Appeal from the Circuit Court of Cook County. No. 92 CR 13476 Honorable Leo E. Holt, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gordon
Following a jury trial, defendant, Joseph Smith, was found guilty of first degree murder and attempted armed robbery. He was sentenced to concurrent prison terms of 55 and 14 years. Defendant's conviction and sentence were affirmed on direct appeal (People v. Smith, No. 1-95-2553 (1997) (unpublished order pursuant to Supreme Court Rule 23)), and he subsequently filed a pro se petition for post-conviction relief, which was summarily dismissed. Defendant then filed a successive pro se post-conviction petition, which was also summarily dismissed. Defendant appeals the dismissal of his successive petition, contending he presented the gist of meritorious claims of actual innocence based on newly discovered evidence and of ineffective assistance of trial and appellate counsel. Defendant further contends, for the first time on appeal, that his trial attorney was ineffective for failing to object to an erroneous Illinois Pattern Jury Instruction. We affirm the dismissal of his petition for the reasons that follow.
The facts of this case are set forth in this court's disposition of defendant's direct appeal. As a result, only the facts relevant to the issues at hand will be repeated. The evidence presented at trial established that on April 7, 1992, Frank Miranda was shot to death in a vacant lot at the corner of 47th Street and Leamington Avenue in Chicago. Eyewitnesses Dale Sramek, Bobby Severson and Charles Queen testified that Sramek and Miranda went to the corner of 47th Street and Leamington Avenue around midnight on April 6, 1992, to purchase drugs. While there, they were joined by Severson and Queen, who were also attempting to purchase drugs. Sramek testified that he and Miranda had been smoking crack cocaine that night, and Severson stated he had consumed "a couple" beers.
A man, later identified as co-defendant Antoine Edwards, asked Miranda and Severson if they wanted to buy some crack cocaine. Severson said yes, and Edwards said he would be back in 10 minutes. Edwards returned in 20 minutes with another man, later identified as defendant. When Miranda approached Edwards and defendant, defendant pulled out a shotgun and demanded money. Miranda cursed at him and turned around to walk away. Defendant then shot Miranda in the back, killing him.
After apprehending Edwards more than five weeks after Miranda's murder, police went to the homes of defendant and Antoine Crawford. Police then contacted Severson, who had not previously spoken to them about the murder. At the police station, Severson viewed Edwards in a lineup and identified him as the man who first approached him and his friends. Several hours later, Severson identified defendant as the shooter in a photo array and in a lineup. Although Severson and Queen also identified defendant as the shooter at trial, the trial occurred three years after the shooting and Queen had not previously identified defendant outside of court.
Chicago police department Detective Michael Duffin and Assistant State's Attorney (ASA) James Sullivan both testified at trial that, while in police custody, defendant confessed to the shooting. Defendant told Duffin and Sullivan that he shot Miranda, and he and Edwards took the gun to the home of Antoine Crawford; however, defendant refused to sign a written statement to that effect.
Defendant testified in his own behalf that he was at home studying on the night of the murder. He denied having any involvement in the shooting and denied making a confession to Duffin and Sullivan. He stated that Duffin and Sullivan presented some papers to him at the police station, but he refused to sign them.
After deliberating for approximately four hours, the jury sent a note to the trial judge stating it could not come to an agreement after four votes. The court ordered the jury to continue deliberating. Soon thereafter, because it was 10 p.m., the jury was sequestered. The following day, the jury returned verdicts of guilty for first degree murder and attempted armed robbery. The trial court sentenced defendant to concurrent prison terms of 55 years for murder and 14 years for attempted armed robbery.
On direct appeal, defendant contended that he was denied his constitutional right to confront the witnesses against him, the prosecutor's arguments were inflammatory, and his sentence was excessive. This court affirmed his convictions and sentence. People v. Smith, No. 1-95-2553 (1997) (unpublished order under Supreme Court Rule 23). Defendant's petition for leave to appeal to the Illinois Supreme Court was denied.
