People v. Anderson ( 2007 )

SIXTH DIVISION
July 20, 2007
No. 1-05-1577
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County, Illinois.
)
)
) No. 90 CR 11979.
v. )
)
TONY ANDERSON, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Defendant, Tony Anderson, appeals from the summary dismissal of his petition for relief
under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq (West 2002)). He
contends that the circuit court erred in summarily dismissing his petition where he set forth the
gist of meritorious claims that (1) his due process rights were violated when detectives at Area 2
violent crimes coerced him into giving a confession to offenses he did not commit; (2) he was
provided ineffective assistance of counsel because counsel “coerced” him into pleading guilty
and (3) the State violated his right to due process by failing to disclose the existence of
voluminous claims of Area 2 police torture pursuant to Brady v. Maryland, 373 U.S. 83, 10 L.
Ed. 2d 215, 83 S. Ct. 1194 (1963).
I. BACKGROUND
Defendant was indicted on over 100 charges in 13 different cases in Cook County,
No. 1-05-1577
stemming from offenses he committed in March and April 1990. Case No. 90 CR 11984 was
tried to a judge; case No. 90 CR 11985 was tried to a jury; and defendant pleaded guilty to
charges in 11 remaining cases. In case No. 90 CR 11979, the subject of this appeal, an eight-
count indictment charged defendant with three counts of first degree murder, two counts of
burglary, attempted armed robbery, attempted residential burglary, and attempted home invasion.
Defendant pleaded guilty to two counts of first degree murder, and the State nol prossed the
remaining counts. The court sentenced defendant to 50 years’ imprisonment.
Motion to Suppress Confession
Prior to defendant’s guilty pleas, William Heenan, defendant’s original trial counsel,
moved to suppress defendant’s inculpatory statements, alleging that they were the product of
police coercion.1 At a pretrial hearing on that motion, the State called its own witnesses first.
Detective Sellers testified that on April 18, 1990, he and his partner, Patrick Brosnan, arrested
defendant for possession of a stolen automobile. Detective Sellers further testified that later that
afternoon, around 6 p.m. he and his partner spoke with defendant at the auto theft section of the
1
The motion to suppress appears to have encompassed all of defendant’s charges in all 13
cases. The State avers that defendant’s testimony and his claim that his inculpatory statements
were the product of coercion were made with respect to only one of his indictments in case No.
90 CR 11984. The resolution to this factual dispute is not readily discernable from the face of
the record. However, because, as shall be demonstrated, we resolve this case in favor of
affirmance in either event, we shall consider the testimony introduced at the suppression hearing
to apply across the board as urged by the defendant, appellant.
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Chicago police department located at 1121 South State Street, in Chicago. Detective Sellers
testified that prior to speaking with defendant, he advised defendant of his Miranda rights from a
Fraternal Order of Police (F.O.P.) book and that defendant indicated that he understood each
right. According to Detective Sellers, defendant did not request an attorney or indicate that he
wished to remain silent.
Detective Sellers further testified that he then questioned defendant about the
circumstances of his arrest. According to Detective Sellers, during the interview, defendant was
seated and handcuffed to the wall together with another suspect, Robert Allen. Detective Sellers
denied defendant’s allegations that he used a police stick to strike defendant in the ribs and
thighs or that he placed a gun in defendant’s hand or that he put it to the side of his head. He
also stated that neither he nor his partner used physical or psychological coercion to force
defendant to speak.
On cross-examination, Detective Sellers stated that the interview lasted for
approximately 1 hour and 15 minutes. He also stated that upon request defendant was given
water and was allowed to use the restroom.
Detective Brosnan next testified that he was present at defendant’s arrest early in the
afternoon of April 18, 1990, but stated that he did not advise defendant of his constitutional
rights at that point. Detective Brosnan stated that he next saw and then proceeded to question
defendant in an interview room of the auto theft section of the Chicago police department at
1121 South State Street, in Chicago. Detective Brosnan acknowledged that before that
interview, he observed Detective Sellers read defendant his Miranda rights from an F. O. P. book
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No. 1-05-1577
and that defendant indicated that he understood those rights. Detective Brosnan also testified
that defendant did not request an attorney. Detective Brosnan denied having struck defendant
with a billy club, using a gun, or making any verbal threats against defendant. He further denied
having seen any other officers participate in any such coercion.
On cross-examination, Detective Brosnan conceded that when defendant was read his
individual rights from the F.O.P. book, on many occasions, he merely nodded to show that he
understood. Detective Brosnan also testified that after responding to questions about the stolen
vehicle he had been driving when arrested, defendant indicated that he wished to remain silent.
Detective Brosnan indicated that he could not state with certainty when this occurred, but
believed it was “while defendant was being read some of his constitutional rights,” about 20 to
25 minutes after Detective Brosnan arrived at the station to interview him. Detective Brosnan
also stated that he did not recall if defendant asked for a telephone call but upon further
questioning conceded that “he may have” done so.
Detective Brosnan next described the interview room as being about 14 by 19 feet and
explained that, during questioning, Allen and defendant were handcuffed to the wall in the same
handcuff ring. Detective Brosnan acknowledged that defendant was in the room for about two to
three hours and that he was not given food. According to Detective Brosnan, defendant was
periodically unhandcuffed so that he could drink water from a water fountain located next to the
wall ring.
Detective Michael McDermott testified that about 9 p.m., on April 18, 1990, together
with Detective Gallagher, he picked up defendant from the auto theft section at 1121 South State
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Street and brought him to an interview room at Area 2 violent crimes located at 111th Street in
Chicago. Detective McDermott testified that officers at the State Street police station did not tell
him that defendant had invoked his right to remain silent. Rather, they told him that defendant
was “eager to talk.”
Detective McDermott stated that once at Area 2, at about midnight, he advised defendant
of his Miranda rights from an F.O.P. book, which defendant indicated he understood. Detective
McDermott then proceeded to interview defendant in increments totaling about four to five
hours. The detective acknowledged that defendant was in the interview room the entire night
and that the last conversation he had with him was on August 19, 1990, at 4 p.m. The detective
described the interview room as being “eight by ten foot, [with] beige walls *** [a] bench, a
table, chairs,” and a “three by-three foot plaque on the wall with ... Miranda warnings in English
and in Spanish.” According to Detective McDermott, during the interview, defendant was not
handcuffed, was given snacks, and water, and was allowed to use the washroom. Detective
McDermott also testified that Detective Gallagher from Area 2, and Detectives Maslanka and
Paladino from Area 3, participated in parts of the interview. Detective McDermott finally stated
that even though he was armed with a .38 revolver that night, he never threatened defendant with
the gun or used a police stick to jab him.
Detective John Gallagher next testified that around midnight on April 18, 1990, together
with Detective McDermott, he picked up defendant from the auto theft police station at 1121
South State Street and brought him to an interview room at Area 2 headquarters. Detective
Gallagher testified that he witnessed Detective McDermott advise defendant of his Miranda
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No. 1-05-1577
rights from his F.O.P. book and that defendant indicated that he understood those rights.
Detective Gallagher also stated that during this interview no one struck defendant, poked him
with a billy club, put a gun to his head or threatened him in any way.
Detective Maslanka testified that on April 19, 1990, he was assigned to Area 3 violent
crimes and proceeded to Area 2 violent crimes headquarters in order to conduct lineups and
several investigations pertaining to a homicide relevant to Area 3. Detective Maslanka testified
that around 4:10 p.m., he met defendant in an interview room at Area 2 violent crimes with his
partner John Paladino. He advised defendant of his Miranda rights from an F.O.P. handbook,
and defendant indicated that he understood. According to Detective Maslanka, defendant did not
request an attorney and did not ask to make a telephone call. Detective Maslanka also stated that
no one advised him that defendant had previously indicated that he did not wish to speak. The
detective then proceeded to question defendant.
