A postconviction claim that felony murder could not be predicated on aggravated battery of a child was forfeited where it had been available on direct appeal but was not raised there, even though this was before the Illinois Supreme Court held in People v. Morgan, 197 Ill.2d 404 (2001), that the predicate felony underlying a felony-murder charge must have an “independent felonious purpose”-no ineffectiveness of appellate counsel.
Rehearing denied April 18, 2013.
Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Henry County, the Hon. Charles H. Stengel, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy Appeal Defender, and Kerry J. Bryson, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Terence Patton, State's Attorney, of Cambridge (Michael A. Scodro, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas, Garman, and Theis concurred in the judgment and opinion. Justice Freeman specially concurred, with opinion, joined by Justice Burke.
¶ 1 I. BACKGROUND
¶ 2 Defendant, Scott F. English, was charged in the death of Jami Sue Pollock, the three-year-old daughter of his live-in girlfriend. He was charged with first degree (knowing) murder (720 ILCS 5/9-1(a)(2) (West 1994)), first degree (felony) murder predicated on aggravated battery of a child (720 ILCS 5/9-1(a)(3) (West 1994)), and aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1994)).
¶ 3 At his jury trial in the circuit court of Henry County, Dr. Violette Hnilica, a forensic pathologist, testified regarding Jami Sue's autopsy. Dr. Hnilica's external examination revealed many bruises on multiple parts of Jami Sue's body, including massive injuries to her head, back, and chest and scattered bruises on her arms and legs. The bruises were in various stages of healing. Jami Sue had severe, recent head injuries, including a swollen and bruised area on the back right side of her head covering an eight centimeter area of hemorrhage under her scalp. Dr. Hnilica characterized the hemorrhage as "massive" and testified that it was the result of "[h]eavy rapid force." She testified that blunt force trauma to the head contributed to Jami Sue's death.
¶ 4 Dr. Hnilica also found evidence that Jami Sue had been suffocated, which included broken capillaries (petechiae) in her eyes, abrasions on her nose, and dried lips. Dr. Hnilica also observed fingernail injuries Jami Sue had made to her own chest, consistent with her having struggled while something, like a pillow, had been held over her face. In Dr. Hnilica's expert opinion, it was unlikely that Jami Sue had accidentally suffocated herself in light of the fingernail marks. Dr. Hnilica concluded that asphyxiation also contributed to Jami Sue's death.
¶ 5 Investigator Sheri Ranos with the Illinois State Police testified that she interviewed defendant on October 11, 1995, the day after Jami Sue's death, at the Kewanee police department. In the initial interview, he claimed that at approximately 1 a.m. on October 10, 1995, he had come home from work and gone to check on Jami Sue and her brother Preston in the bedroom they shared. He found her tangled in her blanket and fixed the blanket. She cried for her mother, who briefly came into the room. At first, he claimed that at approximately 3:45 a.m., his son David woke him up, and he again went into Jami Sue and Preston's room, where he found her lifeless under her blanket. Given that the 911 call had been placed at 4:58 a.m., however, he changed his story, reasoning that he must have gone into the children's room at 4:30 a.m. He maintained that between 1 and 4:30 a.m., no one else had entered the children's room. He speculated that Jami Sue may have died of suffocation because she had rolled herself in her blanket and could not breathe.
¶ 6 Investigator Ranos told defendant that preliminary autopsy results indicated that Jami Sue had sustained injuries to her head, neck, and back. Defendant indicated that "he could probably shed some light on those injuries." He stated that during breakfast on October 7, 1995, he "inadvertently grabbed [Jami Sue] by the neck" when she ran past him, leaving a mark on her neck. He also indicated that on the same day, he was giving Jami Sue and David a bath when Jami Sue stepped on David, causing David to yell. He claimed that, in the commotion, he "pushed Jami [Sue] back with his elbow, " causing her to land on her back on the bathroom floor, resulting in bruises.
