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05/25/95 PEOPLE STATE ILLINOIS v. VERNEAL JIMERSON

May 25, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
VERNEAL JIMERSON, APPELLANT.



Chief Justice Bilandic delivered the opinion of the court:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, Verneal Jimerson, was found guilty of the murders of Larry Lionberg and Carol Schmal. The defendant waived his right to a jury at his death sentencing hearing, and the circuit court sentenced the defendant to death. On direct appeal to this court, the defendant's convictions and death sentence were affirmed. ( People v. Jimerson (1989), 127 Ill. 2d 12, 129 Ill. Dec. 124, 535 N.E.2d 889.) The defendant subsequently filed a petition for post-conviction relief. The circuit court summarily dismissed the defendant's petition, without conducting an evidentiary hearing. The defendant appeals to this court from the dismissal of his post-conviction petition. 134 Ill. 2d R. 651(a).

For the reasons that follow, we reverse the judgment of the circuit court and remand this cause for a new trial.

FACTS

On May 12, 1978, the bodies of Larry Lionberg and Carol Schmal were found in East Chicago Heights, Illinois. Schmal was found inside a vacant townhouse, and Lionberg was discovered by a creek near the townhouse. Lionberg had been shot in the head and the back. Schmal had been repeatedly raped and had been shot twice in the head. The couple had apparently been abducted from the service station at which Lionberg was working the nightshift.

Shortly after the murder victims were discovered, investigators for the Cook County sheriff's police department interviewed Paula Gray at the Homewood sheriff's police station. Gray, then 17 years old, lived near the location where the bodies of Lionberg and Schmal were found. Gray eventually gave a statement implicating herself, her boyfriend Kenneth Adams, Dennis Williams, William Rainge and the defendant in the crimes. Gray stated that Lionberg and Schmal were taken into an abandoned townhouse, where Schmal was taken upstairs and Lionberg was kept downstairs. Schmal was raped by the males while Gray held a lighter to illuminate the room in which the rapes were occurring. Schmal was then shot by Dennis Williams twice in the head, while the defendant was downstairs with Lionberg. Lionberg was then taken to a nearby creek, where he was shot two times in the head by Williams and once in the back by Rainge.

Gray appeared before a grand jury on May 16, 1978, and gave this same statement. The grand jury indicted the defendant, Williams, Rainge and Adams. On June 19, 1978, Gray testified at a preliminary hearing at which time she recanted her statement to the grand jury and denied all knowledge of, or involvementin, the crimes. Because Gray was the only witness to connect the defendant to the crimes, the complaint against the defendant was dismissed. However, there was sufficient evidence in addition to Gray's testimony to implicate Williams, Rainge and Adams, and the charges against them stood. Gray was thereafter indicted on charges of murder and four other felonies. Gray subsequently gave sworn testimony denying any knowledge of, or involvement in, the crimes on three additional occasions: (1) her October 1978 suppression hearing; (2) her October 1978 trial; and (3) a January 1979 sentencing hearing.

Gray, Williams, Rainge and Adams were tried simultaneously in 1978 for various crimes arising out of the deaths of Lionberg and Schmal. Williams was convicted of two counts of murder, two counts of aggravated kidnapping and one count of rape, and was sentenced to death. Rainge was convicted of two counts of murder, two counts of aggravated kidnapping and one count of rape, and was sentenced to natural life in prison. Adams was convicted of two counts of murder and one count of rape, and was sentenced to 75 years' imprisonment. Gray was convicted of murder, rape and perjury, and was sentenced to concurrent terms of 50 years' imprisonment for each murder, 50 years for rape, and 10 years for perjury. Gray was subsequently granted habeas relief by the Seventh Circuit Court of Appeals on the ground that her trial attorney suffered from a conflict of interest. ( United States ex rel. Gray v. Director, Department of Corrections, State of Illinois (7th Cir. 1983), 721 F.2d 586.) Williams' and Rainge's convictions were also subsequently reversed, on the ground that their trial counsel was defending an Attorney Registration and Disciplinary Commission (ARDC) proceeding at the time of their trial. People v. Williams (1982), 93 Ill. 2d 309, 67 Ill. Dec. 97, 444 N.E.2d 136; People v. Rainge (1983), 112 Ill. App. 3d 396, 68 Ill. Dec. 87, 445 N.E.2d 535.

Following the reversal of her convictions, Gray agreed to testify for the State against the defendant, Williams and Rainge. In 1984, after Gray agreed to cooperate with the State, the defendant was again indicted for the murders of Lionberg and Schmal. The defendant was tried in October of 1985.