Detective Maslanka denied placing a gun to defendant’s head, striking him with a police
stick, coercing him physically or psychologically, or seeing any other officer threaten defendant
in any manner. Detective Maslanka also stated that although he was armed with a Smith and
Wesson 9 millimeter gun and his partner had a revolver, during the interview, neither of them
removed the weapons from their holsters.
Detective Paladino testified that on August 19, 1990, he was assigned to Area 3 violent
crimes when he received a telephone call from Area 2 indicating that one of the subjects in
custody had “some knowledge of a homicide that occurred at Area 3.” Detective Paladino stated
that he proceed to Area 2 with his partner, Detective Maslanka. He averred that after Detective
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No. 1-05-1577
Maslanka read defendant his Miranda rights, defendant indicated he understood them, did not
request an attorney and did not indicate that he wished to remain silent. The officers then
proceeded to interview defendant. According to Detective Paladino, during this interview, no
one put a gun to defendant’s head, and no one struck him with a billy club.
After the State presented its witnesses, defendant took the stand on his own behalf.
Defendant testified that while he was at the auto theft division, he was not threatened or hit by
any police officers, but he testified that once at Area 2 headquarters at 111th Street, he was
coerced into making incriminatory statements relating to numerous crimes. Defendant stated that
at Area 2, he was placed in a room that was about 10 by 7 feet, with no windows, and that he was
questioned by numerous police officers throughout the night. Defendant averred that after
Detective Gallagher left the room, Detective McDermott placed a gun to his head and threatened
that he would “blow [his] damn brains out” if he did not confess. Defendant also averred that
Detective Maslanka jabbed him in the chest, rib, and back with his night stick. Although he
could not say exactly how many times he was jabbed, defendant estimated it was “over 12
times,” because he was crying in pain. Defendant acknowledged that he was given a physical
examination prior to his admission to the county jail, but that no bruises were present at that
time.
Defendant further alleged that he was not permitted to use the bathroom at either the
State Street or 111th Street police stations and that the first time he used a bathroom was when he
was transferred to the county jail. Defendant also stated that during the interview, he made seven
requests for permission to make a telephone call, but was denied each time. Defendant also
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No. 1-05-1577
testified that no one ever advised him of his Miranda rights and that there was no plaque on the
wall of the interview room indicating them.
At the close of the hearing, the court denied defendant’s motion to suppress his
incriminating statements, finding that they were given “freely and voluntarily without coercion or
threat or compulsion of any kind.” In doing so, the court found that based on the totality of
evidence, defendant “was advised of his rights numerous times” and was “not in anyway
threatened or abused.” The court also noted that “the evidence we choose to accept *** [is] the
testimony of the police officers indicating that he was at no time abused or physically
threatened.”
Guilty Pleas
In August 1991, defendant’s newly retained counsel, Thomas Hoffa, failed to appear in
court for three consecutive days, and the trial court issued a bench warrant for his arrest. On
August 7, 1991, the assistant State’s Attorney informed the trial court that she had spoken to an
investigator who visited Hoffa’s apartment, and that he reported that Hoffa had “a gash in the
side of his head, ***bruises and swelling to his face, that he was intoxicated, that he was
disoriented and that he was unable to move or walk.” All of this information was relayed to
defendant and the court advised him that “It would be this Court’s opinion [], and it is just my
opinion, that Mr. Hoffa is not now nor will he be in the near future in a position to represent you
in this case.” Defendant nevertheless opted to continue with Hoffa as his counsel.
On August 9, 1991, Hoffa finally appeared in court, and represented defendant as he
pleaded guilty to first degree murder (in case No. 90 CR 11979), two counts of attempted first
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No. 1-05-1577
degree murder (in case Nos. 90 CR 11983, 90 CR 11986), seven counts of armed robbery (in
case Nos. 90 CR 11780, 90 CR 11987, 90 CR 11988, 90 CR 11989, 90 CR 11990, 90 CR 11991,
and 90 C 660648), and one count of attempted escape (in case No. 90 CR 11982). Following the
submission of factual bases for each charge, the court admonished defendant regarding the
potential sentences for each offense, and he acknowledged that he understood what rights he was
surrendering. With regard to case No. 90 CR 11979, the State proffered that the evidence would
show that on March 30, 1990, defendant fired two shots from a .25-caliber handgun, striking the
victim, Leonard Cox, in the left chest and causing his death. Eyewitnesses would identify
defendant in open court and testify that they had identified him in a lineup shortly after the
shooting. The evidence would further show that the same .25-caliber handgun used in the
incident was found in defendant’s possession upon his arrest. Furthermore, defendant’s
statement confessing involvement in this incident would be introduced. Following this proffer,
defendant pleaded guilty to first degree murder, the trial court accepted his plea and sentenced
him to 50 years’ imprisonment.
On November 1, 1991, defendant moved to vacate his guilty pleas, in each of the
foregoing cases, arguing that he did not understand the plea agreement, the nature of the charges,
or that the potential sentences could run consecutively. Defendant also argued that his attorney
had “coerced” him into pleading guilty by telling him that if he did not do so, he would likely get
the death penalty. On December 17, 1991, the circuit court sua sponte indicated that it would
treat defendant’s motion as a postconviction petition because it was untimely as it was filed 30
days after defendant had entered his pleas of guilty. The court then went on to dismiss
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No. 1-05-1577
defendant’s postconviction petition, finding that his claims were “spurious and without basis in
law and fact.” In doing so, the court noted that defendant had been advised “as to each and every
case the possible penalties, the nature of the charges, the factual basis for each case,” and “at no
time indicated any hesitation.”
Defendant appealed the circuit court’s dismissal of his petition arguing that it was
improperly dismissed without an evidentiary hearing more than 30 days after its filing. The State
confessed error. On May 4, 1992, we remanded the cause solely for appointment of counsel and
a hearing to determine whether the allegations in defendant’s petition were frivolous. On
remand, the circuit court ruled that the claims raised in defendant’s petition could have been
raised on direct appeal and were thus frivolous and patently without merit. At this time, the court
also denied defense counsel’s request for a continuance to enable him to interview witnesses
about defendant’s allegations that counsel coerced him into pleading guilty. Defendant filed a
motion to reconsider this ruling, and the court denied it.2
On April 28, 2000, defendant filed a single pro se postconviction petition encompassing
case Nos. 90 CR 11979, 90 CR 11980, 90 CR 11982, 90 CR 11983, 90 CR 11986, 90 CR 11987,
2
At a hearing on this motion, the public defender representing defendant appeared and
explained that he did not realize that, at the time of the previous hearing, defendant had already
retained private counsel, and thus now moved to withdraw. Private counsel had indeed filed an
appearance, but did not appear at the previous hearing because she was unaware of its date. The
court ruled that private counsel could proceed with an appeal of the dismissal of the petition, but
held that the dismissal would stand. Defendant did not appeal the dismissal.
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No. 1-05-1577
90 CR 11988, 90 CR 11990, 90 CR 11991 and 90 CR 60648, in which he alleged that he was
deprived of effective assistance of counsel when counsel “coerced” him to plead guilty through
repeated statements that if he proceeded to trial, he would receive the death penalty. Defendant
also argued that counsel was ineffective for failing to file any motions, and for appearing drunk
in court on the day of his guilty pleas. On May 16, 2000, the circuit court dismissed defendant’s
second petition as untimely and frivolous. In doing so, the court noted that the trial court had
issued a bench warrant for defense counsel Hoffa and that defendant was made aware that when
located by an investigator, counsel appeared to be intoxicated. Defendant, however, persisted
that Hoffa remain his lawyer, rejecting all offers of representation by the public defender. The
court thus held that petitioner “intelligently waived his chance to have a different lawyer
represent him” and that the resolution his counsel reached for him was “fair and just and
reasonable.” On March 19, 2002, we upheld the dismissal of defendant’s petition, noting that
defendant’s claims of ineffective assistance of counsel were barred by the doctrine of res
judicata because “even though they were couched in terms of ineffective assistance of counsel,
they [were] identical in substance to such claims raised [and rejected] in defendant’s original
petition.” People v. Anderson, No. 1-00-2338 (2002) (unpublished order pursuant to Supreme
Court Rule 23).