¶ 7 Defendant also admitted hitting Jami Sue on the day she died. He stated that when he went into the children's room at 4:30 a.m., he found her tangled in her blanket again. When he pulled the blanket off of her, "she whined, " which "made him so mad that he hit her." He believed he hit the back of her head. He then recalled having gone into the children's room a third time and changed the time line. Specifically, he now recalled going into the room at 1 a.m. and fixing Jami Sue's blanket. He then went into the room a second time at approximately 3:30 a.m., saw her tangled in her blanket again, yelled at her, and hit her in the head. He went into the room a third time at approximately 4:30 a.m., at which time he found her lifeless. Later, he admitted that when he went into the room at 3:30 a.m., he hit her on the head twice, not once.
¶ 8 Detective Joe Cervantez, who was also present during the interview, testified that defendant indicated that he hit the back right side of Jami Sue's head with his palm using a downward "hammering" motion. Defendant ultimately gave a videotaped statement, which was played for the jury. He did not testify at trial.
¶ 9 At the close of the evidence, the State moved to dismiss the knowing murder charge and to submit to the jury only the aggravated battery of a child and felony-murder charges. Defendant objected that proceeding in this manner removed the possibility of having the court instruct the jury on involuntary manslaughter. The court allowed the State's motion, finding it permissible for the State to proceed only on the felony-murder and aggravated battery of a child charges.
¶ 10 The jury found defendant guilty of felony murder and aggravated battery of a child. He was sentenced to mandatory natural life imprisonment.
¶ 11 On direct appeal, defendant argued that (1) the trial court erred in refusing to instruct the jury on involuntary manslaughter because the State deliberately dismissed the knowing murder charge as a strategic decision to avoid involuntary manslaughter instructions; and (2) his natural life sentence was unlawful.
¶ 12 In People v. English, No. 3-96-0767 (2000) (unpublished order under Supreme Court Rule 23) (English I), the appellate court held that "the circuit court did not abuse its discretion when it did not instruct the jury on involuntary manslaughter." Id. at 11. In reaching that conclusion, the English I court noted that the trial court instructed the jury on both recklessness and knowing conduct and stated:
"The evidence in this case shows that [defendant] acted with intent to cause great bodily harm. The jury found [defendant] guilty of aggravated battery of a child and, therefore, that he acted intentionally or knowingly. It could not also have found that he acted recklessly. Consequently, the jury found [defendant] guilty of felony murder. Had the jury found that [defendant] merely acted recklessly, it should have acquitted him of aggravated battery of a child and could not have convicted him of felony murder." Id.
However, the English I court held that defendant's sentence was erroneous because the statute under which he was sentenced to natural life imprisonment was enacted in violation of Illinois' single-subject rule. Id. at 12. The court, therefore, affirmed defendant's conviction but vacated his natural life sentence and remanded for resentencing. Id. On remand, he was sentenced to 50 years in prison.
¶ 13 In 1999, while his direct appeal was pending, defendant filed a postconviction petition, which he voluntarily dismissed on August 6, 2003. In 2004, he filed another postconviction petition, which the circuit court treated as a successive petition and dismissed on May 24, 2004, on the State's motion. Defendant then filed a motion to reinstate his original 1999 petition. On September 26, 2005, the circuit court denied defendant's motion to reinstate his original 1999 petition. Defendant again appealed.
¶ 14 In People v. English, 381 Ill.App.3d 906, 909 (2008) (English II), the appellate court held that it had no jurisdiction to consider the dismissal of defendant's 2004 postconviction petition because it was dismissed on May 24, 2004, and defendant failed to file a timely notice of appeal. However, the English II court noted that defendant did file a timely notice of appeal after the denial of his motion to reinstate his 1999 petition. In addressing that matter, the English II court held that the circuit court erred in denying defendant's motion to reinstate the 1999 petition. Id. at 910. The court noted that defendant voluntarily dismissed his 1999 petition on August 6, 2003, and moved to reinstate the petition on August 4, 2004. Because postconviction proceedings are civil in nature, the English II court found that, pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2004)), defendant had one year to refile or reinstate his voluntarily dismissed petition. English II, 381 Ill.App.3d at 910. Thus, the En ...