between Arthington and Fillmore when he saw Clark. Clark told defendant that
Lloyd had dropped off two of his workers at the spot and the police had picked them up. Clark
then said that Thigpen told her to say this, but that Thigpen "had got them, put them into his car
and drove them away." Defendant then saw Weatherspoon and another UVL. Weatherspoon
told defendant to get his car and pick them up because they needed to go meet Thigpen at the
railroad tracks at California and Roosevelt. Weatherspoon told defendant that Thigpen had two
of Lloyd's men and they were going to be "violated," meaning "physically punished, ranging
from being hit with hands, boards or being shot." Defendant drove them to where Thigpen was
with Lloyd's men.
¶ 17 At that location, defendant saw another UVL member, Derrick Harvey. He said two cars
were parked with the hoods up to appear as though a car battery needed to be jumped. Harvey
said he was acting as a lookout for the police for Thigpen who was violating Lloyd's men by the
railroad tracks. Defendant parked his car and also acted as a lookout. He heard approximately
eight gunshots from the railroad tracks and then saw several UVL members. He was told by
Williams that "they got Willie's boys," which defendant knew meant the men had been killed.
¶ 18 Defendant stated that he had a gun when he was arrested, but it was not the gun used in
the shootings. He also said he received a phone call from Williams in jail on October 11, 1993.
Williams told defendant to tell Clark not to come to court to testify against him. The next day,
defendant saw Clark and told her not to testify.
¶ 19 Defendant stated that he was treated well by the police and he was not made any
promises for his statement nor was he threatened in any way.
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No. 1-11-0580
¶ 20 Defendant testified at trial on his own behalf. He stated that he was a member of the
UVL and he was 19 years old on September 13, 1993. On that date, he drove to the vicinity of
Springfield and Fillmore to sell drugs for Thigpen. He saw Clark, Barry, and other people in the
area. Defendant said he asked Clark where everyone was, meaning the people who issued the
drugs to the sellers. Clark initially told him that the police came and everyone was gone.
Shortly thereafter, Clark said that Thigpen, Weatherspoon, and others took someone to be
violated. Defendant then walked to the corner and saw Weatherspoon and another person. They
told defendant that two men had been violated and needed a ride. Defendant drove the two men
west on Roosevelt until Weatherspoon told him to pull over near Campbell. Two cars were
parked under the railroad tracks viaduct with their hoods up. He recognized other UVL
members, including Harvey. He dropped off Weatherspoon and the other man, then he made a
U-turn and left that location. As he was leaving, he heard approximately eight gunshots and saw
several people coming from the railroad tracks.
¶ 21 Defendant testified that after he was arrested, he remained in lockup for 10 to 12 hours.
He was taken to an interview room by Detectives Chambers and Perez, where he was handcuffed
to a wall. Detectives Chambers and Perez left him there for a period of time and when they
returned, they told defendant they knew he had nothing to do with the shooting, but needed him
to make a statement. He stated that he told them to leave him alone and he had no knowledge of
the shooting.
¶ 22 Defendant testified that he was next interviewed by Detective Kato. According to
defendant, Detective Kato said, "I know that you didn't shoot those boys, but I know that you
have some type of knowledge about it. And that if you don't make a statement about Baby Tye
and Ted, then you'll go down for this." Defendant stated he did not give a statement at that time.
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No. 1-11-0580
Defendant testified that he feared for his life and his family. Detective Kato left the room.
Later, Detective Kato returned with Detectives Chambers and Perez, Officer Cronin, and Lloyd.
Defendant stated that Detective Kato told him that they have Lloyd in the room and to tell them
the truth or he would be hurt. Defendant testified that Lloyd then threatened to hurt him and his
family. Everyone except Detective Kato left the room. Defendant said that Detective Kato told
him that now they have Lloyd on their side and defendant was going to cooperate. Defendant
said he agreed to give a statement shortly thereafter. Defendant further stated that Detective
Kato promised to protect defendant and his family if he gave a statement.
¶ 23 Defendant then testified he was brought into a room where ASA Pandit was already
sitting. He stated that ASA Pandit did not write the statement in his presence, but he admitted
that he signed it. He denied reading the statement before signing it. Defendant said that he
believed that he would be a witness for the State against Thigpen and Williams. He denied that
he acted as a lookout near the railroad tracks or that he was present when the men were forced
into Thigpen's car. He denied that he was treated well by the police and that Detective Chambers
brought him food.
¶ 24 Following deliberations, the jury found defendant guilty of two counts of first-degree
murder and two counts of aggravated kidnapping. The trial court subsequently sentenced
defendant to two consecutive life sentences for the murder convictions and received two
consecutive 60-year sentences for the aggravated kidnapping convictions. 1
¶ 25 On direct appeal, defendant argued that (1) the trial court abused its discretion in
quashing defendant's subpoena seeking access to the OPS files for Detectives Kato, Chambers
and Perez, and Officer Cronin; (2) the State failed to rebut defendant's assertion that Detective
1
Defendant originally received consecutive 60 year sentences for the aggravated kidnapping convictions, which
was reduced to consecutive 30-year terms on remand.
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No. 1-11-0580
Kato threatened defendant's safety and his family if defendant did not give a statement against
Thigpen and Williams; (3) the trial court abused its discretion in allowing the State to present
evidence that two codefendants were seen at a gang funeral, ran from police, and possessed guns
when they were arrested; and (4) defendant's consecutive and extended term sentences violate
Apprendi v. New Jersey, 530 U.S. 466 (2000).
¶ 26 On December 21, 2001, another panel of this court affirmed defendant’s convictions,
vacated his aggravated kidnapping sentences, and remanded the matter for resentencing. People
v. House, No. 1-98-4324 (2001) (unpublished order under Supreme Court Rule 23). The
reviewing court found that defendant had waived his claim regarding the subpoena for OPS
complaints because he did not include the subpoena in the record on appeal. Id. at 17. The
reviewing court subsequently vacated that order and, on May 10, 2002, issued a modified order
upon denial of rehearing. People v. House, No. 1-98-4324 (2002) (unpublished order under
Supreme Court Rule 23). In that order, the court again found that defendant had waived his
claim regarding the subpoena for OPS complaints. Id. at 17.
¶ 27 On May 30, 2002, the Supreme Court of Illinois issued a supervisory order wherein it
directed this court to vacate the judgment of December 21, 2001, to reconsider that decision in
light of new authority, and to consider defendant’s appeal from the trial court’s order granting
the motion to quash his subpoena to the OPS. On August 16, 2002, another panel of this court
found that the trial court abused its discretion by failing to conduct an in camera inspection of
the OPS files requested by defendant and, accordingly, the court reversed defendant’s
convictions and remanded the matter for a new trial. People v. House, No. 1-98-4324 (2002)
(unpublished order under Supreme Court Rule 23).
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No. 1-11-0580
¶ 28 On December 5, 2002, the supreme court issued a supervisory order directing this court
to vacate the order dated August 16, 2002, and remanding the case to the circuit court "for an in
camera inspection of the records of the Office of Professional Standards requested by
defendant." The supervisory order directed the circuit court "to determine what, if any, material
should be disclosed to defendant," and further stated that, "[i]n the event new evidence is
disclosed, defendant shall be allowed to file a motion for [a] new trial if indicated."
¶ 29 In February 2005, the trial court issued its ruling on the OPS files. The court observed
that it received 50 files, 32 of the files related to Detective Kato, but 18 did not. Of the 32 files
related to Detective Kato, the trial court noted that, under the appropriate standard of review,
prior allegations of abuse are admissible when they are not unduly remote in time from the
occurrence before the court, when they involve the same officer and similar allegations of
misconduct, and when, in both the prior allegations and the case before the court, there is some
evidence of injury consistent with the police brutality allegations, though this criteria was not
relevant to the current inquiry. The court found 22 complaints to be too remote in time from the
interrogation in 1993. However, the court still reviewed these complaints under the second
criteria and determined that none involved similar factual allegations. The trial court reviewed
the remaining 10 complaints and concluded that none raised similar factual allegations. The
court then held that since none of the OPS files contained similar factual allegations, there was
no basis to release them to defendant. The trial court also imposed 30-year terms for the
aggravated kidnapping convictions, consecutive to the sentences for natural life.
¶ 30 On appeal, defendant argued that the trial court abused its discretion in denying him
access to the OPS files pertaining to Detective Kato. This court found that "the OPS files
produced in response to defendant’s subpoena are not relevant to his claim that Detective Kato
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No. 1-11-0580
coerced him into signing a false confession" and the trial court did not abuse its discretion.
