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02/06/97 PEOPLE STATE ILLINOIS v. JOHN PECORARO

February 6, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JOHN PECORARO, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, John Pecoraro, was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) in connection with the shooting death of Jimmy Christian. Thereafter a capital sentencing hearing was conducted before the trial court and defendant was sentenced death. Defendant's conviction and sentence were affirmed on direct appeal. People v. Pecoraro, 144 Ill. 2d 1, 161 Ill. Dec. 296, 578 N.E.2d 942 (1991). Defendant subsequently filed a petition for relief under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 1994). The State filed a motion to dismiss defendant's petition and the circuit court granted the motion. Defendant appeals directly to this court pursuant to Supreme Court Rule 651 (134 Ill. 2d R. 651). We note that defendant has filed briefs through counsel and has also submitted a pro se brief. For the reasons set forth we affirm the judgment of the circuit court.

BACKGROUND

On Wednesday, December 8, 1982, the body of the victim, Jimmy Christian, was discovered in his brown Oldsmobile, which was parked near the premises of a small manufacturing company in Chicago. The owner and an employee of the company had observed that the Oldsmobile had been parked in the same spot and had not moved since Monday, December 6. The cause of the victim's death was a gunshot wound to the chest.

The record reveals that defendant worked with the victim's wife, Nadine Christian, for a company called Parklane Jewelry. The detectives investigating the murder apparently considered defendant a suspect and interviewed him in connection with the crime, but were initially unable to obtain sufficient evidence to support charges against defendant. The turning point in the case occurred several years after the offense. On August 6, 1986, at about 9 a.m., defendant flagged down a police car driven by Chicago police officer Jeffrey Becker. Defendant stated that he wanted to confess to a murder. Officer Becker placed defendant under arrest and administered his Miranda warnings. Defendant informed Officer Becker that he had killed Jimmy Christian. Defendant related that he waited outside the victim's house. When the victim emerged, defendant forced the victim at gunpoint into the victim's automobile. Defendant drove to a certain location and shot the victim. Defendant indicated that the murder weapon was a .45-caliber handgun and that he disposed of the weapon in the Chicago River.

After Officer Becker transported defendant to the police station, defendant was interviewed by Detectives William Kaupert and Peter Aipaia and later by Assistant State's Attorney Joseph Barbaro. Before each interview, defendant was advised of his Miranda rights. Assistant State's Attorney Barbaro prepared a handwritten statement detailing defendant's account of the crime. Defendant refused to sign the statement, indicating that he only wanted to get the crime "off his chest," but did not want to go to prison. The handwritten statement was read to the jury at trial without objection by the defense. Defendant's account to the detectives and assistant State's Attorney was similar to his account to Officer Becker. He stated that he waited for the victim to leave for work, forced the victim into his own car and drove the car a few blocks from the Christian home where he shot the victim in the chest with a .45-caliber handgun. With respect to his motive for the crime, defendant indicated that he had been involved in a romantic relationship with the victim's wife, Nadine, and that he did not like the way the victim treated Nadine.

Prior to trial, defendant moved to suppress his statements to police on the basis that he had consumed substantial quantities of drugs and alcohol and was fatigued when he spoke with police. Defendant claimed that he was unable to knowingly and intelligently waive his rights under Miranda. The trial court denied the motion.

At trial, the State presented the testimony of Martha Jackson, a coworker of defendant and Nadine Christian at Parklane Jewelry. Jackson testified that she and Nadine had met defendant in August 1982, and Nadine recruited defendant to work for Parklane. Jackson observed defendant and Nadine spending a lot of time together. On one occasion during a celebration at a tavern, Jackson observed defendant and Nadine kissing. Jackson joked that Nadine's husband was coming through the door. Defendant made an obscene gesture and stated that if he could not have Nadine, nobody could. Jackson also testified that on one occasion she observed defendant armed with a handgun in a shoulder holster. She told police the gun was a .45-caliber weapon.

