The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable James P. Flannery and Lawrence Fox, Judges Presiding.
Following a jury trial in the circuit court of Cook County, defendant, Billy Truly, was convicted of the murders of Paul Lowe and Jarvanley Johnson. For the murders, the circuit court sentenced defendant to natural life imprisonment. We affirmed these convictions on direct appeal. People v. Truly, No. 1-96-1705 (1998) (unpublished order pursuant to Supreme Court Rule 23). Defendant filed a timely pro se petition seeking relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court dismissed the petition without an evidentiary hearing. Defendant appeals to this court maintaining that: (1) he was denied his constitutional right to cross-examine a key prosecution witness as to her motive, interest and bias in testifying; (2) defendant's right to counsel at the lineup was violated; and (3) defendant received ineffective assistance by appellate counsel. We reverse and remand this case to the circuit court for an evidentiary hearing.
Antoinette Bell was the State's only eyewitness to the double murder. Prior to trial, the State made a motion in limine to bar any of the officers from testifying that since the murders occurred Antoinette Bell had been arrested on misdemeanor charges which had been dismissed and that she received a sentence of supervision for criminal trespass to land a few weeks before she testified against defendant. The trial court granted the State's motion in limine.
The evidence at trial established that on August 8, 1992, at approximately 10 p.m., Lowe and Johnson were sitting on the front porch at 5846 South King Drive. As defendant and another man walked past the porch, Johnson made a comment to defendant about his girlfriend. Defendant replied, "Man, why you disrespecting me?" Defendant told Johnson that he was a member of the Gangster Disciples street gang and then walked away. Later that night, Johnson and Beverly Fowler walked to a nearby store and noticed defendant and another man. Johnson approached defendant and apologized to him. Johnson and Beverly Fowler returned to the apartment building. A short time later, a group of men walked toward the building and Johnson went to the front porch to meet them. Lenora Jones looked out her second-floor apartment window and heard someone say, "Disrespecting GD. You have to have a violation." Beverly Fowler announced that she had called the police. The men left the building but said that they would be back later.
A few hours later, Beverly Fowler looked out the window and watched as a group of people got out of the cars and saw Johnson and Lowe run to the backyard. Beverly Fowler called the police. Antoinette Belle walked onto the back porch and saw defendant pull an 18-inch-long, three-inch-wide pole from the car, approach Johnson and hit him in the head with the pole. Defendant then walked in the direction of Lowe. Bell heard sounds like somebody hitting a baseball bat. Defendant walked back over to Johnson, who was lying on the ground, and hit him again. He walked over to Lowe, and Bell heard the same sound. Defendant again walked over to Johnson, hit him in the head three times with the pole and drove off in a car.
At trial, Detective Regal testified that he found the bodies of Lowe and Johnson on the ground. He stated that Bell told police what she saw and described the defendant. However, she did not give her real name to the police. Bell identified defendant in a photo array 4 months later. She identified defendant in a lineup 13 months later. Detective Regal further testified that Beverly Fowler identified defendant as the man Johnson approached and apologized to earlier in the evening. Detective Regal testified that Bell was subpoenaed to appear in court to testify but she did not appear and as a result was arrested for contempt of court.
Bell testified that defendant was the only person she saw beating Lowe and Johnson with the pole. She further stated that she had never seen defendant before the night of the murders. She also testified that she was afraid when she spoke to the officers at the scene and when she was subpoenaed to testify in court. She stated that she was held in custody for almost a month until the day she testified at defendant's trial. During cross-examination, defense counsel asked Bell whether the assistant State's Attorneys made any promises to her if she testified at defendant's trial. Bell responded that she asked them if they could move her out of the state after she testified and that they had agreed to do so. She mentioned no other promises.
