Appeal from the Circuit Court of Cook County. No. 99 CR 21702 (02) Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice R.E. Gordon
PRESIDING JUSTICE R.E. GORDON delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.
¶ 1 Defendant Dennis Parker was charged, along with five co-defendants, in connection with the murder of Niquita Johnson which occurred on August 25, 1999. At the bench trial in 2004, the defense did not put on a case and the trial judge observed that the primary evidence against defendant was his videotaped statement. Defendant was convicted of first-degree murder, as well as the related charges of home invasion, arson and concealment of a homicidal death; and he was sentenced to 45 years for murder, 30 years for home invasion, 7 years for arson and 5 years for concealment of a homicidal death, with all sentences to run concurrently. On direct appeal, this court vacated his arson conviction finding, that the State had failed to prove that charge beyond a reasonable doubt. It also vacated several other counts under the one act, one crime principle, so that the mittimus reflected convictions for only one count of murder, one count of home invasion and one count of concealment of a homicidal death. People v. Parker, No. 1-05-2201 (2008) (unpublished order pursuant to Supreme Court Rule 23).
¶ 2 On April 14, 2010, defendant filed a pro se post-conviction petition asserting two claims: (1) a fourth amendment violation; and (2) a claim of "actual innocence *** based on newly discovered evidence," supported by affidavit. The trial court summarily dismissed the petition, stating first that the fourth amendment claim was already decided on direct appeal and thus was barred on res judicata grounds. The trial court also stated, incorrectly, that defendant had raised "[n]o claims about actual innocence or anything of the sort." As a result, the trial court never ruled on defendant's actual innocence claim, and it does not appear that the trial court reviewed the supporting affidavit.
¶ 3 On this appeal, defendant pursues only his actual innocence claim, and the State does not pursue the ground of res judicata.
¶ 4 Instead the State argues that we may affirm on any basis found in the record and puts forth as its first argument, a ground that was not relied on by the trial court. The State argues that we should affirm this first-stage dismissal because the supporting affidavit submitted by defendant was not notarized. However, this court has rejected this argument twice before. People v. Wilborn, 2011 IL App (1st) 92802, ¶ 72 (a trial court may not dismiss a petition at the first stage simply because a supporting affidavit lacks notarization); People v. Henderson, 2011 IL App (1st) 90923, ¶ 36 ("an unnotarized verification affidavit is not an appropriate basis for first-stage dismissal of a petition").
¶ 5 Next, the State argues that a co-defendant's exculpatory affidavit can never be considered newly discovered. However, our supreme court already dispensed with that argument in People v. Molstad, 101 Ill. 2d 128, 135 (1984), where it held that the co-defendants' affidavits constituted "new evidence," although the co-defendants were previously known to defendant, because "no amount of diligence could have forced the co-defendants to violate their fifth amendment right to avoid self-incrimination." Molstad, 101 Ill. 2d at 135.
¶ 6 If believed, the supporting affidavit submitted by petitioner in this case is completely exculpatory. In the case at bar, there was no physical evidence or eyewitness testimony, and the primary evidence was a confession obtained from defendant, who was a high school student with no prior record, no juvenile adjudications, and no gang affiliation. For these reasons, we reverse and remand this petition for second-stage consideration.
¶ 8 In 1999, when defendant was arrested for this offense, he was 18 years old, and a student at Orr Community Academy.
¶ 9 In sum, the State's evidence at trial established that the victim, Niquita Johnson, was murdered in her home and that her body was later discovered in the trunk of her vehicle. Defendant was indicted for her murder, along with five co-defendants, one of whom was the victim's brother. The State's theory of the case was that the victim's brother wanted to kill the victim because she had taken money from him, that the brother and some of his friends stabbed and struck her and then disposed of her body in the trunk of her own vehicle. Other than defendant's confession, the State presented no evidence that defendant knew either the victim or her brother. Other than the motive attributed to the victim's brother, the State's evidence did not establish that defendant had an independent motive for wanting to kill the victim.
¶ 10 There was no physical evidence to connect defendant to the murder; no event witnesses testified; and the trial court, who decided defendant's guilt, stated that "[t]he primary evidence against [defendant] is the videotaped statement," which defendant gave after multiple interrogations and almost 15 hours in custody and after initially denying involvement. The State presented only three witnesses: the victim's boyfriend who identified the victim; and the two detectives who were in charge of the case and who obtained defendant's confession.
