Appeal from the Circuit Court of Cook County 03 CR 17932 Honorable Thomas V. Gainer, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Garcia concurred in the judgment and opinion.
Justice Robert E. Gordon specially concurred, with opinion.
¶ 1 Defendant Mark Scott appeals the first-stage dismissal of his post-conviction petition, arguing that the trial court erred in finding the petition to be frivolous and patently without merit because he raised the gist of a meritorious claim of ineffective assistance of trial counsel and appellate counsel. Specifically, defendant contends that his trial counsel was ineffective for failing to pursue DNA testing on a blue shirt purportedly worn by the offender and for failing to investigate the surprise identification testimony from Officer Joseph Seinitz; further, appellate counsel was ineffective for failing to raise these claims of ineffective assistance of trial counsel and for failing to challenge the sufficiency of the evidence on direct appal. Defendant also asks this court to remand his motion for DNA testing to the circuit court for a ruling or further testing.
¶ 2 Defendant was charged with the July 2003 shooting death of LaQuinn Cornell. Prior to trial, defendant filed a motion to suppress identification based on an overly suggestive showup. At the hearing on defendant's motion, the trial court heard testimony from Yvonne Sanders and Talisha Sanders. Both women witnessed the shooting at 39th Street and King Drive on July 19, 2003. After the shooting, the women were taken to a police station and asked to view a suspect. They were placed in a room with two-sided glass and each viewed two different men, one at a time. Yvonne identified defendant as the shooter and noted that he was wearing a white shirt with a blue shirt draped over his shoulders. Talisha did not identify either of the men, but recognized the blue shirt as the one worn by the offender. The trial court found defendant had met his burden of establishing the pretrial identification procedure was unnecessarily suggestive and afforded the State the opportunity to present evidence to show that an independent basis for the reliability of the identifications.
¶ 3 The State recalled Yvonne and Talisha. Yvonne testified that at approximately 7:45 p.m. on July 19, 2003, she was outside a restaurant at 39th and King Drive and talking to LaQuinn Cornell between both of their vehicles. While they were talking, Yvonne saw a man with a gun walk up to them. The man stood a few feet from Yvonne. She said he was wearing a blue shirt and blue khaki pants and she described him as having dark, short hair with a dark complexion. She stated that he was around 5 feet 7 inches and weighed between 180 and 200 pounds. Yvonne watched the man while he was shooting and at one point, the man looked her in the face. Yvonne had never seen this person before the shooting. After he finished shooting, the man ran from the scene while Yvonne called 911 and gave a description to the operator. Approximately 20 minutes later, Yvonne was taken to the police station for a showup where she identified the man she saw shoot Cornell. On cross-examination, Yvonne testified that she saw the shooter for approximately 30 to 40 seconds. She said she stood frozen while the shooting occurred. She initially took one step back, but stopped because she did not want to draw attention to herself.
¶ 4 Talisha testified that she was a passenger in her aunt Yvonne's car at approximately 7:45 p.m. on July 19, 2003, and was with her two-year-old nephew in the front passenger seat. While she was sitting in the car, she heard gunshots. She turned toward the sound of the gunshots, but only saw the shooter's face for a split second before she ducked down with her nephew in the car. She stated that the shooter was wearing a blue shirt and was a dark-complected black man. She described the gun as big, shiny and silver. On cross-examination, Talisha testified that she did not see Yvonne when she turned toward the sound of the gunshots. Defendant's attorney impeached Talisha with her grand jury testimony in which she stated that Yvonne was ducking down behind the car during the shooting, but Talisha testified that she did not remember giving that testimony.
¶ 5 The trial court denied defendant's motion to suppress the identification, finding that the suggestiveness of the showup procedure did not affect the reliability of the identifications.
¶ 6 Yvonne and Talisha gave substantially similar testimony at defendant's December 2005 jury trial.
