Appeal from the Circuit Court of Cook County. Honorables Nicholas R. Ford, Stanley Sacks, Judges Presiding.
The opinion of the court was delivered by: Justice Quinn
PRESIDING JUSTICE QUINN delivered the opinion of the court: Defendant Jerry Gillespie appeals from orders of the circuit court denying him leave to file his third and fourth successive petitions for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) and dismissing two petitions for relief under section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). For the following reasons, we affirm.
Following a 1994 jury trial, defendant was convicted of first degree murder based on a theory of accountability for his participation in the fatal shooting of beauty shop employee Jeffrey Rodgers. On February 13, 1993, at about 9 p.m., six masked men entered the beauty shop and ordered everyone to the ground. Three of the masked men used guns to shoot and kill Rodgers in retaliation for the murder of the brother of a gang member.
Following his arrest, on February 22, 1993, co-defendant Antwan Holiday provided a court-reported statement. Holiday admitted that he held the rank of chief of security for his street gang and that KB (Johnell Alexander) ordered a hit on the victim because the victim was involved in the murder of a gang member. Holiday implicated defendant and stated that defendant had a .38-caliber weapon, while co-defendant Jeffrey Clarkson had a 9-millimeter gun and another gang member had a Glock. Holiday stated that he acted as a security agent at 56th and Racine while the armed men entered the beauty shop and killed the victim. A 9-millimeter gun was recovered from Clarkson's bedroom. Holiday and co-defendant Gerald Earl were tried simultaneously before separate juries. Both Holiday and Earl were convicted of first degree murder and sentenced to 60 years in prison.
On direct appeal, this court corrected the mittimus to reflect only one count of first degree murder and affirmed Holiday's conviction and sentence. People v. Holiday, No. 1-94-4185 (June 20, 1997) (unpublished order under Supreme Court Rule 23). On direct appeal, this court reversed Earl's conviction and remanded for a new trial because the State failed to present evidence, which was apparently available, to connect Earl to the guns and ammunition admitted into evidence. People v. Earl, No. 1-94-3449 (January 23, 1998) (unpublished order under Supreme Court Rule 23).
Two other co-defendants were convicted of the first degree murder of Rodgers in separate trials. Willie Hughes was convicted and sentenced to 60 years in prison. On direct appeal, this court affirmed the judgment. People v. Hughes, Nos. 1-94-4184, 1-95-0340 & 1-95-2942, cons.
(June 30, 1997)(unpublished order under Supreme Court Rule 23). Jeffrey Clarkson was convicted and sentenced to 40 years in prison and this court affirmed the judgment on direct appeal. People v. Clarkson, No. 1-94-4398 (June 27, 1997) (unpublished order under Supreme Court Rule 23).
In defendant's case, police officers initially treated defendant as a witness during their investigation of the Rodgers homicide. On February 18, 1993, at about 2 p.m., defendant accompanied Detectives McDonald and Rajkovich to the police station. Following an interview with Detective Clancy, defendant provided an exculpatory statement which implicated co-defendant Clarkson. Defendant then repeated the statement to an assistant State's Attorney who reduced it to writing. After that interview, which concluded at approximately 3 a.m., the assistant State's Attorney asked defendant whether he would testify before the grand jury. Defendant agreed, and, citing safety factors, defendant opted to spend the night at the police station.
The next morning, on February 19, 1993, Detective Rajkovich took defendant to testify before the grand jury. During his grand jury testimony, defendant stated that on February 11, 1993, he was walking down the street and met "Ray Ray" (co-defendant Clarkson). Defendant testified that he asked Clarkson what happened with the shooting at the beauty salon and Clarkson replied that he did not know. Defendant testified that later that day he spoke with a boy named Michael, who told defendant that Ray Ray (Clarkson), Twan (Antwan Holiday), and Six-Point (Willie Wilson) were responsible for the beauty shop shooting. Defendant testified that when he saw Clarkson again that day, defendant told Clarkson that he heard that Clarkson, Holiday, and Wilson were responsible for the shooting. Defendant testified that Clarkson agreed and told defendant that they shot the victim in the beauty salon while the victim was on the phone. Defendant also testified that he had known Clarkson for about five years, Clarkson was a member of the Gangster Disciples, and Clarkson usually carried a 9-millimeter gun.