House, No. 1-05-0994, slip op. at 14. We did find that one OPS file contained "an allegation that
could be characterized as somewhat similar to the allegation made by defendant," but concluded
that one OPS file did not show a pattern and practice by Detective Kato and held that it was not
relevant to defendant's claim. Id. at 13-14.
¶ 31 While his direct appeal was pending, defendant filed a pro se petition for postconviction
relief in September 2001, alleging that (1) he was denied a fair trial through the knowing use of
perjured testimony and fabricated evidence by the police officers and assistant State's Attorneys,
(2) Clark's initial testimony before the grand jury only named Thigpen and Weatherspoon as
involved in the kidnapping of Burch and Purham, and (3) Clark has recanted her trial testimony
identifying defendant as participating in the kidnapping. In December 2001, the trial court
dismissed defendant's postconviction petition, finding that it lacked jurisdiction while defendant's
direct appeal remained pending.
¶ 32 Defendant appealed the dismissal. In January 2003, the State filed a confession of error
in the appeal. The State "concluded that error was committed in the circuit court because the
Post-Conviction Hearing Act does not bar a circuit court from considering a post-conviction
petition while a direct appeal of the defendant's criminal conviction is pending." The State asked
that the case be reversed and remanded to the trial court with directions to proceed to the second
stage of the postconviction process. The reviewing court allowed the State's confession of error
in February 2003, vacated the dismissal, and remanded the case for second stage review under
the postconviction process.
¶ 33 Upon remand, defendant's postconviction petition was assigned to an assistant public
defender for further review. In October 2009, defendant filed a motion for discovery of the OPS
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No. 1-11-0580
file on Detective Kato as well as files on Detectives Chambers and Perez and Officer Cronin. In
November 2009, defendant filed a supplemental motion for discovery and requested access to the
internal affairs department reports for the officers, which had not previously been requested. In
January 2010, the trial court denied defendant's motion, finding the requests "speculative in
nature" and that it was "not really anything more than a fishing expedition to try to find out if
they can develop good cause."
¶ 34 In April 2010, defendant filed his amended postconviction petition. The amended
petition raised 15 issues in 43 pages, with approximately 300 pages of exhibits. The petition
raised numerous claims of ineffective assistance of trial and appellate counsel, claims of a denial
of due process, newly discovered evidence of actual innocence based on Clark's affidavit, newly
discovered evidence of police misconduct by Detective Kato, and the imposition of a mandatory
life sentence as applied in defendant's case was unconstitutional. The State filed a motion to
dismiss defendant's amended postconviction petition, arguing that everything raised in the
petition was either raised on direct appeal or could have been raised on direct appeal. The State
asserted that defendant attempted to bypass waiver and res judicata by alleging ineffective
assistance of appellate counsel or newly discovered evidence, but defendant cannot establish
ineffectiveness under Strickland v. Washington, 466 U.S. 668 (1984) nor does the alleged newly
discovered evidence satisfy the requirements of People v. Washington, 171 Ill. 2d 475 (1996). In
February 2011, the trial court granted the State's motion and dismissed defendant's amended
postconviction petition.
¶ 35 This appeal followed.
¶ 36 The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to
122-8 (West 2008)) provides a tool by which those under criminal sentence in this state can
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No. 1-11-0580
assert that their convictions were the result of a substantial denial of their rights under the United
States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West 2008);
People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to
constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. "A
proceeding brought under the [Post-Conviction Act] is not an appeal of a defendant's underlying
judgment. Rather, it is a collateral attack on the judgment." People v. Evans, 186 Ill. 2d 83, 89
(1999). "The purpose of [a postconviction] proceeding is to allow inquiry into constitutional
issues relating to the conviction or sentence that were not, and could not have been, determined
on direct appeal." People v. Barrow, 195 Ill. 2d 506, 519 (2001). Thus, res judicata bars
consideration of issues that were raised and decided on direct appeal, and issues that could have
been presented on direct appeal, but were not, are considered forfeited. People v. Blair, 215 Ill.
2d 427, 443-47 (2005).
¶ 37 At the first stage, the circuit court must independently review the postconviction petition
within 90 days of its filing and determine whether "the petition is frivolous or is patently without
merit." 725 ILCS 5/122-2.1(a)(2) (West 2008). If the circuit court does not dismiss the
postconviction petition as frivolous or patently without merit, then the petition advances to the
second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4
(West 2008)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West
2008)). At this stage, the circuit court must determine whether the petition and any
accompanying documentation make a substantial showing of a constitutional violation. See
Coleman, 183 Ill. 2d at 381. If no such showing is made, the petition is dismissed. "At the
second stage of proceedings, all well-pleaded facts that are not positively rebutted by the trial
record are to be taken as true, and, in the event the circuit court dismisses the petition at that
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No. 1-11-0580
stage, we generally review the circuit court's decision using a de novo standard." People v.
Pendleton, 223 Ill. 2d 458, 473 (2006). If, however, a substantial showing of a constitutional
violation is set forth, then the petition is advanced to the third stage, where the circuit court
conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2008).
¶ 38 Defendant first argues that he made a substantial showing of actual innocence based on
newly discovered evidence. Specifically, he contends that Clark's affidavit recanting her trial
testimony showed that he did not participate in the crimes at issue.
¶ 39 As an exhibit to his petition, defendant included an affidavit, dated June 12, 2001, from
Clark. Clark stated that she was a witness to the kidnapping of Burch and Purham on September
13, 1993, and that she "never saw Antonio House kidnap or conspire to kidnap Stan Burch and
Michael Purham nor did [she] see Antonio House with a weapon." Clark also said that "On
October 12th 1993, I was never confronted by Antonio House neither has Mr. House threaten me
[sic] or cause me bodily harm. To my personal knowledge Antonio House name was only
mention [sic] because he was a worker for Ted."
¶ 40 In People v. Washington, 171 Ill. 2d 475, 489 (1996), the supreme court held that a
postconviction petitioner may pursue a claim of actual innocence based on newly discovered
evidence. To succeed under that theory, the supporting evidence must be new, material, and
noncumulative, and it must be of such conclusive character that it would probably change the
result on retrial. Id. Newly discovered evidence must be evidence that was not available at
defendant's trial and that the defendant could not have discovered sooner through diligence.
Barrow, 195 Ill. 2d at 541. "Generally, evidence is not 'newly discovered' when it presents facts
already known to the defendant at or prior to trial, though the source of those facts may have
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No. 1-11-0580
been unknown, unavailable, or uncooperative." People v. Barnslater, 373 Ill. App. 3d 512, 523-
24 (2007).
"Substantively, in order to succeed on a claim of actual
innocence, the defendant must present new, material,
noncumulative evidence that is so conclusive it would probably
change the result on retrial. [Citation.] New means the evidence
was discovered after trial and could not have been discovered
earlier through the exercise of due diligence. [Citation.] Material
means the evidence is relevant and probative of the petitioner's
innocence. [Citation.] Noncumulative means the evidence adds to
what the jury heard. [Citation.] And conclusive means the
evidence, when considered along with the trial evidence, would
probably lead to a different result. [Citation.]" People v. Coleman,
2013 IL 113307, ¶ 96.
¶ 41 As the Illinois Supreme Court observed, "[w]e deem it appropriate to note here that the
United States Supreme Court has emphasized that such claims must be supported 'with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.' " People v. Edwards,
2012 IL 111711, ¶ 32 (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). " 'Because such
evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are
rarely successful.' " Id. (quoting Schlup, 513 U.S. at 324). A claim of actual innocence is not a
challenge to whether the defendant was proved guilty beyond a reasonable doubt, but rather an
assertion of total vindication or exoneration. Barnslater, 373 Ill. App. 3d at 520.
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¶ 42 Here, defendant has failed to provide "reliable evidence." Clark's affidavit is neither
exculpatory scientific evidence, a trustworthy eyewitness account, nor critical physical evidence.
Rather, Clark's affidavit contains conclusory statements that fail to exonerate defendant. We
point out that "the recantation of testimony is regarded as inherently unreliable, and a court will
not grant a new trial on that basis except in extraordinary circumstances." People v. Steidl, 177
Ill. 2d 239, 260 (1997). Clark offered no explanation regarding why she changed her statement
eight years after the crimes were committed. She simply stated without any explanation that she
did not see defendant kidnap or conspire to kidnap the victims. We also point out that Clark's
trial testimony never indicated that she was present for any planning or conspiracy to commit the
crimes, and her statement in the affidavit on this point fails to offer any proof of actual
innocence. Further, the affidavit offers no facts to support her change in testimony.
