Appeal from the Circuit Court of Cook County. 91 CR 21147 The Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
This appeal is before us again because of a supervisory order of the Illinois Supreme Court entered on December 31, 2002, directing this court to vacate and reconsider its previous order in this appeal, People v. Deloney, Nos. 1-98-1413, 1-00-1914 cons. (July 26, 2002) (unpublished order under Supreme Court Rule 23), in light of the supreme court's recent holding in People v. Boclair, 202 Ill. 2d 89 (2002), which provides that the trial court may not summarily dismiss a post-conviction petition solely on the basis of its untimeliness.
The underlying facts of this case have been set forth adequately in the order concerning defendant's direct appeal. Accordingly, we state herein only those facts necessary to the disposition of this post-conviction appeal, including the procedural background that follows.
On October 6, 1994, following a bench trial, defendant was found guilty of three counts of first degree murder. Defendant appealed this judgment, asserting that he was not proven guilty beyond a reasonable doubt because the eyewitness testimony was unreliable and his statement was given involuntarily and uncorroborated by the evidence. We affirmed the trial court's judgment on March 21, 1997. People v. Deloney, No. 1-95-0199 (1997) (unpublished order under Supreme Court Rule 23). Defendant petitioned for leave to appeal our decision, but was denied by the Illinois Supreme Court on June 4, 1997. People v. Deloney, 173 Ill. 2d 532 (1997).
On November 21, 1997, defendant filed a combined post-conviction petition and a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), asserting multiple grounds for relief, including police brutality and coercion; actual innocence; ineffective assistance of trial counsel; judicial bias; and prosecutorial misconduct. After reviewing defendant's petition, the trial court found that it was untimely and, furthermore, that all of defendant's claims were frivolous and patently without merit. Thus, on February 19, 1998, the trial court summarily dismissed defendant's petition. Defendant appealed from the trial court's decision and the case was docketed as appeal number 1-98-1413. One day after filing his opening brief in the appeal, defendant filed a motion to supplement the record with an affidavit from identification witness Brenda Marie Hall, in which she recanted her trial testimony. On March 19, 1998, without commenting on the timeliness or the merits of defendant's petition, this court ordered that appeal number 1-98-1413 be dismissed with leave to reinstate, directing the trial court to reconsider its earlier dismissal of defendant's post-conviction petition in light of Hall's affidavit. On January 7, 2000, after reviewing defendant's original petition with Hall's affidavit, the trial court again dismissed it on the basis of its untimeliness and frivolousness.
On February 2, 2000, defendant filed his appeal of the second dismissal of his post-conviction petition, which was docketed as appeal number 1-00-0914. This court consolidated defendant's post-conviction appeals. Accordingly, we consider defendant's arguments and briefs filed under both case numbers together.
On July 26, 2002, we affirmed the trial court's dismissal, finding that defendant failed to establish that the untimely filing of his petition was not due to his own culpable negligence. Deloney, Nos. 1-98-1413, 1-00-1914, cons., citing 725 ILCS 5/122-1(c) (West 1998). Recognizing that our affirmation of the trial court's summary dismissal was based solely on the untimeliness of the petition, we did not address the issue of whether defendant's petition presented the gist of a constitutional claim. However, soon after we issued our order, the supreme court ruled that the issue of timeliness of a post-conviction petition "should be left for the State to assert during the second stage of the post-conviction proceedings" and should not serve as the basis for summary dismissal by the court in the first stage. Boclair, 202 Ill. 2d at 102. As such, we vacate our order of July 26, 2002, which addressed only the issue of the petition's untimeliness, and must now determine whether the trial court's finding that the claims of the petition were frivolous and without merit provides an independent basis on which to affirm the dismissal.
Defendant argues that the trial court erred by dismissing his petition because it presented factual allegations that stated the gist of a valid claim of a violation of his constitutional rights. Specifically, he asserts the following grounds in support: (1) that newly discovered evidence regarding police brutality by officers involved in defendant's case establishes a pattern of abuse which supports his claim that his confession was coerced; (2) that defendant is actually innocent because his conviction was based on coerced and inherently unreliable evidence, including witness testimony which has been recanted since trial, and that he had an alibi for his whereabouts the night of the murders; (3) that defendant's trial counsel was ineffective for failing to move to suppress or otherwise challenge the identification testimony of several witnesses and for failing to establish at trial the pattern of coercive tactics used by the police in obtaining his statement; and (4) that the prosecution engaged in misconduct by participating in the intimidation of witnesses and the defendants and by failing to provide the defense with information that some of the officers involved in the case were under investigation for allegedly using abusive tactics. *fn1
The Post-Conviction Hearing Act confers upon the trial court the ability to summarily dismiss a defendant's petition in its first stage of review if it is frivolous or without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998). A post-conviction petition is considered frivolous or patently without merit if the petition's allegations, taken as true, fail to present the gist of a meritorious constitutional claim. People v. Collins, 202 Ill. 2d 59, 66 (2002), citing People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The "gist" standard is "a low threshold." People v. Edwards, 197 Ill. 2d 239, 244 (2001). The allegations in defendant's petition must be supported by the record or accompanying affidavits, and nonspecific and nonfactual assertions are insufficient to require an evidentiary hearing under the Act. People v. Coleman, 183 Ill. 2d 366, 381-82 (1998).
