Appeal from the Circuit Court of Cook County No. 91 CR 16373 Honorable Matthew E. Coghlan, Judges Presiding.
The opinion of the court was delivered by: Justice Pierce
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Hyman concurred in the judgment and opinion.
¶ 1 Defendant appeals from the circuit court's denial of his request for leave to file a successive post-conviction petition. In this court, defendant argues that the trial court erred in denying him leave to file his petition because: (1) his allegation that his confession was physically coerced established the requisite cause and prejudice necessary to overcome the bars of res judicata and waiver; and (2) he made a colorable claim of actual innocence supported by an affidavit of an eyewitness. We find that petitioner's successive petition should have been allowed because he has established cause and prejudice for failing to raise the issue in an earlier proceeding. Defendant failed to establish a colorable claim of actual innocence supported by the submitted affidavit of an eyewitness. For the following reasons, we affirm the judgment of the circuit court in part, and we reverse the judgment of the circuit court in part and remand with directions.
¶ 3 Defendant, along with co-defendant David Washington, was charged in connection with a shooting that occurred on June 9, 1991, which resulted in the death of Kathryn Miles and the injury of Eric Burgin, Sylvester Porch and Billy Warren. We will discuss only those facts relevant to the disposition of this appeal.
¶ 4 Prior to trial, defendant filed a motion to suppress his statement to police based on alleged physical and psychological coercion. Defendant testified that he was arrested for the offense in the instant case on June 11, 1991, and was handcuffed by Detective O'Brien of the Chicago police department. Detective O'Brien "smacked" defendant in the face when defendant told Detective O'Brien that he did not know anything about the shooting. Defendant was taken to Area 3 headquarters and was placed in an interview room with Detectives O'Brien, Stehlik and other officers. When defendant stated that he did not know anything about the shooting, Detective O'Brien punched defendant in the middle of the chest with such force that he was knocked to the ground. While he was on the ground, the other detectives hit and kicked him. One of the officers had a red bat with keys on the end, but defendant did not know whether he was beaten with the bat. The beating lasted about 20 to 30 minutes.
¶ 5 At some point during the beating, another unnamed officer entered the room and told the detectives to leave. This officer told defendant the beatings would stop if he cooperated. Defendant agreed to cooperate and was shown Gregory Reed's statement. Defendant and the officer went over Reed's statement for about 30 minutes. Later, defendant gave a court-reported statement admitting his involvement. Defendant did not complain about the beating because Detective O'Brien was present when he gave the statement. Similarly, defendant did not complain of being beaten to the intake paramedic at Cook County jail because police officers were present. Defendant eventually complained to a paramedic that he had been beaten, and X-rays were taken of his torso on July 19, 1991. No fractures were revealed.
¶ 6 David Washington testified that he was also arrested on June 11, 1991, by Detective O'Brien for his involvement in this case. Washington was taken to Area 3 and handcuffed to a wall. Detective O'Brien yelled at him and threatened to hit him with a little red bat with keys on it. Detective O'Brien then pulled Washington's overalls halfway down his body and took out an electrical device and told Washington that he would shock his genitalia if he did not cooperate. Washington gave a court-reported statement and did not make any complaints in his statement about being mistreated by the police.
¶ 7 Detectives O'Brien and Stehlik denied that they ever hit or threatened defendant. Assistant State's Attorney (ASA) Brian Grossman testified that he spoke with defendant before defendant gave his court-reported statement and defendant was given his Miranda rights and did not complain of being abused. ASA Charles Burns testified that he was present for Washington's statement and that he never complained about being threatened.
¶ 8 Based on a representation made by defense counsel, the court agreed to have Detective O'Brien's Office of Professional Standards (OPS) records subpoenaed and returned to the court for an in camera inspection. The court later tendered several of the OPS files to defense counsel. Thereafter, defense counsel called Maurice Lane to testify. Lane testified that Detective O'Brien physically abused him and threatened him in an attempt to get Lane to confess to the murder of his sister.
¶ 9 The court denied defendant's motion to suppress, finding defendant's statements were not the product of coercion and there was no evidence to support his allegations of abuse.
¶ 10 At trial, defendant's statement was published to the jury. In his statement, defendant explained that on June 9, 1991, he was at his friend Greg's house with Dave and some other friends when George arrived. After he spoke with George, Greg asked defendant if he was interested in doing a "stain," meaning a stickup. George offered to fix defendant's car if defendant would shoot some men who had "jumped on him."
¶ 11 Defendant, George, Greg and Dave then discussed the logistics of the shooting. They decided that defendant and Dave would shoot the men who "jumped on" George, while Greg watched their backs. Defendant was shown who his targets were.
¶ 12 The group drove to an alley near the crime scene. Defendant carried a .380 automatic gun. Defendant, Greg and Dave walked from the car to 66th and Wolcott and stood by a store on the corner. Defendant fired about five shots towards 65th Street at three men on the corner. Dave turned and started shooting at the same men that defendant had targeted.
¶ 13 Jermaine Averhart, an eyewitness to the shooting on June 9, 1991, testified on behalf of the State. Averhart observed three men near the store at the corner of 66th and Wolcott. The corner was lit by streetlights. Two of the men raised their guns and began shooting north, in the direction of a play lot on 65th Street. Then, one of the men turned and shot in the other direction and the other shooter followed. Averhart identified defendant and David Washington in a lineup.
¶ 14 The testimony of John Buchanan, an eyewitness, and Eric Burgin, a victim, substantially corroborated Averhart's testimony. Buchanan also testified that during the day on June 9, 1991, he ...