Defendant presented evidence that subsequent to his statements to the authorities, it was determined that the bullet that killed the victim was fired from a .357-caliber weapon rather than a .45-caliber weapon. Defendant's former wife testified that on December 6, 1982, she and defendant woke up together at about 6:30 a.m. and defendant drove her to work, arriving at about 8:20 a.m.

Defendant also presented the testimony of Lisa Shankman, who was defendant's girlfriend in August 1986. Shankman testified that defendant was a regular cocaine user and she was familiar with the manner in which cocaine affected defendant. Shankman saw defendant briefly at about 5 p.m. on August 5, 1986, the day before his arrest, and he appeared to have been drinking or to have been under the influence of some substance. Shankman next saw defendant at 8:30 the next morning and it appeared he was definitely "high on something." It was stipulated that Jean Clark, a bartender or waitress, would testify that on the evening of August 5, 1986, she served defendant a number of drinks. It was further stipulated that Clark would testify that on a few occasions she observed defendant go into the washroom and on his return he would appear to be "more hyper and more talkative" than before.

Based on the foregoing evidence, the jury found defendant guilty of murder. The trial court found defendant to be eligible for the death penalty because he had a prior murder conviction (see Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3)), and sentenced him to death.

THE POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. People v. Coleman, 168 Ill. 2d 509, 522, 214 Ill. Dec. 212, 660 N.E.2d 919 (1995); People v. Mahaffey, 165 Ill. 2d 445, 452, 209 Ill. Dec. 246, 651 N.E.2d 174 (1995). The scope of post-conviction review is limited to matters which have not been, and could not have been, previously adjudicated. Coleman, 168 Ill. 2d at 522; People v. Brisbon, 164 Ill. 2d 236, 245, 207 Ill. Dec. 442, 647 N.E.2d 935 (1995). Determinations of the reviewing court on direct appeal are res judicata as to issues actually decided, and issues that could have been raised on direct appeal but were not are waived. Coleman, 168 Ill. 2d at 522; Mahaffey, 165 Ill. 2d at 452. Moreover, a defendant is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. Coleman, 168 Ill. 2d at 537; People v. Guest, 166 Ill. 2d 381, 389, 211 Ill. Dec. 490, 655 N.E.2d 873 (1995). With these principles in mind, we review the dismissal of defendant's post-conviction petition without an evidentiary hearing.

ANALYSIS

I. Failure to Disclose or Preserve Exculpatory Evidence

Defendant contends that the prosecution violated its constitutional obligation under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny to disclose to the defense various evidence that defendant characterizes as exculpatory. Brady held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. Subsequently, however, the Court held that regardless of whether specifically requested by the defense, favorable evidence is material and its suppression by the State constitutes a constitutional violation "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985), quoted in Kyles v. Whitley, 514 U.S. , , 131 L. Ed. 2d 490, 505, 115 S. Ct. 1555, 1565 (1995). Moreover, the disclosure obligation applies to impeachment evidence as well as evidence bearing directly on guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 490, 105 S. Ct. 3375, 3380 (1985); see Kyles v. Whitley, 514 U.S. , , 131 L. Ed. 2d 490, 505, 115 S. Ct. 1555, 1565 (1995).

A. Self-incriminating Statements by a Third Party

Initially, defendant claims that the State had knowledge that another individual, Ronald Baker, had confessed to the murder of Jimmy Christian, but the State failed to disclose this information to defendant. Defendant's post-conviction petition includes the affidavit of a defense investigator who interviewed the Reverend Jerry Gibson. During the interview, Reverend Gibson related that he had spoken with Ronald Baker in connection with Baker's marital troubles and Baker acknowledged having at some point made the statement, "Yes I killed Jimmy Christian, and I'll kill you too." Reverend Gibson believed that this statement had been addressed to Brian Diffy, and that Baker made the threat because he suspected that his wife and Diffy were having an affair. Reverend Gibson told the defense investigator that he had informed the police of Baker's statements and other information concerning the Jimmy Christian murder. Subsequent to the interview, Reverend Gibson informed the defense investigator that he did not want to become involved in the case again, but that he would testify pursuant to a subpoena. We note that defendant also submitted an affidavit by Brian Diffy which would appear to indicate that any threat by Baker against Diffy was not made directly to Diffy. In his affidavit, Diffy stated, "About three or four months after Jimmy Christian's murder, I heard that Ronald Baker said he had killed Jimmy Christian and would kill me too if I didn't leave his wife alone."

