In an action arising from defendant’s conviction of first-degree murder on an accountability theory, the trial court properly denied defendant’s postconviction claim of actual innocence based on an affidavit from the person who was convicted of actually killing the victim stating that defendant was not involved in the offense, since the trial court’s decision was not manifestly erroneous.
Appeal from the Circuit Court of Winnebago County, No. 00-CF-2593; Review Hon. Joseph G. McGraw, Judge, presiding.
Peter A. Carusona, Glenn Sroka, and Verlin R. Meinz, all of State Appellate Defender’s Office, of Ottawa, for appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer and Richard S. London, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Nathaniel A. Carter, was convicted based on accountability of the first-degree murder (720 ILCS 5/9-1(a)(3) (West 2000)) of Cornell Thomas and sentenced to 45 years' imprisonment. On direct appeal, defendant raised one issue, regarding jury instructions. In an unpublished decision, People v. Carter, No. 2-01-1336 (2003) (unpublished order under Supreme Court Rule 23), this court affirmed.
¶ 2 Defendant later filed a postconviction petition, which was amended several times, culminating in his fourth amended postconviction petition. The State moved to dismiss defendant's petition, and the trial court granted this motion. Defendant appealed, arguing that the trial court erred by dismissing his petition. Defendant had raised several issues in his petition, including a claim of actual innocence based on the affidavit of a codefendant, James Hackler, which stated that James acted alone in the killing of Cornell. In another unpublished decision, this court affirmed the dismissal of all of defendant's postconviction claims except for the one of actual innocence. People v. Carter, No. 2-06-1012 (2009) (unpublished order under Supreme Court Rule 23). On that claim, we reversed the judgment and remanded the case, instructing the trial court to hold an evidentiary hearing. Following an evidentiary hearing on defendant's claim of actual innocence, the trial court denied his petition. Defendant appeals, and we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. Trial Evidence
¶ 5 We begin by summarizing the evidence adduced at defendant's trial. During opening argument, the State presented the following theory of how Cornell was killed. Defendant and two others, James (nicknamed "Cujo") and David Walker (nicknamed "Dayday"), met at the Rockford Motel to plan a robbery at a drug house at 321 Lincoln Avenue in Rockford. On the night of the incident, September 30 to October 1, 2000, Cornell picked up his friend, Lashanna Bowman, and they drove to the drug house, where defendant, James, and David were waiting in a car. Cornell exited his car and was ambushed by defendant and James, who were armed. Defendant attempted to rob Cornell and he beat him with his gun. Cornell broke free from defendant and ran into James, who shot him. Cornell stumbled into the street and died. Defendant got back in the car with David, and James hijacked Cornell's car and drove away. Shortly after the murder, defendant returned to the Rockford Motel and met up with James and his wife, Angela Hackler. They told Angela what had happened, including that defendant attempted to rob Cornell, that defendant beat Cornell with his gun, and that during the scuffle some shots were fired. Police later found the gun that killed Cornell, a .38-caliber revolver, in David's apartment. While the State was not sure that defendant had fired the gun, his fingerprints were on the bag that contained it.
¶ 6 State witness Andre Brass, a Rockford police detective, testified that he was assigned to locate defendant during the investigation of Cornell's death. Detective Brass, aware that defendant's license had been suspended, spotted defendant driving a car. Detective Brass stopped defendant, at which time defendant produced a license with his own picture but with the name Hubert Davenport. At first, defendant denied that his name was Carter, stated that his name was Davenport, and claimed that Carter was his brother's name. Eventually, he admitted that he was Nathaniel Carter.
¶ 7 Defendant was taken to the police station. He agreed to talk, claiming that he was with his girlfriend on the night of the incident. According to defendant, they went to dinner and a movie and then spent the night at her house. Defendant denied going to 321 Lincoln, denied knowing "Cujo, " and denied involvement in the murder. After defendant saw James being interviewed down the hall at the police station, however, defendant said that he knew James as a "crack head" but not as "Cujo." Defendant admitted knowing "Dayday" and asked the detective if David had said that defendant supplied the guns for the robbery. Defendant continued to deny involvement, but his story kept changing. Each version was different in terms of whether he and his girlfriend actually went to a movie, what time they ate, and whether his son came along. David had injured his ankle, and Detective Brass questioned defendant about this as well. Defendant relayed that he saw David a couple of days after the incident and that David told defendant that he had hurt his ankle when his girlfriend pushed him down a flight of stairs.