¶ 7 Officers Robert Stegmiller and Joseph Seinitz testified that they were on duty together with Officer Andrew Schoeff the night of July 19, 2003. Officer Seinitz was driving the unmarked patrol car while Officer Schoeff was in the passenger seat and Officer Stegmiller was in the backseat. While the officers' car was at a traffic light at 39th Street and Martin Luther King Drive, they heard five to six gunshots that sounded very close. They looked in the direction of the gunshots and saw glass blowing out of the passenger side window of a van. They observed defendant running with a gun in his hand from beside the van toward an alley that runs between 39th Street and 40th Street. Officer Seinitz recognized defendant from the neighborhood and testified that he had known defendant for about nine years. Officer Seinitz testified that when he saw defendant running, defendant was wearing a blue shirt. Officer Stegmiller stated that he saw defendant wearing a white shirt.
¶ 8 The officers observed a red Chrysler Concord waiting in the alley with the passenger door open. Defendant got into the car and the car drove off at a high rate of speed. The officers followed the red car on a high speed chase for about 10 minutes. Eventually, the car slowed down to about 20 miles per hour and defendant jumped out of the car. The officers chased defendant and placed him under arrest. At the time of his arrest, defendant was not wearing a blue shirt. The driver of the car was later arrested when his car crashed into another vehicle. Back at the scene, Officer Seinitz was handed a blue shirt from a patrol officer.
¶ 9 Roscoe Bryson testified that on July 19, 2003, he was coming home from a blues festival when he stopped to urinate in the alley between 39th Street and 40th Street. In the alley, Bryson found a nickel-plated Colt 45 revolver. Bryson took the gun home and placed it in his mattress. About a week later, the police came to Bryson's home on an unrelated domestic battery call and Bryson gave the gun to the police. He later showed the police where he found the gun.
¶ 10 A firearms expert examined the gun found by Bryson with cartridge casings and bullet fragments from the scene and concluded that the bullets were fired by that gun. A gunshot residue test was administered to defendant, but the results were not sufficient to establish that defendant had fired a gun. Additionally, fingerprints were recovered from Cornell's van, but they did not match defendant's fingerprints. During a search of the red Chrysler Concord, police found nine clear plastic bags of crack cocaine hidden underneath the shift handle. The medical examiner testified that Cornell's body had a total of five entrance and exit wounds and there was no evidence of close-range firing. The cause of death was multiple gunshot wounds and the manner of death was homicide.
¶ 11 Joe Duckett testified for the defense. He stated that between 7:30 p.m. and 8:30 p.m. on July 19, 2003, he was in a car at 39th Street and King Drive. He heard three shots and turned in the direction of the shots. He saw a man standing with his hand inside the driver's side of a van shooting the driver at point-blank range with what Duckett described as a .38-caliber snub-nosed revolver. Duckett stated that he did not see a woman standing in the parking lot. He also said he saw a marked police car drive past the shooting without stopping. He testified that he went to a gas station and called a friend, who told him to return to the scene. He went back to the scene and told police he had witnessed the shooting.
¶ 12 Duckett testified that he went to the Area One police station and was interviewed by detectives. He described the shooter as about 5 feet 10 inches, with a medium brown complexion, "nappy curls," about 20 to 26 years old, and wearing an aqua T-shirt and faded jeans. He viewed two individuals and told police that neither of them was the shooter. Duckett said he got into an argument with the detectives after he told them that neither of the men was the shooter. On cross-examination, Duckett admitted that the murder weapon was not a snub-nosed revolver.
¶ 13 Detective Brian Forberg testified as a rebuttal witness for the State. He said he spoke to Duckett the night of the shooting and Duckett told him that the shooter used a .32-caliber snub-nosed revolver. Detective Forberg stated that he left Duckett in an office while he made arrangements for him to view a lineup, but when he returned to the office, Duckett was gone. Detective Forberg said he never saw Duckett again that night. Detective Forberg and his partner, Detective John Foster, both testified that Duckett was never brought into a room to view two people and was never shown defendant, and they never got into an argument with Duckett.
