Appeal from the Circuit Court of Cook County, Illinois No. 94 CR 4431 (01) The Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
¶ 1 Defendant, Anthony Brown, appeals the dismissal of his successive petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2010). In his petition, defendant made a freestanding claim of actual innocence based on new deoxyribonucleic acid (DNA) testing performed on several pieces of evidence in accordance with section 116-3 of the Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/116-3 (West 2000)). After an evidentiary hearing, the circuit court found the new evidence was not of such a conclusive nature that it would have changed the result of defendant's trial or affected any jury's determination. In addition to challenging the circuit court's dismissal of his post-conviction petition, defendant alternatively argues that his post-conviction counsel was ineffective. At issue is whether the circuit court's decision is manifestly erroneous and whether post-conviction counsel provided defendant with a reasonable level of assistance. We hold the circuit court's finding that defendant did not make a showing of actual innocence substantial enough to warrant a new trial is not manifestly erroneous. Additionally we hold that defendant's post-conviction counsel provided a reasonable level of assistance.
¶ 3 On March 11, 2009, the circuit court denied defendant's successive post-conviction petition after conducting an evidentiary hearing. On April 8, 2009, the circuit court denied defendant's motion to reconsider. On that same date, defendant timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 651(a). Ill. S. Ct. R. 651(a) (eff. Feb. 6, 2013).
¶ 5 Following a jury trial, defendant was convicted of two counts of first degree murder, one count of aggravated vehicular hijacking, one count of aggravated criminal sexual assault, and one count of armed robbery.
¶ 6 Defendant's Trial and Initial Appeal
¶ 7 A detailed account of defendant's trial and initial appeal is well stated in our supreme court's 1998 opinion. People v. Brown, 185 Ill. 2d 229 (1998). Below we will discuss those details from defendant's trial and initial appeal as they pertain to his successive post-conviction petition.
¶ 8 On January 12, 1994, Reginald Wilson, Felicia Lewis, and Steven Fitch were in Wilson's Chevrolet Blazer automobile when they stopped at a gas station to allow Wilson and Fitch to use the restrooms. When Fitch returned to the car, he noticed someone outside the Blazer letting another person in on the passenger side. When he approached the Blazer, the person outside the car asked him what he was looking at. Another person, not Wilson, was in the driver's seat. The Blazer drove off and Fitch called the police.
¶ 9 Zarice Johnson, a co-defendant and friend of defendant's, testified on behalf of the State at defendant's trial. Johnson testified that defendant picked him up from his apartment in the evening. Already inside defendant's car, a Chevrolet Caprice, were co-defendants Scott Chambers, Stanley Hamelin, and Carl Williams. Hamelin suggested that they steal a car, a plan defendant agreed to. They then stopped at a gas station. As they were leaving, they saw a Chevrolet Blazer automobile. Hamelin, Chambers, and Williams got out and went back to the gas station. Johnson did not notice what Williams was doing, but he did see Chambers enter the Blazer while Hamelin stood by the passenger side. Johnson also saw a person approach the passenger side of the Blazer before quickly walking back to the gas station. After driving around the block in his Caprice, defendant returned to the gas station. Defendant, with Johnson in the backseat, drove away. The Blazer followed defendant's car. Eventually, both cars pulled to the side of the highway. Defendant left his car and went to talk to the people in the Blazer. Johnson stayed in defendant's car, but defendant informed him on his return that a pretty woman and a man were inside the Blazer. Both cars drove off.
¶ 10 Later, both cars pulled into a parking lot. Defendant got out of his Caprice and talked to Hamelin and Williams. Hamelin told defendant that a car alarm and stereo were in the Blazer while Williams told defendant there was a compact disc (CD) player. Defendant asked Hamelin and Williams if there was any money inside, to which neither Williams nor Hamelin immediately responded. Defendant then returned to his car. Hamelin then walked over and gave defendant a bundle of money, which defendant put in his pocket. Hamelin also showed defendant a ring he had taken.
¶ 11 Defendant, while laughing, told Johnson that he was going to make the woman perform oral sex on him. He then got the woman from the Blazer and brought her to his car. He made Johnson move to the front passenger seat while defendant forced the woman into the backseat of the Caprice. Hamelin handed Johnson a Kenwood stereo and a portable CD player stolen from the Blazer. After defendant forced the woman to perform oral sex on him, defendant told her to remove her pants. The woman was crying. Johnson told her to cooperate with defendant and to stop crying. The woman stated that she was menstruating and that she had given birth in November. When defendant told her that she was lying, she replied that she was wearing a sanitary pad. Defendant had the woman place her coat on the car seat before having sexual intercourse with her. Defendant forced the woman to have intercourse and oral sex with him several more times. Defendant stated that he was going to drive around to find a spot to take Wilson and Lewis to kill them. Hamelin and Chambers later killed Lewis and Wilson. The five offenders each took part of the money recovered from the Blazer. After returning to the Blazer, 20 to 25 compact discs and cassette tapes were recovered, placed in a plastic bag, and given to defendant. Johnson and defendant were arrested together on January 13, 1994.