¶ 43 Additionally, we observe that portions of Clark's trial testimony were corroborated by
other facts in the case. "At the second stage of proceedings, all well-pleaded facts that are not
positively rebutted by the trial record are to be taken as true ***." People v. Pendleton, 223 Ill.
2d 458, 473 (2006). The record rebuts Clark's statements in the affidavit and supports her trial
testimony. Clark admitted telling Burch's girlfriend what happened on the day it occurred, and
later she voluntarily spoke with the police, which significantly helped the police investigation of
several individuals. She named several participants other than defendant, including Derrick
Harvey, who later led the police to where the bodies were found. Clark's testimony was also
consistent with the ongoing rivalry between factions of the UVL.
¶ 44 Moreover, even if we presume that Clark's affidavit constitutes new, material, and
noncumulative evidence, defendant has not set forth a substantial showing that this evidence is of
such a conclusive character that it would probably lead to a different result.
18
No. 1-11-0580
¶ 45 Defendant asserts that without Clark's identification of defendant "there is very little
evidence on which a trier of fact could base a conviction," noting his allegations of coercion in
regard to his statement as well as characterizing Barry's testimony as "unreliable and impeached
testimony and repudiated statements." We disagree with defendant's characterization of Barry's
trial testimony. While Barry did not recall much of his prior statement or grand jury testimony at
trial, both were published to the jury through the testimony of the respective assistant State's
Attorneys. Barry's prior statement and grand jury testimony placed defendant at the scene of the
kidnapping.
¶ 46 Further, Clark's affidavit does not exonerate defendant for his participation in the
murders. Her affidavit does not state that defendant was not present as a lookout near the scene
of the murders. Even if we assume Clark's statements in the affidavit are true, the affidavit does
not mean that defendant did not participate in the crimes. We also note that Clark's prior
testimony would be admissible as substantive evidence on retrial. See 725 ILCS 5/115-10.1
(West 2014). Newly discovered evidence which merely impeaches a witness will typically not
be of such conclusive character as to justify postconviction relief. Barnslater, 373 Ill. App. 3d at
523. Clark's affidavit fails to exonerate defendant, and is not so conclusive such that it would
probably change the result on retrial. Accordingly, we find that the trial court properly dismissed
this claim of actual innocence.
¶ 47 Defendant next contends that he has made a substantial showing that his constitutional
rights were violated because he has submitted newly discovered evidence of a pattern of abuse
and misconduct by Detective Kato as well as newly discovered evidence to corroborate
defendant's allegation that police used Lloyd to intimidate defendant during an interrogation. In
the alternative, defendant asserts that if this court finds that the evidence is not newly discovered,
19
No. 1-11-0580
then he has set forth a substantial showing of ineffective assistance of trial counsel. The State
maintains that this claim is barred under the doctrine of res judicata.
¶ 48 As previously observed, res judicata bars consideration of issues that were raised and
decided on direct appeal. Blair, 215 Ill. 2d at 443. The supreme court has "recognized, however,
that, in the interests of fundamental fairness, the doctrine of res judicata can be relaxed if the
defendant presents substantial new evidence." People v. Patterson, 192 Ill. 2d 93, 139 (2000).
"The standards addressing when new evidence is sufficiently substantial so as to relax res
judicata are the same standards used to determine whether newly discovered evidence should
result in a new trial." Barnslater, 373 Ill. App. 3d at 530.
¶ 49 Defendant's first piece of newly discovered evidence is an affidavit from Casey Dunbar.
Dunbar averred that he was arrested on October 27, 1993. He was placed in a lineup with
defendant and others that evening at Area 4 which was viewed by Lloyd, the complaining
witness in Dunbar's case. According to defendant, this affidavit established that Lloyd was at the
police station at the time of defendant's interrogation and lends support to his allegation that the
police allowed Lloyd to threaten defendant. Defendant also included his own affidavit stating
that he was arrested on October 27, 1993, and placed in a lineup with Dunbar, but at the time he
did not know what case the lineup was for. He stated that this occurred prior to Lloyd being
brought into defendant's interrogation. Defendant asserts that he has made a substantial showing
that if the trial court heard this independent evidence corroborating Lloyd's presence at Area 4,
then the outcome would have been different.
¶ 50 As we have previously stated, evidence is not newly discovered when it presents facts
already known to the defendant at or prior to trial, though the source of those facts may have
been unknown, unavailable, or uncooperative. Id. at 523-24. Here, defendant knew he appeared
20
No. 1-11-0580
in a lineup with Dunbar from the date of his arrest. Defendant could have discovered this
evidence earlier through due diligence. Defendant offers no explanation as to why he could not
have discovered this evidence earlier. Because defendant knew of these facts prior to trial, the
affidavit cannot constitute newly discovered evidence for defendant's postconviction petition.
¶ 51 However, even if we accepted this evidence as new, which we do not, Dunbar's affidavit
is not of such a conclusive nature that the result of the proceeding would likely be different.
Dunbar's affidavit places Lloyd at the police station the day defendant was arrested. Transcripts
attached to defendant's postconviction petition show that postconviction counsel requested to see
lineup reports in Dunbar's case, but the trial court, after reviewing the reports, denied the request.
The court noted that Lloyd was surrendered to view the lineup by his private attorney, who was
present at the police station as well. The court found it implausible that Lloyd would have been
involved with the detectives in defendant's case while Lloyd's attorney was present.
¶ 52 Further, we point out that defendant's allegations in his motion to suppress do not indicate
that he was removed from the interrogation room to participate in a lineup on another case.
Rather, defendant stated that he was left alone in the room between questioning. Given the
contradictory evidence in the record, defendant cannot show how Dunbar's affidavit advances his
claim that his confession was involuntary. Accordingly, defendant's claim of newly discovered
evidence is without merit.
¶ 53 Defendant also contends that he has presented newly discovered evidence in the form of
cases, articles, and affidavits of other criminal cases in which allegations of coercion and
physical abuse were made against Detective Kato. In his brief, defendant specifically highlights
two cases, People v. McDaniel, 326 Ill. App. 3d 771 (2001), and People v. Wallace, 299 Ill. App.
3d 9 (1998).
21
No. 1-11-0580
¶ 54 Even if we presume that defendant could not have found this evidence earlier through due
diligence, these allegations are not material to his allegations of police misconduct. While there
were allegations against Detective Kato in these two cases, neither case involved a defendant's
statement being suppressed because of police coercion or misconduct. In McDaniel, the
reviewing court found the defendant's confession to be involuntary because he was 14 years old,
the police frustrated his mother's attempts to confer with the defendant prior to interrogation, the
youth officer showed no interest in protecting the defendant's welfare, and the timing and
circumstances, the defendant was woken up and taken from his mother's home at 2 a.m.,
contributed to the coercive nature of the interrogation. McDaniel, 326 Ill. App. 3d at 787. While
the defendant did testify at his suppression hearing regarding comments by Detective Kato
stating that the defendant would go to jail if he did not give a statement, these statements were
not the basis of the suppression of the defendant's confession. Nor did the court express any
opinion as to whether these statements were improper. Id. at 777-78.
¶ 55 Although defendant cites to a sworn declaration by Andre Wallace filed in his federal
case against Detective Kato, another detective, and the City of Chicago attached to his
postconviction petition, we observe that Wallace's conviction was reversed because the court on
appeal found that the police lacked probable cause to arrest defendant. Wallace, 299 Ill. App. 3d
at 21. The reviewing court remanded for an attenuation hearing to determine if Wallace's
confession was sufficiently attenuated from his illegal arrest. Id. On remand, the trial court
found that the confession was sufficiently attenuated, but the reviewing court disagreed and
suppressed the confession on appeal. Wallace's case was later nol-prossed by the State. Wallace
v. City of Chicago, 440 F.3d 421, 423-24 (7th Cir. 2006). Wallace later filed the federal case
under 42 U.S.C. § 1983 asserting that Detective Kato and another detective as well as the City of
22
No. 1-11-0580
Chicago had violated his Fourth Amendment rights and that they had also committed the state
torts of malicious prosecution and false imprisonment. The district court granted summary
judgment in favor of the defendants because the suit was time barred, which the Seventh Circuit
affirmed. Id. at 423. The Supreme Court also found that Wallace's suit was untimely and
affirmed the dismissal. Wallace v. Kato, 549 U.S. 384 (2007).
¶ 56 Further, even if we consider Wallace's statements in his sworn declaration, the bulk of the
statements regarding Detective Kato involve allegations of physical abuse. The only allegation
of physical abuse by defendant was made against Detective Perez. Defendant alleged that
Detective Perez struck him in the forehead, but the detective testified at the suppression hearing
that he never struck defendant. As this court has already determined, "the essence of defendant’s
claim is that he was coerced into signing a confession when Detective Kato brought a rival gang
member into the interview room and allowed him to threaten defendant and his family." House,
No. 1-05-0994, slip op. at 12. Neither of these cases involved any similar conduct by Detective
Kato.