¶ 14 Following deliberations, the jury found defendant guilty of first degree murder and found that defendant personally discharged a firearm that proximately caused someone's death. Subsequently, defendant was sentenced to a term of 45 years for the murder and an additional term of 45 years for the handgun enhancement, for a total of 90 years.
¶ 15 On direct appeal, defendant argued that the trial court erred in denying his motion to suppress the identification because the showup was unnecessarily suggestive and Yvonne's identification did not have a reliable basis for identifying defendant independent from the suggestive showup. This court affirmed the trial court's denial of the motion to suppress the identification. See People v. Scott, No. 1-06-2664 (2008) (unpublished order under Supreme Court Rule 23).
¶ 16 In August 2009, defendant filed his pro se post-conviction petition and a motion for DNA testing of the blue shirt. However, the motion for DNA testing contained in the record was not filestamped by the circuit court.
¶ 17 In his post-conviction petition, defendant raised numerous issues, including, actual innocence, prosecutorial misconduct, and claims of ineffective assistance of trial and appellate counsel. Among those claims, defendant asserted that his trial counsel was ineffective for failing to obtain DNA testing on the blue shirt and for failing to request a continuance to investigate after Officer Seinitz testified that he recognized defendant based on his prior interactions in the neighborhood while his appellate counsel was ineffective for failing to raise these claims of ineffective assistance of trial counsel on direct appeal and for failing to challenge the sufficiency of the evidence on direct appeal.
¶ 18 In November 2009, the trial court summarily dismissed defendant's post-conviction petition in a written order. The trial court found that defense counsel's decision not to file a motion for DNA testing was a matter of trial strategy and if a successful motion for DNA testing had been filed, it would not have impacted, altered or changed the trial. The court also found defendant's claim that his trial counsel should have investigated Officer Seinitz's testimony to be without merit because an investigation would not have changed Officer Seinitz's testimony and any impeachment would not have affected defendant's trial. Further, the court noted that the previous interactions between Officer Seinitz and defendant involved defendant's criminal history and it would have been "unwise" for his trial counsel to raise the issue of defendant's criminal history. As for defendant's claim of ineffective assistance of appellate counsel, the trial court found that since it had determined that the underlying claims lacked merit, appellate counsel was not ineffective for failing to raise them on direct appeal. The court also concluded that appellate counsel was not ineffective for failing to raise the State's failure to prove defendant guilty beyond a reasonable doubt because the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.
¶ 19 This appeal followed.
¶ 20 On appeal, defendant argues that the trial court erred in summarily dismissing his post-conviction petition as frivolous and patently without merit because he raised arguable claims of ineffective assistance of trial and appellate counsel. Defendant also asks this court to remand the case to the trial court for a ruling on defendant's motion for DNA testing or to grant defendant's motion outright.
¶ 21 The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 through 122-8 (West 2008)) provides a tool by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West 2008); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Post-conviction relief is limited to constitutional deprivations that occurred at the original trial. Coleman, 183 Ill. 2d at 380. "A proceeding brought under the [Post-Conviction Act] is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the judgment." People v. Evans, 186 Ill. 2d 83, 89 (1999). "The purpose of [a post-conviction] proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal." People v. Barrow, 195 Ill. 2d 506, 519 (2001). Thus, res judicata bars consideration of issues that were raised and decided on direct appeal, and issues that could have been presented on direct appeal, but were not, are considered forfeited. People v. Blair, 215 Ill. 2d 427, 443-47 (2005); Barrow, 195 Ill. 2d at 519. The standard of review for dismissal of a post-conviction petition is de novo. Coleman, 183 Ill. 2d at 389.
¶ 22 At the first stage, the circuit court must independently review the post-conviction petition within 90 days of its filing and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2002). A petition is frivolous or patently without merit only if it has no arguable basis in law or fact. People v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacks an arguable basis in law or fact if it is "based on an indisputably meritless legal theory," such as one that is "completely contradicted by the record," or "a fanciful factual allegation," including "those which are fantastic or delusional." Hodges, 234 Ill. 2d at 16-17.