¶ 12 Johnson acknowledged that he was also charged with the crime, but that he entered into a plea agreement with the State. Johnson agreed he would plead guilty to one count each of first degree murder, armed robbery, vehicular hijacking, and criminal sexual assault. In exchange for his truthful testimony, the State agreed it would recommend a prison term of 35 years. According to Johnson, he would be eligible for release, if he received day-for-day good-time credit, in 17 1/2 years. For five months before testifying, Johnson lived in the county jail's witness protection program. He acknowledged that when the police first questioned him, he denied any involvement in the crime.
¶ 13 Other evidence presented at trial showed that at the time of his arrest, defendant possessed approximately $500 in cash on him. Compact discs, cassette tapes, a Kenwood stereo, a Panasonic CD player, an adapter, an earring stud, a cassette radio, and videotapes were recovered from defendant's Caprice. Found inside the Blazer was an earing, a plastic camera, a Panasonic CD player case, and an instruction manual and storage case for a Kenwood stereo.
¶ 14 Pamela Fish, from the Chicago police department crime laboratory, testified that swabs taken from Lewis were all negative for the presence of semen. Fish testified that this was not unusual because "of the three thousand or so criminal sexual assaults that are submitted into the laboratory per year, approximately half of them are negative for the presence of semen or spermatozoa." She determined Lewis to have blood type O. She found a small area that tested positive for human blood taken from the seat cushions of defendant's Caprice, but was not able to further test the blood due to its small size. She believed it to be a smear-type stain, possibly placed there by a hand. Inside the underwear defendant was wearing at the time of his arrest, Fish found a nickel-sized reddish-brown stain. She concluded this was a smear stain and was a mixture of seminal material and human blood. Fish determined defendant's blood type was type O. She attempted to test the underwear stain for genetic markings, but was unable to do so. She testified that the inability to obtain a result in the test is generally from one of two causes: either the DNA material has degraded or the sample is too small. She opined that it was "a human bloodstain that contains some seminal material." Half of the United State's population has type O blood. She could not determine when either the stain or the blood was placed in the car seat or defendant's underwear.
¶ 15 Dr. Barry Lifschultz, a staff pathologist with the Cook County medical examiner's office, testified regarding the autopsies he performed on the two victims. Swabs were taken of Lewis' oral, rectal, and vaginal cavities. A sanitary napkin was also recovered. He did not find any evidence of sexual trauma to Lewis's genital area.
¶ 16 Scott Rochowicz, a member of the microscopic trace evidence unit of the crime laboratory of the Chicago police department, testified that hairs recovered from Lewis's clothing were similar to her own hairs. Hairs recovered from defendant's clothing were similar to his own hairs, including hairs found in his underwear.
¶ 17 The jury found defendant guilty of the first degree murders of Wilson and Lewis; the armed robbery and aggravated vehicular hijacking of Wilson, and the aggravated criminal sexual assault of Lewis. The circuit court sentenced defendant to death for his first degree murder convictions, and concurrent 30-year prison terms for his aggravated vehicular hijacking and aggravated criminal assault convictions. The circuit court merged defendant's conviction for armed robbery with his vehicular hijacking conviction.
¶ 18 On appeal, defendant alleged the State failed to prove him guilty beyond a reasonable doubt. In particular, he alleged that Johnson's testimony was insufficient to support the jury's verdict. Defendant additionally argued that the State made improper comments during both opening and closing argument, that several errors occurred at his sentencing hearing, and that the Illinois death penalty statute (720 ILCS 5/9-1 (West 1994)) was unconstitutional. Our supreme court affirmed defendant's convictions and sentence. On June 24, 1999, defendant's petition for writ of certiorari was denied. Brown v. Illinois, 527 U.S. 1041 (1999) (table).
¶ 19 First Post-conviction Petition
¶ 20 On January 15, 1998, defendant filed his first post-conviction petition challenging his sentence. The circuit court dismissed the petition, and defendant appealed. On January 10, 2003, defendant's sentence was commuted to ...