On December 9, 2004, defendant filed the instant “Petition for Leave to File a Successive
Petition for Post-Conviction Relief” only with regard to case No. 90 CR 11979. In this petition,
defendant alleged that his plea was made as a result of police coercion, and that he made his
incriminating statement at Area 2 violent crimes as a result of torture inflicted by Area 2 and
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No. 1-05-1577
Area 3 detectives. Defendant specifically identified Detectives McDermott and Maslanka as
having coerced a confession from him. According to the petition, Detective McDermott held a
gun to defendant’s head and threatened to “blow [his] brains out” if he did not sign a confession.
Detective Maslanka then repeatedly jabbed defendant with his nightstick in the back and chest.
Defendant stated that as a result of these tactics, he made a statement implicating him in various
crimes, including the murder of Leonard Cox to which he pleaded guilty.
In his petition, defendant also contended that counsel “coerced” him into pleading guilty
to the crimes to which he confessed. Defendant further argued that in violation of Brady v.
Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the State failed to disclose to
him that Detectives Maslanka and McDermott had been accused of torture by other defendants
and that there were numerous instances of similar police abuse at Area 2 and Area 3 under the
command of Jon Burge.
On January 4, 2005, the circuit court dismissed the instant petition without a written
order. On February 16, 2005,3 the circuit court denied defendant’s motion to reconsider the
denial of his motion for leave to file a successive postconviction petition. In doing so, the court
noted:
“The voluntariness of [defendant’s] confession was adjudicated, handled
pre-trial or pre-plea. His same allegations have been raised in various fashions in
3
We note that while the Certified Report of Disposition indicates that the circuit court
denied defendant’s motion on February 16, 2005, the Report of Proceedings shows that the
denial occurred on February 15, 2005.
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No. 1-05-1577
prior petitions.
He is talking about things that have [been] adjudicated through the post-
conviction proceedings as well as in a pre-trial motion, and I think he’s waived.
This was [a] negotiated plea.
I find this petition to be without merit. Motion to reconsider, as he puts it,
dismissal of his sessive [sic] post-conviction petition denied.”
II. ANALYSIS
1. Violation of Due Process Because of Coerced Confession
Defendant first contends that the court erred in summarily dismissing his postconviction
petition because “all [his] allegations taken as true” stated the gist of a meritorious claim that his
rights to due process were violated when the police used coercion to extract an oral confession
from him, which later served as a basis for his guilty pleas and subsequent convictions for
murder, attempted murder, armed robbery and attempted escape.
The State initially notes that, unlike defendant’s first and second post-conviction
petitions, defendant’s current petition only encompasses case No. 90 CR 11979 and, thus, does
not challenge his guilty pleas for attempted murder (case Nos. 90 CR 11983, 90 CR 11986),
armed robbery (case Nos. 90 CR 11780, 90 CR 11987, 90 CR 11988, 90 CR 11989, 90 CR
11990, 90 CR 11991, 90 C 660648) or attempted escape (case No. 90 CR 11982). The notice of
appeal in this case refers only to case No. 90 CR 11979, and defendant provides us with no
notice of appeal for the other cases. It is an incontrovertible rule that a reviewing court has no
jurisdiction over an appeal absent a properly filed notice of appeal (see Niccum v. Botti,
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No. 1-05-1577
Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7, 694 N.E.2d 562, 563 (1998) (“filing a
notice of appeal is the jurisdictional step which initiates appellate review”); Childers v. Kruse,
297 Ill. App. 3d 70, 73, 696 N.E 2d 1253, 1255 (1998) (“[a] timely notice of appeal is both
jurisdictional and mandatory”)), and we are obliged to dismiss an appeal if we lack jurisdiction,
even if no party to the appeal has raised the issue (see Shanklin v. Hutzler, 277 Ill. App. 3d 94,
99, 660 N.E.2d 103, 106 (1995)). As such, we find that the only case that is properly before us
on appeal is case No. 90 CR 11979 and therefore must reject defendant’s attempt to extend our
review beyond the limits of our jurisdiction.
Moreover, even if we could consider these cases, we have long held that allegations not
raised in the postconviction petition cannot be considered on appeal. See People v. Smith, 352
Ill. App. 3d 1095, 1112, 817 N.E.2d 982, 998 (2004); People v. Griffin, 321 Ill. App. 3d 425,
428, 748 N.E.2d 1235, 1238 (2001) (the Act does not permit a defendant to raise an issue on
appeal from the dismissal of a postconviction petition that he never raised in the petition)).
Therefore, we find that, in the present case, defendant is limited to challenging his guilty plea
solely in case No. 90 CR 11979, involving a plea of guilty for first degree murder of the victim,
Leonard Cox.
The State next responds that defendant’s claim of coercion is barred by the doctrines of
waiver and res judicata. We agree. The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2004)) provides a means by which a defendant may challenge his conviction for
substantial “violations of federal or state constitutional rights.” People v. Tenner, 175 Ill. 2d
372, 377, 677 N.E.2d 859, 862 (1997). At the first stage of postconviction proceedings, the
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No. 1-05-1577
circuit court must determine whether the petition is “frivolous or is patently without merit.” 725
ILCS 5/122-2.1(a)(2) (West 2004); People v. Boclair, 202 Ill. 2d 89, 99, 789 N.E.2d 734, 740
(2002). In order to avoid dismissal at this stage, defendant need only present the gist of a
meritorious constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106
(1996). Defendant need only present a limited amount of detail and all well-pleaded allegations
in his petition must be taken as true and liberally construed. People v. Edwards, 197 Ill. 2d 239,
244, 757 N.E.2d 442, 445 (2001). We review the circuit court's summary dismissal de novo.
People v. Coleman, 183 Ill. 2d 366, 387-88, 701 N.E.2d 1063, 1075 (1998).
Because an action seeking postconviction relief is a collateral proceeding, not an appeal
from the underlying judgment, the Act contemplates the filing of only one postconviction
petition. People v. Evans, 186 Ill. 2d 83, 89, 708 N.E.2d 1158, 1161 (1999). Consequently, all
issues actually decided on direct appeal or in the original postconviction petition are barred by
the doctrine of res judicata, and all issues that could have been raised in the original proceeding,
or original postconviction petition, but were not, are waived. People v. Blair, 215 Ill. 2d 427,
443, 831 N.E.2d 604, 615 (2005). Where res judicata and waiver preclude defendant from
obtaining relief, such a claim will necessarily be frivolous and patently without merit. Blair, 215
Ill. 2d at 445, 831 N.E.2d at 615.
In the present case, we find that defendant’s claim of police coercion is waived because
defendant could have raised it in his original and second postconviction petitions. Defendant’s
affidavit attached as part of his successive postconviction petition states that Detectives
McDermott and Maslanka coerced him into signing a confession. In that affidavit, defendant
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No. 1-05-1577
specifically avers that after he was arrested, he was never read his rights, that he requested an
attorney but was not provided one, and that, instead, the two police officers “beat and threatened
[him] with a gun into making the coerced confessions.” We note that defendant made the exact
same allegations in his testimony at a pre-trial hearing on his motion to suppress his statements
in 1991, and the trial court found that his confession was not coerced. Defendant was thus aware
of the coercion at the time that it allegedly took place in 1990, and at the time he entered his
guilty pleas in 1991. However, after the denial of his motion to suppress, defendant chose to
abandon these allegations and did not address them in his motion to vacate his guilty pleas, on
direct appeal, or in his second postconviction petition. Instead, defendant waited 13 years, until
December 2004, to raise them in this, his third successive postconviction petition. As we find
that defendant could have brought this claim earlier, his failure to do so results in the forfeiture
of this claim. See Blair, 215 Ill. 2d at 445, 831 N.E.2d at 615; 725 ILCS 5/122-3 (West 2004).
