Appeal from the Circuit Court of Cook County. 92 CR 5788 The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Toomin
JUSTICE TOOMIN delivered the opinion of the court: In the present appeal, we consider a post-conviction claim premised, in part, on the findings of an allegedly discredited serologist. During the course of second-stage proceedings, the State's motion to dismiss was granted. Defendant appeals contending: (1) an evidentiary hearing is required to assess his claims regarding the testing of physical evidence, ineffectiveness of counsel, and the availability of testing to support his claim of actual innocence; (2) he made a substantial showing of ineffectiveness of appellate counsel and a violation of his due process rights; and (3) post-conviction counsel's performance violated the mandate provided under Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). For the reasons that follow, we affirm.
In 1997, defendant, Daniel Garcia, was convicted of murder, aggravated kidnaping, and robbery following a jury trial and sentenced to terms of imprisonment of 80 years, 15 years, and 7 years, respectively. His co-defendant, Benjamin Kirk, was also convicted in a simultaneous bench trial. Defendant appealed contending: (1) the admission of highly inflammatory testimony deprived him of a fair trial; (2) the evidence was insufficient to prove his guilt of aggravated kidnaping; (3) counsel was ineffective prior to and during trial; and (4) his sentence was excessive. We affirmed his conviction and sentence. People v. Garcia, No. 1-97-1049 (1998) (unpublished order under Supreme Court Rule 23).
The facts of defendant's case are derived from the trial evidence reflected in the summary order disposing of defendant's direct appeal, coupled with our review of the trial record. Here, we recite those facts necessary to a resolution of the second-stage dismissal of his post-conviction petition. On February 8, 1992, the body of Margaret Anderson was found beneath a viaduct near the intersection of the 3000 block of North Sacramento Avenue and the John F. Kennedy Expressway in Chicago. The 78-year-old victim was found by a passerby beaten almost beyond recognition and naked from the waist down.
Responding officers found Anderson's body lying on her back atop a ledge beneath the expressway. Officers were initially unable to determine either her race or her age due to the condition of her face. Although no identification was found near the body, a set of keys was located that opened the doors to Anderson's apartment. Thereafter, the victim's niece, Mary Wentland, identified Anderson's body at the office of the Cook County medical examiner.
According to Wentland, Anderson wore eyeglasses. The medical examiner's testimony revealed that Anderson suffered numerous injuries to her face, knees, and thigh. Additionally, evidence of brain hemorrhages was identified and it was further determined that Anderson sustained a broken neck. Her injuries were consistent, in part, with being struck in the face. The medical examiner further opined that the fractured neck resulted from Anderson's head being forcefully struck against the concrete ledge beneath the viaduct.
Chicago police officers Cruz Reyes and Nathaniel Hill testified to their canvass of the surrounding area several days after the discovery of Anderson's remains. One of the sources they spoke with was Rosie Cintron, who was known to the officers as a prostitute and drug user. Reyes and Hill met Cintron outside Johnnie's Grill, a location drug dealers, addicts, and prostitutes were known to frequent. The officers described her reaction to their questioning about the murder as being "taken aback." Nevertheless, Cintron voluntarily accompanied the officers in their car to discuss the murder. She was taken to police headquarters at Grand and Central, where the investigation was turned over to the detectives working the case.
According to Cintron's testimony, she knew both defendant and co-defendant, Kirk. At the time of Anderson's murder, Cintron was an active drug user, who supported herself by prostitution and selling drugs. She testified that on February 7, 1992, she got high with the defendants at a crack house on Albany. She claimed she was high throughout the day and into the night. Cintron left the crack house with defendant in a cab. Eventually, she exited the cab at defendant's direction because he and co-defendant "were going to score." Later that morning Cintron again saw the defendants running past her into the crack house. They did not speak to her at that time. Eventually the defendants exited the building and Cintron spoke to defendant. When defendant came outside, he showed Cintron rocks of crack cocaine and a "golden bracelet." According to Cintron, defendant indicated that he had to sell the bracelet, "get rid of it."
Cintron next saw defendant a few days later at a hotel, when defendant explained how he and co-defendant, Kirk, had watched a lady from the viaduct. When she walked by, co-defendant grabbed her and began to beat her. According to Cintron, defendant "said that [co-defendant] was nothing but an animal and he was brutal." Defendant claimed they took a gold bracelet from the victim, which was the same one he had previously showed Cintron. Defendant described the victim as an old lady with glasses. At some point, Kirk threw the glasses onto the expressway.
Cintron made a voluntary statement concerning the foregoing to police. She identified the defendants from police photographs. At trial, Cintron conceded that some of her testimony before the grand jury was not truthful.
Following his arrest on February 14, 1992, defendant gave a written statement to Assistant State's Attorney Theodore Kmiec, which was published to the jury. According to the statement, defendant and Kirk were outside Johnnie's Grill at about 5 a.m. on February 8, 1992. They opted to go steal things in order to get money. As they walked along Diversey Avenue, they decided to steal audio equipment from a Mazda parked on the street. Kirk was the lookout while defendant removed the stereo.