In determining whether a meritorious constitutional claim has been presented, the court may examine the court file and transcripts of the proceeding in which the petitioner was convicted and any action taken by an appellate court in such proceeding. See 725 ILCS 5/122-2.1(c) (West 1998). The court may summarily dismiss a post-conviction petition if the allegations contained therein are contradicted by the record. People v. Rogers, 197 Ill. 2d 216, 222 (2001); People v. De Avila, 333 Ill. App. 3d 321, 329 (2001); see also People v. Ramirez, 162 Ill. 2d 235, 243 (1994). The dismissal of a post-conviction petition for failure to allege a substantial deprivation of constitutional rights is a legal determination, which this court reviews de novo. Coleman, 183 Ill. 2d at 387-88.
After reviewing, de novo, defendant's petition in this case, we find that each of his claims is frivolous and without merit. Therefore, because defendant has failed to allege a substantial deprivation of his constitutional rights, we affirm the trial court's dismissal of defendant's post-conviction petitions.
Police Brutality and Coercion
At trial, defendant moved to suppress the statement he had made to the police while in custody, arguing that it was coerced and given involuntarily because he was abused by the police officers who interrogated him. The trial court denied his motion and allowed the statement in as evidence, finding "no reason to believe that he was ever touched or punched or slapped or threatened or abused verbally in any way." On direct appeal, defendant again argued that his statement was involuntary and uncorroborated by the evidence, and, therefore, he was not proven guilty beyond a reasonable doubt. See Deloney, No. 1- 95-0199, slip op. at 10. This court found that the trial court's determination that defendant's statement was voluntary was not against the manifest weight of the evidence and, accordingly, we upheld his conviction. See Deloney, No. 1-95-0199, slip op. at 12-13, citing People v. Miller, 173 Ill. 2d 167, 181 (1996). Thus, inasmuch as the purpose of the Post-Conviction Hearing Act is to address issues of constitutional dimension that have not and could not have been presented in an earlier proceeding, the doctrine of res judicata bars defendant from now revisiting this same issue. See People v. Haynes, 192 Ill. 2d 437, 464-65 (2000); People v. Patterson, 192 Ill. 2d 93, 139 (2000). However, defendant now claims that, since the trial, he has discovered new evidence that reveals a pattern of abuse and torture by the police and supports his previous argument that his confession was coerced. He argues that with this new supporting evidence, he has stated the gist of a meritorious claim in his petition which entitles him to proceed to a second-stage review by the trial court.
The supreme court has recognized that, in the interests of fundamental fairness, the doctrine of res judicata may be relaxed if the defendant presents substantial new evidence. Patterson, 192 Ill. 2d at 139. To merit a new trial, the evidence must be of such conclusive character that it will probably change the result upon retrial; material and not merely cumulative; discovered since the trial; and of such character that it could not have been discovered prior to trial by the exercise of due diligence. Patterson, 192 Ill. 2d at 139.
Applying the aforementioned standard, the trial court found defendant's evidence insufficient. Defendant argues on appeal that the trial court exceeded its scope of review in the first stage by assessing the merits of the evidence and that it applied "an outcome determinative test" rather than merely determining whether the petition stated the "gist of a constitutional claim." We disagree with defendant's reasoning, noting that, in order to withstand summary dismissal, defendant's petition must contain a "simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings." (Emphasis added). People v. Dredge, 148 Ill. App. 3d 911, 913 (1986). Thus, in order to determine whether a "gist" of a meritorious constitutional claim has been presented, the court must inquire into the relevance and merit of the defendant's supporting documents. Such an assessment is implicit in conducting a first-stage review.
In his petition, defendant asserts that he was coerced into signing a statement because he was subjected to repeated threats, beatings and intimidation; denied access to a lawyer; forced to witness the beating of his cousin, Maurice Deloney; and reassured by the police that if he was merely a driver and not the shooter in the drive-by murders, "he would have no problems." Specifically, he offers that a grey/light-haired detective punched him in the chest and a silver-haired detective slapped him in the face and chest and threatened to throw him out the window. He further asserts that a detective with "brown hair, glasses, a mustache, and beard" and a detective who was "stocky, tall and clean shaven" were in the room at the time he was abused. The only officers defendant names as having taken part in his interrogation are "Detectives O'Brien, McKay *fn2 , and McWeeney."
As to defendant's allegation that his cousin, Maurice, was abused, he offers no names nor even a physical description of the officers involved, claiming that he did not see their faces at the time. Defendant attaches a photocopy of an affidavit from Maurice that corroborates the general allegations of abuse, but again, fails to offer any description of the officers.
Defendant further claims in his petition that his co-defendant, Ivan Smith, was also coerced into giving a statement soon after defendant's arrest. Defendant claims that Smith was slapped, punched, put in hand and leg cuffs, denied access to a lawyer, and hit in the chest with a phone book and nightstick until he could no longer breath. Defendant identifies "Detectives Joseph Stehlik and James O'Brien, and ASAs Michael Smith and Charlie Burns" as Smith's interrogators. In addition, defendant alleges that another co-defendant, Curtis Milsap, was ...