¶ 57 Defendant also refers to the unnamed 1993 case that this court discussed in his prior
appeal as being similar to defendant's case as support and also asks this court to disclose that
case. However, the OPS files previously reviewed by this court were not included in the record
on appeal and, therefore, this court will not consider any claims related to the substance of the
OPS files. Defendant, as appellant, bears the burden of providing a sufficiently complete record
to support a claim of error. In the absence of a complete record on appeal, we will presume that
the order entered by the circuit court was in conformity with law and had a sufficient factual
basis and any doubts arising from the incompleteness of the record will be resolved against the
23
No. 1-11-0580
appellant. People v. Fair, 193 Ill. 2d 256, 264 (2000) (citing Foutch v. O'Bryant, 99 Ill. 2d 389,
391-92 (1984)).
¶ 58 Defendant also attached 140 pages of exhibits consisting of motions, portions of trial
transcripts, portions of briefs, unpublished orders, copies of opinions, and a list of additional
sources to his postconviction petition to support his claim of newly discovered evidence of
similar claims of police misconduct directed at Detective Kato. Defendant contends that these
six cases, including McDaniel and Wallace, show that Detective Kato had a pattern of offering
false promises of leniency to overbear a defendant's or witness's will. After our review of these
exhibits, we observe that all of these cases involved claims of physical abuse by Detective Kato,
consisting of hitting, punching, kicking, and slapping the defendants. Three of these four cases
cited by defendant were affirmed on direct appeal and the defendants did not raise a claim of
error based on any police misconduct. See People v. Murray, 254 Ill. App. 3d 538 (1993),
People v. Prince, 288 Ill. App. 3d 265 (1997), and People v. Lucas, No. 1-92-0372 (1994)
(unpublished order under Supreme Court Rule 23). In the fourth case, the defendant was
acquitted in the state court, but subsequently filed a federal lawsuit against Detective Kato.
Defendant has included portions of the trial transcript, but it is unclear whether a motion to
suppress was granted in the criminal case and if so, whether it was based on Detective Kato's
alleged misconduct, including instances of physical abuse. See also Waslewski v. Kato, No. 96 C
6940, 1993 WL 8761 (N.D. Ill. Jan. 14, 1993).
¶ 59 Defendant has failed to show how the presentation of these cases in the trial court would
probably lead to a different result. While the cases included brief statements attributed to
Detective Kato that the defendants would receive a lesser charge or would be released if they
gave a statement, the crux of the allegations against Detective Kato in these cases involved
24
No. 1-11-0580
physical abuse, which defendant has not alleged. Any references to promises of leniency were
de minimis in light of the detailed allegations of physical abuse. Defendant has failed to present
substantial evidence to warrant the relaxation of the doctrine of res judicata. Accordingly, the
trial court properly found that defendant's claim of newly discovered evidence regarding his
allegations against Detective Kato are barred by res judicata.
¶ 60 In the alternative, defendant claims that his trial counsel was ineffective for failing to
investigate and present this evidence in support of his claim that his statement was coerced.
Claims of ineffective assistance of counsel are resolved under the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court delineated a two-part test
to use when evaluating whether a defendant was denied the effective assistance of counsel in
violation of the sixth amendment. Under Strickland, a defendant must demonstrate that counsel's
performance was deficient and that such deficient performance substantially prejudiced
defendant. Id. at 687. To demonstrate performance deficiency, a defendant must establish that
counsel's performance fell below an objective standard of reasonableness. People v. Edwards,
195 Ill. 2d 142, 162-63 (2001). In evaluating sufficient prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694. If a case may be disposed
of on the ground of lack of sufficient prejudice, that course should be taken, and the court need
not ever consider the quality of the attorney's performance. Id. at 697.
¶ 61 Since we have already found that the allegations in this newly discovered evidence
involved claims of physical abuse, which was not alleged by defendant, and defendant failed to
show a reasonable probability that the result would have been different, defendant cannot make a
25
No. 1-11-0580
substantial showing that he was prejudiced by any alleged error. Therefore, the trial court
properly dismissed defendant's claim of ineffective assistance of trial counsel.
¶ 62 Defendant next argues that the trial court erred in denying his request to reopen discovery
when his postconviction counsel requested to obtain the OPS reports previously reviewed by the
trial court. Specifically, defendant asks (1) this court to remand to the trial court to allow
counsel to review all 50 OPS files, (2) this court to review the 18 OPS files that did not involve
Detective Kato or remand to the trial court for review, and (3) this court to reveal the case we
previously found similar to defendant's case in a prior appeal. Additionally, defendant asserts
that his trial and appellate counsel were ineffective for failing to ensure that all of the OPS files
were reviewed by the trial court for complaints against all four detectives.
¶ 63 However, as we previously observed, the OPS files at issue were not included in the
record on appeal and, therefore, this court is unable to consider any claims related to the
substance of the OPS files. As pointed out above, it is defendant's burden to provide a
sufficiently complete record to support his claim of error, and any doubts arising from the
incompleteness of the record will be resolved against the appellant. Fair, 193 Ill. 2d at 264
(citing Foutch, 99 Ill. 2d at 391-92). Therefore, without the OPS files, we cannot consider
defendant's requests for this court to review these files or to release the name of the previously
reviewed file which are not part of the record on appeal.
¶ 64 "The discovery rules for neither civil nor criminal cases apply to proceedings under the
Post-Conviction Hearing Act." Id. at 264. "Nonetheless, the circuit court has inherent
discretionary authority to order discovery in post-conviction proceedings." Id. "Circuit courts,
however, must exercise this authority with caution because post-conviction proceedings afford
only limited review of constitutional claims not presented at trial, and there is a potential for
26
No. 1-11-0580
abuse of the discovery process in post-conviction proceedings." Id. Accordingly, a trial court
will only allow a discovery request on postconviction when the moving party has shown good
cause. Id. at 264-65. We review the trial court's denial of a discovery request in postconviction
proceedings for an abuse of discretion. Id. at 265.
¶ 65 The request to review OPS files has been raised multiple times before the trial court and
on appeal. Any request to review Detective Kato's OPS files has been completely litigated in the
trial court and by this court. We have already reviewed the OPS files and concluded that the
cases were not relevant and a pattern and practice was not established. See House, No. 1-05-
0994 (2007). We find any consideration of OPS files related to Detective Kato to be res judicata
and decline to review the issue again.
¶ 66 We next turn to defendant's request for discovery related to Detectives Chambers and
Perez and Officer Cronin. On direct appeal, the supreme court entered a supervisory order
directing the appellate court to vacate its Rule 23 order, filed August 16, 2002, and remanding
the case to the trial court for an "in camera inspection of the records of the [OPS] requested by
defendant." People v. House, No. 94670 (Dec. 5, 2002). On January 29, 2003, defendant's trial
counsel appeared before the trial court on remand and stated that he "issued a subpoena for those
records" and that time was needed to compile the requested documents. However, this subpoena
is not contained in the record. Without the subpoena filed on remand, we do not know if
defendant specifically requested a review of OPS files for only Detective Kato or for all four
officers. The record following remand indicates that the request was only for OPS files related
to Detective Kato. At no point before the trial court nor on appeal was an objection raised that
the subpoena filed on remand was not properly followed in that it required a review of Detectives
Chambers and Perez and Officer Cronin in addition to Detective Kato. Neither the trial court nor
27
No. 1-11-0580
the parties referenced any other police officer other than Detective Kato at any time until
postconviction counsel filed her discovery motion.
¶ 67 When the trial court entered its findings on the OPS files in February 2005, the court
summarized defendant's request as follows.
"The case is here for me to review 50 OPS complaints, complaints
register numbers purportedly relating to Detective Kato and make
an analysis to see if any of those are somehow relevant to the case
at hand, which would trigger the release of those documents to the
defense and possibly new discovery and things like that, a new
hearing potentially on the issue of his voluntariness of his
statement.
Is that about what both sides believe we're here for?"
¶ 68 In response, defense counsel stated, "That's my understanding," and the prosecutor
answered, "Yes, Judge." The trial court then proceeded with its findings. The court noted that it
"thought that the 50 complaint files related to Detective Kato. But in reality, a number of the
files did not relate to Detective Kato at all." The court found that "18 files within the box of 50
wherein Detective Kato was not named in any of the complaints, leaving 32 complaints to
review." The court then outlined the basis for its conclusions that none of the 32 complaints
merited disclosure to defendant.