After the grand jury, Detective Rajkovich was driving defendant to defendant's residence when the detective received a page. The detective returned the page and learned that defendant had been implicated in the murder by co-defendant Hughes. Detective Rajkovich returned defendant to the police station. At the station, Detective McDonald spoke with defendant and told him that it appeared that defendant had lied in his previous statement. Defendant admitted that he had lied and subsequently provided an inculpatory, court-reported statement.
In the court-reported statement, defendant admitted that he was a member of the Gangster Disciples street gang. Defendant stated that KB (Alexander) was in control of his neighborhood for the Gangster Disciples and that KB's duties included directing members, holding meetings, and telling members to be on security. Defendant stated that on the day of the Rodgers murder, at about 7 p.m., he met with co-defendants Holiday and Clarkson at his house. Defendant stated that Holiday and Clarkson were also members of the Gangster Disciples and they informed defendant that they were going to kill a rival gang member who worked at the beauty shop because that person was involved in the murder of one of the Gangster Disciples' leaders. Holiday and Clarkson told defendant to meet them at 55th and Racine between 8 and 8:30 p.m., and that defendant's role was to act as security while they shot the rival gang member. At about 8 p.m., defendant went to the designated corner, which was located across the street from the beauty shop, and Alexander directed defendant to his security post. Defendant stated that Alexander was directing everyone regarding what to do during the murder. Defendant noticed that Holiday was carrying a Glock, and Clarkson was carrying a .38- or .357-caliber revolver. Defendant watched six gang members, including three members who were armed, walk toward the beauty shop. A short time later, defendant heard gunshots from inside the beauty shop, and defendant left the scene and went home. Defendant stated that he had not been threatened by police officers or an assistant State's Attorney and that he provided the statement under his own free will.
Prior to trial, defendant filed a motion to quash arrest and to suppress his inculpatory statements. At the hearing on his motion, defendant testified that on February 18, 1993, at about 3 p.m., he was driving in his car when police officers pulled in front of him and blocked his way. Defendant testified that detectives got out of their vehicles with weapons drawn, ordered defendant out of his car, handcuffed defendant, and placed defendant in a police car and took him to the police station. Defendant testified that he was not advised of his Miranda rights and was held incommunicado.
Defendant testified that the detectives did not ask him whether he wanted to testify before the grand jury and no one provided him with the option to sleep at home on the evening before testifying before the grand jury. After he testified before the grand jury, defendant was returned to the police station and defendant testified that he was physically and psychologically abused by police officers. Defendant testified that he was told he would go to jail for 100 years if he did not cooperate with the murder investigation. After he denied involvement in the Rodgers murder, defendant testified that Detective Foley slapped him in the face, grabbed him by the throat, and then slapped him again. Defendant also testified that Detective McDonald knocked over the chair that defendant was sitting on. On cross-examination, defendant testified that he voluntarily signed the statement which said that he was well-treated by the police, but defendant refuted the veracity of his signed statement. The State also presented several witnesses to testify at the suppression hearing. After hearing arguments, the circuit court made lengthy findings of fact. The circuit court found that defendant voluntarily went to the police station to assist in the murder investigation and was not advised of his Miranda rights initially because he was considered to be a witness at that time. With regard to the physical coercion claim, the circuit court found no credible evidence of police brutality. Accordingly, the circuit court denied defendant's motion to quash arrest and suppress his statements.
At defendant's trial, Colleen Lashley testified that on February 10, 1993, she was working at the beauty salon when six masked men entered the salon and fatally shot Rodgers. Lashley testified that the shooters used a revolver, a Glock semiautomatic pistol, and a Tec-9 pistol. On February 20, 1993, defendant's mother retrieved and provided police officers with a .38-caliber revolver from the family home. Lashley testified that the revolver was similar to the one used in the shooting. Firearm technician Richard Chenow testified, among other things, that he inspected the bullets recovered from the victim and opined that they were fired from either a 9 millimeter or .38-caliber gun, though the bullets had class characteristics consistent with being fired from the .38-caliber revolver.
