Appeal from the Circuit Court of Cook County. No. 97 CR 21293 Honorable Mary Maxwell Thomas, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
This matter is an appeal arising from an order of the trial court summarily dismissing defendant Emmanuel Robinson's petition for post-conviction relief. Following a bench trial, Emmanuel Robinson was found guilty of first degree murder, attempted murder and aggravated battery with a firearm. He received concurrent sentences of 45 years for the murder, 20 years on the attempted murder and 20 years on the aggravated battery with a firearm. On direct appeal, this court affirmed the murder and attempted murder convictions but vacated the conviction for aggravated battery with a firearm. For the reasons that follow, we reverse the summary dismissal of the post-conviction petition and remand the matter for further proceedings.
On July 10, 1997, Tommy McNeal (Tommy) was killed and his brother, Raleigh McNeal (Raleigh), was shot in an apparent drug-related incident. At trial, Raleigh testified that he and his brother were standing on the street corner in front of their mother's home. They were selling heroin while their family members were all outside. Raleigh and his brother were approached by a gray four-door car. Robinson emerged from the car along with his co-defendant, Arthur Wilson. Raleigh recognized Robinson because they lived in the same neighborhood and had known each other for approximately four years. Robinson warned the McNeal brothers to stop selling drugs on that corner because their sales were reducing Robinson's own profits. Raleigh testified that Tommy falsely denied selling drugs. Raleigh also testified that Robinson threatened to kill them. Robinson and Wilson then got back into the car and left the scene.
Later, at approximately 9 p.m. that evening, the McNeal brothers were back out on the corner. Again, Raleigh claimed that many of his family members were outside, including Raleigh's sister Claire McNeal (Claire). Both Raleigh and Claire saw a sensor light in the gangway illuminate when three men dressed in black emerged. Raleigh testified that he recognized two of the men as Robinson and Wilson. In addition to black pants and black turtleneck shirts pulled up to their lower lips, the three men wore black skullcaps. Claire testified that she did not see anything covering the men's faces and that she did not tell the police that the men wore masks. Raleigh testified that Robinson and the others opened fire. Raleigh was shot in the leg and Tommy was fatally wounded. When the police arrived, Raleigh gave Robinson's name. Three days later, Raleigh and Claire both picked Robinson out of separate lineups.
The crime scene was processed by Officer John Naujokas. Officer Naujokas recovered spent .38 automatic cartridges at the curb along with spent 9-millimeter cartridges. The medical examiner, Dr. Thamrong Chira, testified that Tommy died from multiple gunshot wounds. The accompanying toxicology report indicated that Tommy's blood-alcohol concentration was in excess of the legal limit for driving when he was killed.
Robinson presented his grandmother as a witness. She testified that Robinson was at her house from 5 p.m. until approximately 8:45 p.m. on the day in question. Robinson's grandmother also testified that, when Robinson left the house that evening, he was wearing a white T-shirt and blue jeans. On cross-examination, the prosecutor elicited from Robinson's grandmother that her house was approximately one block from the scene of the crime.
Both sides then made their closing arguments, after which the trial court made a factual finding that Raleigh and Claire were both credible witnesses. The trial court found that both of them had an unobstructed opportunity to see the shooters from a vantage point close enough to allow them to be identified. The trial court also specifically found that small discrepancies in the testimony of the eyewitnesses were adequately explained as being caused by nerves and anxiety. The trial court then found Robinson guilty of first degree murder and attempted first degree murder.
On direct appeal, Robinson was represented by two different attorneys, neither of whom represented Robinson at trial. The first public defender sent Robinson a letter indicating that he would be better off not choosing to file a direct appeal. That attorney indicated that the trial court had made a sentencing error in his favor and, by seeking direct appeal, Robinson might be alerting the prosecution or the trial court to the error, which could result in a longer period of incarceration. The public defender also indicated to Robinson that the choice was entirely his. Thereafter, the public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). This court denied the public defender's request to withdraw, ordering him to file an appellate brief on Robinson's behalf. Robinson thereafter filed a motion for leave to proceed pro se, which this court denied.
The public defender subsequently filed a brief based upon the one-act, one-crime doctrine. Robinson filed a motion for leave to file a pro se supplemental brief. The State then filed a confession of error with respect to the one-act, one-crime issue. This court thereafter issued an order granting the State's confession of error, ordering the trial court to correct the mittimus. This court also denied Robinson's request to file the pro se supplemental brief. This court did, however, issue an order permitting the defense to file an additional brief on direct appeal. In that brief, the assistant appellate defender asserted that the sentencing court erred in considering three victim impact statements instead of just one. This court, in an order pursuant to Supreme Court Rule 23, affirmed the trial court's judgment. People v. Robinson, No. 1-99-2348 (November 21, 2001)(unpublished order under Supreme Court Rule 23).
While the direct appeal was pending, Robinson filed a post-conviction petition. Robinson claims that he was denied a fair and impartial trial because the trial court was predisposed to find him guilty in light of his confession, which was later suppressed. Robinson also claims that trial counsel was ineffective for failing to object to hearsay statements of witnesses, investigate the case, object to uncorroborated testimony about defendant's drug activities, and move for substitution of judge. In support of his contentions, Robinson argues that potential witnesses Yolanda McNeal, Dye Damen, Dorothy Shaw and Lawrence McNeal were listed in various police progress reports yet not interviewed by counsel. Robinson also argues that his lawyer failed to investigate notes in a police progress report that the victims' family had a prior criminal history. Robinson also argues that his attorney should have secured a firearms expert to testify about how far spent shell casings are ejected from automatic weapons similar to those allegedly used by Robinson and Wilson. He argues that there was no explanation as to why there were shell casings found across the street but none where Robinson allegedly was standing, shooting the victims. Robinson also argues that his removal from his home without a warrant, detention by the police and participation in a police lineup constituted an unlawful seizure. Robinson argues that a motion to suppress evidence and quash the arrest was made but later abandoned by trial counsel without his consent. Robinson also claims that his trial counsel was ineffective because: (1) some of his objections were found by the trial court to be irrelevant, (2) he failed to cross-examine all of the State's witnesses, (3) he failed to object to improper in-court identification of the defendant by a witness who testified Robinson was taller than he actually is, and (4) he failed to present any oral arguments for defendant on posttrial motions.
On August 25, 2000, the trial court summarily dismissed the post-conviction petition as frivolous and patently without merit. The order of dismissal was not mailed to Robinson within the 10 day period specified in section 122-2.1 of the Post-Conviction Hearing Act (725 ILCS 5/122-2.1 (West 2000)). Specifically, the court clerk was two days late in ...