¶ 69 Further, in July 2006, defense counsel filed a motion to amend the record on appeal,
requesting the trial court to seal the OPS complaints "pertaining to Chicago Police Detective
Christian Kato and append them to the Common Law Record in appellant's appeal No. 05-0994."
On appeal, defendant specifically argued that the trial court abused its discretion in ruling that,
28
No. 1-11-0580
based on its review of the OPS files against Detective Kato, none of the files were relevant to
defendant's claim of coercion by Detective Kato.
¶ 70 During postconviction proceedings, postconviction counsel filed a motion for discovery
seeking the OPS records for Detective Kato, as well as Detectives Chambers and Perez and
Officer Cronin. At the hearing on this motion, postconviction counsel stated that after the
remand in 2003, the prior counsel "filed another subpoena that was the same for all the four
officers." Counsel stated she had copies of the subpoena, but a copy was not attached to her
discovery motion nor does it appear in the record on appeal. Defense counsel stated that
defendant's request "started out with a subpoena with everyone acknowledging it was going to be
for the four officers, and somehow it ended with only an in camera review of one of the
officers."
¶ 71 The trial court then responded, "That's what I was ordered to do by the Appellate Court.
Review all the OPS records from Detective Cato [sic]. That's what I did. And that issue went up
on appeal and was affirmed." Later, the trial court stated, "I was never told to go beyond Cato
[sic]. I was told to review, read every single one of Cato's [sic] OPS complaints. And look for a
pattern. That's what I was basically instructed to do by the Appellate Court, not other
detectives." Following arguments, the trial court denied defendant's motion, finding the request
for OPS records to be "speculative in nature. Is not really anything more than a fishing
expedition to try to find out if they can develop good cause." "At this point, they have not
established a requisite good cause for the records." We note that despite filing a discovery
motion requesting these files, no claim was raised in defendant's amended postconviction
petition regarding misconduct by Detectives Chambers and Perez and Officer Cronin or the
denial of the motion.
29
No. 1-11-0580
¶ 72 Without the subpoena filed after remand, we have no way to determine what precisely
was requested by defendant for the trial court's in camera review. As we have stated, it was
defendant's burden to provide a sufficiently complete record to support his claim of error, and we
will presume that the order entered by the circuit court was in conformity with law and any
doubts arising from the incompleteness of the record will be resolved against the appellant. Fair,
193 Ill. 2d at 264 (citing Foutch, 99 Ill. 2d at 391-92). Based on the record after the remand, the
parties and the trial court appeared to proceed with a request limited to Detective Kato, which
was the substance of the prior appeal. It would be speculation to presume that the request was
broader than both the parties and the trial court agreed. Rather, we presume that the trial court
properly reviewed the OPS files as requested for Detective Kato. Accordingly, we review
defendant's request for the OPS files of the three other officers as a new request.
¶ 73 Defendant has not offered any evidence or suggestion that the review of OPS files would
yield any results. Defendant's request to engage in discovery is premised on his allegation of a
false promise of leniency made by Detectives Chambers and Perez and the presence of all the
officers in the interview room when Lloyd was allowed to threaten defendant. Both detectives
testified at defendant's suppression hearing and denied defendant's allegations. The trial court
found their testimony to be more credible than defendant's testimony. Defendant has failed to
offer anything to dispute the detectives' testimony and provide good cause to allow a review of
any OPS complaints filed against the detectives. Further, as to Officer Cronin, defendant offers
no allegation of misconduct other than his mere presence in the interrogation room while Lloyd
threatened defendant, and Detective Chambers denied that Officer Cronin ever participated in
any questioning of defendant. Defendant has not offered a single case or affidavit to support a
finding of good cause to allow this request. As the trial court held, defendant's request is
30
No. 1-11-0580
speculative and a fishing expedition. Absent any basis to show good cause for the discovery
request, the trial court did not abuse its discretion in denying defendant's discovery request.
¶ 74 In a related argument, defendant argues that his trial and appellate counsel were
ineffective for failing to ensure that the trial court reviewed OPS files for all four officers.
However, defendant cannot make a substantial showing of ineffective assistance under
Strickland. The basis of defendant's ineffectiveness claims is that his prior attorneys did not
make sure that the trial court reviewed OPS files regarding the police officers other than
Detective Kato. As we have already discussed, the record does not definitively disclose what
was requested by defendant on remand, and the parties and the trial court proceeded with
requests to view OPS files regarding Detective Kato. Defendant fails to show how the decision
to proceed in this manner prejudiced him, nor does defendant specifically argue how he was
prejudiced. Instead, defendant essentially restates his argument that the trial court erred in not
reviewing OPS files for the other officers with the additional note that his attorneys should have
ensured that review. Defendant has not asserted how any perceived failure to ensure review
caused him prejudice such that the result of the proceeding would have been different.
Defendant's claim of ineffective assistance cannot stand without a substantial showing that
counsels' actions prejudiced defendant. Accordingly, the trial court did not err in dismissing this
claim.
¶ 75 Defendant next contends that his appellate counsel was ineffective for failing to raise the
denial of his motion to quash arrest on direct appeal. According to defendant, the State failed to
independently establish probable cause to arrest defendant based on the statement from Clark,
because Clark was unreliable, gave inconsistent statements, and was part of the "criminal
31
No. 1-11-0580
milieu." The State maintains that there was probable cause for defendant's arrest and appellate
counsel was not ineffective for failing to raise a meritless claim.
¶ 76 The Strickland test also applies to claims of ineffective assistance of appellate counsel.
People v. Rogers, 197 Ill. 2d 216, 223 (2001). A defendant who claims that appellate counsel
was ineffective for failing to raise an issue on appeal must allege facts demonstrating such failure
was objectively unreasonable and that counsel's decision prejudiced defendant. Id. Appellate
counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of
counsel to refrain from raising issues which, in his or her judgment, are without merit, unless
counsel's appraisal of the merits is patently wrong. People v. Simms, 192 Ill. 2d 348, 362 (2000).
Thus, the inquiry as to prejudice requires that the reviewing court examine the merits of the
underlying issue, for a defendant does not suffer prejudice from appellate counsel's failure to
raise a nonmeritorious claim on appeal. Id. Appellate counsel's choices concerning which issues
to pursue are entitled to substantial deference. Rogers, 197 Ill. 2d at 223.
¶ 77 "When reviewing the trial court's ruling on a motion to quash arrest and suppress
evidence, we apply a two-part standard of review." People v. Almond, 2015 IL 113817, ¶ 55.
We afford great deference to the trial court's findings of fact and will reverse those factual
findings only if they are against the manifest weight of the evidence, but review the ultimate
legal ruling as to whether the evidence should be suppressed de novo. Id.
¶ 78 "If a trial court finds that a warrantless arrest was based on probable cause, then the arrest
is deemed lawful." People v. Arnold, 349 Ill. App. 3d 668, 671 (2004). "Probable cause does
not require proof beyond a reasonable doubt but does require more than mere suspicion." Id. at
671-72. "Probable cause exists if the totality of the circumstances known to the police at the
time of a suspect's arrest is sufficient to warrant a reasonably prudent person to believe the
32
No. 1-11-0580
suspect has committed a crime." Id. at 672. "Probable cause for a warrantless arrest can be
based on information provided by an informant." Id. "Third-party information, whether the
source of the information is identified or unidentified, an ordinary citizen or a paid informant, a
victim, an eyewitness or other witness, is reliable if it bears some indicia of reliability." Id. "An
indicia of reliability exists when the facts learned through a police investigation independently
verify a substantial part of the information learned from the informant." Id.
¶ 79 Defendant asserts that at the time of his arrest, the police only had Clark's statement,
which was unreliable, and uncorroborated by additional evidence. However, as the State points
out, we may consider evidence presented at defendant's trial as well as at the suppression
hearing. Almond, 2015 IL 113817, ¶ 55. The State maintains that Clark's statement was
corroborated. In addition to defendant, Clark identified several other men as participants in the
abduction of Burch and Purham. One of those identified, Derrick Harvey, was arrested the day
after the murders and took police officers to where the bodies were located near the railroad
tracks near Roosevelt. This evidence was presented at defendant's trial and is consistent with
Clark's statement that Burch and Purham were abducted and taken to the railroad tracks, and that
Harvey had been a participant in the crimes. Further, Barry Williams, Clark's boyfriend, also
gave a statement to an ASA and testified at the grand jury that was consistent with Clark's
statement to police involving defendant. We also observe that Clark spoke with the police
voluntarily after she informed Burch's girlfriend about his death. Clark admitted her
involvement in a gang and her involvement in selling drugs. The trial court was aware of Clark's
criminal history and considered it when reaching its decision as to probable cause, and we find
no error. Based on this information and evidence, we find the police had probable cause to arrest
33
No. 1-11-0580
defendant. Since the police had probable cause to arrest defendant, appellate counsel was not
ineffective for failing to raise a nonmeritorious issue on direct appeal.