¶ 11 Defense counsel did not put on a defense case at trial, and defendant maintained his innocence at sentencing.
¶ 12 I. Pretrial Proceedings
¶ 13 On February 18, 2003, defense counsel filed both a motion to quash arrest and suppress evidence, and a separate motion to suppress statements. The trial court denied both motions.
¶ 14 A. Motion to Quash Arrest
¶ 15 Prior to trial, defendant moved to quash his arrest, which occurred at his mother's house, the day after the victim's body was found. The police did not obtain an arrest warrant. The defense sought to quash the arrest on the ground that the police lacked probable cause.
¶ 16 At the hearing, which began on November 6, 2003, the defense called Detective Mihajlov who testifed, at first, that he was the one who had arrested defendant at his house:
"DEFENSE COUNSEL: The gentleman at the end of the table, do you recognize him?
DEFENSE COUNSEL: And who is that? DETECTIVE MIHAJLOV: Dennis Parker. DEFENSE COUNSEL: Did you arrest him at his house?
DETECTIVE MIHAJLOV: I did."
However, after extensive questioning, the detective finally admitted that, although he signed the arrest report as "the first arresting officer," he was not present for defendant's arrest:
"DEFENSE COUNSEL: Were you present when Mr. Parker was arrested?
DETECTIVE MIHAJLOV: I was in the area. Yes. DEFENSE COUNSEL: Where in the area were you?
DETECTIVE MIHAJLOV: Area 4 Detective Division.
DEFENSE COUNSEL: I am sorry. You were in Area 4 Headquarters --
DETECTIVE MIHAJLOV: Correct.
DEFENSE COUNSEL: -- when Mr. Parker was arrested?
DETECTIVE MIHAJLOV: Correct."
¶ 17 Detective Mihajlov also testified that, at approximately 5 a.m. on August 26, 1999, he questioned co-defendant Smith who admitted that he had participated in the murder. During the questioning, Smith also implicated someone with the first name of "Dennis" but Smith did not provide a last name or an address or any other identifying information for "Dennis."
¶ 18 During the hearing, the prosecutor then stipulated that Buford Smith did not provide, at any time, either a last name or an address for "Dennis."
¶ 19 Detective Mihajlov then testified: "I don't recall where the name Dennis Parker came from." However, at some point, the detective testified that he "had a name, Dennis Parker," and he entered this name in the computer and retrieved the address of 3310 West Crystal Avenue, where defendant was later arrested. The prosecutor then stipulated that this was a warrantless arrest, and the defense rested.
¶ 20 The State then called Detective Robert Fujara who testified that, on August 25, 1999, he was informed that the victim's body had been found in the trunk of a vehicle near 3531 West Governor's Parkway. After he arrived, he observed the body in the trunk, and that the vehicle and the body inside it had been burned. He learned that the vehicle was registered to the victim, Niquita Johnson, who had resided at 722 North Central Park Avenue. After the detective arrived at the victim's address, he spoke with co-defendant Murry Over, who was also the victim's brother. The detective showed co-defendant Over a Polaroid photograph of the victim's body and Over identified the victim as his sister.
¶ 21 Detective Fujara described the building where the victim lived as "a two flat with a basement apartment." While outside, the detective observed blood spatterings on the sidewalk in the rear of the building and more drops of blood on "the stairway porch leading into the building." After entering the victim's first-floor apartment, Detective Fujara observed that the sheets on her bed were "tucked in." When he lifted the sheets, he observed "a wet spot in the middle of the bed like something had been cleaned up."
¶ 22 Detective Fujara testified that, later that same day, he questioned co-defendant Over at Area 4 headquarters. During the questioning, Over implicated: himself; and co-defendants Lloyd Satterfield and Burford Smith; and another man with the first name of "Dennis." Over stated that the motive for the murder was that he had not received anything from a $181,000 inheritance.
¶ 23 The prosecutor then stipulated that there was "nothing" in the police reports to even "suggest" that Over provided a last name for "Dennis." The prosecutor also stipulated that Over did not provide an address for ...