Defendant testified that on February 10, 1993, he was at home with his friend, Terrence Parks. At about 7 p.m., defendant left with Parks to take a drive. Defendant testified that he and Parks returned to the neighborhood around 9:30 p.m., where "Pete" flagged them down around the corner from where the shooting had taken place. Defendant testified that "Pete" told him about the shooting then advised defendant that he should go home. Defendant identified a photo of Johnell Alexander as being "Pete" and "KB." Defendant testified that he went home and spent the rest of the evening there. Parks testified and confirmed that he was with defendant during this time.
Defendant then testified consistent with his pretrial testimony regarding the events that preceded his arrest. With respect to his claim of physical coercion, defendant raised a new allegation that unidentified police officers had threatened to burn him with a cigarette and beat him if he did not give an inculpatory statement. Defendant testified that Detective Foley slapped him in the face twice and grabbed him by the throat. Defendant also testified that another detective knocked over the chair that he was sitting on. Defendant denied that he provided gang members with a gun from his house to use in the murder. Defendant testified that a female assistant State's Attorney told him the details of the murder and instructed him to repeat those details when the court reporter arrived.
On cross-examination, defendant testified that he, Holiday, Clarkson and "Main Main" (Hughes) were all members of the Gangster Disciples. Defendant testified that another member of the Gangster Disciples, Insane Wayne Wilson, co-defendant Willie Wilson's brother, had been murdered prior to the Rodgers shooting. Defendant further testified that Clarkson was laughing when he confessed to defendant the day after the Rodgers shooting that he, Wilson and Holiday had participated in the murder. Defendant testified several times that he told the truth in the handwritten statement he gave the first assistant State's Attorney and during his grand jury testimony. Defendant testified that after testifying before the grand jury, he was physically abused by police officers some three to four hours after arriving at Area One police headquarters. Defendant maintained that it was after this abuse that he gave the court-reported statement containing the inculpatory details given to him by the police and the female assistant State's Attorney. In defendant's court-reported statement, he stated that he had not been threatened by an assistant State's Attorney or police officers and that he gave the statement under his own free will.
Defendant's mother testified that she kept the .38-caliber gun locked in a gun case and that she was the only person who had a key to the case. Defendant's mother also testified that on February 18, 1993, she learned that defendant was arrested by the police and went to the police station, but she was not allowed to speak to defendant until two days later.
Detective Foley testified that he was involved in the Rodgers murder investigation and present in the interview room when defendant made the inculpatory statement. Detective Foley testified that he did not slap or grab defendant by the throat during the interview. Detective Foley also testified that he did not see any other police officers physically abuse defendant.
After deliberations, the jury found defendant guilty of first degree murder. Defendant was subsequently sentenced to 40 years in prison for the first degree murder of Rodgers. On direct appeal, defendant argued that: (1) the circuit court erred in denying his motions to quash his arrest and suppress his inculpatory statement; (2) the circuit court erred in admitting two guns into evidence; (3) the circuit court erred in allowing testimony regarding a car into evidence; (4) a witness's testimony violated a motion in limine; (5) defendant was denied a fair trial due to prosecutorial misconduct; (6) the circuit court erred in allowing guns and photographs to go back to the jury during deliberations; and (7) defendant was not proven guilty beyond a reasonable doubt. This court resolved defendant's direct appeal and affirmed his conviction and sentence. People v. Gillespie, No. 1-94-4135 (June 30, 1997) (unpublished order under Supreme Court Rule 23).
In June 1997, while his direct appeal was pending, defendant filed his initial pro se post-conviction petition, which was summarily dismissed by the circuit court. Counsel was appointed to represent defendant in his appeal of the summary dismissal. That counsel, Erika Cunliffe, filed a motion requesting that this court dismiss defendant's post-conviction appeal without prejudice because counsel needed additional time to obtain and review the Office of Professional Standards (OPS) report which detailed police brutality at Area 2 police headquarters. This court granted that motion and dismissed the appeal without prejudice. People v. Gillespie, No. 1-97-3075 (1998) (dispositional order).