Furthermore, we find that defendant’s claim of coercion is waived because a voluntary
guilty plea waives all nonjurisdictional errors or irregularities, including constitutional ones. See
People v. Townsell, 209 Ill. 2d 543, 545, 809 N.E.2d 103, 104 (2004); People v. Peeples, 155 Ill.
2d 422, 491, 616 N.E.2d 294, 326 (1993) (issues waived by a plea of guilty include the
admissibility of defendant’s confession). The record indicates that the circuit court found on at
least three occasions that defendant’s guilty plea was entered voluntarily (first, at the time of
defendant’s plea, second, in denying defendant’s motion to vacate his plea, and third, when
denying defendant’s second postconviction petition). As defendant’s plea was entered
voluntarily, he has waived his right to raise this issue here. Defendant nevertheless contends that
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his guilty plea was not voluntarily entered because his counsel “coerced” him into pleading
guilty, and that he has not waived the issue of coercion for purposes of this appeal. We disagree
and address this contention below with regard to defendant’s claim of ineffective assistance of
counsel.
With regard to the argument that he forfeited his right to address this issue by not raising
it in an earlier postconviction proceeding, defendant nevertheless argues that his petition is not
procedurally barred because the sources relied on by him now constitute “newly discovered
evidence,” which corroborate his claim that his confession was coerced and involuntary. In
support of his contention defendant relies on (1) a body of federal and state cases indicating a
pattern of practice of torture at Area 2 and Area 3; (2) the report of the Chicago Police
Department’s Office of Professional Standards (OPS); (3) his own affidavit; (4) a copy of a
party’s response to a motion to bar the depositions of Mayor Richard M. Daley and other
officials in the case of Patterson v. Burge, No. 03-C-4433 (Cir. Ct. Cook Co.) (Patterson
pleading); and (5) the report of the special State’s attorney’s investigation into allegations of
torture ordered by the Circuit Court of Cook County on April 24, 2002, which was completed in
July 2006 (Report of the Special State’s Attorney).
For the reasons that follow, we find defendant’s contention without merit. We first note
that in the context of a successive postconviction petition, the rule of waiver is not merely a
principle of judicial administration, but rather an express requirement of the statute. See People
v. Pitsonbarger, 205 Ill. 2d 444, 458, 793 N.E.2d 609, 620-21 (2002); 725 ILCS 5/122-3 (West
2002)) (“[a]ny claim of substantial denial of constitutional rights not raised in the original or
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No. 1-05-1577
amended petition is waived”); People v. Smith, 341 Ill. App. 3d 530, 539, 794 N.E.2d 367, 377
(2003) (because there is less interest in providing a forum for the vindication of defendant’s
constitutional rights in a successive proceeding, “waiver, which would be a procedural
affirmative defense for purposes of the first petition, becomes a substantive consideration going
to the merits of a successive postconviction petition”). As such, waiver is generally fatal to a
successive postconviction petition, like the one before us today. However, our court has held
that the statutory bar to a successive postconviction petition may be relaxed where “fundamental
fairness so requires.” People v. Morgan, 212 Ill. 2d 148, 153, 817 N.E.2d 524, 527 (2004). In
order to show that “fundamental fairness” requires that defendant be allowed to file a successive
postconviction petition, defendant must demonstrate both cause and prejudice with respect to
each claim. Morgan, 212 Ill. 2d at 153-54, 817 N.E.2d at 527. To establish cause, defendant
must identify an objective factor that impeded his ability to raise a specific claim during his
initial postconviction proceedings. Morgan, 212 Ill. 2d at 153-54, 817 N.E.2d at 527. To
establish prejudice, defendant must demonstrate that the error not raised in his initial
postconviction proceedings so infected the trial that the resulting conviction violated due
process. Morgan, 212 Ill. 2d at 154, 817 N.E.2d at 527.
We initially note that defendant does not attempt to demonstrate cause and prejudice with
regard to this particular claim. Instead, he relies upon People v. Cannon, 293 Ill. App. 3d 634,
640, 688 N.E.2d 693, 696 (1997), for the proposition that “new evidence” and “special
circumstances” warrant the relaxation of the procedural bars of waiver and res judicata. We find
defendant’s reliance on Cannon misplaced. In that case, a criminal defendant was allowed to
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relitigate the issue of a coerced confession after 16 other arrestees filed complaints in the OPS
alleging torture by police detectives, and we set forth two exceptions to the general rule that bars
relitigation of a decided motion to suppress evidence: new evidence that would have been
pertinent to the trial court’s rulings, and “special circumstances” that would warrant relitigation
of the motion. Cannon, 293 Ill. App. 3d at 640, 688 N.E.2d at 696. However, defendant here
specifically states that “he does not request relitigation of his initial motion to suppress as did the
defendant in Cannon,” but merely asks us to apply the standard in Cannon to allow his
successive postconviction petition to proceed to the second stage of review. Our supreme court
clearly articulated in Pitsonbarger that the sole “analytical tool” that is to be used to determine
whether fundamental fairness requires an exception to the statutory procedural bar of waiver to a
successive postconviction petition is the cause-and-prejudice test. Pitsonbarger, 205 Ill. 2d at
459, 793 N.E.2d at 621. Our legislature has recently adopted the cause-and-prejudice test as
defined in Pitsonbarger as a separate procedural hurdle that defendant must overcome before
filing a successive postconviction petition. See 725 ILCS 5/122-1(f) (West 2004) (“Only one
petition may be field by a petitioner under this [a]rticle without leave of the court. Leave of court
may be granted only if a petitioner demonstrated cause for his or her failure to bring the claim in
his or her initial post[]conviction proceedings and prejudice results from that failure”). We note
that while the cause-and-prejudice test and the “special circumstances” test may at least in part
overlap, the Cannon test is reserved for relitigating motions to suppress, which were denied
during the pendency of an actual trial. However, because in the case at bar, we are dealing with a
successive postconviction petition, the appropriate test is the cause-and-prejudice test, and we
19
No. 1-05-1577
will proceed with our analysis using that test, even though defendant does not identify it as such.
We next note that defendant has failed to satisfy the “cause” prong of the test because he
has failed to point to an objective factor that impeded him from raising a claim of coercion in an
earlier proceeding. Defendant originally gives no reason for not raising his claim earlier, and
only later, in his reply brief, he attempts to circumvent the cause prong by simply stating that
“this objective factor is consistently identified as the newly discovered nature of the evidence
[defendant] relies on.” However, arguments raised for the first time in a reply brief on appeal are
considered waived. Smith, 352 Ill. App. 3d at 1112, 817 N.E.2d at 998, citing People v. Brown,
169 Ill. 2d 94, 108, 660 N.E.2d 964, 970 (1995). Moreover, even if we were not to consider
defendant’s argument waived, his conclusory statement provides no plausible “cause” for his
failure to obtain the evidence earlier. See People v. Mahaffey, 194 Ill. 2d 154, 185, 742 N.E.2d
251, 268 (2000), citing People v. Franklin, 167 Ill. 2d 1, 15, 656 N.E.2d 750, 758 (1995).
Evidence of systematic torture was already widely available in 2000 when defendant filed his
second post-conviction petition. Most of the cases that defendant cites to in his postconviction
petition were decided between 1987 and 2000. See, e.g., People v. Wilson, 116 Ill. 2d 29, 506
N.E.2d 571 (1987); People v. Banks, 192 Ill. App. 3d 986, 549 N.E.2d 766 (1989); Wilson v.
City of Chicago, 6 F.3d 1233 (7th Cir. 1993); United States ex rel. Maxwell v. Gilmore, 37 F.
