Appeal from the Circuit Court of Cook County. No. 88 CR 8605 Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.
¶ 1 This appeal arises from the July 1, 2010 order entered by the circuit court of Cook County, which dismissed, at the second stage of the proceedings, a third successive post-conviction petition filed by defendant-appellant Michael Harper. On appeal, the defendant argues that his third successive post-conviction petition should advance for a third-stage evidentiary hearing, because he made a substantial showing that he was actually innocent of the crimes for which he was convicted. For the following reasons, we reverse the judgment of the circuit court of Cook County, and remand the cause for a third-stage evidentiary hearing.
¶ 3 In May 1988, an arson occurred at a building located on the 400 block of East 63rd Street in Chicago, Illinois. The building housed several businesses, including a drug store, sandwich shop, discount store, barbershop, video store and the King Chef restaurant. Two victims, Pismai Panichkarn and Kiert Phophariat, died of smoke inhalation during the fire. Subsequently, the defendant was charged with first-degree murder, arson, and aggravated arson.
¶ 4 On April 23, 1990, a jury convicted the defendant of arson and first-degree murder. On direct appeal, this court reversed the defendant's conviction and remanded for a new trial, holding that the cumulative impact of many trial errors denied him a fair trial. People v. Brown, 253 Ill. App. 3d 165, 624 N.E.2d 1378 (1993).
¶ 5 In July 1994, on retrial, the following evidence was presented to the jury.*fn1 The State read a transcript of the testimony of Sid Malone (Malone) from the defendant's first trial. Malone did not testify in the defendant's second trial. In the transcript that was read to the jury in the second trial, Malone testified that on May 28, 1988, at about 5 a.m., he saw a van with license plate number GAS 403 in front of a video store in the 400 block of 63rd Street. He observed two people, one of whom carried a gasoline can, walk in front of the van toward the video store. A few minutes later, Malone saw smoke emanate from the video store. Malone was unable to identify the individuals he observed.
¶ 6 Officer David Brown (Officer Brown) testified in the defendant's second trial that at 5 a.m. on May 28, 1988, he saw smoke coming from the video store. He exited his car and began knocking on storefront windows. At this point, the defendant approached him and asked whether the "Chinese or Oriental people" got out. The defendant identified himself as the owner of the video store.
¶ 7 Detective Joseph Campbell (Detective Campbell), an expert in the determination of the causes and origins of fires, testified that the fire was intentionally set and that it originated in the rear of the video store. Detective Campbell recovered debris samples from the rear of the video store. In executing a search warrant for the defendant's Ford Bronco, which bore license plate number GAS 403, Detective Campbell recovered X-rated videotapes. He was alerted by a citizen as to a gasoline can near the scene of the fire, which Detective Campbell photographed. At trial, Detective Campbell identified the photograph as being a photograph of the gasoline can.
¶ 8 Detective David Kutz (Detective Kutz) testified at the defendant's second trial that he interviewed the defendant at the police station, during which the defendant confessed that he intended to burn videotapes to collect insurance proceeds. The defendant also informed Detective Kutz that he was the only person with keys to the video store and the Ford Bronco.
¶ 9 Marshall Levin (Levin) testified at the defendant's second trial that he leased the retail space of the video store to the defendant. He stated that, at the time of the fire, he did not have any fire insurance on the building in which the video store was housed.
¶ 10 William Tyrell (Tyrell) testified at the defendant's second trial, as an expert in chemistry, that the debris samples recovered from the fire scene testified positive for the residue characteristic of gasoline.
¶ 11 Assistant State's Attorney Joel Whitehouse (ASA Whitehouse) testified at the defendant's second trial that in May 1988, he took a court-reported statement from the defendant. That statement was published to the jury at the second trial. He testified that he was present during the execution of the search warrant on a Ford Bronco with license plate number GAS 403.
¶ 12 In the defendant's court-reported statement, which the jury heard during the second trial, the defendant stated that the video store was owned by his mother, Roberta Holmes (Roberta). The statement went on to detail the following facts. At 3 a.m. on May 28, 1988, he drove to the video store and informed co-defendant Arthur Brown (co-defendant Brown) that he wanted to burn the videotapes because the business was no longer making any money and he wanted to collect the insurance proceeds. The defendant's uncle, Albert Harper (Albert), and his cousin, Jerome Ford (Jerome), were also present. Co-defendant Brown agreed to assist the defendant in exchange for some X-rated videotapes, which the defendant put in the Ford Bronco. The defendant then instructed Jerome to get some gasoline, after which Jerome left with Albert while the defendant and co-defendant Brown stayed at the video store. Co-defendant Brown then bent the burglar bars at the back of the store. Co-defendant Brown and the defendant discussed using a mattress from the video store and putting it against the videotapes so it "would flame quicker." The reason he was burning the videotapes was to collect insurance proceeds. He knew that two "Oriental persons" had a restaurant business near his video store, that they spent nights in the restaurant from time to time, and that he knew their truck was in the neighborhood on the night of the fire. In his statement, the defendant stated that he had been treated fairly by the police and by ASA Whitehouse.
¶ 13 Firefighter Kevin Brannigan (Firefighter Brannigan) testified in the defendant's second trial that the front door of the video store was locked when he arrived at the scene. He cut the lock off. He also discovered the two deceased victims in the restaurant next to the video store. Commander Frances Burns (Commander Burns) testified in the defendant's second trial that the fire originated in the video store, and that a backdraft explosion had occurred there.
¶ 14 During the defendant's second trial, the State also read the transcript of the testimony of Cecil Hingston (Hingston) from the defendant's first trial. Hingston was an unavailable witness at the defendant's second trial. In the transcript from the first trial, Hingston testified that on the morning of May 28, 1988, he was a manager and attendant at a gasoline station near the scene of the fire. At approximately 5 a.m., a man came into the station and purchased gasoline, which was put into a gasoline can. The man and a second ...