¶ 23 If the court determines that the petition is either frivolous or patently without merit, the court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2002). At the dismissal stage of a post-conviction proceeding, the trial court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity that would necessitate relief under the Act. Coleman, 183 Ill. 2d at 380. At this stage, the circuit court is not permitted to engage in any fact-finding or credibility determinations, as all well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true. Coleman, 183 Ill. 2d at 385.
¶ 24 The "gist" standard is a low threshold. People v. Edwards, 197 Ill. 2d 239, 244 (2001). To set forth the "gist" of a constitutional claim, the post-conviction petition need only present a limited amount of detail and hence need not set forth the claim in its entirety. Further, the petition need not include legal arguments or citations to legal authority. Edwards, 197 Ill. 2d at 244. However, the supreme court in Hodges clarified that "gist" does not refer to the legal standard used in our review. "[O]ur use of the term 'gist' describes what the defendant must allege at the first stage; it is not the legal standard used by the circuit court to evaluate the petition, under section 122-2.1 of the Act, which deals with summary dismissals. Under that section, the 'gist' of the constitutional claim alleged by the defendant is to be viewed within the framework of the 'frivolous or *** patently without merit' test." Hodges, 234 Ill. 2d at 11.
¶ 25 If the circuit court does not dismiss the post-conviction petition as frivolous or patently without merit, then the petition advances to the second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4 (West 2002)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West 2002)). At this stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. See Coleman, 183 Ill. 2d at 381. If no such showing is made, the petition is dismissed. If, however, a substantial showing of a constitutional violation is set forth, then the petition is advanced to the third stage, where the circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2002).
¶ 26 Defendant contends that the trial court erred in dismissing his post-conviction petition because he presented arguable claims of ineffective assistance of trial and appellate counsel.
¶ 27 Claims of ineffective assistance of counsel are resolved under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test also applies to claims of ineffective assistance of appellate counsel. People v. Rogers, 197 Ill. 2d 216, 223 (2001). In Strickland, the Supreme Court delineated a two-part test to use when evaluating whether a defendant was denied the effective assistance of counsel in violation of the sixth amendment. Under Strickland, a defendant must demonstrate that counsel's performance was deficient and that such deficient performance substantially prejudiced defendant. Strickland, 466 U.S. at 687. To demonstrate performance deficiency, a defendant must establish that counsel's performance fell below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). In evaluating sufficient prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. If a case may be disposed of on the ground of lack of sufficient prejudice, that course should be taken, and the court need not ever consider the quality of the attorney's performance. Strickland, 466 U.S. at 697.
¶ 28 A defendant who claims that appellate counsel was ineffective for failing to raise an issue on appeal must allege facts demonstrating such failure was objectively unreasonable and that counsel's decision prejudiced defendant. Rogers, 197 Ill. 2d at 223. Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong. People v. Simms, 192 Ill. 2d 348, 362 (2000). Thus, the inquiry as to prejudice requires that the reviewing court examine the merits of the underlying issue, for a defendant does not suffer prejudice from appellate counsel's failure to raise a non-meritorious claim on appeal. Simms, 192 Ill. 2d at 362. Appellate counsel's choices concerning which issues to pursue are entitled to substantial deference. Rogers, 197 Ill. 2d at 223.
¶ 29 At the first stage of post-conviction proceedings, a petition alleging ineffective assistance of counsel may not be dismissed if: (1) counsel's performance arguably fell below an objective standard of reasonableness; and (2) the petitioner was arguably prejudiced as a result. Hodges, 234 Ill. 2d at 17.
¶ 30 Defendant contends that his trial counsel was ineffective for failing to pursue DNA testing on the blue shirt because the results of the testing were potentially exculpatory. Defendant asserts that the presence or absence of his DNA on the blue shirt is highly relevant to the case as the presence of someone's ...