The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.
Justice Thomas took no part in the decision.
¶ 1 In October 2007, defendant Stanley Wrice filed a petition in the circuit court of Cook County seeking leave to file a second successive post-conviction petition challenging his 1983 convictions for rape and deviate sexual assault. Defendant alleged that newly discovered evidence substantiated his prior claim that his confession was the product of police brutality and torture. The trial court denied defendant leave to file his successive post-conviction petition. The appellate court reversed and remanded for a third-stage evidentiary hearing, holding that defendant had satisfied the cause-and-prejudice test for successive post-conviction petitions. 406 Ill. App. 3d 43.
¶ 2 For the reasons that follow, we affirm the appellate court's judgment reversing the trial court's order denying leave to file, but remand the cause to the trial court for appointment of post-conviction counsel and second-stage post-conviction proceedings.
¶ 4 In the early morning hours of September 9, 1982, 33-year-old K.B. was sexually assaulted, beaten, and burned. Several men, including defendant, were implicated in the attack, which occurred in the attic of defendant's Chicago residence. Defendant, then 28 years old, was charged with numerous offenses, including rape and deviate sexual assault. Prior to trial, defendant moved to suppress inculpatory statements he allegedly made to investigators arguing, inter alia, that the statements were made "as a result of psychological, physical and mental coercion" by Detective Peter Dignan and Sergeant John Byrne.*fn1
¶ 5 At the suppression hearing, Dignan, Byrne, and Dioguardi testified regarding events following defendant's arrest on the morning of September 9, 1982. According to their testimony, defendant was taken to Area 2 Violent Crimes Headquarters, arriving there between 7 a.m. and 7:15 a.m. Byrne testified that as defendant was being led to a second-floor interview room, defendant stated, "I'll tell you everything." Dignan told defendant that he would be questioned later. Defendant was handcuffed to a ring on the wall in the interview room. At approximately 8 a.m., after Dignan advised defendant of his Miranda rights, Dignan, Dioguardi and Byrne spoke to defendant for 20 to 30 minutes, during which time defendant gave a statement. The officers denied striking defendant, threatening him, or abusing him in any manner.
¶ 6 At 10 a.m., Dignan called the Felony Review Unit of the Cook County State's Attorney's office and requested an assistant State's Attorney. Assistant State's Attorney Kenneth McCurry arrived at Area 2 at 10:30 a.m. and spoke with the three officers. At approximately 12:50 p.m., McCurry, accompanied by Dioguardi and Dignan, had a conversation with defendant. Before speaking with defendant, McCurry advised defendant of his Miranda rights. Defendant denied involvement in the crimes, indicating that he never went upstairs where the assault of K.B. took place. At approximately 1:35 p.m., at defendant's request, McCurry, Dioguardi and Dignan again spoke to defendant, who said he wanted to tell the truth.
According to McCurry, defendant stated that he did go upstairs when K.B. was at the house. There, he saw a number of men having sexual intercourse with her. Defendant also stated that he saw Rodney Benson burn K.B. with an iron, and that he took the iron from Benson and dropped it on K.B.'s thigh. McCurry did not observe any injuries to defendant's face and did not notice anything unusual about defendant's walk. Defendant did not complain that he had been struck by police.
¶ 7 Defendant testified at the suppression hearing that, after his arrest, he was taken to Area 2 Headquarters and placed in a second-floor room, where he was handcuffed to a ring on the wall. Sergeant Byrne and Detective Dignan questioned him about what had happened at his house earlier that day. Defendant gave a statement but did not implicate himself. According to defendant, Dignan freed him from the wall ring and told him that he (Dignan) "was fixing to do some police brutality." Defendant testified that he was then taken to a room on a lower floor "that had bars in it, and what appeared to be cells." Upon questioning by Byrne, defendant repeated what he had told Byrne and Dignan upstairs. Byrne told defendant he was lying and hit him in the forehead with a flashlight that was 15 to 16 inches long. Dignan then struck defendant across his right thigh with a piece of rubber, approximately 12 to 13 inches long, which was taped on both ends. Byrne and Dignan continued to question defendant, striking him at random on his arms and thighs. Defendant testified: "Sergeant Byrne told me that we were about to return back upstairs; if he found out I was lying, I could expect the same thing."
