Appeal from the Circuit Court of Cook County. No. 93 CR 20392 Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Epstein and Taylor concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Marcos Gray was convicted in 2000 of first degree murder and attempted armed robbery and sentenced to concurrent prison terms of natural life and 15 years. We affirmed the judgment on direct appeal. People v. Gray, No. 1-00-4122 (2002) (unpublished order under Supreme Court Rule 23). Defendant now appeals from the dismissal, upon the State's motion, of his post-conviction petition. He contends that the circuit court violated his right to self-representation by not granting his requests to proceed pro se and by striking his pro se amendments to his petition.
¶ 2 Defendant and co-defendants Antwon Tyler and Gregory Jackson were charged with first degree murder and attempted armed robbery in the July 1993 shooting death of Sheila (or Sheilah) Doyle. Jackson was acquitted in a jury trial, and Tyler was tried separately.
¶ 3 The evidence at trial was that defendant assisted Tyler in the attempted armed robbery and shooting of Doyle. Doyle's car was found in the garage of her home with the garage door open, and Doyle was found in the trunk of her car with a single gunshot wound to the back of her head. Tyler's handprints (that is, palmprints and fingerprints) were on the driver's door and trunk lid, while defendant's handprints were on the trunk lid. A neighbor testified that, on the night before Doyle was found, he heard a woman screaming and, when he looked toward the scream, saw a car in front of Doyle's home. He heard a gunshot, the screaming stopped, and two men left the garage and walked quickly to the car. Jackson testified that he had little or no recollection of the events of the day in question. His earlier post-arrest statement to an assistant State's Attorney was then admitted as a prior inconsistent statement.
¶ 4 In that statement, Jackson explained that Tyler had earlier shot a hole in the hood of the car owned by Jackson's mother Dorothy and then promised Jackson that he would either pay for it or steal a car to replace the hood. On the day in question, defendant and co-defendants met, and Tyler repeated his promise to buy or steal a hood. As they were riding in Jackson's car, Tyler saw a car similar to Dorothy's car and told Jackson to follow it, which he did. When the car parked in a garage, Tyler told Jackson to stop and then ran from the car, refusing to answer Jackson's question of what he intended to do. Tyler and defendant ran into the garage while Jackson sat in his car nearby. After a short time, Jackson heard a gunshot, and Tyler and defendant ran back to his car. When they all left in Jackson's car, Jackson asked Tyler what had happened. Tyler replied that "she was fighting me. She tried to take the gun. I had to shoot her."
¶ 5 In corroboration of Jackson's statement, a mechanic testified that he replaced the hood of Dorothy's car and that the old hood had what appeared to be a bullet hole in it.
¶ 6 Following arguments, instructions, and deliberation, the jury found defendant guilty of first degree murder and attempted armed robbery. Following the denial of defendant's posttrial motion, and arguments in aggravation and mitigation, defendant was sentenced to concurrent prison terms of natural life and 15 years. Defendant's post-sentencing motion was denied.
¶ 7 On direct appeal, defendant challenged the admission of Jackson's statement on the grounds that it contained a co-defendant's hearsay statements. We affirmed, finding in part that any error in the admission of Jackson's statement was harmless beyond a reasonable doubt in light of the unobjectionable portions of Jackson's statement and of the other evidence, including defendant's handprints on the trunk where Doyle's body was found. Defendant also challenged the sufficiency of the evidence, in particular the evidence of accountability. We acknowledged defendant's argument that his handprints established only that he touched Doyle's car but found that the handprints, in light of the other evidence regarding the actions of defendant, Tyler, and Jackson, were sufficient evidence that defendant aided in the commission of the instant offenses. Lastly, defendant contended that the State made an inflammatory remark in closing argument by referring to him as a piranha.
¶ 8 Defendant filed his pro se petition in December 2001. He claimed that appellate counsel had been ineffective for disregarding his pro se amended brief in the direct appeal, in which he argued that the evidence against him was insufficient because the only evidence against him was the improperly admitted and unduly prejudicial evidence regarding gunshot damage to Dorothy's car, of which defendant insisted he was unaware. He also claimed that trial counsel had been ineffective for not filing any pretrial motions including a motion to quash his warrantless arrest at home. The petition was accompanied by defendant's pro se motion for appointment of counsel, and the public defender was appointed.
¶ 9 In June 2002, the State filed a motion to dismiss, contending that the petition raised bare allegations that were not constitutional issues and were barred as res judicata.
¶ 10 Defendant filed an amended pro se petition in May 2003. In it, he claimed that the trial court erred in denying his pro se motion to replace trial counsel for not (1) providing him discovery as he requested, (2) filing a motion to quash his warrantless home arrest, (3) consulting with him in person, though counsel claimed to have done so, (4) challenging jurors with knowledge of the instant case, (5) seeking a mistrial due to extensive media coverage of his case, (6) introducing evidence of his "intoxicant depend[e]ncy" though Jackson described him as being in such a state at the time in question, and (7) seeking jury instructions on second degree murder. Defendant also claimed ineffective assistance of appellate counsel for not raising a claim of ineffective assistance of trial counsel on direct appeal. Defendant claimed that, as he was less than 17 years old at the time of the instant offenses, he was not subject to the jurisdiction of the criminal court but the juvenile court and thus the instant convictions and sentence are void. He challenged the validity of his warrantless home arrest, the admission of Jackson's statement when he did not admit to making such a statement, and the admission of the mechanic's testimony as unduly prejudicial in the absence of evidence that defendant was aware of the damage to Dorothy's car. Defendant claimed that this court erred in rejecting his pro se amended brief on direct appeal. He filed an additional pro se amendment in August 2003, expanding upon some of the claims in the May 2003 amendment.
¶ 11 Counsel filed in December 2003 a response to the State's motion to dismiss, claiming inability to examine the record or file a certificate under Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012) due to a recent fire at the offices of the public defender. That said, counsel expressly referred to the pro se amendments up to that time and argued that "[a]ll and each of [defendant's] claims are based on substantial constitutional arguments" and are not barred by res judicata. Counsel sought time "to further explore [defendant's] ...