Rehearing Denied Aug. 13, 2013.
Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Joan F. Frazier, Assistant State's Attorneys, of counsel), for the People.
Justice delivered the judgment of the court, with opinion. Justices Epstein and
Pucinski concurred in the judgment and opinion.
[373 Ill.Dec. 702] OPINION
¶ 1 Defendant William Sutherland appeals from the denial of his pro se request to file a successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, he argues that under the United States Supreme Court's recent case, Martinez v. Ryan, 566 U.S.
___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), his failure to raise an ineffective assistance of trial counsel claim in his initial postconviction petition should be excused because he did not have the aid of legal counsel in drafting the petition. He contends that fact, plus the alleged prejudice, warrants reversal of the circuit court judgment. We affirm.
¶ 2 BACKGROUND
¶ 3 In August 1998, defendant was tried and convicted by a jury for the 1997 attempted murder of his former wife, Elaine Sutherland, and his stepdaughter, Erica Ellison. He was also convicted of home invasion. Trial evidence showed that following domestic abuse incidents, Elaine asked for a divorce, and defendant responded with a " threatening okay." Around 11 p.m. that same evening, defendant burst into the room where Elaine and Erica were sleeping, turned on the light, then shot Elaine numerous times, in her forearm, chin, jaw, shoulder, and chest, and also shot five-year-old Erica in the face above her lip. Both victims survived. Elaine suffered permanent brain damage, including retrograde amnesia, as a result of the gunshot wounds but was able to testify at trial, albeit without any recollection of the shootings. Defendant's conviction therefore rested on the identification testimony of Erica, who was a six-year-old at the time of trial. Erica testified that she watched as defendant shot her mother, " bam, bam, bam, bam," forcing her to fall off the bed onto the floor before defendant turned the weapon on her. Erica knew it was defendant because she saw his face and saw he was wearing glasses. A neighbor who entered moments after the shooting testified that Erica's exact words were, " Will done shot us." Police were radioed to the scene around 11:20 p.m. Erica told three police officers that defendant shot her. She identified him in photographs then and later identified him in court at trial.
¶ 4 The State also presented the testimony of another neighbor who saw a six-foot man, sporting glasses, a chin beard, and bearing a " crazy look," digging inside his car trunk outside Elaine's home around 10:30 p.m. on the evening in question; he walked up to the porch, turned around, looked at the neighbor, then returned to his car and eventually drove off. She later identified him as defendant. The State posited that defendant returned to Elaine's home and committed the shooting about 11 p.m., leaving behind what the evidence technician later determined was a .22-caliber bullet. A search inside defendant's trunk revealed there was a winter mask with the eyes cut out, even though it was April, and rubber hospital gloves.
¶ 5 Defendant's theory of defense was misidentification. He argued that when Erica said her " daddy" was the shooter, she was referring to her biological father, even though she clarified to police officers that she was referring to " Will." Testifying on his own behalf, defendant admitted that on the evening in question he, along with his three-year-old son by Elaine, was momentarily present outside Elaine's home somewhere between 9 p.m. and 10 p.m., but denied entering the home or shooting [373 Ill.Dec. 703]
Elaine and Erica. After knocking on the window of Elaine's home and receiving no answer, he claimed to have driven to his father's house, which was 10 to 15 minutes away. He was there but five minutes because he found his father was either drunk or asleep. He then left and returned to a family party. A former state correctional officer himself, defendant admitted having owned a .22-caliber pistol, although he denied owning one at the time of the ...