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10/28/94 PEOPLE STATE ILLINOIS v. BENNIE CUNNINGHAM

October 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
BENNIE CUNNINGHAM, PETITIONER-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE MATTHEW J. MORAN, JUDGE PRESIDING.

As Corrected November 29, 1994. Released for Publication December 16, 1994. Petition for Rehearing Denied January 23, 1995.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Following the affirmance, on appeal, of his conviction and subsequent sentence for an extended term of 70 years for murder, 30 years for attempted murder, and 15 years for attempted armed robbery, petitioner, Bennie Cunningham, filed a post-conviction petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq. (now codified, as amended as 725 ILCS 5/122-1 et seq. (West 1992))) alleging that his constitutional rights were violated during his trial and direct appeal in that: (1) the wrong constitutional standard was applied in assessing the admissibility of an extrajudicial third party confession under the declarations against penal interest exception to the hearsay rule, (2) petitioner was denied effective assistance of counsel at trial because his trial attorney did not assert that the extended term sentencing statute authorizing a sentence to a term of years for "brutal and heinous behavior" was unconstitutional as applied to petitioner, and (3) petitioner was denied effective assistance of appellate counsel because his counsel on direct appeal did not argue that the language of the extended term sentencing statute was unconstitutional as applied to petitioner. In a motion to dismiss the petition, the State argued that (1) the correct constitutional standard as dictated by case law at that time was applied in determining the admissibility of the third party confession and even if the standard articulated in People v. Bowel (1986), 111 Ill. 2d 58, 67, 488 N.E.2d 995, 94 Ill. Dec. 748, had been applied, this court nevertheless would have concluded that the confession was inadmissible, (2) the newly discovered evidence does not cure the unreliability of the third party confession nor satisfies the requirements for the admissibility of newly discovered evidence and, in any event, the new evidence is hearsay, (3) this court's consideration of the propriety of the sentencing statute's applicability to petitioner on direct appeal operates as res judicata and thus bars any subsequent consideration of that issue under a constitutional veil of a claim for ineffective assistance of counsel, and (4) assuming that a claim for ineffective assistance of counsel is not barred, such an action in the present case is without merit because the language of the extended term sentencing statute is constitutionally valid on its face and as it was applied to petitioner. The trial court dismissed the petition. Petitioner appeals.

We affirm.

BACKGROUND

Following a jury trial in the circuit court of Cook County, petitioner, Bennie Cunningham was convicted of the murder of Suhalia Matariyeh, the attempted murder of Kahlil Matariyeh, and the attempted armed robbery of Tina's food and liquor store which was operated by the Matariyeh family. After a determination by the trial court that "the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty" (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(2), petitioner was sentenced to an extended term of 70 years for murder as well as a term of 30 years for attempted murder and 15 years for attempted robbery, all terms to be served concurrently. On direct appeal to this court, petitioner's conviction and subsequent sentence for each offense was affirmed. (See People v. Cunningham (1984), 130 Ill. App. 3d 254, 473 N.E.2d 506, 85 Ill. Dec. 138.) The Supreme Court of Illinois denied petitioner's request for leave to appeal. (See People v. Cunningham (1985), 102 Ill. 2d 556, (April 2, 1985), No. 61343.) Petitioner later filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois which was dismissed by that court and the United States Court of Appeals for the Seventh Circuit subsequently affirmed the district court's decision. (See Cunningham v. Peters (7th Cir. 1991), 941 F.2d 535.) Petitioner subsequently filed a petition in the case sub judice under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq. (now codified, as amended, as 725 ILCS 5/122-1 et seq. (West 1992))).

Since petitioner does not maintain that his conviction was not supported by the evidence, the facts relating to the underlying crimes involved in the present case will not be set out here. Rather, the salient facts will be discussed as they are germane to the issues on review. Moreover, it is well established that a post-conviction proceeding is not one wherein a petitioner's guilt or innocence is assessed, but rather it is a new proceeding which examines the constitutional phases of the original conviction which have not previously been determined. See People v. Flowers (1990), 138 Ill. 2d 218, 238, 561 N.E.2d 674, 149 Ill. Dec. 304; People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868, 85 Ill. Dec. 269.

