Appeal from the Circuit Court of Cook County. 92 CR 19459 Honorable Thomas J. Hennelly, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Murphy specially concurred, with opinion.
Justice Salone specially concurred, with opinion.
¶ 1 A jury found the defendant, Keith Mitchell, guilty of murder and aggravated battery, and this court affirmed the convictions. People v. Mitchell, No. 1-95-3766 (July 13, 1998) (unpublished order under Supreme Court Rule 23). The trial court summarily dismissed Keith's first post-conviction petition in 1999. The appeal presently before this court involves a successive post-conviction petition Keith filed in 2002. In that petition, after amendment, Keith claimed (1) that new evidence established that he did not commit the crime; (2) that new evidence showed he suffered ineffective assistance of trial and appellate counsel; (3) that new evidence established that the trial court should have suppressed testimony concerning statements he made to the police; (4) that new evidence established that the State used perjured testimony to obtain the conviction; and (5) that the State withheld evidence favorable to the defense. The trial court dismissed the petition without holding an evidentiary hearing.
¶ 2 We affirm the trial court's dismissal of Keith's claims that new evidence shows he did not commit the crime and that the State withheld evidence favorable to the defense. We reverse the dismissal of the petition insofar as Keith presented new evidence that crucial testimony, which led the court to admit into evidence testimony that Keith confessed to the crime, came from a police officer who committed perjury in similar cases to persuade courts to admit into evidence coerced statements. Finally, we direct the trial court on remand to hear evidence concerning Keith's claims (1) that the State used other perjured testimony at trial to obtain the conviction, and (2) that his trial and appellate counsel provided ineffective assistance when they failed to investigate adequately the available evidence that Keith did not commit the crime.
¶ 4 On July 21, 1992, Howard Shell and another man robbed Debra Bates at gunpoint in her home. Debra's son, Jermaine Bates, was a member of the Vice Lords. Around 12:45 p.m. on July 22, 1992, two young black men shot Shell and several other persons near a street corner on the south side of Chicago. Shell died from multiple gunshot wounds. Police who responded to the report of the shooting spoke with the surviving victims of the shooting and several other witnesses in the area, including Joseph Tribett. Police questioned Jermaine about a week later. After the interrogation of Jermaine, police began looking for Tyce Dove, Lanell Townsend, and Keith Mitchell. Keith was 15 years old and had no prior arrests.
¶ 5 On August 1, 1992, police asked Keith's mother, Audrey Mitchell, to bring Keith to Area 2 police headquarters. Audrey drove Keith to the station and sat with him while police questioned him about the murder. Initially, Keith told police he knew nothing about the matter. Audrey contacted an attorney, but she had to leave the interrogation room to answer a page. After Audrey left the interrogation room, police obtained another statement from Keith. Keith then spoke briefly with an assistant State's Attorney. Keith did not sign a written statement. Police arrested Keith on charges that he murdered Shell and committed aggravated battery against two of the other victims of the shooting. Police maintained that Keith confessed to the crimes during the interrogation. Keith swore that he never said he had any involvement in the shootings.
¶ 6 Prosecutors informed defense counsel that they intended to introduce testimony from police officers and an assistant State's Attorney that Keith confessed to the crimes. Defense counsel moved to suppress the testimony.
¶ 8 At the hearing on the motion to suppress, Audrey testified that she told police she had contacted an attorney to represent Keith. When she left the interrogation room to respond to the page, police stopped questioning Keith and assured her they would not resume questioning in her absence. But when she returned, a police officer told her he would arrest her if she tried to enter the interrogation room. Later police told her Keith had confessed to the murder.
¶ 9 Keith testified that police began the questioning without informing him of his rights. They resumed questioning once his mother left the room. They cracked their knuckles and made other gestures he found threatening. Keith never agreed to talk to police in his mother's absence.
However, he answered some of their persistent questions. Police then told him to repeat his answers to the assistant State's Attorney. The assistant State's Attorney then read Keith his rights, and Keith told her what he said to police. He told the assistant State's Attorney he would not sign any statement.
¶ 10 Detective Michael McDermott testified that when Keith arrived at the station, McDermott read him his rights and questioned him in Audrey's presence. Audrey did not say anything about getting Keith an attorney. When Audrey left the room, McDermott stopped the questioning. According to McDermott, Keith initiated further conversation by saying he would tell police what really happened, but he did not want to say anything with his mother in the room. No other witness corroborated this crucial part of McDermott's testimony. McDermott alone claimed that Keith restarted the questioning on his own after the officers stopped all questioning when Audrey left the room.
¶ 11 McDermott further testified that he reminded Keith of his rights and then brought in first a youth officer from Area 2, and then an assistant State's Attorney to hear the confession. The youth officer and the assistant State's Attorney both testified that Keith said he wanted to make his statement without his mother in the room.
¶ 12 The trial court found McDermott and other witnesses for the prosecution more credible thaN Keith and Audrey, so the court denied the motion to suppress the evidence.