¶ 80 Finally, defendant argues that his mandatory natural life sentence violates the eighth
amendment of the United States Constitution and the proportionate penalties clause of the
Illinois Constitution because the sentence is mandated for all offenders convicted of murder of
more than one decedent without consideration of age or level of culpability. Defendant also
asserts that the sentence is invalid as applied to him because of his age and minimal involvement
in the commission of the crimes. The State maintains that defendant's mandatory natural life
sentence is constitutional, both facially and as applied.
¶ 81 Defendant bases his constitutional challenge on several recent United States Supreme
Court decisions. See Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48
(2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012).
"In Roper, the Supreme Court held that the eighth amendment
prohibits the death penalty for juvenile offenders. Roper, 543 U.S.
at 568. The Court reasoned that the 'death penalty is reserved for a
narrow category of crimes and offenders,' and that 'juvenile
offenders cannot with reliability be classified among the worst
offenders.' Id. at 569. In Graham, the Supreme Court held that the
eighth amendment forbids a sentence of life without the possibility
of parole for juveniles who did not commit homicide. Graham, 560
U.S. at 74***. The Court said that, although the state is not
required to release a juvenile during his natural life, the state is
forbidden 'from making the judgment at the outset that those
34
No. 1-11-0580
offenders never will be fit to reenter society.' Id. at 75***. *** In
Miller, the Supreme Court held that the eighth amendment
prohibits a sentencing scheme that mandates life in prison without
the possibility of parole for juvenile offenders, including those
convicted of homicide. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.
The Court stated that a judge must have the opportunity to look at
all of the circumstances involved before determining that life
without the possibility of parole is the appropriate penalty. See id.
at ____, 132 S. Ct. at 2469." People v. Harmon, 2013 IL App (2d)
120439, ¶ 48.
¶ 82 Because defendant acted as a lookout during the commission of the murders, he was
found guilty under a theory of accountability, which mandates that all participants of common
design are considered equally responsible. See 720 ILCS 5/5-2(c) (West 1998). Defendant was
sentenced to mandatory natural life under section 5-8-1(a)(1)(c)(ii) of the Unified Code of
Corrections. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998). Section 5-8-1(a)(1)(c)(ii) mandates a
term of natural life for persons 17 years or older at the time of the commission of the murder and
are found guilty of murdering more than one victim. Id. 2
¶ 83 We first consider defendant's contention that his sentence is unconstitutional as applied to
his case. Defendant points out that he was 19 years old at the time of commission of the
murders, was minimally culpable, and had no prior violent criminal history, but he received a
mandatory natural life sentence without the consideration of these mitigating factors.
2
Public Act 99-69 recently amended section 5-8-1(a)(1)(c)(ii) to provide for a mandatory life sentence for a person
who has attained the age of 18 and was found guilty of murdering more than one victim. Pub. Act 99-69 §10 (eff.
Jan. 1, 2016) (amending 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014)).
35
No. 1-11-0580
¶ 84 We preface our consideration of this issue by acknowledging that according to
eyewitnesses, defendant was present when the victims were surrounded and forced into a vehicle
at gunpoint. The eyewitnesses also testified that defendant was armed at this time. In his
statement to ASA Pandit, defendant admitted that he acted as a lookout when the victims were
shot. Defendant's role made him accountable for the murders and cannot be discounted.
¶ 85 The proportionate penalties clause of the Illinois Constitution provides that "[a]ll
penalties shall be determined both according to the seriousness of the offense and with the
objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. "While
courts of review are generally reluctant to override the judgment of the General Assembly with
respect to criminal penalties [citation], it is also true that when defining crimes and their
penalties, the legislature must consider the constitutional goals of restoring an offender to useful
citizenship and of providing a penalty according to the seriousness of the offense [citation]."
(Internal quotation marks omitted.) People v. Miller, 202 Ill. 2d 328, 338 (2002). "With regard
to the statute at issue, we have recognized that the legislature considered the possible
rehabilitation of an offender who commits multiple murder[s], and the seriousness of that
offense, in determining that a mandatory minimum sentence of natural life imprisonment is
appropriate for the offense of multiple murders." Id.
"We have recognized three different forms of proportionality
review. A statute may be deemed unconstitutionally
disproportionate if (1) the punishment for the offense is cruel,
degrading, or so wholly disproportionate to the offense as to shock
the moral sense of the community; (2) similar offenses are
compared and the conduct that creates a less serious threat to the
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No. 1-11-0580
public health and safety is punished more harshly; or (3) identical
offenses are given different sentences." Id.
¶ 86 In Miller, the supreme court considered whether a mandatory sentence of natural life
violated the proportionate penalties clause when applied to a juvenile found guilty under an
accountability theory. Id. at 337. The Miller court reviewed the question under the first theory,
whether the sentence shocked the moral sense of the community. Id. at 338-39. The court noted
that the sentence was imposed based on the convergence of three statutes, the automatic transfer
of juveniles 15 or 16 years old charged with murder to criminal court (705 ILCS 405/5-4(6)(a)
(West 1996)), the accountability statute (720 ILCS 5/5-2(c) (West 1996)), and the mandatory
natural life sentencing statute (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). Miller, 202 Ill. 2d at
340.
¶ 87 The Miller court held that the defendant's sentence was unconstitutional as applied to
him.
"Accordingly, we hold that the penalty mandated by the multiple-
murder sentencing statute as applied to this defendant is
particularly harsh and unconstitutionally disproportionate. We
agree with defendant that a mandatory sentence of natural life in
prison with no possibility of parole grossly distorts the factual
realities of the case and does not accurately represent defendant's
personal culpability such that it shocks the moral sense of the
community. This moral sense is particularly true, as in the case
before us, where a 15-year-old with one minute to contemplate his
decision to participate in the incident and stood as a lookout during
37
No. 1-11-0580
the shooting, but never handled a gun, is subject to life
imprisonment with no possibility of parole—the same sentence
applicable to the actual shooter. Our decision does not imply that a
sentence of life imprisonment for a juvenile offender convicted
under a theory of accountability is never appropriate. It is certainly
possible to contemplate a situation where a juvenile offender
actively participated in the planning of a crime resulting in the
death of two or more individuals, such that a sentence of natural
life imprisonment without the possibility of parole is appropriate."
Id. at 341.
¶ 88 The supreme court further reasoned:
"However, the convergence of the Illinois transfer statute, the
accountability statute, and the multiple-murder sentencing statute
eliminates the court's ability to consider any mitigating factors
such as age or degree of participation. A life sentence without the
possibility of parole implies that under any circumstances a
juvenile defendant convicted solely by accountability is
incorrigible and incapable of rehabilitation for the rest of his life.
The trial judge in this case did not agree with such a blanket
proposition. We also decline to find that the sentence mandated by
the multiple-murder sentencing statute in this case satisfies the
proportionate penalties clause of the Illinois Constitution." Id. at
342-43.
38
No. 1-11-0580
¶ 89 While defendant was not a juvenile at the time of the offense, his young age of 19 is
relevant in consideration under the circumstances of this case. As in Miller, defendant's sentence
involved the convergence of the accountability statute and the mandatory natural life sentence.
We acknowledge that the offender in Miller was 15, never handled a firearm, and had less than a
minute to consider the implications of his participation. In the present case, the State's evidence
at trial established that defendant was not present at the scene of the murder, but merely acted as
a lookout near the railroad tracks. There was no evidence that defendant helped to plan the
commission, but instead took orders from higher ranking UVL members. While defendant had a
greater involvement in the commission of the offenses than the defendant in Miller, after
considering the evidence and defendant's relevant culpability, we question the propriety of
mandatory natural life for a 19 year old defendant convicted under a theory of accountability.
Although defendant acted as a lookout during the commission of the crime and was not the
actual shooter, he received a mandatory natural life sentence, the same sentence applicable to the
person who pulled the trigger.
¶ 90 We also observe that the Supreme Court in Miller, Graham and Roper considered the
continuing brain development in adolescents.
"Because juveniles have diminished culpability and greater
prospects for reform, we explained, 'they are less deserving of the
most severe punishments.' Graham, 560 U.S., at [68]***. Those
cases relied on three significant gaps between juveniles and adults.