I

Initially, petitioner contends that the post-conviction trial court erred in dismissing his claims regarding the admissibility in his initial trial of a statement made by one Vincent Yoakum [sic] to a defense investigator and two attorneys that he (Yoakum [sic]) and two other men were the gunmen in the March 12, 1981 shooting at Tina's food and liquor store and that petitioner was not involved. Petitioner argues that this court applied the incorrect constitutional standard of admissibility when it determined that the testimony of the defense investigator as to Yoakum's [sic] statement was inadmissible under the declarations against penal interest exception to the hearsay rule (see Cunningham, 130 Ill. App. 3d at 264-65, 473 N.E.2d 506 (interpreting Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S.Ct. 1038, 1048-49 to require the presence of four objective indicia of trustworthiness for the admissibility of declarations against penal interest)), and that if this court had applied the correct standard (see Bowel, 111 Ill. 2d at 67, 488 N.E.2d 995 (holding that the four factors enumerated in Chambers were "to be regarded simply as indicia of trustworthiness and not requirements of admissibility"), this court would have reversed the trial court's determination that the statement was inadmissible. In addition, petitioner maintains that the post-conviction trial court erroneously rejected an affidavit of one Burnette Cowart which would have established that at some point in March, 1981, one Floyd Murray, an intimate friend of Miss Cowart, came to see her and told her that he (Floyd Murray) and Vincent Yoakum [sic] "had tried to stick up an Arab liquor store." Petitioner posits that the affidavit sufficiently corroborates the statement by Vincent Yoakum [sic] so as to enhance its reliability to the requisite level of trustworthiness to merit its admissibility under the constitutional standard articulated in Bowel, 111 Ill. 2d at 67, 488 N.E.2d 995.

The State, however, responds that the trial court in the post-conviction proceeding properly dismissed petitioner's claims regarding the admissibility of Yoakum's [sic] statement because this court, in petitioner's initial appeal, applied the constitutional standard dictated by case law at that time. The State maintains that the standard articulated in Bowel cannot be applied retroactively to petitioner and that, even under the standard now applicable, Yoakum's [sic] statement lacks the requisite indicia of reliability to be admissible. The State further argues that the post-conviction trial court properly dismissed petitioner's claims based upon Miss Cowart's affidavit because the affidavit neither provides the requisite indicia of trustworthiness for the admissibility of Yoakum's [sic] confession nor complies with the rules governing the admissibility of newly discovered evidence.

Prior to our supreme court's declaration in Bowel, Illinois courts interpreted Chambers to constitutionally require the presence of the following four objective indicia of trustworthiness as a precondition for admitting statements under the declarations against penal interest exception to the hearsay rule: (1) the statement was made spontaneously or shortly after the crime to a close acquaintance; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and a declaration against interest; and (4) there was an adequate opportunity for cross-examination of the declarant. (See, e.g., People v. Tate (1981), 87 Ill. 2d 134, 143-45, 429 N.E.2d 470, 57 Ill. Dec. 572; People v. Craven (1973), 54 Ill. 2d 419, 427-29, 299 N.E.2d 1, 5-6; People v. Newell (1985), 135 Ill. App. 3d 417, 427, 481 N.E.2d 1238, 90 Ill. Dec. 327; People v. Nally (1985), 134 Ill. App. 3d 865, 871-72, 480 N.E.2d 1373, 89 Ill. Dec. 630; Cunningham, 130 Ill. App. 3d at 264-65, 473 N.E.2d 506; People v. Garza (1981), 92 Ill. App. 3d 723, 736, 415 N.E.2d 1328, 48 Ill. Dec. 44.) In Bowel, however, our supreme court held that the four factors which the United States Supreme Court enumerated in Chambers were merely guideposts of reliability and the true test is whether the declaration was made under circumstances demonstrating considerable assurance as to its reliability as measured by objective indicia of trustworthiness. See Bowel, 111 Ill. 2d at 67, 488 N.E.2d 995.

We disagree with petitioner's contention that Bowel should be applied retroactively to a collateral post-conviction proceeding. In Flowers, 138 Ill. 2d at 237, 561 N.E.2d 674, our supreme court embraced the holding of the United States Supreme Court in Teague v. Lane (1989), 489 U.S. ...


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