People v. Howery , 2019 IL App (3d) 160603 ( 2019 )

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Appellate Court Date: 2019.07.15
08:36:52 -05'00'
People v. Howery, 2019 IL App (3d) 160603
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BERNON L. HOWERY, Defendant-Appellant.
District & No. Third District
Docket No. 3-16-0603
Filed March 21, 2019
Decision Under Appeal from the Circuit Court of Kankakee County, No. 89-CF-739;
Review the Hon. James B. Kinzer, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Peter A. Carusona, and Santiago A. Durango, of
Appeal State Appellate Defender’s Office, of Ottawa, for appellant.
Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, David J.
Robinson, and Justin A. Nicolosi, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McDADE delivered the judgment of the court, with
opinion.
Presiding Justice Schmidt and Justice Lytton concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Bernon L. Howery, appeals the denial of his pro se motion for leave to file a
successive postconviction petition and motion for discovery. We affirm.
¶2 I. BACKGROUND
¶3 Defendant is currently serving a sentence of life imprisonment after a jury found him guilty
of four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2)), four counts of
felony murder (id. ¶ 9-1(a)(3)), and one count of aggravated arson (id. ¶ 20-1.1). The evidence
presented at trial was exhaustively reviewed in defendant’s direct appeal. People v. Howery,
178 Ill. 2d 1 (1997). For clarity, we will discuss only the facts relevant to the instant appeal.
¶4 On December 9, 1989, a fire occurred at the home of defendant’s ex-girlfriend, Linda
Walls. The fire killed Walls’s four children (defendant was the father of three of the children).
¶5 At trial, the State presented expert witness John DeHann, a criminalist for the California
Department of Justice Bureau of Forensic Services in Sacramento. Id. at 21. DeHann testified
as to the cause and origin of the fire. Id. He investigated the scene of the fire shortly after the
incident and explained that two separate fires occurred in the house. Id. One fire occurred in a
pile of clothing in the basement, while the other fire occurred underneath the stairwell on the
first floor of the house. Id. DeHann stated that the first-floor fire and the basement fire were
two separate fires. Id. He ruled out accidental causes of the fires. Id. at 22. DeHann opined that
the first-floor fire was deliberately started by a direct flame ignition due to the quick
progression of the fire and the absence of an accidental basis for the fire. Id. DeHann further
stated that the existence of two separate and unrelated fires in the home also led him to believe
that the fires were deliberately started by someone. Id.
¶6 In defendant’s case-in-chief, he presented his own expert witness, Charles Neuf. Id. at 25.
Neuf, an expert in forensic science, investigated the crime scene approximately 11 months
after the fire. Id. Neuf believed that the fires on the first floor and in the basement were related.
Id. Disagreeing with DeHann, Neuf opined that the first-floor fire caused the fire in the
basement. Id. Neuf did not have an opinion as to the cause of the fire on the first floor. Id.
¶7 While serving his sentence, defendant appealed his convictions and sentence and initiated
several collateral proceedings, which are not relevant to this appeal. People v. Howery, No.
3-05-0674 (2007) (unpublished order under Illinois Supreme Court Rule 23); People v.
Howery, 2011 IL App (3d) 090650-U. Relevant to this appeal is defendant’s pro se motion for
leave to file a successive postconviction petition. Defendant’s motion alleged that new
developments in the field of fire and arson forensic science constituted new evidence of his
actual innocence. Defendant failed to bring this claim in his previous postconviction petition
because the new developments in fire and arson forensic science did not exist at the time he
filed his first postconviction petition. Defendant believed that the new developments
demonstrated that the State’s expert witness’s opinion at trial was based on misleading and
antiquated beliefs about fire technology.
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¶8 Defendant attached a proposed pro se successive postconviction petition to his motion for
leave.1 The proposed successive petition repeated defendant’s claim that new developments
demonstrated that the expert testimony as to the cause of the fire was based on misleading and
antiquated beliefs that were now proven unreliable. Defendant’s pro se successive
postconviction petition did not identify which portion of the State’s forensic expert’s
testimony he believed was now unreliable. Defendant did not explain how fire science had
changed or how those changes would have affected the outcome in his case. Defendant also did
not explain how the changes in fire and arson technology demonstrated his innocence.
¶9 After review, the circuit court found that defendant’s pro se motion for leave and the
proposed successive postconviction petition failed to allege any prejudice. The court also
found that defendant failed to allege that he was actually innocent. The court concluded that
defendant’s pleadings were nothing more than a request for a court-ordered fishing expedition.
The court denied defendant leave to file his successive postconviction petition.