Defendant argues that the information that Ronald Baker had admitted to killing Jimmy Christian was essential to the defense and would have been devastating to the State's case. Defendant apparently assumes, without offering any analysis, that Ronald Baker's alleged confession would have been admissible into evidence had defense counsel known about it and sought to introduce it. The general rule, however, holds to the contrary. An extrajudicial declaration, not under oath, by the declarant that he, and not the defendant on trial, committed the crime is inadmissible as hearsay, though the declaration is against the declarant's penal interest. People v. Cruz, 162 Ill. 2d 314, 342, 205 Ill. Dec. 345, 643 N.E.2d 636 (1994); People v. House, 141 Ill. 2d 323, 389-90, 152 Ill. Dec. 572, 566 N.E.2d 259 (1990); People v. Bowel, 111 Ill. 2d 58, 66, 94 Ill. Dec. 748, 488 N.E.2d 995 (1986); see People v. Rutherford, 274 Ill. App. 3d 116, 123, 210 Ill. Dec. 599, 653 N.E.2d 794 (1995). Such a declaration will be admitted, however, when justice requires. Cruz, 162 Ill. 2d at 343. Where there are sufficient indicia of trustworthiness, such out-of-court statements may be admissible as an exception to the hearsay rule. Cruz, 162 Ill. 2d at 343; Bowel, 111 Ill. 2d at 66.

In Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), the United States Supreme Court identified four factors present in that particular case underlying the Court's decision that the defendant was constitutionally entitled to introduce evidence of an extrajudicial third-party confession notwithstanding a common law rule of evidence barring the use of such confessions. The four factors in Chambers were: (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant's interest; and (4) there was adequate opportunity for cross-examination of the declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; see Cruz, 162 Ill. 2d at 343. The Chambers factors are merely guidelines to admissibility rather than "hard and fast requirements" ( House, 141 Ill. 2d at 390, citing Bowel, 111 Ill. 2d at 67) and the presence of all four factors is not a condition of admissibility ( Cruz, 162 Ill. 2d at 343). Ultimately, admissibility depends on whether the statement was made under circumstances that provide considerable assurance of its reliability by objective indicia of trustworthiness. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; Cruz, 162 Ill. 2d at 343; Bowel, 111 Ill. 2d at 67.

Consideration of the four specific Chambers criteria does not favor admissibility. While Ronald Baker's alleged statement was self-incriminating and against interest, defendant has failed to establish the other three factors. See People v. Keene, 169 Ill. 2d 1, 29-30, 214 Ill. Dec. 194, 660 N.E.2d 901 (1995) (statement would not have been admissible where only Chambers factor present was that statement was self-incriminating). First, it is not known when Baker made his statement, or whether he made the statement to a close acquaintance. Indeed, the identity of the person to whom the statement was addressed is unknown. Second, there appears to be no meaningful or substantial corroboration of any statements implicating Ronald Baker in the Jimmy Christian murder. Third, assuming that Baker made the self-incriminating statement that has been attributed to him, defendant has failed to establish that Baker would have been available for cross-examination with regard to the statement. Baker might very well have asserted his privilege against self-incrimination rather than answer questions pertaining to any self-incriminating statements. Cf. Keene, 169 Ill. 2d at 30. More generally, Baker's alleged statement was not made under circumstances that provide considerable assurance of its reliability by objective indicia of trustworthiness. The statement admitting to the murder was coupled with a threat apparently borne of jealousy. As such, the self-incriminating portion of the statement ("I killed Jimmy Christian") may simply represent bravado designed to bolster the threat ("and I'll kill you too").