In January 1999, with the assistance of that same counsel, defendant filed an amended post-conviction petition in the trial court alleging that: (1) he was innocent of the crime; (2) newly discovered evidence corroborated his claim that his confession was induced by physical and psychological coercion; (3) the State violated its duties under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to provide the defense with evidence of a pattern and practice of police brutality; (4) trial counsel was ineffective for not investigating and presenting evidence of police brutality at Area 2 police headquarters; (5) trial counsel was ineffective for failing to subject the guns and ammunition admitted into evidence to any meaningful testing; and (6) the admission of the guns and ammunition into evidence prejudiced defendant.
On September 1, 1999, defendant's motion for substitution of judges was granted and his case was transferred to Judge Mary Ellen Coghlan. After hearing arguments from the parties, on May 18, 2000, Judge Coghlan issued an 11 page written ruling rejecting defendant's claims. In that order, the circuit court found that defendant failed to establish a freestanding claim of his actual innocence, citing People v. Washington, 171 Ill. 2d 475, 479 (1996). Rather, the circuit court, relying on People v. Hobley, 182 Ill. 2d 404, 444 (1998) (Hobley II), held that defendant's newly discovered evidence claim, that police officers at Area 2 headquarters engaged in a pattern and practice of police torture, was being used to supplement the assertion that defendant's confession was coerced and involuntary and that the introduction of his confession at trial violated his constitutional rights. Therefore, defendant's allegations failed to support a freestanding claim of actual innocence. With respect to defendant's alleged Brady violation, the circuit court held that defendant failed to demonstrate that the prior allegations of police brutality were: (1) not unduly remote, (2) were against the same officers, and (3) were similar to the allegations put forth by defendant. Also, there was no evidence of injury consistent with police brutality. The circuit court further found that defendant's claims of ineffective assistance of trial counsel were barred from review pursuant to the doctrines of waiver and res judicata. Consequently, the circuit court dismissed defendant's amended petition without conducting an evidentiary hearing.
On appeal, this court affirmed the circuit court's judgment. People v. Gillespie, No. 1-00-3524 ( December 31, 2003) (unpublished order under Supreme Court Rule 23). In affirming, this court held that defendant's amended post-conviction claim of newly discovered evidence to support his claim that his confession was coerced was forfeited where the issue had been fully adjudicated and where defendant's proffered evidence was neither "new" nor of such conclusive evidence that it would probably change the result on retrial. The Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Gillespie, 208 Ill. 2d 545 (2004).
On August 1, 2007, defendant filed a pro se second post-conviction petition alleging that the statute authorizing mandatory supervised release was unconstitutional. On September 20, 2007, the circuit court found that defendant failed to meet the cause and prejudice test for successive post-conviction petitions and denied him leave to file the petition.
On July 28, 2008, defendant, with the assistance of his attorney Erika Cunliffe, filed a third successive post-conviction petition and for relief pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2008)). In his petition, defendant asserted that: (1) he is actually innocent; (2) the State withheld evidence in violation of Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97; and (3) trial counsel was ineffective for failing to investigate and call witnesses who could have corroborated his claim of innocence. On October 20, 2008, the circuit court denied defendant leave to file his third post-conviction petition and found that defendant failed to advance a claim or defense establishing entitlement to relief under section 2-1401, consequently dismissing the petition. Defendant filed a timely notice of appeal from that judgment (No. 1-08-3016).
On May 20, 2009, while defendant's appeal was pending, defendant, through current post-conviction counsel Professor Andrea Lyon, filed a fourth post-conviction petition and a second petition for relief under section 2-1401. In that petition, defendant alleged that: (1) newly discovered evidence supports his claim of actual innocence; (2) the State withheld evidence in violation of Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97; (3) trial counsel was ineffective for failing to interview Johnell Alexander as a witness; ...