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People v. Rish

November 10, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NANCY RISH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 21st Judicial Circuit Kankakee County, Illinois, No. 87-CF-321 Honorable Gordon Lustfeldt Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

PUBLISHED

On November 2, 1988, defendant Nancy Rish was convicted by a jury of first-degree murder and aggravated kidnaping. She was sentenced to a term of natural life imprisonment for murder and a concurrent 30-year term for kidnaping. This court affirmed defendant's convictions and sentences on direct appeal. People v. Rish, 208 Ill. App. 3d 751, 566 N.E.2d 919 (1991). Defendant then filed a post-conviction petition which, along with a subsequent amended petition and two supplemental petitions, raised 16 separate claims. Twelve of the claims were dismissed at the second, pleading, stage. The remaining four claims proceeded to the third stage for an evidentiary hearing, and ultimately, were also dismissed. Defendant appeals from the denial of eight of her claims, seven of which were dismissed without an evidentiary hearing. We affirm in part, reverse in part, and remand.

FACTS

A detailed recitation of the evidence was set forth in our decision on direct appeal of this case. See Rish, 208 Ill. App. 3d at 754-67, 566 N.E.2d at 921-30. We therefore relate only those facts necessary to a general understanding of the case and the issues presented.

On September 2, 1987, Stephen B. Small was kidnaped and a ransom demand was sent to his home. Small's sister called the police, who immediately initiated an investigation. The investigation focused on Danny Edwards and the defendant, who lived together in a townhouse in Bourbonnais.

On September 4, a search warrant was executed for the townhouse. That evening, Edwards led the police to a rural area where Small's body was recovered. It appeared that Small had been placed in a wooden box which had been fitted with a PVC pipe designed to give him air for 24 to 48 hours. The box also contained a light connected to an automobile battery, a one gallon jug of water, candy bars, gum, and a flashlight. Small's wrists were handcuffed and the box was buried. The coroner later determined that his death was caused by "asphyxia due to suffocation."

That same night, the police arrested defendant and held her at the station for questioning. Defendant requested a specific attorney, J. Scott Swaim, who had previously represented her, and she was given an opportunity to obtain his counsel. The defendant did not know that Swaim was friends with the victim.

The two had socialized at dinner parties and entertained together on several occasions. However, Swaim did not inform defendant of his friendship with Small prior to or at any time after undertaking representation.

For the next four days, between September 4 and September 8, the police questioned defendant with counsel present. Eight statements were elicited concerning her knowledge and actions in the early days of September. None of the statements was totally consistent with any other.

On October 1, defendant was charged by indictment with first-degree murder and aggravated kidnaping for her alleged role in Small's death. On November 2, 1988, defendant was tried by a jury. No direct evidence was presented linking her to the kidnaping or death of Small. However, the State was able to enter defendant's eight inconsistent statements into evidence. Witnesses were also presented who testified that they had seen her at various times with Edwards when he was purchasing some of items that were ultimately found with Small's body. Other witnesses reported that they had observed her at various related locations during the course of the kidnaping and ransom calls. Lastly, the State submitted evidence that Edwards had used their garage to build the box in which Small's body was found. The jury found defendant guilty on both counts, and the trial court sentenced her to a term of natural life imprisonment and a concurrent 30-year term.

After this court affirmed defendant's convictions and sentences and her petition for leave to appeal to the supreme court was denied, defendant filed a post-conviction petition. Following a substitution of counsel, a twelve-claim amended petition was submitted. A separate supplemental petition was also filed, adding two additional claims. The circuit court held an evidentiary hearing on four of the claims. Ultimately, all fourteen of the claims were dismissed.

Defendant then filed a second supplemental petition, raising two more claims, but these were also dismissed without an evidentiary hearing. Defendant's motion for reconsideration was denied.

On appeal, defendant challenges the dismissal of eight of her post-conviction claims, arguing them as four issues: (1) whether she was denied due process because the prosecutor presented allegedly false contentions to the jury; (2) whether the trial court erred in finding that two discovery violations were not material within the meaning of Brady v. Maryland; (3) whether claims of ineffective assistance of counsel at custodial interrogation were inappropriately dismissed at the pleading stage; and (4) whether defendant is entitled to sentencing relief pursuant to Apprendi v. New Jersey.

ANALYSIS

The Post Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2000)) provides a three-step process for adjudication of petitions for post-conviction relief. At the first stage, the circuit court does not decide the petition on the merits; instead, without input from the State or further pleadings from the defendant, the court determines if the petition presents the gist of a claim for relief, that is, whether the petition contains sufficient facts upon which a meritorious constitutional claim could be based. See People v. Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102 (1996). At this first stage, "all well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true." People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1073 (1998).