Following the cross-examination of Bell, the trial court heard Bell's contempt case. The assistant public defender representing Bell requested that the contempt charge against Bell be purged since Bell testified. The State agreed and withdrew its petition and the trial court purged Bell's contempt charge. The attorney representing Bell then asked the State when they expected to have Bell's airplane ticket ready. Defendant's counsel, upon hearing about the plane ticket for the first time, requested that he be allowed to recall Bell and question her as to whether any other promises were made to her by the State including the plane ticket and the purging of the contempt charge. Defense counsel further sought to recall Bell to ask Bell the destination for the plane ticket and where she stayed during the period from 1992 to the day of trial. The trial court denied defense counsel's requests but allowed defense counsel to question Bell outside the presence of the jury about her expectation regarding the contempt charge.
Defendant presented an alibi defense that he was in Milwaukee, Wisconsin, when the murders took place. Defendant's former girlfriend, Clara Green, and family members testified that defendant was not in Chicago at the time of the murders. In rebuttal, Detective Winstead stated that when he questioned defendant about the murders in August 1992, defendant told him that he was in prison at the time of the murders. After Winstead reminded defendant that he had already been released from prison, defendant responded that he was out of town at the time that the murders occurred. However, defendant was unable to state where or with whom he was out of town.
The jury found defendant guilty of both the murders of Johnson and Lowe. Defendant was sentenced to natural life imprisonment. Defendant appealed, and his conviction and sentence were affirmed in an unpublished order. Thereafter, defendant filed a pro se post-conviction petition consisting of approximately 100 pages and 50 pages of exhibits. The trial court ruled that defendant's claims were barred by waiver or res judicata and dismissed defendant's post-conviction petition without an evidentiary hearing, finding the petition frivolous and patently without merit. Defendant appealed.
Defendant contends that the circuit court erred in summarily dismissing his post-conviction petition without an evidentiary hearing. A proceeding under the Act is not an appeal; it is a collateral attack on the prior judgment. People v. Brisbon, 164 Ill. 2d 236, 242 (1995). A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of course. People v. Albanese, 125 Ill. 2d 100, 105 (1988). In order to survive summary dismissal, a petitioner under the Post-Conviction Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) needs to assert the gist of a constitutional claim. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). However, the gist of a meritorious claim is not established by a bare allegation of deprivation of a constitutional right. People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993). A defendant still must allege sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. People v. Ramirez, 242 Ill. App. 3d 954, 958 (1993). A hearing is required only when the allegations of the petition, supported by the trial record and the accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded facts are taken as true at this stage; therefore, the summary dismissal of a post-conviction petition is subject to de novo review. Coleman, 183 Ill. 2d at 380-81, 388, 389.
The Act provides a remedy to criminal defendants who make a substantial showing that a violation of their federal or state constitutional rights occurred at the proceedings which resulted in their convictions, when such a claim has not been, and could not have been, adjudicated previously. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997). Issues that were decided on direct appeal are barred by the doctrine of res judicata and issues that could have been raised on direct appeal, but were not, are deemed waived. People v. Towns, 182 Ill. 2d 491, 502-03 (1998). The doctrines of res judicata and waiver will be relaxed "where fundamental fairness so requires." People v. Gaines, 105 Ill. 2d 79, 91 (1984). Where the alleged waiver stems from the incompetence of appellate counsel, the doctrine is relaxed. People v. Barnard, 104 Ill. 2d 218, 229 (1984). The rule is also relaxed when the facts relating to the claim do not appear on the face of the original appellate record. People v. Eddmonds, 143 Ill. 2d 501, 528 (1991). A claim may survive waiver as the result of any one of these three exceptions. People v. Whitehead, 169 Ill. 2d 355, 372 (1996).