¶ 10 Next, defendant filed a motion to reconsider. The motion again argued that changes in fire
science supported his actual innocence claim. Defendant then asserted that the State should be
ordered to provide defendant with evidence regarding the new developments in fire science,
including a copy of NFPA 921: Guide for Fire and Explosion Investigations (Nat. Fire
Protection Ass’n 2017 ed.) (NFPA 921). Defendant also filed a free-standing motion for
discovery, requesting a copy of NFPA 921.2 Defendant asserted that he was unsuccessful in
obtaining the discovery on his own. Defendant claimed that the publication was essential to his
actual innocence claim. According to defendant, “NFPA 921’s explanations of non-arson
causes for multiple non-communicating fires can probably make sense of the two fires in the
instant case, eliminating defendant as the arsonist, and proving defendant is an innocent man.”
¶ 11 Ultimately, the circuit court denied defendant’s motion to reconsider. The court also
denied defendant’s free-standing motion for discovery on the basis that defendant failed to
provide any legal authority to support the motion.
¶ 12 II. ANALYSIS
¶ 13 For clarity, we note that defendant frames his argument on appeal by claiming that the
circuit court erred in denying his pro se motion for leave to file a successive postconviction
petition and his free-standing motion for discovery. However, defendant does not ask this
court to reverse the denial of his motion for leave to file a successive postconviction petition.
Instead, defendant asks for the cause to be remanded “for the limited purpose of allowing the
trial court to exercise its discretion on defendant’s discovery request and for such further
proceedings as may be warranted.” While defendant condenses the court’s rulings on each
motion into a single argument, we discuss each motion (for leave to file a successive
postconviction petition and for discovery) separately.
1
Defendant raised other claims in his proposed successive postconviction petition. However,
defendant does not make any argument that these claims have merit in this appeal. We will not address
the points not argued by defendant on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
2
Defendant’s motion to reconsider and motion for discovery also raised other issues which are not
challenged on appeal. Therefore, we do not address those contentions. See Ill. S. Ct. R. 341(h)(7) (eff.
Nov. 1, 2017).
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¶ 14 First, defendant contends that the circuit court should have allowed him leave to file a
successive postconviction petition because his allegations sufficiently alleged a colorable
claim of actual innocence. Alternatively, defendant contends that his motion for leave to file a
successive postconviction petition sufficiently alleged cause and prejudice. Specifically,
defendant contends that developments in fire and arson forensic science after his trial call into
question the reliability of the State’s forensic expert’s testimony as to the cause of the fire.
¶ 15 Initially, we note that defendant’s entire argument on this issue is based on NFPA 921.
That publication was not included in either defendant’s motion for leave to file a successive
postconviction petition or his proposed successive postconviction petition. In fact, defendant
did not reference NFPA 921 at all in his argument. As he did not include this information in his
proposed successive postconviction petition, it is not properly before this court. People v.
Anderson, 375 Ill. App. 3d 121, 139 (2006) (appellate court cannot consider evidence “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”). Based on the record before us, we find
defendant’s unsupported claim fails to meet either standard a defendant is required to meet to
obtain leave to file a successive postconviction petition.
¶ 16 There are two ways a defendant may obtain leave of court to file a successive
postconviction petition. First, a defendant must establish cause and prejudice for the failure to
raise the claim earlier. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). Or, second,
defendant must show actual innocence. Id. Under either standard, a defendant not only has the
burden to obtain leave of court, but also “must submit enough in the way of documentation to
allow a circuit court to make that determination.” People v. Tidwell, 236 Ill. 2d 150, 161
(2010).
¶ 17 Here, defendant’s claim failed to identify the evidence that he believed was unreliable, how
fire and arson forensic science had changed since his trial, how the new developments affected
the fairness of his trial, or how these developments demonstrated his innocence. Defendant’s
claim also lacked any documentary support. At best, defendant merely speculated that possible
changes in fire and arson forensic science may have affected the outcome in his case.
Defendant, therefore, failed to satisfy the cause and prejudice standard and the actual
innocence standard. Thus, the circuit court did not err when it denied defendant’s motion for
leave to file a successive postconviction petition.
¶ 18 Having found that the court did not err when it denied defendant leave to file a successive
postconviction petition, we turn to defendant’s argument that the court erred in denying his
freestanding motion for discovery. In the motion, defendant sought to obtain NFPA 921
(which defendant’s appellate counsel has now obtained and discussed at length in his appellate
brief), which he claimed was essential to his successive postconviction argument. Defendant
contends that the court erred when it denied the motion for discovery based on defendant’s
failure to provide statutory authority allowing discovery. Therefore, defendant asks this court
to remand the matter to exercise its discretion and rule on the motion. Because defendant filed
his motion for discovery after the circuit court denied defendant leave to file a successive
postconviction petition, we find the discovery request was untimely.