Supp. 2d 1078 (N.D. Ill. 1999). Similarly, the OPS report4 to which defendant cites in his
4
The OPS investigation began in 1989, following internal investigation of police
misconduct at Area 2. “The first section of the OPS report is known as the Goldston report. It
documents the allegations of 50 different suspects concerning misconduct by Area 2 personnel
20
No. 1-05-1577
current petition was completed on September 28, 1990, ten years before defendant filed his
second postconviction petition. See Orange, 195 Ill. 2d at 445, 749 N.E.2d at 937. Similarly,
defendant’s affidavit, attached to his current successive post-conviction petition, does not
provide any new evidence, as the allegations of coercion are exactly the same as those he raised
in his motion to suppress his statements in 1991. Thus, defendant has not shown cause for not
raising this issue in an earlier proceeding. See Orange, 195 Ill. 2d at 445, 749 N.E.2d at 937.
We recognize, however, that a copy of a party’s response to a motion to bar the
depositions of Mayor Richard M. Daley and other officials in the case of Patterson v. Burge, No.
03-C-4433 (Cir. Ct. Cook Co.) (the Patterson pleading) on which defendant relies as newly
from 1973 to 1986. The allegations included 27 incidents of beatings, 13 incidents where a
plastic bag or typewriter cover was placed over a suspect’s head, 11 incidents where a firearm
was used to threaten or strike a suspect, 9 incidents of electroshock, and 2 hanging incidents.
The report concluded that Area 2 police, [headed by commanding officer Jon Burge], engaged in
systematic abuse of suspects during the 13-year period, which included planned torture.” People
v. Orange, 195 Ill. 2d 437, 445-46, 749 N.E.2d 932, 937 (2001). The second section of the OPS
report is the Sanders report, which is an analysis of the Andrew Wilson case. That report found
that “Burge [himself] actively participated in the ‘mistreatment’ of Wilson, burned Wilson with a
radiator, repeatedly shocked him, and ‘engaged [him] in several unjustified physical altercations
during which Mr. Wilson was handcuffed and incapable of providing any resistance.’” People v.
Patterson, 192 Ill. 2d 93, 141, 735 N.E.2d 616, 643 (2000).
21
No. 1-05-1577
discovered evidence became available only after he filed his second postconviction petition in
2000. This document is dated September 24, 2004, and presumably filed by Aaron Patterson in
his section 1983 (42 U.S.C. §1983 (2000)) case against former Area 2 commander Jon Burge.
However, even though defendant objectively could not have obtained this documents before
filing his second postconviction petition, we find there was ample evidence of police torture
available to him in 2000 that would have allowed him to raise a claim of police coercion at that
time. Moreover, defendant points to no objective reason that would explain why he could not
raise this claim without this additional piece of evidence, and we therefore find that he has failed
to show cause.
However, even if the unavailability of the Patterson pleading is sufficient to establish
cause for failing to raise his claim earlier, defendant cannot establish that he suffered any
prejudice in connection with his claim of coercion because this piece of allegedly “newly
discovered evidence” does not satisfy the standard for granting a new trial. See Orange, 195 Ill.
2d at 450, 749 N.E.2d at 940. “For new evidence to warrant a new trial, the evidence (1) must be
of such conclusive character that it will probably change the result on retrial; (2) must be material
to the issue, not merely cumulative; and (3) must have been discovered since trial and be of such
character that the defendant in the exercise of due diligence could not have discovered it earlier.”
Orange, 195 Ill. 2d at 450-51, 749 N.E.2d at 940, citing People v. Molstad, 101 Ill. 2d 128, 134,
461 N.E.2d 398, 402 (1984).
In light of the overwhelming evidence of defendant’s guilt proffered by the State at
defendant’s plea hearing, there is no probability that the Patterson pleading would change the
22
No. 1-05-1577
result of defendant’s proceeding on retrial. As the factual basis for defendant’s guilty plea, the
State proffered that the evidence would show that on March 30, 1990, defendant fired two shots
from a .25-caliber handgun, killing the victim, and that the same .25-caliber handgun used in the
incident was found in defendant’s possession upon his arrest. The State also proffered that
eyewitnesses to the incident would identify defendant in open court and testify about the
incident. The same eyewitnesses would testify that they had already picked defendant out of a
lineup. In light of this evidence, there is no reasonable probability that, if defendant’s confession
were excluded, he would not have pleaded guilty, and instead would have been found not guilty
of the murder charged.
Moreover, because we have previously recognized that documents prepared in
anticipation of litigation “generally lack the earmarks of trustworthiness and reliability” (People
v. Smith, 141 Ill. 2d 40, 73, 565 N.E.2d 900, 914 (1990)), we find that the Patterson answer is
unreliable. This document is merely a pleading that details allegations of the City of Chicago
withholding documents pertaining to 14 electric shock cases discovered by the OPS report in
1984.
In addition, a review of the Patterson pleading reveals that it contains no information that
would support defendant’s allegations that Detectives Maslanka and McDermott jabbed him with
a billy club and threatened him with a gun. Neither officer is mentioned in that pleading, and the
allegations there involve the use of electric shock which differ from the coercive tactics which
defendant claims were deployed by Detectives Maslanka and McDermott to coerce his
confession. Generalized claims of misconduct, without any link to defendant’s case, i.e., some
23
No. 1-05-1577
evidence corroborating defendant’s allegations, or some similarity between the type of
misconduct alleged by defendant and that presented by the evidence of other cases of abuse, are
insufficient to support a claim of coercion. See People v. Maxwell, 173 Ill. 2d 102, 120-21, 670
N.E.2d 679, 687 (1996) (holding that without some evidence that defendant was injured,
evidence of the treatment of other suspects, through reports of physical abuse and coercion of
confessions at Area 2, could not, by itself, be the basis for a postconviction evidentiary hearing);
People v. Hinton, 302 Ill. App. 3d 614, 626, 706 N.E.2d 1017, 1022-23 (1998) (rejecting
defendant’s contention that he was entitled to an evidentiary hearing on his postconviction
petition because he had new evidence which showed “systematic torture” at Area 2, specifically
an affidavit from an Illinois attorney, OPS reports, findings from the Chicago police board, and
his own affidavit asserting that he was beaten, pistol-whipped, shocked and suffocated, because
defendant did not present sufficient evidence of his own injury); People v. Hobley, 159 Ill. 2d
272, 311-12, 637 N.E.2d 992,1009-10 (1994) (holding it was not error for trial court to bar
testimony of three witnesses who claimed they had also been abused by the same officer who
abused defendant because there was no evidence that the defendant had sustained injuries
consistent with his claim of police brutality); People v. Hobley, 182 Ill. 2d 404, 448-49, 696
N.E.2d 313, 335-36 (1998) (Hobley II) (denying postconviction petitioner’s request to proceed to
an evidentiary hearing, holding that “new evidence” consisting of the OPS report and transcripts
of testimony from other alleged victims of abuse did not alter the court’s determination that
defendant did not suffer injuries consistent with his claims of abuse); People v. Murray, 254 Ill.
App. 3d 538, 553, 626 N.E.2d 1140, 1150 (1993) (holding that defendant’s allegations of abuse
24
No. 1-05-1577
of other suspects were properly excluded because they were “general in nature”); Mahaffey v.