¶ 8 At some point during the interview, defendant again changed his story about being with his girlfriend. He admitted being at a motel with James and David when "they formulated a plan to do a robbery." James came up with the idea because he knew a place on Lincoln Avenue where there was a lot of money. They exited the motel room and went out on the balcony, and defendant jumped from the second-floor balcony into a truck bed below. Defendant then challenged David to do the same, which he did, although he injured his ankle. Dayday was still able to go with them, and he drove them to Lincoln Avenue in his car. Defendant knew that James had a gun, and James exited the car alone. James commented that " 'he was going to go handle his business, ' " which meant doing a robbery. Defendant and David stayed in the car for a few minutes before hearing gunshots. They took off, drove around the block, and saw a black male lying in the street. They drove away. Defendant then returned to his girlfriend's house and did not know what happened to David or James.
¶ 9 On cross-examination, Detective Brass admitted that his report did not say that defendant planned or conspired to commit a robbery with James and David. However, defendant told the detective during the interview that he was willing to participate in the robbery at the house on Lincoln. The interview began at 7 p.m. and ended around 5:45 a.m. The interview was not continuous during that period, and it was not videotaped. Detective Brass did not ask defendant for a written statement.
¶ 10 Rockford police detective Howard Forrester, who continued interviewing defendant after Detective Brass, testified that defendant gave three different versions of events. At first, defendant claimed that he was with his girlfriend and kids on the night of September 30 to October 1, eating and watching videos. Then, he changed his story and stated that he was at the Rockford Motel with David in James's room on September 30. Around 5 p.m., when they left, defendant jumped off the balcony into the bed of a truck, and David followed him and injured his ankle. After that, defendant picked up his girlfriend, and they ate and rented some videos. Later, David picked defendant up in his car, and they parked on Heath Street, which was adjacent to Lincoln. Defendant did not give details about time or what they were doing on Heath Street.
¶ 11 Detective Forrester testified that defendant then changed his story again, claiming that after the three left the motel, he and David drove to Heath Street but James did not come along; he did not know where James went. Defendant heard one gunshot and they drove to Lincoln and saw a body in the middle of the street. At that point, David drove defendant back to his car, around 4 a.m., and defendant drove to his girlfriend's house. With respect to the gun, defendant said that on October 1 he went to the Rockford Motel and saw James cleaning a .38-caliber revolver. James put it in a paper bag and gave it to defendant, who then took it to David's apartment. Detective Forrester's interview of defendant lasted until about noon. Detective Forrester did not ask for a written statement, because defendant's story jumped around so much and he eventually asked for a lawyer.
¶ 12 Angela testified that she met defendant through James and had known him for about two years. Angela had a sexual relationship with defendant for 1½ years, which James knew about. James and defendant were friends, and defendant called James "Cujo." Around the time of the incident, Angela, James, and their daughter had moved into the Rockford Motel for a few days. James and Angela, who was pregnant, were crack cocaine users at the time.
¶ 13 On September 30, when she and James went out to eat, "some lady" asked for a ride home and offered to pay them. The lady got in the car and asked where she could get some "good dope." James drove to a drug house on Lincoln, which was run by someone named Leroy. Angela recalled that defendant had had problems with Leroy, had "gotten him before, " and "talked about getting him again." The lady and James got out of the car, went up to the house, and then returned to the car with drugs. After that, they all went back to the motel and smoked the crack cocaine; Angela took "one hit." Eventually, two other people stopped by, Goldie and Tim, who gave the lady a ride home.
¶ 14 Angela testified that a few hours later defendant and David arrived at the motel. They talked for one or two minutes and then went into the bathroom with James, closed the door, and turned on the fan. Angela did not know what they discussed; they were in there about 15 minutes. When they came out, James said to defendant, " 'so should I just be a customer or what.' " Defendant told James to be quiet, that they would talk about it later. Then, they sat down and had some drinks. Defendant said that, if they were going to do something, they should go. Angela asked where they were going, but they did not tell her. When leaving, defendant and David jumped off the balcony into a pickup truck. When David jumped, he hit his "behind." They left around 3 or 3:30 a.m. in a small, black, four-door car, with David driving.
¶ 15 Angela further testified that, about 45 minutes later, James returned with a thin, black male. James told Angela to give the man a couple of dollars for giving James a ride home. After the man left, James seemed "very nervous, very paranoid." He removed a revolver from his waistband and told Angela that they had to get rid of it. James could not figure out how to get the bullets out of the revolver, however. Angela explained how to remove the bullets, and James wiped off the gun. Angela testified that James put the bullets in Angela's purse and the gun in a brown paper bag. Later, Angela said that the paper bag also contained the bullets.