Defendants continued down Diversey toward Sacramento. Upon turning northbound onto Sacramento, they encountered an older woman wearing glasses. Defendants observed jewelry on her person, which they believed to be gold. Kirk suggested they steal the woman's purse, to which defendant agreed. In furtherance of this plan, Kirk confronted the woman while defendant stood behind her. Kirk attempted to grab her purse. The victim struggled and resisted against his efforts. Kirk punched the woman in the face and then demanded the victim's jewelry. The woman refused and asked why she should give it to him. After Kirk struck the woman another time, defendant told her to surrender her jewelry in order to avoid being hit again. Defendant told Kirk to remove her bracelet and stop striking her. Kirk responded that defendant should keep quiet and "keep watching out." Defendant watched as Kirk grabbed the woman by the hair and dragged her up the incline below the viaduct.
According to defendant, he became frightened by all the cars driving in the area and ran back to Johnnie's Grill. Approximately an hour after defendant departed the viaduct, co-defendant arrived at Johnnie's and summoned defendant outside. Defendant exited the restaurant and shook hands with Kirk. When he did, he found a gold bracelet on his palm. It was the same bracelet they saw the old woman wearing. As he tendered the bracelet to defendant, Kirk cautioned, "you did not see anything."
The parties also stipulated to the testimony of serologist and microbiologist Pamela Fish. At the time of trial she had been employed by the Illinois State Police crime laboratory for approximately six months. Before that, Fish worked at the Chicago police crime laboratory, which was closed and folded into the Illinois State Police laboratory. If called to testify, Fish would describe receiving swabs from Anderson's vagina, mouth, and rectum. Having utilized acceptable methods in the scientific community, it was her opinion that those swabs were negative for the presence of spermatozoa or semen. Next, she would testify that her testing of a swab "containing a reddish brown substance *** taken from the sidewalk of 3030 North Sacramento" indicated the substance was human blood, but the sample was "insufficient *** to test the blood type." Likewise, a second sample taken from the ledge beneath the viaduct was determined to be human blood, but the sample was insufficient to conduct blood typing. Furthermore, she would testify that while a jacket found beneath the viaduct was tested for the presence of blood, the results were negative.
Defendant testified on his own behalf. He claimed he was arrested and taken to the 14th District police station, where he repeatedly denied knowing anything about Anderson's murder. Notwithstanding his denials, the detectives hit and punched him, pulled his hair, and kicked him. Defendant further claimed the detectives planted keys and an identification card in his jacket. During a subsequent interview he was struck in the head with a telephone book, causing him to fall and lacerate his arm. He was told each time he denied being involved he would be struck with the book. Defendant claimed he was struck four to seven times. According to defendant, he ultimately gave a statement to get the beatings to stop so that he could go home. The assistant State's Attorney did not ask defendant what he knew about Anderson's murder. Defendant did not read the statement in its entirety prior to signing it. However, he told the prosecutor about his treatment at the hands of the detectives. Defendant denied involvement in the robbery or murder. Moreover, he testified that Cintron's testimony was driven by her anger toward him for not giving her money for cocaine.
Defendant's conviction and sentences were affirmed on direct appeal. On August 17, 1999, defendant filed a pro se post-conviction petition, wherein he claimed ineffective assistance of trial counsel, specifically in the examination of Rosie Cintron, as well as ineffective assistance of appellate counsel, based, in part, on his failure to raise the issue of trial counsel's ineffectiveness. On December 2, 1999, the trial judge summarily dismissed defendant's petition. On March 12, 2001, we remanded the cause for second stage proceedings on defendant's motion because the dismissal occurred beyond the statutory 90-day period for summary dismissals.
Pursuant to remandment, the public defender was appointed as counsel for defendant. Thereafter, counsel filed a "Supplemental Petition for Post-Conviction Relief," adopting defendant's initial petition and supplemental amendment, as well as the documents and exhibits appended to the pleadings. Moreover, post-conviction counsel also averred that, "with the following amendments, the pro se petition, the pro se supplemental amendment thereto, and the exhibits filed by the petitioner adequately present his claims to this court." Additionally, the supplemental petition added claims faulting appellate counsel based on defendant's assertions of trial counsel's alleged ineffectiveness. According to post-conviction counsel, a number of these claims were "apparent from the face of the record." As noted, the trial court granted the State's motion to dismiss, thereby denying an evidentiary hearing. This appeal followed.
We first address defendant's contention that he is entitled to an evidentiary hearing to establish the falsity of Pamela Fish's report regarding the testing of physical evidence. Tangential to this claim is an assertion that the State knowingly used perjured testimony -- through Fish -- to obtain defendant's conviction. Additionally, defendant maintains trial counsel was ineffective in failing to challenge Fish's findings. Thus, defendant concludes: "DNA testing of the evidence has the potential to prove Garcia's actual innocence in a very weak case."
As defendant's petition was denied at the second stage of post-conviction proceedings, our review is de novo. People v. Whitfield, 217 Ill. 2d 177, 182-83, 840 N.E.2d 658, 662 (2005). In Whitfield, our supreme court offered a concise summary of the tenets of law we must apply on review:
"The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West )) provides an avenue by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. [Citations.] To be entitled to post-conviction relief, a defendant must demonstrate that he has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged. [Citation.] The scope of the post-conviction proceeding is limited to constitutional matters that have not been, and could not have been, previously adjudicated. Accordingly, any issues which could have been raised on direct appeal, but were not, are procedurally defaulted and any issues which have previously been decided by a reviewing court are barred by the doctrine of res judicata. [Citation.]" Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at ...