Schomig, 294 F.3d 907, 917 (7th Cir. 2002) (noting that defendant’s failure to produce any
corroborating eyewitness testimony, medical records or supporting evidence dealing with the
injuries he alleges he sustained while in custody significantly undermined his involuntary
confession claim).5
We further find that defendant cannot in this appeal rely on the Report of the Special
State’s Attorney for evidence of coercion in his case. Although we granted defendant’s request
to cite to that report as additional authority, we find that it would be wrong for us to consider that
report for the first time on appeal without it first being attached to defendant’s postconviction
petition for initial scrutiny and evaluation at the trial court level. See 725 ILCS 5/122-2 (West
2002) (“[a postconviction] petition shall have attached thereto affidavits, records, or other
evidence, supporting its allegations (emphasis added)”); People v. Collins, 202 Ill. 2d 59, 66-69,
782 N.E.2d 195, 199-200 (2002) (holding that postconviction petitioner cannot be excused from
the pleading requirements of section 122-2); People v. Turner, 187 Ill. 2d 406, 414, 719 N.E.2d
725, 730 (1999) (holding that failure to attach the necessary affidavits, records or other evidence
or explain its absence is “fatal” to a post-conviction petition); Coleman, 183 Ill. 2d at 380, 701
N.E.2d at 1071, quoting People v. Jennings, 411 Ill. 21, 102 N.E.2d 824 (1952) (holding that
5
We further note that even if we were to hold that the factual allegations in the Patterson
pleading constitute evidence of systematic misconduct at Area 2, the evidence is, at best,
cumulative of previous evidence of Area 2 tactics and therefore not “new.” See Orange, 195 Ill.
2d 450-51, 749 N.E.2d at 940.
25
No. 1-05-1577
failure to attach the necessary documentation by itself justifies the petition’s summary dismissal);
People v. Jefferson, 345 Ill. App. 3d 60, 71, 801 N.E.2d 552, 560 (2003) (holding that, at the first
stage of post-conviction proceedings, “‘[t]he circuit court is required to make an independent
assessment *** as to whether the allegations in the petition, liberally construed and taken as true,
set forth a constitutional claim for relief.’ (Emphasis added) [Citation.] Issues that are raised for
the first time on appeal are by definition not ‘allegations in the petition’”); People v.
Montgomery, 327 Ill. App. 3d 180, 186, 763 N.E.2d 369, 375 (2001) (holding that affidavit
attached on appeal but not as part of defendant’s postconviction petition as required by the Act is
stricken because “appellate review is generally limited to what has been properly presented and
preserved of record in the trial court”).6 Although the Report of the Special State’s Attorney did
6
In an earlier appeal from a denial of a different postconviction petition filed by the same
defendant with respect to another conviction (case No. 90 CR 11984), we did consider, with the
apparent acquiescence of both parties, the impact of the Report of the Special State’s Attorney,
without it first having been filed in the trial court. See People v. Tony Anderson, No. 1-05-1379
(2006) (unpublished order under Supreme Court Rule 23). In that decision, we found that under
the facts of that case coupled, among other things, with the explicit refusal of the Report of the
Special State’s Attorney to support defendant’s contentions with respect to any of his
convictions, that defendant did not sufficiently cross the threshold of cause and prejudice for his
petition to proceed to the second stage of postconviction proceedings. See People v. Tony
Anderson, No. 1-05-1379 (2006) (unpublished order under Supreme Court Rule 23). However,
we recognize in this decision that the better practice would have been not to have considered that
26
No. 1-05-1577
not materialize until after the circuit court had already ruled on defendant’s postconviction
petition,7 we note that neither by statute nor case law is there any limit to the number of
successive postconviction petitions that can be filed with the trial court, so as to enable that court
to first consider any allegedly newly discovered evidence before it is submitted for appellate
review.
Likewise, the same applies to defendant’s argument raised for the first time on appeal that
“several other cases have [recently] emerged” which show Detectives Maslanka’s and
McDermott’s involvement in allegations of abuse at Area 2.8 Because defendant never cited to
report in any event for the first time on appeal without it first having been presented to the trial
court, for the reasons heretofore indicated.
7
The Report of the Special State’s Attorney was completed pursuant to a court order of
the chief judge of the circuit court criminal division entered on April 24, 2002, and released in
July 2006, six years after defendant filed his second postconviction petition, and after defendant
filed the reply brief in the current cause.
8
See People v. Coleman, 206 Ill. 2d 261, 272-73, 278, 794 N.E.2d 275, 283-84, 286-87
(2002) (listing several torture complaints lodged against Detective Maslanka); People v. Brown,
169 Ill. 2d 132, 145-46, 661 N.E.2d 287, 293-94 (1996) (although defendant alleged that
Detectives Maslanka and Paladino were among the Area 3 detectives who ignored his request to
speak to an attorney and “struck him repeatedly on the chest, hands and legs until he agreed to
make a statement,” court held that there was ample support for the trial court’s finding that
defendant’s will was not overborne when he made his inculpatory statements); People v. Clemon,
27
No. 1-05-1577
these cases in his present successive postconviction petition, and as already discussed above, he
cannot introduce them as new evidence for the first time on appeal. See 725 ILCS 5/122-2 (West
2002) (“[a postconviction] petition shall have attached thereto affidavits, records, or other
evidence, supporting its allegations (emphasis added)); People v. Collins, 202 Ill. 2d 59, 68-69,
782 N.E.2d 195, 199-200 (2002) (holding that postconviction petitioner cannot be excused from
the pleading requirements of section 122-2); People v. Jefferson, 345 Ill. App. 3d 60, 71, 801
N.E.2d 552, 560 (2003) (holding that, at the first stage of post-conviction proceedings, “‘[t]he
circuit court is required to make an independent assessment *** as to whether the allegations in
the petition, liberally construed and taken as true, set forth a constitutional claim for relief.’
(Emphasis added) [Citation.] Issues that are raised for the first time on appeal are by definition
not ‘allegations in the petition’”).
Defendant may well contend that even without considering the Report of the Special
State’s Attorney, this case is similar to Patterson, 192 Ill. 2d 93, 735 N.E.2d 616, and People v.
King, 192 Ill. 2d 189, 735 N.E.2d 569 (2000), cases holding that defendants were entitled to
evidentiary hearings based on allegations of newly discovered evidence of police abuse at Area
259 Ill. App. 3d 5, 11, 630 N.E.2d 1120, 1121 (1994) (defendant alleged Detective Maslanka was
one of the officers who coerced a confession from him in September 1991, and court held that
“[a]lthough a [10 ½ - hour] detention generally is not considered unreasonable in itself, when, as
here, the detention is combined with periodic screaming through the night, it supports
defendant’s theory of a coercive environment”).
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No. 1-05-1577
2. We find these cases inapposite. We first note that both King and Patterson involved newly
discovered evidence presented in a first post-conviction petition and not one raised in a
successive post-conviction petition. More importantly, both King and Patterson continue to
require a defendant to show some similarity between his allegations of coercion and the
generalized evidence of police torture at Area 2. See Patterson, 192 Ill. 2d at 118, 73 N.E.2d at
631.
In addition, although in Patterson the court specifically addressed whether the OPS report
was “newly discovered evidence” entitling defendant to an evidentiary hearing to evaluate the
credibility of defendant’s allegations of police abuse, and found that the report was material to
defendant’s claim of coercion because it could change the outcome of defendant’s proceedings
on retrial (Patterson, 192 Ill. 2d at 145, 73 N.E.2d at 645), the evidence used to convict defendant
in that case consisted solely of the testimony of the arresting officer and the State’s Attorney
regarding the substance of defendant’s confession (see Patterson, 192 Ill. 2d at 104-106, 73
N.E.2d at 624-25). Unlike in Patterson, defendant here pleaded guilty to the offense in question,
and the State’s proffer at defendant’s plea hearing indicated that eyewitnesses would identify
defendant in open court as the perpetrator and testify that they had already identified him in a
lineup shortly after the shooting, and that evidence would show that the same .25-caliber
handgun used in the incident was found in defendant’s possession upon his arrest.
Furthermore, unlike here, the Patterson court found that defendant’s allegations that Jon
Burge threatened him with a revolver were “strikingly similar” to allegations of systematic
torture found in the Goldston report, which indicated that “a firearm was [often] used to threaten
29
No. 1-05-1577
or strike the victim” and that Burge was identified as participating in “51% of the cases.” See
Patterson, 192 Ill. 2d at 144-45, 73 N.E.2d at 643, 645 (the question of relevancy “is a
determination to be made by the trial court after a consideration of, inter alia, the defendant’s
allegations of torture and their similarity to the prior allegations”). In the present case, as already
discussed above Detectives Maslanka and McDermott are nowhere mentioned in the Patterson
pleading, and the allegations of torture in that pleading are different from defendant’s allegations
here.