Because Ronald Baker's alleged self-incriminating statements would not have been admissible, there is no reasonable probability that disclosure of Reverend Gibson's report of the statement to police would have affected the outcome of defendant's trial. Accordingly, defendant has failed to establish that the allegedly undisclosed information was material giving rise to a constitutional obligation to disclose.

B. Impeachment Evidence

Defendant next contends that the State failed to disclose certain information that would have been valuable in impeaching prosecution witness Martha Jackson. The record contains police reports indicating that Jackson was arrested for soliciting the murder of her husband based on information provided by a confidential informant. While a police report indicates that Jackson confessed to the offense, she was released shortly after her arrest. Subsequently, Jackson apparently agreed to wear an electronic eavesdropping device-a "wire"-and to engage defendant in conversations designed to elicit self-incriminating statements about the Jimmy Christian murder and the plot to kill Martha Jackson's husband. The police filed an application with the circuit court pursuant to section 108A-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-3 (West 1994)) for authorization to use an eavesdropping device to monitor conversations between Jackson and defendant or certain other individuals. The application was supported by an affidavit from Jackson in which she averred that she had entered into a written contract with defendant pursuant to which defendant agreed to kill Jackson's husband in exchange for $4,000.

Defendant first argues that Martha Jackson's affidavit was not disclosed to the defense at trial, and consequently defendant was deprived of the ability to impeach her based on her sworn confession to soliciting the murder of her husband. The parties disagree as to whether the post-conviction petition sufficiently alleges that the affidavit was in fact withheld from defense counsel. However, defendant's argument is meritless in any event. A witness may be impeached by attacking his or her character with proof of a conviction of a crime punishable by death or imprisonment of one year or more or of a crime that involves dishonesty or false statements. People v. Montgomery, 47 Ill. 2d 510, 516-19, 268 N.E.2d 695 (1971); In re A.M., 274 Ill. App. 3d 702, 712, 210 Ill. Dec. 832, 653 N.E.2d 1294 (1995). However, only actual convictions may be used for this purpose: proof of arrests, indictments, charges or the actual commission of a crime are not admissible. People v. Franklin, 167 Ill. 2d 1, 21, 212 Ill. Dec. 153, 656 N.E.2d 750 (1995); People v. Lucas, 151 Ill. 2d 461, 491, 177 Ill. Dec. 390, 603 N.E.2d 460 (1992); In re A.M., 274 Ill. App. 3d at 712. Had Martha Jackson been convicted of soliciting the murder of her husband, evidence of the conviction would have been admissible for impeachment purposes. However, defendant was not entitled to impeach Jackson with independent proof that she committed that offense. Since Jackson's affidavit was inadmissible, it could not have affected the outcome of trial, and thus the confession was not material for purposes of Brady and its progeny.

Defendant also contends that the State violated his right to due process by failing to disclose the identity of the confidential informant who originally implicated Martha Jackson in a plot to kill her husband. Defendant insists that "had the defense been able to investigate Jackson's attempt on her husband's life, her fragile credibility may have come completely unraveled." Since, Martha Jackson's possible participation in an unrelated crime which did not result in a conviction was not a proper basis for impeachment, the identity of the confidential informant was in no way material or relevant to this case.

Defendant also surmises that in view of the circumstances of Martha Jackson's arrest and release, Jackson must have entered into an agreement with the authorities whereby, in exchange for her cooperation in the investigation of defendant, no charges would be filed against Jackson arising from the plot to kill her husband. Defendant contends that evidence of such an agreement would have discredited Jackson's trial testimony by showing a motive to testify in the State's favor. This issue was raised and rejected on direct appeal. In his pro se brief on direct appeal, defendant advanced the following argument:

"The prosecution with-held [ sic ] vital impeachment evidence from the defendant., [ sic ] on the state's witness Martha Jackson it is a fact that through the reports of the police, and the special prosecutions office., [ sic ] that Martha Jackson was released from custody for her cooperation that charges for solicitation for murder was [ sic ] droped [ sic ], and that she was claiming that the defendant, was a co-defendant in that case., [ sic ] ...


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