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People v. Ellis

August 25, 2000

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
BERNARD ELLIS,
DEFENDANT-APPELLANT.
BERNARD ELLIS,
PETITIONER-APPELLANT,
v.
THE PEOPLE OF THE STATE OF ILLINOIS,
RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County.

Honorable Thomas J. Condon, Judge Presiding.

Appeal from the Circuit Court of Cook County.

Honorable Thomas J. Condon, Judge Presiding.

A jury convicted defendant Bernard Ellis of the first-degree murder of Gerard Hardy. He was given a 55-year prison sentence. His subsequently filed post-conviction petition, after a hearing, was denied. Defendant's motion to consolidate his direct appeal and his appeal from the denial of the post-conviction petition was allowed. Defendant appeals his conviction and sentence, the denial of his motions for a new trial, and the denial of his post-conviction petition.

Defendant raises as issues on appeal whether: (1) a juror should have been dismissed for cause; (2) he was denied his right to a fair trial and due process of law by the State's knowing use of its two eyewitnesses' allegedly perjured testimony and other prosecutorial misconduct; (3) he was denied his right to the effective assistance of trial counsel; and (4) he is entitled to a new trial based on newly discovered evidence. Only issue (2) will be addressed in this consolidated appeal in light of the reversal and remandment of the case based upon the determination of that issue.

On July 12, 1991, at about 2 a.m., Ramon Bickham, Tony Scales, and Gerard Hardy, the murder victim, were selling drugs at 13th and Wentworth in Chicago Heights, Illinois. Defendant emerged from the passenger side of a brown or orange Cutlass and walked toward the victim's white Cutlass, parked nearby. Both Bickham and Scales were standing on the corners across the street from the victim and defendant's parked car, about 15 to 25 feet away. Defendant, dressed in black and wearing a baseball cap, called the victim's name, the victim turned, and both Bickham and Scales saw or heard a gunshot. The victim fell to the ground. Defendant had been standing about three to four feet away from the victim with his arm extended when he shot the victim once in the head. He shot the gun in the air a few more times, jogged back to the Cutlass, which he entered, and the car left. Both Bickham and Scales later identified defendant as the assailant.

Bickham had seen defendant for several months "around the hood," knew him as a rival gang member, but never met him. He did not recognize defendant immediately, but did when he walked closer to the victim. Bickham previously had been convicted of possession of a controlled substance and had a current case pending at the time of trial. He asserted that no promises had been made to him regarding his pending case in exchange for his testimony at defendant's trial. Because he was in shock and scared, Bickham did not tell the police who the shooter was until January 14, 1992, when he was at the Shaunee Correctional Center. Defendant had "rank" or "authority" in the rival gang with which they had problems.

Scales had known defendant previously for one and one-half years and had seen him around the "hood" about one hundred times, the first time at a Gangster Disciples or "folks" meeting in May 1990. He knew defendant had "rank." Scales previously had been convicted of possessing a controlled substance. He testified that he had a case pending at trial time; however, the State made no promises to him in return for his testimony. Scales left the scene when the police arrived because he was scared. He did not tell the police that he knew who the shooter was prior to December 17, 1991, because defendant was still at large. Scales, who was still living in the area, did not want anything to "happen" to him.

In November 1991, Anthony Willingham, a former Vice-Lord, and Remone Butler, stood at the corner of 13th and Wentworth, the same corner where the murder took place a few months before, when defendant, whom Willingham knew from the neighborhood, got out of a dark-colored Cutlass and approached them while carrying a machine gun. He either pointed the gun or stuck the gun in Willingham's side and asked the witnesses the whereabouts of a certain drug dealer, who Willingham and Butler both knew. Defendant told them that their friend was a "dead man" and that he was going to kill him. He also bragged about having killed the victim and that he had killed or would kill more "niggers."

In court, prior to trial, the defense requested of the State information as to previous written and oral defense inquiries concerning "discussions with any of the potential witnesses about any kind of deals regarding their cases in return for [their] testimony," to which the State responded that, "with regard to those witnesses, Judge, who have pending cases, there's been no agreements or promises of any kind with regard to the disposition of their cases."

Following the instructions conference, closing argument ensued. Defense counsel attacked the credibility of all the State witnesses and argued that defendant was being framed for a murder which occurred due to gang "revenge." During deliberations, the jurors sent a note stating that it was at a "standstill." After consulting with counsel from both sides, they were told by the court to continue deliberating. One and one-half hours later, the jury reached the verdict previously noted.

Defense counsel moved for a new trial. Defendant also moved, pro se, for a new trial, in part on the ground that defense counsel failed to present evidence which would have exonerated him. The circuit court denied both motions. Following the presentation of aggravation and allocution by defendant, who claimed he was in another state at the time of the murder and that his trial counsel was ineffective in his representation, the court sentenced defendant as first noted. Defendant's sentence was to run consecutively to the 10-year sentence he had received from the same judge on a prior conviction.

Defendant filed a notice of appeal and a petition for post-conviction relief. During a hearing on the post-conviction petition, defendant presented his own testimony, in addition to the testimony of certain witnesses who had provided affidavits in support of his petition, including witnesses who claimed to have been able to provide defendant with an alibi and one, Anthony West, who claimed that he saw the murder, that defendant was not the shooter, yet he was not called as a witness. Defendant also presented the testimony of juror Robert Reed, who had been called into chambers and questioned during trial. Scales testified at the post-conviction hearing that his trial testimony, identifying defendant as having shot the victim, was false, induced by Chicago Police Detective Joe Fiaoni with a promise of probation on criminal charges pending against Scales. This evidence was never refuted by the State; Fiaoni did not testify.

At the hearing, the State presented the testimony of the prosecutor who tried the case, as well as the defense attorney who represented defendant at trial. The prosecutor conceded that he "might have" told Scales that he would speak on Scales' behalf at his sentencing in exchange for his testimony at the Ellis trial, that he "might have" said that, but did not make the statement to Bickham until after the trial, and "most likely" the same was told to Scales under similar circumstances.

Following the hearing, and a review of the petitions by both parties, the appendices, and all trial transcripts, the post-conviction judge, who also had served as the trial judge, denied defendant's ...


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