A detailed account of the evidence presented at the defendant's trial is contained in this court's opinion on direct appeal. ( People v. Jimerson (1989), 127 Ill. 2d 12, 129 Ill. Dec. 124, 535 N.E.2d 889.)

Page 215

Briefly, the evidence recounted the commission, by several men and one woman, of the murder of Larry Lionberg and the murder and gang rape of Carol Schmal, following the couple's apparent abduction from the service station at which Larry was working. The crimes occurred on May 11, 1978, in East Chicago Heights, Illinois, between approximately 3 a.m. and 4 a.m.

Following the discovery of the victims' bodies on May 12, 1978, the police received a tip from an anonymous caller that the people responsible for the crimes were in the crowd that had gathered at the crime scene, and that a red Toyota involved in the crimes was also parked nearby. Dennis Williams and the defendant were both present in the crowd at the crime scene. Police Investigators David Capelli and Patrick Pastirik testified that, after they received the tip, they approached the crowd. As they approached, Williams and the defendant began walking away "briskly." Williams and the defendant walked to Williams' car, a red Toyota. According to the defendant, he was going to Williams' car to retrieve a pair of sunglasses he had left there. Capelli and Pastirik arrested both Williams and the defendant at the car.

The anonymous caller was later identified as Charles McCraney, a resident of the neighborhood. McCraney testified that at approximately 3 a.m. on the day of the murders he saw a group of people entering the townhouse in which Schmal's body was found. McCraney was able to identify Dennis Williams, Kenny Adams and William Rainge, and their automobiles, at the townhouse. McCraney stated that, approximately one hour after he observed the group enter the townhouse, he heard a gunshot come from the townhouse. McCraney did not identify the defendant as having been among that group. McCraney did testify, however, that he had seen the defendant in the neighborhood the eveningbefore, sometime before midnight. McCraney further testified that, when he made his telephone call to the police, it was because he had seen Dennis Williams in the crowd. MeCraney was not referring to the defendant when he made this call.

The only witness to connect the defendant to the crimes was Paula Gray. Gray's testimony at the defendant's trial implicated herself, the defendant, Williams, Rainge and Adams. Defense counsel attempted to cross-examine Gray with her testimony at the June 1978 preliminary hearing, in which she denied knowledge of, or involvement in, the crimes. For the most part, Gray denied any recollection of that testimony. Defense counsel did not offer any further evidence showing that Gray gave this prior inconsistent statement, nor did he question Gray regarding any of her other prior inconsistent statements.

Also on cross-examination, Paula Gray was questioned regarding whether she had been promised anything in return for her testimony against the defendant. Gray denied that she had been promised anything in exchange for her testimony.

The State also introduced forensic evidence, through an expert witness, that the defendant had blood type "O" and that he was a "secretor." The State's expert concluded from these results that the defendant was a possible source of bodily fluid found on a vaginal smear taken from Carol Schmal's body.

The defendant presented an alibi defense at trial. The defendant testified that he lived on the north side of Chicago, but that his sister-in-law and her family lived in the neighborhood where the crimes took place. The defendant testified that he was with Dennis Williams early in the evening of May 10, 1978, but that Williams drove the defendant, his wife and his three children home at approximately 8:30 p.m., and that hewas in his home at the time the crimes took place. The defendant's wife and sister-in-law corroborated various parts of his alibi. The defendant further testified that he was 33 years' old, that he finished high school at the age of 20, that he was married, that he had three children, and that he held a steady job. The defendant also testified that he had never been convicted of a crime.

The jury deliberated for six hours, after which it delivered a verdict of guilty on both counts of murder. The defendant's death sentencing hearing commenced one month later. At the eligibility portion of the defendant's sentencing hearing, the State relied solely upon the evidence introduced at the defendant's trial, and defense counsel introduced no evidence and gave no argument. The trial judge found the defendant eligible for the death penalty on the basis of the multiple-murder aggravating factor. (720 ILCS 5/9-1(b)(3) (West 1992).) The aggravation/mitigation phase began immediately thereafter. The State again relied solely on the evidence presented at trial. Defense counsel presented one mitigation witness, Elder Charles Nelson, who testified that the defendant would often do maintenance work at Nelson's church and that the defendant was very reliable. The trial judge thereafter sentenced the defendant to death, finding that there had been no mitigating evidence presented sufficient to preclude the death penalty.

EVIDENCE IN POST-CONVICTION PETITION

The defendant's post-conviction petition identifies the following additional evidence, which, the defendant contends, was not presented at his trial.

The defendant's post-conviction petition attaches evidence regarding a promise by the prosecution to Paula Gray to drop the murder charges against her in exchange for her testimony against the defendant. This evidence will be ...


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