¶ 8 Defendant further testified that sometime after returning upstairs, Dignan and Byrne accused defendant of lying, stating that Benson (who was also being questioned at Area 2) told them that defendant had burned K.B. Defendant testified that Byrne and Dignan took him back downstairs, where Dignan struck him with a piece of rubber across his left thigh and his left arm, and Byrne repeatedly struck him with a flashlight on his right arm and once in his chest. According to defendant:
"As I tried to move my arm from Sergeant Byrne, Sergeant Byrne told me this time to stand up. I stood up. He grabbed my hands and turned me around and put my hands up over my head like this and my back was facing them, and my hands were up to the bars, and at this time Sergeant Byrne started kicking my legs apart and he told me he was going to let me see how it feels to be mistreated.
At this time he hit me between my legs in my groin with the flashlight. He hit me once, then hit me again, and this time I was, you know, fell, like I was trying to fold up to keep him from hitting me again.
At this time both of them grabbed me, unfolded me, stood me back up, and at this time Detective Dignan was hitting me between the legs in the groin with a piece of rubber.
Detective Dignan asked me would I, you know, when I go back upstairs, would I relate this to somebody-to an attorney that was investigating the case; and I told him I would relate to the attorney exactly what I had related to them earlier." Defendant testified that after he was taken back upstairs, he had a 20-minute conversation with McCurry, at which Dioguardi and Dignan were present. Defendant stated that McCurry did not advise him of his constitutional right to an attorney or to remain silent, and that he only spoke to McCurry because he was afraid of Dignan and Byrne. Defendant gave McCurry the same statement he had given to police when he was first brought to Area 2. McCurry, Dioguardi and Dignan returned later, but defendant told McCurry that he had nothing else to say.
¶ 9 Chicago Police Lieutenant John Crane testified that Area 2 headquarters was formerly the Burnside police district and that the building contained two abandoned jail cells adjacent to the garage on the first floor. Although the cell doors had been removed, the rest of the bars comprising the lockup remained. The lockup area, which was used for storage, could be accessed by going down the stairs from the second floor, then proceeding first through a wooden door, which was unlocked, and then a steel door, which was locked. Lieutenant Crane testified that the key to the metal door was kept behind the front desk on the first floor, which itself was behind a locked door.*fn2
¶ 10 Defendant also presented medical testimony at his suppression hearing. Karem Ali Abdal-Aziz testified that he was a paramedic responsible for giving new inmates at the Cook County jail complete physical examinations and that he examined defendant on September 10, 1982. According to Abdal-Aziz's written report, defendant advised him of several injuries that occurred the day before. Defendant reported an injury to the left side of his head, his groin, right and left biceps, left shoulder, right hand, and his sternum, all from blunt trauma. Defendant also reported an injury to his thighs or kneecaps. Although Abdal-Aziz had no specific recollection of defendant's examination, he testified that inmates are required to remove their shirts for the examination and that he would have observed the injuries on the upper part of defendant's body. He would not have observed the leg and groin injuries that defendant reported.
¶ 11 Dr. Stanley Harper, a physician with Cermak Health Services, testified that he examined defendant on September 15, 1982. According to the doctor's examination notes, defendant reported that he had been beaten across his back, hands and legs with a flashlight and billy club by Chicago police one week earlier. He complained of pain in the groin, blood in his urine 24 to 48 hours after the beating, and burning or pain on urination. The notes from Dr. Harper's physical examination state that genitals were normal, but defendant complained of scrotal pain on palpation. Dr. Harper also noted multiple healing hematomas on defendant's left anterior leg. Although a urinalysis showed no evidence of blood, Dr. Harper testified that the urinalysis did not rule out the possibility that defendant experienced bleeding. Dr. Harper's assessment, or clinical impression, was "history of multiple blunt trauma." The doctor ordered X-rays of defendant's left leg and thoracic spine to rule out any small fracture or dislocation of the spine that might have resulted from the alleged attack. The X-rays were normal.
