Appeal from the Circuit Court of Cook County No. 96 CR 11508
The opinion of the court was delivered by: Honorable James B.Linn, Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice Cahill concurred in the judgment and opinion.
In this appeal, defendant Anthony English contests the dismissal of his post-conviction petition after a third-stage evidentiary hearing; and, for the reasons stated below, we affirm.
Defendant Anthony English was charged with the gang-related shooting and murder of Keith Lewis on November 25, 1995. During the jury trial held in October 1997, defendant requested a continuance after the close of the State's evidence, because a defense witness, William Brown, was not in the courtroom. After the State objected on the ground that the witness had not been subpoenaed for that day, the trial court denied the request. The jury then found defendant guilty of the first degree murder of Keith Lewis. Several months earlier, defendant had also been found guilty of the shooting death of another victim, Bertram Scarver. On November 17, 1997, defendant was sentenced by then circuit court judge Themis Karnezis*fn1 to natural life in prison.
The Lewis case has been before the appellate court on two prior occasions. First, on direct appeal, defendant claimed that the State failed to prove him guilty beyond a reasonable doubt of the Lewis murder and that the trial court abused its discretion in refusing to grant a continuance in order to locate and produce a witness, namely William Brown. People v. English, No. 1-97-4521, order at 1 (1999) (unpublished order under Supreme Court Rule 23)(English I). The appellate court affirmed defendant's conviction for the Lewis murder, noting that two No. 1-09-1449 eyewitnesses testified that they observed defendant shoot the victim, in broad daylight and at close range; and that the proposed eyewitness claimed that he did not see who fired the gun. English I, order at 5-6.
Defendant's second appeal to this court occurred after a trial court dismissed his post-conviction petition. Defendant successfully appealed the trial court's second-stage dismissal, and we reversed and remand for a third-stage evidentiary hearing. In his pro se post-conviction petition filed February 22, 2001, defendant had claimed actual innocence, alleging that the State's eyewitnesses had reason to testify falsely and that Brown, his proposed witness, would be more credible because Brown had no reason to testify for the defense. In his supplemental petition filed in March 2005, defendant alleged that his trial counsel was ineffective for failing to call Brown to testify at trial. After reviewing Brown's affidavit, we held that "[t]he information in Brown's affidavit, if taken as true, is potentially exculpatory and calls into question the credibility of the State's witnesses." People v. English, No. 1-05-2287, order at 7 (2008) (unpublished order under Supreme Court Rule 23(English II).
After our remand, the trial court held a third-stage evidentiary hearing, at which the missing Brown finally testified, as well as Joshua Cole, who had No. 1-09-1449 previously testified as a State witness at defendant's trial. At the end of the hearing, the trial court found both men "wholly lacking in credibility." The trial court found that "[t]he performances they put on here in [this] courtroom [were] sad and not at all compelling." In addition, the trial court observed that, since the time of defendant's trial, both Brown and Cole had "picked up quite a bit of additional baggage in [that] they're both now convicted murderers themselves." Defendant's petition was again denied by the trial court, and he now appeals to this court a third time.
For the reasons stated below, we affirm the trial court's dismissal of defendant's post-conviction petition.
The evidence at trial established that, during the afternoon of November 25, 1995, decedent Keith Lewis was shot several times in a gang-related incident near Kostner Avenue and Van Buren Street in Chicago. Lewis died two days later.
Keith Dickerson testified that he was walking with his father J.C. Orsby, as well as William Brown, Keith Lewis and two others, when defendant drove by. Defendant shouted to Dickerson's group, and then approached on foot. Defendant punched Lewis and, when Lewis tried to walk away, defendant shot Lewis in the No. 1-09-1449 back. Lewis fell to the ground, and defendant shot Lewis again as Lewis lay on the ground.
Dickerson testified that defendant's nickname was "Shorty" and that Dickerson knew defendant in the years before they joined rival gangs. Dickerson, Lewis and Brown were all in the Gangster Disciples gang, while defendant was in the New Breed gang.
Dickerson testified that he did not contact the police because he was afraid for his family, and he believed that his gang would avenge the shooting. He admitted that his family moved from the area the following month. Dickerson did not tell the police about Lewis' murder, until after he was arrested for an unrelated robbery charge in March 1996. However, Dickerson denied that he was promised anything in exchange for this information. Dickerson related the circumstances of Lewis' murder to Detective Daniel McWeeny, who also testified at trial.
Dickerson's father, J.C. Orsby, also testified at trial and corroborated his son's description of events. Orsby, a convicted drug dealer, stated that he decided to talk to police when he was contacted about his son's arrest for armed robbery. Orsby had selected defendant's photograph from a photographic array at the police station, but he denied that any promises were made regarding his son's armed robbery case.
Detective McWeeny testified that the same gun was involved in the shooting of both Lewis, and Bertram Scarver a month later. As a result, Detective McWeeny was conducting both investigations. After Dickerson was arrested for armed robbery, he provided information about the Lewis murder and identified defendant's photograph from a photographic array. Detective McWeeny denied making any promises to Dickerson in exchange for Dickerson's information regarding the Lewis murder. During the investigation, the detective also spoke to Joshua Cole who provided defendant's location, and who identified defendant in a lineup after defendant's arrest.
Joshua Cole testified that he belonged to the same gang, the New Breed, as defendant. Cole saw defendant on the day of the shooting, but before Lewis was shot. Defendant asked Cole to "close these n*****s down" but Cole refused. Soon afterward, Cole heard four shots and drove towards the area where Lewis was shot, to see if defendant was all right. Cole saw defendant jogging out of a nearby alley, and defendant asked Cole for a ride, saying he was "dirty," which meant that he was carrying a gun. Cole did not give defendant a ride.
Cole also testified that, on December 27, 1995, he refused a request by defendant to bring Bertram Scarver out from a store and then, shortly thereafter, Cole observed defendant shoot Scarver. Cole failed to contact the police, and he agreed to testify only after his family's moving expenses and first month's rent were paid, but he denied that this was a bribe to testify falsely. Cole admitted that he lied under oath before the grand jury about how long he had ...