Appeal from Circuit Court of Sangamon County No. 88CF189 Honorable Peter C. Cavanagh, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.
¶ 1 Following an April 1989 trial, a jury convicted defendant, Donald L. Green, of (1) first degree murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-14) in connection with the death of his six-month-old daughter. Shortly thereafter, the trial court sentenced defendant to 50 years in prison.
¶ 2 Following a direct appeal and a series of collateral attacks defendant, in November 2010, pro se filed a second successive post-conviction petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2010)). The trial court later dismissed that second successive petition as "frivolous and patently without merit."
¶ 3 Defendant appeals, arguing that the trial court erred by dismissing his second successive post-conviction petition because he raised a claim of (1) actual innocence based upon newly discovered evidence and (2) cause and prejudice based upon a Brady violation (Brady v. Maryland, 373 U.S. 83 (1963)). We disagree and affirm.
¶ 5 In March 1988, the State charged defendant with four counts of first degree murder, aggravated battery of a child, and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, ¶¶ 9-1, 12-4.3(a), 12-14) in connection with the death of his six-month-old daughter, Lynn Allen.
¶ 6 A. Defendant's Trial, Conviction, Sentence, and Direct Appeal
¶ 7 The following is a summary of events based upon the evidence presented at defendant's April 1989 jury trial.
¶ 8 On February 14, 1988, defendant was left to watch Lynn when the baby's mother, Marilyn Allen, left the apartment they shared to run errands. Sometime later, defendant ran across the hallway to Sharon Floyd's apartment, carrying Lynn, who was limp, unconscious, and not breathing. Defendant told Floyd that Lynn had been playing on the floor when she fell and bumped her head. Floyd attempted to revive Lynn, while defendant called 9-1-1.
¶ 9 When Lynn arrived at the hospital, she was comatose and not breathing. Lynn had bruises along her jaw, below her neck, and over the left side of her chest. Dr. Nancy B. Pollard, the attending physician, testified that she also noticed blood and a small tear at the entrance of Lynn's vagina. Indeed, Lynn had fresh blood in her diaper, swelling around the perineum, and a vaginal laceration. Despite attempts to save her, Lynn died the next day.
¶ 10 The focus of defendant's trial was to determine who and what caused Lynn's death. Several medical experts testified as to the probable cause of Lynn's injuries. Defendant provided numerous, conflicting explanations. As previously explained, defendant told Floyd that he and the baby were playing on the floor and that the baby had fallen over and hit her head. He told a nurse, however, that he attempted to wake Lynn and found her gasping for air, shaking, lethargic, with "white stuff" coming out of her mouth. The next day, defendant told the same nurse that he was carrying Lynn to the bathroom when she hit her head against the bathroom door and the bathroom mirror. Defendant also told the nurse that when he was carrying Lynn back to the bathroom, he tripped over a toy, and that she flew out of his arms onto the bed. Defendant told police investigators that he found blood in Lynn's diaper and that he shook the child. Defendant later told Terry Buchanan, a fellow inmate in the Sangamon County jail, that he had molested and killed Lynn.
¶ 11 Buchanan testified for the State that while he and defendant were housed together at the county jail, he heard defendant talking in his sleep and saying, "I didn't mean to do it." Buchanan later asked defendant about the incident and, in that conversation, defendant admitted to Buchanan that he molested and killed his daughter. Buchanan acknowledged that he was facing charges of armed robbery, residential burglary, unlawful restraint, and theft. He denied, however, having received any promises or bargains in exchange for his testimony.
¶ 12 On this evidence, the jury convicted defendant of (1) first degree murder (Ill. Rev. Stat. 1987, ch. 38, ¶ 9-1) and (2) aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-14) in connection with Lynn's death. Shortly thereafter, the trial court sentenced defendant to 50 years in prison.
¶ 13 Defendant appealed, and in October 1990, this court affirmed his convictions and sentence. People v. Green, No. 4-89-0545 (Oct. 11, 1990) ...