Defendant subsequently filed a pro se post-conviction petition, alleging that he was not proven guilty beyond a reasonable doubt, his arrest should have been quashed, the State's witnesses perjured themselves, his trial counsel was ineffective, and his sentence was excessive. The trial court summarily dismissed the petition finding that all of the issues had been waived or were barred under the doctrine of res judicata. Defendant filed a late notice of appeal from the dismissal, which was denied.
On December 21, 2000, defendant filed a successive pro se petition for post-conviction relief. Among other things, the petition raised allegations of actual innocence based on newly discovered evidence and of ineffective assistance of trial and appellate counsel. In support of his claim of newly discovered evidence, defendant provided the affidavit of co-defendant Edwards, which stated that Edwards and "a guy named Snake" attempted to rob, then murdered Miranda on the night of April 7, 1992. *fn1 Edwards swore in his affidavit that defendant is not Snake and was not with him on the night of April 7, 1992. Edwards further stated that he gave this information to his lawyer prior to defendant's trial, but was told to "remain quiet." At that time, he was also afraid Snake might harm his family. Edwards stated he was providing the affidavit to clear his conscience and "free an innocent man."
In support of his ineffective assistance of trial counsel claim, defendant attached the affidavit of Michael Williams. Williams averred that he witnessed a shooting on the night of April 7, 1992, in the 4600 block of Leamington Avenue. He stated that Antoine Edwards and another man he did not know were involved in the shooting and he was certain defendant was not present and was not the shooter. Finally, defendant argued his appellate counsel was ineffective for various reasons that are not presented in this appeal.
Defendant's successive petition was summarily dismissed by the trial court as frivolous and patently without merit, and we granted defendant's motion to file a late notice of appeal. On appeal, defendant contends his petition raised the gist of meritorious constitutional claims of actual innocence based on newly discovered evidence, ineffective assistance of trial counsel and ineffective assistance of appellate counsel. He argues for the first time on appeal that his trial counsel was ineffective for failing to object to an improper jury instruction and his appellate counsel was ineffective for failing to challenge Queen's in-court identification of defendant.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides an opportunity for a defendant to assert that his conviction was the result of a substantial deprivation of his constitutional rights. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). An action for post-conviction relief is a collateral attack, not an appeal from an underlying judgment. People v. Morgan, 187 Ill. 2d 500, 527-28 (1999). In order to be entitled to post-conviction relief, the defendant must establish that there was a substantial deprivation of his constitutional rights in the proceedings that produced the judgment being challenged. Mahaffey, 194 Ill. 2d at 170.
In cases where the death penalty is not involved, post-conviction proceedings involve three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The current petition was summarily dismissed after the first stage of review. During the first stage, the trial court reviews the petition within 90 days of filing and determines whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000). To survive summary dismissal, a pro se petitioner need only raise the "gist" of a meritorious constitutional claim (Gaultney, 174 Ill. 2d at 418), but he must provide affidavits, records, or other evidence to support his allegations or explain why none could be obtained (725 ILCS 5/122-2 (West 2000); People v. Collins, 202 Ill. 2d 59, 66 (2002)). The court may also consider the allegations in light of the trial record and may dismiss the petition if they are contradicted by that record. People v. Coleman, 183 Ill. 2d 366, 382 (1998). The State is not entitled to raise any arguments during the summary review stage. Gaultney, 174 Ill. 2d at 418. Our review of a dismissal at the first stage of post-conviction proceedings is de novo. Coleman, 183 Ill. 2d at 388-89.
Initially, the State contends that the arguments defendant raises in his successive post-conviction petition are waived because they could have been raised in his first petition. Pursuant to section 122-3 of the Act, a claim alleging the substantial denial of a constitutional right that was not raised in the original or an amended post-conviction petition is considered waived when asserted in a successive petition. 725 ILCS 5/122-3 (West 2000); see People v. Britt-El, No. 89837, slip op. at 6 (August 29, 2002) ("[W]e discern no reason why the additional claims could not have been included in defendant's first petition. Accordingly, those claims in defendant's second petition which were not included in his ...