¶ 14 Before trial, prosecutors gave defense counsel a list of witnesses. The State's list of witnesses included Tribett, but neither party called him as a witness.
¶ 15 An officer who went to the scene of the shooting testified that he interviewed the shooting victims other than Shell. The victims described the shooters as young black men, 18 to 24 years of age. All the victims admitted that they did not see the shooters well and they would not be able to identify the shooters. Two of the shooting victims also testified, describing the scene of the shooting. Neither identified Keith as one of the shooters. No physical evidence connected Keith to the crime scene. The prosecution relied on the testimony of two police officers and the assistant State's Attorney about what Keith said to police after Audrey left the interrogation room.
¶ 16 McDermott repeated his testimony from the motion to suppress, adding that Keith said he belonged to the Vice Lords. The youth officer testified that Keith said he and other Vice Lords met on July 22, 1992, in the morning, to discuss how to respond to the robbery of Debra Bates. They decided to shoot Shell where they knew he would be around noon. According to the youth officer, Keith said he and Dove got guns while Townsend agreed to wait nearby so he could help dispose of the guns. After the shooting, Keith left his gun at the home of another Vice Lord. The youth officer admitted that he made no written report of the confession. The arrest report also had no mention of any confession from Keith. The assistant State's Attorney corroborated the youth officer's testimony about Keith's confession. She made no notes of her conversation with Keith.
¶ 17 Audrey testified that in her presence in the interrogation room, Keith never said anything about Vice Lords. He only told police he knew nothing about the shooting. She told police she had contacted an attorney to represent Keith, and police agreed not to speak to Keith before his attorney arrived.
¶ 18 Keith testified that he has never belonged to the Vice Lords, and he never said to police or the assistant State's Attorney that he belonged to the Vice Lords. He did not tell police he shot at anyone or that he had anything to do with the murder. He never agreed to talk to police in his mother's absence. Police questioned him threateningly once his mother left the room. He told the officers that he heard shots on July 22, 1992, from a distance, but he did not know who did the shooting.
¶ 19 In rebuttal, the State presented the testimony of Detective Jack Wilkins, another Area 2 officer, who swore that Keith said he belonged to the Vice Lords. Wilkins corroborated the accounts the youth officer and the assistant State's Attorney gave concerning Keith's statements.
¶ 20 The jury failed to reach a verdict. The court declared a mistrial and scheduled a new trial.
¶ 22 The State retried Keith in a double jury trial along with co-defendant Dove. At the second trial, the State presented essentially the same evidence it presented at the first trial against Keith, and Keith presented the same defense evidence.
¶ 23 In rebuttal, however, the State found a new witness. Gene Keller testified that he belonged to the Vice Lords, and he saw the Vice Lords initiate Keith into the gang early in 1992. On July 22, 1992, Keller saw Townsend driving near the scene of the shooting, and he saw Dove run up to Townsend's car and put something in Townsend's lap.
¶ 24 The new jury found the evidence sufficient to convict Keith of murder and two counts of aggravated battery. The trial court sentenced Keith to 30 years' imprisonment for murder and to two terms of 15 years each for aggravated battery, with all sentences to run concurrently.
¶ 25 Posttrial Proceedings
¶ 26 An attorney different from trial counsel helped Keith with posttrial proceedings. On the direct appeal, posttrial counsel argued that trial counsel provided ineffective assistance when he failed to call Keith's attorney as a witness at the hearing on the motion to suppress. This court affirmed the conviction. People v. Mitchell, No. 1-95-3766 (July 13, 1998) (unpublished order under Supreme Court Rule 23).
¶ 27 Post-conviction Petitions
¶ 28 Keith filed a post-conviction petition, and the trial court summarily dismissed the petition in 1999. Keith filed a successive post-conviction petition in 2002. After an attorney helped him amend the petition, the petition raised essentially five separate arguments for a new trial: (1) new evidence proved Keith did not commit the murder; (2) new evidence showed that his trial and appellate counsel provided ineffective assistance; (3) new evidence showed police coerced any statements he made at Area 2; (4) new evidence showed prosecutors used perjured testimony to obtain the convictions; and (5) the prosecution withheld evidence favorable to the defense.
¶ 29 Keith supported the post-conviction petition with numerous exhibits. Joseph Tribett signed an affidavit in which he swore that he witnessed the murder, and he got a good look at the shooters. He said in the affidavit that he told a police officer at the scene that he could remember the faces and positively identify the shooters. He remained available for years at the address he gave police. Neither police nor any attorneys ever contacted him to ask him about what he saw. Tribett knew Keith from the neighborhood in 1992. Keith was smaller and had a lighter complexion than both of the shooters. Tribett swore Keith did not shoot Shell or the other shooting victims on July 22, 1992.
¶ 30 Keith submitted his own affidavit in which he swore he did not see the police reports until 2001. Before that he did not know Tribett ...