First, children have a ' "lack of maturity and an underdeveloped
sense of responsibility," ' leading to recklessness, impulsivity, and
heedless risk-taking. Roper, 543 U.S., at 569***. Second,
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No. 1-11-0580
children 'are more vulnerable ... to negative influences and outside
pressures,' including from their family and peers; they have limited
'contro[l] over their own environment' and lack the ability to
extricate themselves from horrific, crime-producing settings. Ibid.
And third, a child's character is not as 'well formed' as an adult's;
his traits are 'less fixed' and his actions less likely to be 'evidence
of irretrievabl[e] deprav[ity].' Id. at 570***.
Our decisions rested not only on common sense—on what
'any parent knows'—but on science and social science as well. Id.,
at 569***. In Roper, we cited studies showing that ' "[o]nly a
relatively small proportion of adolescents" ' who engage in illegal
activity ' "develop entrenched patterns of problem behavior." ' Id.,
at 570*** (quoting Steinberg & Scott, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1014 (2003)). And in Graham, we noted that
'developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds'—for
example, in 'parts of the brain involved in behavior control.' 560
U.S., at [68]***. We reasoned that those findings—of transient
rashness, proclivity for risk, and inability to assess consequences—
both lessened a child's 'moral culpability' and enhanced the
prospect that, as the years go by and neurological development
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No. 1-11-0580
occurs, his ' "deficiencies will be reformed." ' Id., at [68]***
(quoting Roper, 543 U.S., at 570***)." Miller, 567 U.S. at ___,
132 S. Ct. at 2464-65.
¶ 91 As the Graham Court noted, "[e]ven if the punishment has some connection to a valid
penological goal, it must be shown that the punishment is not grossly disproportionate in light of
the justification offered." Graham, 560 U.S. at 72. The Roper Court stated, "it is difficult even
for expert psychologists to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption." Roper, 543 U.S. at 573 (citing Lawrence Steinberg & Elizabeth Scott,
Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014-16 (2003)).
¶ 92 "It is widely recognized by many legal scholars that the United States Supreme Court is
moving rather quickly towards abolishing life without parole sentences for juvenile offenders
entirely." Maureen Dowling, Note Juvenile Sentencing in Illinois: Addressing the Supreme
Court Trend Away From Harsh Punishments for Juvenile Offenders, 35 N. Ill. U. L. Rev. 611,
619 (2015).
"There are several parts of the analyses of each case that point to
this inevitable shift. First, each case acknowledges that the
decisions are directly contrary to our historical understanding of
juvenile sentencing. The Court rejects the notion of looking at
sentencing 'through a historical prism' in favor of the evolving
moral and ethical standards of society. This opens up the Court to
abolish life without parole sentences for juveniles, even though
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No. 1-11-0580
traditionally it is a widely practiced and accepted sentence.
Second, each opinion makes it clear that simply because a majority
of state sentencing statutes do not currently agree with the
decisions, this will not affect the outcome. This argument goes
hand-in-hand with the Court's rejection of historical sentencing
standards. Again, the Court has left open the possibility of
abolishing the harshest sentence available to juveniles. Finally, the
Court repeatedly emphasizes the differences between juveniles and
adults as an explanation for why each should be sentenced
differently. The continued focus on these differences further
bolsters the argument for abolishing life sentences without the
possibility of parole for juveniles." Id. at 619-20.
¶ 93 "The Supreme Court has followed a clear path away from life without parole sentences.
Following the reasoning laid out by the Court in these three cases, it can easily be seen how the
Court would deal with abolishing the sentence entirely." Id. at 627. As this note observes,
several states have responded to Miller by imposing "de facto" life sentences through lengthy
term-of-years sentences. Id. at 620. However, "These de-facto life sentences are not consistent
with the language or analysis found in both Miller and Graham. A prison sentence that will last
sixty or more years does not allow courts to show juvenile offenders any clemency.
Furthermore, despite the lengthy discussion about the differences between adults and juveniles,
de-facto life sentences do not give courts any opportunity to take the differences into account
when determining a sentence." Id. at 621. We also observe that the Iowa Supreme Court in
42
No. 1-11-0580
State v. Null, 836 N.W.2d 41 (Iowa 2013) expanded the principles of Miller to hold mandatory
minimum sentences for juvenile offenders to be unconstitutional. The Null court believed that
"while a minimum of 52.5 years imprisonment is not technically a
life-without-parole sentence, such a lengthy sentence imposed on a
juvenile is sufficient to trigger Miller-type protections. Even if
lesser sentences than life without parole might be less problematic,
we do not regard the juvenile's potential future release in his or her
late sixties after a half century of incarceration sufficient to escape
the rationales of Graham or Miller. The prospect of geriatric
release, if one is to be afforded the opportunity for release at all,
does not provide a 'meaningful opportunity' to demonstrate the
'maturity and rehabilitation' required to obtain release and reenter
society as required by Graham, 560 U.S. at ____***." Id. at 71.
¶ 94 Although the Court in Roper delineated the division between juvenile and adult at 18, we
do not believe that this demarcation has created a bright line rule. See Roper, 543 U.S. at 574
("Drawing the line at 18 years of age is subject, of course, to the objections always raised against
categorical rules. The qualities that distinguish juveniles from adults do not disappear when an
individual turns 18. By the same token, some under 18 have already attained a level of maturity
some adults will never reach. For the reasons we have discussed, however, a line must be drawn.
*** The age of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought
to rest.").
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No. 1-11-0580
¶ 95 Rather, we find the designation that after age 18 an individual is a mature adult appears to
be somewhat arbitrary, especially in the case at bar. Recent research and articles have discussed
the differences between young adults, like defendant, and a fully mature adult. "Research in
neurobiology and developmental psychology has shown that the brain doesn’t finish developing
until the mid-20s, far later than was previously thought. Young adults are more similar to
adolescents than fully mature adults in important ways. They are more susceptible to peer
pressure, less future-oriented and more volatile in emotionally charged settings." Vincent
Schiraldi & Bruce Western, Why 21 year-old offenders should be tried in family court, Wash.
Post (Oct. 2, 2015), www.washingtonpost.com/opinions/time-to-raise-the-juvenile-age-
limit/2015/10/02/948e317c-6862-11e5-9ef3-fde182507eac_story.html.
"The young adult brain is still developing, and young adults are in
transition from adolescence to adulthood. Further, the ongoing
development of their brains means they have a high capacity for
reform and rehabilitation. Young adults are, neurologically and
developmentally, closer to adolescents than they are to adults.
Prosecuting and sentencing young adults in the adult criminal
justice system deprives them of their chance to become productive
members of society, leads to high recidivism rates, and high jail
and prison populations, and increased costs to society through
subsequent incarceration and unemployment." Kanako Ishida,
Young Adults in Conflict with the Law: Opportunities for
Diversion, Juvenile Justice Initiative, at 1 (Feb. 2015), available at
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No. 1-11-0580
jjustice.org/wordpress/wp-content/uploads/Young-Adults-in-
Conflict-with-the-Law-Opportunities-for-Diversion.pdf.
¶ 96 The thesis of these articles is to illustrate the need to expand juvenile sentencing
provisions for young adult offenders. Both articles noted that several European countries have
already extended juvenile justice to include young adults. In Germany, all young adults ages 18
to 21 have been tried in juvenile court and the judges have an option to sentence them as a
juvenile, if a consideration of the offender's personality and environment indicate that his
psychological development was as a juvenile. Id. at 2. Sweden allows for young adults to be
tried in juvenile court until their 25th birthday, and young adults 18 to 24 receive different
treatment than adults. "For instance, statutory minimum sentences cannot be applied for young
people age 20 or under." Id. at 3. The Netherlands has extended juvenile alternatives for young
adults ages 18 to 21. Id.
¶ 97 We also point out that Illinois raised the age for a delinquent minor. Prior to January 1,
2014, a person who committed a felony prior to his or her 17th birthday was considered a
delinquent minor. See 705 ILCS 405/5-105(3) (West 2012). However, Public Act 98-61
changed the definition of a delinquent minor to be, "any minor who prior to his or her 18th
birthday has violated or attempted to violate, regardless of where the act occurred, any federal,
State, county or municipal law or ordinance." Pub. Act. 98-61, §5 (eff. Jan. 1, 2014) (amending
705 ILCS 405/5-105(3) (West 2012)).
¶ 98 As discussed in the Northern Illinois University Law Review note, the Supreme Court of
Wyoming compiled a list of factors taken from Miller to consider in sentencing juveniles.