Similarly, in King, the court followed the rationale in Patterson and allowed defendant to
proceed to an evidentiary hearing, where defendant alleged that Burge was present during his
interrogation, and cited to the OPS report and the decision by the Chicago police board
dismissing Burge from his employment as a Chicago police officer as newly discovered
evidence. See King, 192 Ill. 2d at 198-99, 735 N.E.2d at 575-76. Unlike King, where the
defendant’s inculpatory statements “supplied the primary evidence of his guilt” (People v. King,
109 Ill. 2d 514, 521, 488 N.E.2d 949, 953 (1986) (defendant’s direct appeal)), as noted above, in
the case at bar, in light of the overwhelming evidence proffered by the State at defendant’s plea
hearing, there is no likelihood that, had additional evidence of brutality allegations come to light,
preventing the introduction of defendant’s inculpatory statements, he would have proceeded to
trial and been acquitted.
2. Ineffective Assistance of Counsel for “Coercing” Defendant to Plead Guilty
Defendant next contends that the trial court erred when it summarily dismissed his
petition because he stated the gist of a claim of ineffective assistance of counsel in violation of
30
No. 1-05-1577
his sixth and fourteenth amendment rights (U.S. Const., amends. VI, XIV), where counsel
deprived him of his right to due process by “coercing” him to plead guilty. Claims of ineffective
assistance of counsel are analyzed under the two-prong test established in Strickland v.
Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), and
People v. Bloomingburg, 346 Ill. App. 3d 308, 316-17, 804 N.E.2d 638, 645 (2004), which
require defendant to show that (1) his attorney's performance fell below an objective standard of
reasonableness and (2) that the deficient performance so prejudiced the defense as to deny the
defendant a fair trial. Failure to make the requisite showing of either deficient performance or
sufficient prejudice defeats an ineffectiveness claim. People v. Palmer, 162 Ill. 2d 465, 475-76,
643 N.E.2d 797, 801 (1994). We review the decision of the circuit court de novo. Coleman, 183
Ill. 2d at 387-88, 701 N.E.2d at 1075.
Defendant asserts that counsel “coerced” him into pleading guilty because he continually
told defendant that he “would be put to death if [he] took the case to trial” and because he failed
to investigate defendant’s claims that his confession was coerced. The State argues that
defendant’s claim is barred by the doctrine of res judicata. We agree.
Defendant raised the same exact allegations in both his original and second
postconviction petitions, where he alleged that he was deprived of effective assistance of counsel
when counsel “coerced” him to plead guilty through repeated statements that if he proceeded to
trial, he would receive the death penalty. Each time, the court found defendant’s allegations
without merit. As this claim has been raised and rejected by the circuit court twice, we find that
defendant is barred by the doctrine of res judicata from relitigating it here. Blair, 215 Ill. 2d at
31
No. 1-05-1577
443, 831 N.E.2d at 615.
However, even if we were to relax this procedural bar, and consider the merits of
defendant’s claim, we would find that he cannot state the gist of a meritorious claim of
ineffective assistance of counsel, because his assertion that his guilty plea was made
involuntarily as a result of counsel’s “coercion” is directly refuted by the record below. See
People v. Greer, 212 Ill. 2d 192, 211, 817 N.E.2d 511, 523 (2004); People v. Jones, 144 Ill. 2d
242, 263, 579 N.E.2d 829, 838 (1991).
The record reflects that at the August 9, 1991, plea hearing, counsel informed the court
that pursuant to the July 26, 1991 and July 30, 1991 conferences, defendant wished to change his
pleas to guilty. The following colloquy regarding case no. 90 CR 11979 then took place:
“THE COURT: Next is 90-11979 which states that on or about March 30
of 1990 at and within the County of Cook, you, Tony Anderson, committed the
offense of first degree murder in that you without lawful justification intentionally
and knowingly shot and killed Leonard Cox with a gun. To that count of that
indictment do you wish to enter a plea?
MR. ANDERSON: Yes. Guilty
***
THE COURT: Before I accept your pleas of guilty in these various
matters I want to advise you of your rights and attempt to determine if you
understand them.
I have read the various counts of these various indictments and/or
32
No. 1-05-1577
informations to you. Do you understand them?
MR. ANDERSON: Yes.
THE COURT: Do you understand that on a plea of guilty to these counts
of these indictments you could be sentenced as follows: As to the charge of first
degree murder the possible penalties are not less than twenty nor more than sixty
years in the Illinois Department of Corrections or under certain circumstances an
extended term of not less than sixty nor more than one hundred years in the
Illinois Department of Corrections. As to the - State, this is not a possible - That
was not a possible death penalty? (Emphasis added)
[THE STATE]: No, Your Honor.
THE COURT: Okay, All right.” (Emphasis Added).
The record further reflects that the court explained to defendant what jury and bench trials
are and what he would be giving up by waiving his right to either or both. The court further
advised defendant that by entering a guilty plea, he would be giving up other rights, including his
right to remain silent, his right to confront the witnesses against him, his right to cross-examine
them, his right to present evidence on his own behalf, his right to object to unreasonable searches
and seizures and his right to object to identification testimony. Defendant acknowledged these
admonishments and signed a jury waiver form in open court before the judge.
The record also shows that the court further reminded defendant that there had been
“some *** very lengthy discussions” between defense counsel, the assistant State’s Attorney and
the court, concerning the facts of the case, and defendant’s background. After these discussions,
33
No. 1-05-1577
the State had indicated that if defendant chose to plead guilty, it would recommend a sentence of
50 years. Defendant indicated that he understood. The court finally asked defendant if anybody
had threatened him in any way, made him any other promises, or forced him to plead guilty, and
defendant responded in the negative.
Thus, the record itself refutes defendant’s contention that he was “coerced” into pleading
guilty when counsel told him that he would otherwise receive the death sentence. The State
made it clear during plea negotiations that “this was not a possible death penalty,” and defendant
acknowledged that he understood. Moreover, when asked if he was threatened into entering a
guilty plea, defendant stated “No.” Therefore, we find that the record demonstrates that
defendant’s postconviction allegation of ineffective assistance of counsel is frivolous on its face
and patently without merit. See Jones, 144 Ill. 2d at 263, 579 N.E.2d at 838 (defendant’s
acknowledgment in open court, at a plea proceeding, that there were no agreements or promises
regarding his sentence served to contradict his postconviction petition assertion that he pleaded
guilty in reliance upon an alleged, undisclosed promise by defense counsel regarding sentencing);
People v. Rissley, 206 Ill. 2d 403, 454, 795 N.E.2d 174, 202 (2003) (defendant’s allegations were
“totally contradicted by the record of the plea”); People v. Maury, 287 Ill. App. 3d 77, 83, 678
N.E.2d 30, 34 (1997) (defendant’s declaration in his postconviction petition that his plea was
involuntarily entered based on the erroneous advice of trial counsel was directly refuted by the
record, which indicated that defendant answered “no” when the circuit court inquired whether
any extraneous promises had been made to him).
We next consider defendant’s assertion that counsel “coerced” him to plead guilty by
34
No. 1-05-1577
failing to investigate his allegations of police coercion. We first note that, as already discussed
above, a claim of ineffective assistance of counsel is barred, if defendant fails to demonstrate
cause and prejudice or actual innocence for not raising it in his earlier postconviction petitions.
Morgan, 212 Ill. 2d at 153, 817 N.E.2d at 527. In the present case, defendant has not made a
showing of either cause or prejudice. Defendant merely asserts that the objective reason for his
failure to raise this claim earlier is the “newly discovered nature of the evidence that he cites,
attaches and relies upon in his petition.” As noted above, we have already found that this
information was not “newly discovered evidence” at the time defendant filed his second
postconviction petition in 2000.