I. Constitutional Violation of Right to Confront Witness
We first consider defendant's argument that his petition makes a substantial showing that he was denied his sixth amendment (U.S. Const., amend. VI) constitutional right to confront Antoinette Bell, the State's only eyewitness to the double murder, and to cross-examine her as to her bias, interest and motive in testifying. Defendant claims the trial court improperly restricted cross-examination of Bell in four areas: (1) Bell's three prostitution arrests, dismissed prior to defendant's trial, and her supervision for criminal trespass to land received just weeks before trial; (2) the fact that after the murders Bell continued to frequent the neighborhood where the murders occurred; (3) Bell's expectation of receiving a plane ticket from the State's Attorney's office in exchange for her testimony at trial; and (4) her expectation of leniency regarding a pending contempt charge. Although the record reflects that defendant failed to raise these issues on direct appeal, the application of waiver is relaxed in proceedings on a post-conviction petition if fundamental fairness, as in this case, so requires. People v. Steidl, 177 Ill. 2d 239 (1997); Gaines, 105 Ill. 2d at 91.
A. Restriction of Bell's Cross-Examination Regarding Arrests and Supervision
Defendant maintains that it was error for the trial court to grant the State's motion in limine prohibiting defense counsel from cross- examining Bell about three prior arrests for prostitution and her supervision for criminal trespass to land which she received a few weeks before testifying against the defendant. Specifically, defendant contends that the allegations in his petition regarding trial court rulings which restricted his cross-examination of Bell establish a substantial showing of a violation of a constitutional right and thereby entitle him to a hearing on his post-conviction petition.
Cross-examination may concern any matter that goes to discredit, modify, explain or destroy the testimony of the witness. People v. Averhart, 311 Ill. App. 3d 492 (1999). Limitation of a defendant's cross-examination of the bias, motive or interest of a witness may violate a defendant's constitutional right to confront the witnesses against him guaranteed by both the federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Therefore, a trial court should be unwilling to grant a motion in limine brought by the State if the result will be an evisceration of the defendant's theory of the case. People v. Prevo, 302 Ill. App. 3d 1038, 1050 (1999).
Before trial, defense counsel informed the court that he had subpoenaed five police officers to testify about Bell's arrests including criminal trespass to land for which she received supervision and three prostitution charges which were SOL'd [stricken with leave to reinstate].
The State objected and argued:
"*** And questions like that, I think, are merely attempting to dirty up the witness. And they - - she not been convicted of any felony, crime, nor has she been convicted of any misdemeanor cases that would go to her credibility like theft case or things of that nature.
In fact, the prostitution I think she has four entries on her rap sheet. I don't have a rap sheet in front of me. 3 of the arrests have been SOL'd. One was a criminal trespass to land, I believe. And in which she received supervision. And those arrests and the circumstances surrounding those arrests are not relevant whatsoever to her credibility as a witness."
Defense counsel responded that he wanted to elicit information about the arrests because they were relevant as they occurred close to the scene of the crime and could be used to impeach Bell's credibility. The court reserved its ruling for a later time. Following jury selection the State renewed its motion in limine. Defense counsel argued: "It's not the arrest itself. But, if the witness testifies in a different manner that she's never been in that area where in fact the court would learn from looking at the arrest slips she had been arrested in that area. That she used a different name. That goes to her credibility."
The trial court responded:
"Well, first off, not her occupation. That's going to stay out, whatever her occupation is. That's number one. Number 2: What areas she frequents is out. If, however, she says I was-I've never been in whatever area it is, and there's proof that she has been there, and has been arrested there, then that may come in. Use of aliases, I think, comes in. Okay. I think that goes to her credibility. The fact that she was arrested should not come in for any purpose. You know, I don't know what she's going to testify. I think what [defense counsel] is saying makes sense, if she says she's never been there before and in fact, she was arrested there, that's some proof she's been there."
Before the direct testimony of Bell, the trial court again reiterated its ruling. The court stated:
"At this time, just to go over again the motion in limine by the State was to keep out the - Miss Bell's- any prior arrests, any prior misdemeanor convictions. And anything to do with the location or being in a certain area on a certain date. *** The motion in limine is granted as to the arrests and the prior convictions. As to the location, we'll play it by ear. Before you ask any questions about any location, we'll have a sidebar."