¶ 12 The circuit court found that defendant's statements to police and Assistant State's Attorney McCurry were voluntary and denied defendant's motion to suppress. The case then proceeded to a jury trial.
¶ 13 The State's evidence showed that on September 8, 1982, K.B., an admitted alcoholic, spent the day drinking with two friends at the apartment she shared with her boyfriend, Gene Edwards. The apartment was above a liquor store, located at 75th Street and South Jeffrey Street in Chicago, where Gene worked. A little after midnight, when the alcohol was exhausted, K.B.'s friends had left, and Gene was asleep, K.B. left the apartment intending to go to a friend's house on Paxton Street. K.B. testified that as she walked down 75th Street, a car with some black men inside pulled up to her; one of the men asked if she needed a lift. K.B. declined the offer. The next thing she remembered was being in the car.
¶ 14 Testimony established that the driver of the vehicle was Rodney
Benson (also known as "Span"). Benson, defendant, and Bobby Joe Williams had driven from defendant's home, located on the 7600 block of South Chappel Street, to the liquor store at 75th and Jeffrey streets to pick up beer. The men noticed K.B. staggering down 75th Street and, according to Williams, stopped to see what was wrong. Chicago Police Sergeant Elbert Harris, who was on patrol in the area, saw the group and stopped to investigate. Sergeant Harris noticed the smell of alcohol emanating from K.B. and that her speech was slurred. Harris asked K.B. if she needed to go to the hospital or the police station. K.B. told Harris that the men were helping her and that they were going to take her to a friend's house. After determining that the men were going to take K.B. where she wanted to go, Harris made a note of the license plate number and left.
¶ 15 According to Williams, after Benson drove off with K.B., he, defendant, and an unidentified black male with a bicycle walked back to defendant's home. Williams testified that shortly after arriving there, Benson pulled up to the rear of defendant's home. Benson carried K.B. to the attic, which was accessed by a staircase off of the kitchen. There, a bed was located under two small windows, which allowed in light from the streetlights. The attic had no other source of light.
¶ 16 K.B. testified that she was repeatedly raped, beaten and burned by a group of black men. Specifically, K.B. testified that one of the men punched her in the face, causing her to fall onto the bed. Three men in succession then had vaginal intercourse with her. A fourth man demanded oral sex. When K.B. refused, the man punched her, knocking her to the floor, and then punched her again. At some point, the man put his penis in her mouth. K.B. next remembered seeing flames coming at her face and being burned on her face and body, including her breasts. K.B. did not recognize her attackers, and she made no in-court identification of defendant as one of the men who assaulted her.
¶ 17 Williams testified that after Benson took K.B. upstairs, defendant and the bicycle rider went upstairs. Williams was also present in the attic from time to time as were Michael Fowler (also known as "Little Mike"), Lee Holmes, and Kenneth Lewis. Williams and Lewis both testified that they saw Benson, followed by Fowler, have sexual intercourse with K.B. Williams also testified that he saw defendant having sexual intercourse with K.B., and saw defendant hitting her. Williams further testified that he heard Holmes tell K.B. to "set her face out," meaning to suck his penis. Lewis testified that he also saw the bicycle rider have sexual intercourse with K.B., and that he heard K.B. say "no" more than once.
¶ 18 Lewis further testified that, at one point in the evening, defendant came downstairs from the attic and picked up a hot iron from the stove. Lewis took the iron from defendant. After defendant went back upstairs, Lewis heard "smacks and slaps." Lewis went upstairs and saw defendant beating K.B. with his fist. Three times Lewis pulled defendant off of K.B. Lewis said K.B. was not moving; he thought she was dead. Lewis left defendant's home for about 20 minutes to get some barbecue. When he returned, Lewis went to the attic and saw that K.B. was "burned from head to toe" and that there were iron marks on her breasts and legs. Later, Lewis saw defendant come downstairs, retrieve a hot spoon from the stove, and return upstairs. Lewis heard K.B. say, "Why are you burning me?" Williams similarly testified that he saw defendant pick up a hot iron from the kitchen stove and go upstairs. The next morning, defendant told Williams they "burned that bitch." Medical testimony established that K.B. suffered second and third degree burns to her face, neck, chest, breasts, thighs, back, and buttocks, in addition to extensive bruising, particularly to her lower extremities.