However, even if we were to relax the rule of waiver and consider purely the merits of
defendant’s claim that counsel was ineffective for failing to investigate his claims of coercion,
we would find that he cannot state the gist of a meritorious claim of ineffective assistance of
counsel, because counsel’s failure to investigate defendant’s claim of police misconduct did not
fail to meet reasonable professional standards. The right to effective assistance refers to
competent and not perfect representation (People v. Odle, 151 Ill. 2d 168, 173, 601 N.E.2d 732,
735 (1992)), and mistakes in judgment will not, of themselves, render the representation
incompetent (Palmer, 162 Ill. 2d at 476, 643 N.E.2d at 801-02). We accord a heavy measure of
deference to counsel’s decision regarding whether to investigate allegations of abuse (see People
v. Deloney, 341 Ill. App. 3d 621, 636, 793 N.E.2d 189, 201 (2003), citing Orange, 168 Ill. 2d at
149, 659 N.E.2d at 940-41), and counsel only has a duty to make “reasonable investigations or to
make a reasonable decision which makes particular investigations unnecessary” (see Orange, 168
35
No. 1-05-1577
Ill. 2d at 149, 659 N.E.2d at 940, citing People v. Harris, 129 Ill. 2d 123, 158, 544 N.E.2d 357,
372 (1989)). Where the circumstances known to counsel at the time of investigation do not
reveal a sound basis for inquiry into a certain issue, it is not ineffective for counsel to forgo
further inquiry. Hinton, 302 Ill. App. 3d at 619-24, 706 N.E.2d 1021-24 (holding that defendant
had not established there was a sound basis for further inquiry where there was no evidence of
injury other than defendant’s testimony and his allegation that counsel failed to introduce his
bloody shirt); Orange, 168 Ill. 2d at 150, 659 N.E.2d at 940-41 (not ineffective to forgo inquiry
where the only evidence supporting defendant’s allegation of abuse was his testimony and a
questionable entry on a paramedic’s report).
In the present case, defendant’s initial defense counsel filed a motion to suppress
defendant’s inculpatory statements and a hearing was held. Defendant himself admitted at the
hearing on that motion that he was given a physical examination after his interrogation and that
this examination revealed no bruises or physical injuries corroborating his allegations of abuse.
Moreover, there was no witness to the alleged brutality.
In addition, at the time defendant entered his guilty pleas, the only evidence to support
defendant’s allegation of coercion were generalized claims of torture at Area 2. Because, as
noted above, generalized allegations of coercive activity in Area 2, without other corroborative
evidence, would not establish that this defendant was coerced into confessing, we find that it was
not unreasonable for plea hearing counsel to curtail his investigation after the motion to suppress
was denied. See People v. Titone, 151 Ill. 2d 19, 30, 600 N E.2d 1160, 1165 (1992) (our
supreme court affirmed the circuit court's dismissal of defendant's postconviction petition
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alleging bribery between defense counsel and the trial judge because an investigation into the
judge's conduct in unrelated cases was not germane to defendant's claim); People v. Zambrano,
266 Ill. App. 3d 856, 864, 640 N.E.2d 1334, 1340 (1994) (in affirming the dismissal of
defendant's postconviction petition alleging ineffective assistance of counsel, this court found
that the fact that defendant's attorney was being investigated for improprieties in non-related
cases was insufficient to taint other cases counsel had worked on); Hinton, 302 Ill. App. 3d at
625, 706 N.E.2d at 1024 (court held that it was not reasonably probable that a motion to suppress
defendant’s statement would have been granted had trial counsel investigated further, because
there were no medical reports to bolster defendant’s claim of abuse, nor any photographs of
injuries or supporting witness testimony). Obviously, the competency of counsel cannot be
measured in hindsight by matters which may have come to light after he was called upon to act,
but must be viewed under the circumstances present at the time his action, or for that matter,
inaction, took place.
Finally, we concluded earlier in this opinion that in light of the overwhelming evidence
proffered by the State at defendant’s plea hearing, it is not likely that, had additional evidence of
brutality allegations come to light and prevented the introduction of defendant’s confession,
defendant would have proceeded to trial and been acquitted. Accordingly, we cannot find here
that the outcome of defendant’s proceedings would have been different, but for counsel’s failure
to obtain the same information, under the second prong of Strickland, 466 U.S. at 694, 80 L. Ed.
2d at 698, 104 S. Ct. at 2068.
3. Brady Violation
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Defendant next contends that his petition states the gist of a meritorious claim under
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), because the State
violated his due process right by failing to disclose, prior to his guilty plea, exculpatory evidence
of voluminous claims of Area 2 police torture “echoing” defendant’s claims of coercion.
Defendant specifically alleges that the State withheld evidence that Detectives McDermott and
Maslanka committed misconduct at Area 2, and that Assistant State’s Attorney Kip Owen, who
litigated defendant’s suppression hearing, had knowledge of this evidence at the time of
defendant’s plea hearing. Defendant specifically alleges that Owen “was intimately acquainted
with Area 2 for the relevant time period, worked in felony review when many claims of Area 2
torture were filed and even participated in the questioning in the Patterson case.” We disagree.
Illinois courts have long recognized that a criminal defendant’s right to due process and a
fair trial is violated by the prosecution’s failure to disclose material evidence favorable to the
defense and that such claims are cognizable in postconviction proceedings. People v. Harris, 206
Ill. 2d 1, 44, 794 N.E.2d 314, 341 (2002); Hobley II, 182 Ill. 2d at 429-32, 696 N.E.2d at 326-32.
To establish a Brady violation, defendant must show that the suppressed evidence was both
material and favorable to his defense. Evidence is material if there is a reasonable probability
that the result of defendant’s trial would have been different had the prosecution disclosed the
evidence. People v. Thomas, 364 Ill. App. 3d 91, 101, 845 N.E.2d 842, 852-53 (2006). A
reasonable probability of a differing result is one sufficient to undermine confidence in the actual
outcome. Thomas, 364, Ill. App 3d at 101, 845 N.E.2d at 852-53. Accordingly, to succeed on a
claimed Brady violation, a defendant must demonstrate that (1) the undisclosed evidence is
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favorable to him because it is either exculpatory or impeaching, (2) the evidence was either
willfully or inadvertently withheld by the State, and (3) withholding the evidence resulted in
prejudice to him. People v. Rapp, 343 Ill. App. 3d 414, 418, 797 N.E.2d 738, 741 (2003).
The State first argues that the disclosure requirement of Brady applies only to a trial and
not to a plea hearing, and cites to cases from the Eight, Fifth, and Ninth Circuits which have held
that a guilty plea waives a Brady violation claim. Defendant responds that the Second, Sixth and
Tenth Circuits allow a defendant to proceed with a Brady claim despite the entry of a guilty plea.
We note both that our courts have not addressed this issue and that the United States Supreme
Court has yet to answer whether the due process clause requires Brady disclosures outside of the
context of trial. However, for purposes of this appeal, we find that we need not decide this issue
because defendant has waived his Brady claim by failing to raise it in his original and second
postconviction petitions. As detailed above, the exhibits submitted in support of defendant’s
claim were discoverable prior to his filing his second postconviction petition in 2000. Moreover,
even assuming that the State did possess such evidence of misconduct at Area 2 at the time of
defendant’s plea hearing, and that defendant could not have discovered it at the time he filed his
original postconviction petition, defendant cannot meet the Brady materiality test because, as
discussed above, there is no reasonable probability that, had such evidence of systematic torture
at Area 2 been disclosed to the defense, the result of defendant’s proceedings would have been
different.
CONCLUSION
For the foregoing reasons, we find that defendant's postconviction petition was properly
dismissed for failing to state any meritorious claims. Accordingly, we affirm the order of the
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circuit court of Cook County.
AFFIRMED.
FITZGERALD SMITH, P. J., and McNULTY, J., concur.
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