"During a postconviction sentencing hearing, a trial court should
scrutinize the following factors before sentencing a juvenile
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No. 1-11-0580
offender: (a) the character and history of the juvenile offender and
the specific circumstances of the crime; (b) the background and
emotional and mental development of the juvenile offender; (c) the
offender's age and characteristics that go along with it including
immaturity and ability to appreciate risks; (d) the juvenile's family
and home environment; (e) the circumstances of the crime, the
extent to which the juvenile was involved, and the extent to which
peer or familial pressure may have factored into the juvenile's
participation; (f) 'the juvenile's relative inability to deal with police
and prosecutors or to assist his own attorney'; and (g) the offender's
potential for rehabilitation." Dowling, supra at 634 (citing Bear
Cloud v. State, 2013 WY 18, ¶ 42, 294 P.3d 36, 47 (Wyo. 2013),
quoting Miller, 567 U.S. at ____, 132 S. Ct. at 2467).
¶ 99 " '[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great
weight, so must the background and mental and emotional development of a youthful defendant
be duly considered' in assessing his culpability." Miller, 567 U.S. at ___, 132 S. Ct. at 2467
(quoting Eddings v. Oklahoma, 455 U.S. 104, 116 (1982)). As the Supreme Court observed in
Graham, "Life without parole is an especially harsh punishment for a juvenile. Under this
sentence a juvenile offender will on average serve more years and a greater percentage of his life
in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without
parole receive the same punishment in name only." Graham, 560 U.S. at 70.
¶ 100 "By making youth (and all that accompanies it) irrelevant to imposition of that harshest
prison sentence, such a scheme poses too great a risk of disproportionate punishment." Miller,
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No. 1-11-0580
567 U.S. at ___, 132 S. Ct. at 2469. Under Illinois law, the harshest form of punishment is a
mandatory life sentence. See 730 ILCS 5/5-8-1(a) (West 2014). The trial court is not afforded
any discretion if an offender is found guilty of triggering offenses, such as, the death of more
than one person. See 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014). However, when the death
penalty still existed in Illinois, there were several statutory guidelines that had to be met before
such a sentence could be imposed. See 720 ILCS 5/9-1 (West 2010). The lack of discretion
afforded the trial court for the imposition of a mandatory life sentence is especially relevant
when the defendant is a young adult, over 18, but still not considered a fully mature adult.
¶ 101 These considerations are significant in the instant case and support defendant's argument
that the mandatory natural life sentencing statute is unconstitutional as applied to him. Turning
to the case at bar, while clearly no longer a juvenile, defendant, at age 19 years and 2 months,
was barely a legal adult and still a teenager. His youthfulness is relevant when considered
alongside his participation in the actual shootings. Defendant's presentence investigation report
showed that his only prior offenses were possession of a controlled substance with intent to
deliver. Defendant did not have a criminal history of violent crimes. The sentencing hearing
also disclosed that defendant never knew his father, he was raised by his maternal grandmother,
and that his mother died when he was 18. Defendant attended high school through the twelfth
grade, however, he never graduated. At the time defendant was sentenced, the death penalty was
still in place in Illinois. Although the trial judge found defendant eligible for the death penalty,
he concluded that there were "sufficient mitigating factors to preclude the imposition of the death
penalty." While some of these mitigating factors were before the trial court when it declined to
impose the death penalty, they were not available to be considered before imposing a mandatory
natural life sentence. The court's ability to take any factors into consideration was negated by the
47
No. 1-11-0580
mandatory nature of defendant's sentence. The trial court was also precluded from considering
the goal of rehabilitation in imposing the life sentence, which is especially relevant in defendant's
case. Given defendant's age, his family background, his actions as a lookout as opposed to being
the actual shooter, and lack of any prior violent convictions, we find that defendant's mandatory
sentence of natural life shocks the moral sense of the community.
¶ 102 Our conclusion is not meant to diminish in any way of the seriousness of the crimes,
specifically two convictions for murder and two convictions for aggravated kidnapping. We
recognize defendant remains culpable for his participation. However, we believe that defendant
is entitled to a new sentencing hearing in which the trial court has the ability to consider the
relevant mitigating factors prior to imposing a sentence of such magnitude. Accordingly, we
hold that defendant's sentence violates the proportionate penalties clause of the constitution as
applied to him. We vacate defendant's sentence of natural life and remand for a new sentencing
hearing.
¶ 103 Since we have held that the proportionate penalties clause is unconstitutional as applied
to defendant, we need not address defendant's arguments that the impositions of a mandatory life
sentence was facially unconstitutional under the eighth amendment and the proportionate
penalties clause. We do not make a recommendation to the trial court on remand as to the
appropriate sentence. That determination is best left to the trial court who presided over
defendant's trial proceedings. However, as pointed out above, we question the statutory
requirement to impose a mandatory life sentence on a culpable lookout compared to the
perpetrator who pulled the trigger and took more than one life without any consideration of any
mitigating factors. The statute in its current form takes away the trial court's discretion and
ability to consider any mitigating factors in this case.
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No. 1-11-0580
¶ 104 Based on the foregoing reasons, we affirm the dismissal of defendant's postconviction
petition, vacate defendant's sentence, and remand for a new sentencing hearing in accordance
with this decision.
¶ 105 Affirmed in part, vacated in part, remanded.
¶ 106 JUSTICE GORDON, concurring in part and dissenting in part.
¶ 107 I concur with the majority that we must vacate defendant's mandatory sentence of natural
life without parole. However, for the reasons explained below, I must respectfully dissent from
the majority's decision to affirm the trial court's second-stage dismissal of defendant's
postconviction petition.
¶ 108 I would remand for a third-stage evidentiary hearing on defendant's claim of actual
innocence. Defendant argues that he has made a substantial showing of actual innocence based
on the newly discovered evidence of a key State witness's recantation of her trial testimony and
her swearing that she was present at the time of the kidnapping and that she never saw defendant
there.
¶ 109 I quote Clark's affidavit in full:
"I, Eunice Clark, having first been duly sworn, depose and
state as follows:
1. This affidavit is made of my own personal knowledge.
If I were called to testify, I would be competent to do so and would
testify to the facts set forth herein.
I, Eunice Clark, as a witness to the kidnapping of Stan
Burch and Michael Purham on the date of September 13th 1993, in
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No. 1-11-0580
the late morning hours in the vicinity of Springfield St. and
Fillmore St. located in Chicago, Illinois.
Further states that I never saw Antonio House kidnap or
conspire to kidnap Stan Burch and Michael Purham nor did I see
Antonio House with a weapon.
On October 12th 1993, I was never confronted by Antonio
House neither has Mr. House threaten me or cause me bodily
harm. To my personal knowledge Antonio House['s] name was
only mention[ed] because he was a worker for Ted.[3]
Further affiant sayeth not."
¶ 110 Defendant was convicted of the aggravated kidnappings and first-degree murders of
Stanton Burch and Michael Purham based primarily on the testimony of Eunice Clark. Clark
testified at trial that defendant was with a group of Unknown Vice Lord gang members who
kidnapped Burch and Purham. She testified that this group encircled Burch and Purham on the
street and forced them at gunpoint into the back of Ted's vehicle. While Barry Williams placed
defendant at the scene of the kidnapping in a prior statement and in grand jury testimony, at trial
Williams could not recall much of his prior statement or grand jury testimony. Supra ¶ 45.
¶ 111 Now, Clark swears in her affidavit that she never saw defendant. I believe this affidavit
makes the substantial showing needed to proceed to a third-stage evidentiary hearing. Our
supreme court has observed, "[w]e deem it appropriate to note here that the United States
Supreme Court has emphasized that such claims must be supported 'with new reliable evidence–
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
3
"Ted" was one of the leaders of the sects of the Unknown Vice Lords.
50
No. 1-11-0580
physical evidence–that was not presented at trial.' " People v. Edwards, 2012 IL 111711, ¶ 32
(quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). Here we have an eyewitness account that
was not presented at trial, by an eyewitness whom the State deemed trustworthy enough to call
as a witness. Whether her current statement is sufficiently trustworthy is a credibility
determination that is best resolved in the first instance by the trial court at an evidentiary hearing.
In re Julian K., 2012 IL App (1st) 112841, ¶ 66 (the trial court is in the best position to make
credibility determinations); People v. Davis, 378 Ill. App. 3d 1, 13 (2007) (while the trial judge
is able to hear a witness's "tone of voice and pauses, and observe his body language as he
delivered his answer, that information is obviously missing from the dry transcript before this
reviewing court"). Thus, I believe we must remand for a third-stage evidentiary hearing.
¶ 112 For these reasons, I must respectfully dissent.
51