If the court does not dismiss the petition at the first stage, it will, in the second stage, appoint counsel to represent an indigent defendant who requests legal assistance, and counsel will have an opportunity to amend defendant's post-conviction petition. See 725 ILCS 5/122--4 (West 2000). The State may then file a motion to dismiss, and the court will determine whether an evidentiary hearing on the merits of the defendant's petition is warranted. See 725 ILCS 5/122--5 (West 2000). A defendant is not entitled to an evidentiary hearing as a matter of course; it is required only when the allegations of the petition, supported where necessary by the trial record and affidavits, makes a substantial showing of a constitutional violation. People v. Ward, 187 Ill. 2d 249, 255, 718 N.E.2d 117, 123 (1999); People v. Henderson, 171 Ill. 2d 124, 140, 662 N.E.2d 1287, 1296 (1996). In making this determination, all well-pleaded facts in the defendant's petition and any accompanying affidavits are taken as true. People v. Caballero, 126 Ill. 2d 248, 259, 533 N.E.2d 1089, 1091 (1989). Mere conclusions, however, are insufficient to require a hearing under the Act. Coleman, 183 Ill.2d at 381, 701 N.E.2d at 1072. The evidentiary hearing and a determination on the merits is the third and final stage of post-conviction proceedings. See 725 ILCS 5/122--1 through 122--8 (West 2000); see also People v. Patton, 315 Ill. App. 3d 968, 735 N.E.2d 185 (2000). In considering plaintiff's appeal, we have divided our analysis of defendant's post-conviction claims into two separate sections, according to the appropriate standards of review.

Claim Subject to Deferential Review

Brady Violation

We first consider the denial of count three, alleging a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Since this count survived to the third stage for an evidentiary hearing, we will not disturb the circuit court's ruling unless it is manifestly erroneous. See Coleman, 183 Ill. 2d at 385, 701 N.E.2d at 1074.

Defendant asserts that the prosecution committed a Brady violation when it presented James Witvoet as an identification witness, but failed to disclose that criminal proceedings were pending against him. At the time he testified, two charges of illegal operation of a migrant labor camp were pending against Witvoet in Kankakee County. Each count was a petty offense, with a minimum fine of $100 and a maximum fine of $500. Defendant maintains that the State's omission was prejudicial to her case because the criminal charges could have been used to impeach Witvoet's testimony.

We do not find defendant's assertion tenable. Although the government is obligated to turn over evidence in its possession that is favorable to the accused, the evidence must be material to guilt or punishment. See Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at ____. Evidence is material only if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 94 L. Ed. 2d 40, 57, 107 S. Ct. 989, ___ (1987). In this case, the prosecutor's failure to disclose Witvoet's pending criminal charges was not a Brady violation because the criminal charges were not material to defendant's guilt. Witvoet testified that he was driving with another person in an area near the crime scene when he saw a van similar to one owned by Edwards. Witvoet saw two people in the van: a male with dark hair and another individual with dishwater blonde hair, similar to defendant's. However, Witvoet was unable to say whether the blonde passenger was a man or a woman.

As the circuit court noted, when a witness has a pending criminal charge, the concern is that he may testify falsely in return for leniency. Witvoet first reported his observations to the police in September of 1987; he was not charged criminally until ten months later, in July of 1988. His testimony at trial was consistent with his earlier report to the police. There is no indication that Witvoet altered his testimony to gain favor with the State. Indeed, Witvoet testified at the post-conviction hearing that the charges did not affect his testimony because he knew that the State had mistakenly charged him instead of his father, James Witvoet, Sr. Witvoet believed that the charges would ultimately be dismissed, and they were, in January of 1989, for that reason. There were no plea negotiations with the State's Attorney prior to dismissal.

Of course, the relevant question is not whether Witvoet's testimony was affected by the criminal charge, but whether the result of the trial was undermined by defendant's inability to impeach Witvoet with those charges. Given the lack of gravity of the charges, their timing, Witvoet's professed lack of concern, and the absence of any plea bargain, we believe the impeachment value of the charges was extremely low. Accordingly, we find that the circuit court's ruling that the State's discovery violation was not material was not manifestly erroneous. The denial of count three of defendant's post-conviction petition is affirmed.

Claims Subject to De Novo Review

The following seven claims will be reviewed de novo, since no deference is extended to the trial court when no evidentiary hearing has been held. Coleman, 183 Ill. 2d at 388-89, 701 N.E.2d at 1075.

Ineffective Assistance of Counsel

Defendant challenges the dismissal of count one of her petition, which alleged that her right to counsel was violated during custodial interrogation. She complains that her attorney at the interrogation, J. Scott Swaim, had an interest in the case that was adverse to her own. Specifically, she claims that Swaim was a close friend of the victim, Stephen Small. In addition, Swaim had been the attorney for a Kankakee police officer involved in the case, Detective Robert Anderson. These two conflicts, the defendant argues, motivated Swaim to allow her to ...


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