¶ 19 K.B. further testified that during her ordeal, she passed out from the pain, later coming to on the floor. She then recalled hearing a man say, "Get the bitch out of here before we get a murder beef," or something to that effect. K.B. remembered a man dressing her and carrying her under her arms to the stairs. Her next recollection was being outside. K.B., not knowing where she was and her eyes swollen, crawled to the alley and made her way toward a light, which she later discovered was a gas station.
¶ 20 George Wilson, who was working the midnight shift at the gas station at 76th and Jeffrey streets on September 9, 1982, testified that he saw a white woman walking toward the station at 3 a.m. or 3:30 a.m. When she finally made her way to the station, he noticed that her eyes were bruised and her mouth was swollen and bloody. Wilson called police.
¶ 21 Investigation led police to defendant's home, where they arrived at about 4:30 a.m. Defendant's sister, Patricia Wrice, allowed police to enter. Other persons were present in the home, including defendant, Charles Wrice (defendant's brother), and Williams (Patricia Wrice's boyfriend). Once inside, police noticed a "burning odor" in the house, which was stronger in the kitchen. Police saw charred debris on the kitchen sink and on the floor, including a rolled-up paper that was burned. In the attic, police saw additional charred matter, and recovered a metal carving fork with a burnt tip, and a steam iron without the cord. The hole pattern on the steam iron matched many of the burn marks on K.B. Police also recovered from the attic a broken wooden hanger and certain articles of clothing, including panties and a shoe, that belonged to K.B.
¶ 22 As a result of their investigation that morning, police arrested several persons, including defendant, and transported them to Area 2 for questioning. Sergeant Byrne testified at trial that as defendant was placed in one of the second-floor interview rooms, defendant stated, "I'll tell you everything." A half-hour later, after Detective Dignan advised defendant of his Miranda rights, Byrne, Dignan, and Detective Dioguardi questioned defendant. According to Byrne, defendant related that on September 8, 1982, at about 11 p.m., he was walking home when he saw Benson sitting in a car with a woman. Williams was nearby, along with a police sergeant. Defendant heard Benson tell the sergeant that he was taking the woman to a girlfriend's house. After the sergeant left, defendant and Williams walked to defendant's home. Ten minutes later, Benson arrived and asked defendant if he could use a bed. Benson and the woman then went upstairs, followed at some point by Williams, Fowler, Lee Holmes, and another man. According to Byrne, defendant said that during this entire time he stayed downstairs in the living room. At some point, Fowler, Lee, another man, and the woman left.
¶ 23 Byrne denied having a second conversation with defendant, denied striking defendant, and denied knowing of any location at Area 2 that had abandoned jail cells or bars.
¶ 24 Assistant State's Attorney McCurry testified that after arriving at Area 2 on the morning of September 9, 1982, he spoke with Byrne, Dioguardi, and Dignan, and then interviewed four witnesses. At about 12:50 p.m., McCurry met defendant and advised him of his Miranda rights. Dioguardi and Dignan were present. McCurry's testimony as to the statement defendant then provided was substantially the same as the statement to which Byrne testified. McCurry spoke to defendant again at about 1:35 p.m., at defendant's request. According to McCurry, defendant stated that the events previously described were correct up to the point where Benson and K.B. arrived at the house. Defendant told McCurry that after Benson took K.B. upstairs, he also went upstairs. Holmes and Fowler were present, along with a man who arrived on a bike. Defendant said Benson and the bicycle rider had sexual intercourse with ...