¶ 19 Both parties agree that the circuit court has inherent authority to order discovery in
postconviction proceedings following a hearing for “good cause shown.” People ex rel. Daley
v. Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v. Fair, 193 Ill. 2d 256, 264-65 (2000). For
example, it is clear that postconviction discovery is allowed while a postconviction petition
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remains pending. See People v. Pinkston, 2013 IL App (4th) 111147, ¶ 18. The instant case,
however, is unique in that the request for discovery occurred after the circuit court denied
defendant’s motion for leave to file a successive postconviction petition. After an exhaustive
review of the law, we were unable to find any published decision that addresses the unique
procedural posture in this case. Nevertheless, under the present circumstances, we find that the
court did not err when it denied defendant’s discovery motion.
¶ 20 Once a motion for leave to file a successive postconviction petition is denied, a defendant
can either file a motion to reconsider or challenge the denial on appeal. People v. Blair, 215 Ill.
2d 427, 451 (2005). A motion for discovery is neither. “The purpose of a motion to reconsider
is to bring to the court’s attention (1) newly discovered evidence that was not available at the
time of the first hearing, (2) changes in the law, or (3) errors in the court’s application of
existing law.” People v. Teran, 376 Ill. App. 3d 1, 4-5 (2007) (citing Merchants Bank v.
Roberts, 292 Ill. App. 3d 925, 929 (1997)). Likewise, an appeal is meant to challenge matters
addressed below, and a party is generally barred from raising new issues on appeal. See Ill. S.
Ct. R. 615(a).
¶ 21 Here, defendant’s belated request for discovery was procedurally improper. Defendant’s
motion sought to obtain evidence that he speculated may support his successive postconviction
claims. Simply put, this is not the purpose of a motion to reconsider. Moreover, the
information defendant requested was not newly discovered, as he was aware of the materials
he sought at the time he filed his motion for leave to file a successive postconviction petition.
See generally People v. English, 2014 IL App (1st) 102732-B, ¶ 49 (noting that evidence is not
considered newly discovered “if it presents facts already known to the defendant, even if the
source of those facts was unknown, unavailable or uncooperative”). Accordingly, we find no
basis for the circuit court to consider defendant’s motion for discovery.
¶ 22 Even if we were to find that the circuit court had discretion to rule on defendant’s belated
discovery motion, we find that remand is unnecessary in this case. Defendant’s appellate
counsel is in possession of NFPA 921, as he has thoroughly reviewed its contents in his
appellate brief. Defendant’s appellate counsel can provide defendant with this information.
Should defendant choose to file a new motion for leave to file a successive postconviction
petition, he can incorporate NFPA 921 into his pleadings.
¶ 23 In reaching our conclusion, we reject defendant’s reliance on Pinkston, 2013 IL App (4th)
111147, for the proposition that this court should remand the matter for the limited purpose of
allowing the court to consider the merits of his motion for discovery. In Pinkston, defendant
filed a pro se postconviction petition. Id. ¶ 1. While the postconviction proceedings were still
ongoing, defendant filed a motion for discovery seeking exculpatory evidence. Id. ¶ 6. The
circuit court denied the motion for discovery based on its belief that postconviction discovery
was not allowed. Id. ¶ 7. The appellate court disagreed, noting that the circuit court had the
inherent authority to allow postconviction discovery. Id. ¶ 13. The appellate court also noted
that the circuit court committed error by refusing to exercise its discretion due to the court’s
mistaken belief that it lacked such discretion. Id. ¶ 14. Therefore, the appellate court remanded
the cause to allow the circuit court to exercise its discretion regarding defendant’s motion for
discovery. Id. ¶ 20.
¶ 24 Unlike the defendant in Pinkston, defendant here requested discovery after the circuit court
denied his motion for leave to file a successive postconviction petition. This procedural
distinction is significant. As noted above (supra ¶ 19), the proceedings in this case were
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completed prior to the filing of the motion for discovery. Discovery at this stage of the
proceedings would not affect the court’s denial of defendant’s request for leave to file a
successive postconviction petition. Defendant in Pinkston, by contrast, filed his motion for
discovery while his pro se postconviction petition remained pending. See 725 ILCS 5/122-5
(West 2016). In other words, the circuit court in Pinkston had not yet made a determination on
defendant’s postconviction petition.
¶ 25 III. CONCLUSION
¶ 26 The judgment of the circuit court of Kankakee County is affirmed.
¶ 27 Affirmed.
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