The State contends that defendant has failed to support his allegation with documentation showing the existence of any agreement or expectations with respect to any of Bell's arrests. We note however, during trial defense counsel was precluded from asking Bell anything about her prior criminal history. Consistent with the trial court's ruling, no information was elicited during either direct or cross- examination regarding Bell's prior criminal history. Here, Bell's prior arrests could have served two purposes during cross-examination. One purpose, articulated by defense counsel during trial and discussed in greater detail below, was to impeach Bell's direct testimony that she was too frightened to remain in the area after the murders. The other reason was to expose to the jury Bell's motivation for testifying against defendant, which related to Bell's credibility. Defense counsel was not allowed to determine whether the State gave Bell any special consideration regarding crimes she was charged with since the murders.
A criminal defendant has a fundamental constitutional right to confront the witnesses against him and this includes the right to conduct a reasonable cross-examination. People v. Triplett, 108 Ill. 2d 463, 474 (1985). Evidence that a witness has been arrested or charged with a crime is a proper subject for cross-examination where it would reasonably tend to show that the witness' testimony might be influenced by bias, interest or motive to testify falsely. Triplett, 108 Ill. 2d at 475-76. Contrary to the State's argument, a defendant need not show that a promise of leniency has in fact been made to the witness or that an expectation of special favor exists; rather, the evidence need only give rise to the inference that the witness has something to gain or lose by testifying. Triplett, 108 Ill. 2d at 475-76. A jury is entitled to the details of the theory of defense so it can make an informed judgment, and thus the right to cross-examine is satisfied when counsel is permitted to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111 (1974).
In this case, the defense counsel was not allowed to question Bell as to whether she was offered supervision on the charge of criminal trespass to land in exchange for her testimony against defendant. Defense counsel was not allowed to cross-examine Bell as to whether the State dismissed the three prostitution cases in exchange for Bell's testimony against defendant. Defense counsel was prohibited from potentially providing evidence that could have supported the inference that the witness had something to gain or lose by testifying. A hearing is required when the allegations supported by the record make a substantial showing of a violation of a constitutional right. Hobley, 182 Ill. 2d at 427-28. These limitations on cross-examination alleged in the post-conviction petition establish a substantial showing of a violation of defendant's constitutional right to confront Bell and probe her credibility as well as her motive, interest and bias. Accordingly, defendant is entitled to an evidentiary hearing on these issues.
B. Limited Cross-Examination On Areas Frequented by Bell Since the Murders
In a related argument defendant contends that the trial court erred in limiting defendant's cross-examination regarding the areas that Bell frequented after the murders. If the entire record shows that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant has been prohibited on cross-examination from pursuing other areas of inquiry. People v. Hines, 94 Ill. App. 3d 1041, 1048 (1981). In the present case, when viewed within the total realm of cross-examination permitted, the limitation placed on cross-examining Bell about the neighborhood she frequented gains more importance as it potentially prevented defense counsel from eliciting facts relevant to Bell's credibility.
During direct examination Bell testified that on the day of the murders she gave police officers a fictitious last name and told them that she was a witness but did not provide any further information. She stated that she was frightened and hid in her boyfriend's apartment until police spoke to her. Bell also made arrangements with one of the detectives to view a lineup, but when the detective came to pick her up, she hid in the house because she was scared. She continued to avoid the police until 13 months after the murders, when she finally went to the police station, viewed a lineup and identified defendant. Bell further testified that, two years later, she received a subpoena to testify at trial, but she failed to come to court because she was afraid.
On cross-examination, Bell stated that she hid from police because she was scared and that she asked to be relocated to another state after she testified against defendant. Defense counsel asked Bell whether she returned to the neighborhood where the murders occurred. Bell stated that she was "not sure" how many times she returned to the neighborhood but that it was "not many." Defense counsel, in an effort to impeach her, attempted further questioning:
"DEFENSE COUNSEL: When you went to the neighborhood this year were you alone or ...