¶ 16 According to Angela, defendant arrived at the motel 15 to 20 minutes later. At first, defendant acted normal. Then, he seemed "very hyper." Defendant said, " 'Cujo (James), where were you, we waited for you, we couldn't find you anywhere. We stuck around as long as we could.' " They discussed what had happened that night. Defendant said that he grabbed Cornell from behind, started hitting him with his gun, got him on the ground, and then yelled at James for not coming over to help him. Defendant said that he could not hold Cornell down and grab his "pack" at the same time. Angela explained that a "pack" was a "bag full of dope that usually sticks in your crotch." Defendant felt Cornell's pack, which he compared to a round ashtray in the motel room. According to defendant, Cornell broke free and started running, so defendant fired two shots. Cornell ran toward James. Because James did not know where the gunshots came from, James then fired. James told defendant that he wanted to get rid of the gun in the paper bag, and he gave it to defendant. Defendant left with the gun and then returned to the motel room to spend the night.
¶ 17 Angela testified that a few days later the police came to the motel room and arrested James. When they questioned her, she denied any knowledge of the incident. She responded in this fashion because James taught her to never talk to police. Two days later, the police contacted her again and brought her to the police station under the suspicion that she knew about the incident. Angela admitted that a forgery case was pending against her. The State, however, had not promised her anything in exchange for her testimony.
¶ 18 On cross-examination, Angela admitted that she had two additional "hits" of crack cocaine on the night of the incident. Angela explained that James and the lady they picked up had gone back to the drug house for more crack cocaine before the incident. When Goldie and Tim came over, they brought a revolver, which was the same gun that she saw James unload later. Angela never saw Goldie give the gun to James, but it was the same gun. After Goldie and Tim left with the lady, they came back later that night. Angela admitted that her written statement to police did not say anything about James pretending to be a customer; she remembered that detail eight months later. Angela was scared of James because he beat her almost daily. Angela did not want to testify against defendant, and she was not trying to protect James.
¶ 19 Lashanna testified that she had a child with Cornell and also worked with him. Cornell picked up Lashanna at her apartment around 3:15 or 3:30 a.m. on October 1. He was driving his burgundy Grand Prix. They drove around listening to music and then Cornell stopped at a house on Lincoln to use the bathroom. He backed into the driveway of the house. Because the door on the driver's side of the car did not open, Lashanna got out of the car so that Cornell could exit on the passenger side. Lashanna got back in the car and moved to the driver's side. While she was waiting for Cornell, after about 10 to 15 minutes, she heard a gunshot. Then, she saw someone in front of the car, who came around and opened the passenger door. At first, Lashanna thought it was Cornell, but it turned out to be a white man who put a gun to her head and told her to shut up. He gave her three choices: get killed, drive him wherever he wanted to go, or get out. Lashanna wanted to get out, and the man pulled her out of the car. The man, whom she had never seen before, drove away in Cornell's car. Lashanna was screaming and crying and saw Cornell lying on the ground; she heard him crying her name. A car stopped on Lincoln and gave her a ride to a nearby cousin's house. Lashanna did not call the police, because her cousin did not have a phone. She went to the police station later that day and provided a written statement.
¶ 20 Berunica Boose testified that she lived in an apartment with David and her kids and had known defendant for years. On October 1, around 4 or 5 a.m., David showed up at the apartment "looking crazy" and scared, and his leg was "messed up." Berunica took him to the hospital. Later that day, Berunica's cousin called her to say that Cornell had been killed. At some point, Berunica needed to use David's car and she asked David if there was anything in it. David told her to "get the guns from under my car." Berunica looked under the hood of the car and saw three guns: one in a paper bag, one in a mask, and one wrapped in something that she did not recognize. Berunica carried the guns into the apartment and put them under her mattress. Defendant came over later that day, carrying a newspaper. He talked to David in the bedroom for a few minutes and then left. He was not carrying anything when he left. Afterward, Berunica looked under the mattress and saw only two guns; she did not know what happened to the third gun. Berunica admitted that friends of David's other than defendant had also stopped by that day.
¶ 21 Rockford police detective Joseph Stevens testified that on October 3 he was sent to Berunica and David's apartment based on an anonymous call relaying that it contained several handguns related to the investigation of Cornell's death. Berunica consented to a search for weapons, and David was also present. In the back bedroom, underneath the mattress, Detective Stevens found a black ski mask with a gun inside of it. The gun was fully loaded. He also found a brown paper bag that contained a .38-caliber revolver, two live bullets, and one spent bullet. David, who had either a broken leg or a broken ankle, was taken to the police station.
¶ 22 Russell McClain, a firearms ballistics examiner with the Illinois State Police, testified about his testing of a .38-caliber gun and a fired cartridge case that were found in the paper bag at David's apartment. He also tested the bullet that was recovered during Cornell's autopsy. The .38-caliber gun fired the bullet that was recovered from Cornell's body.
¶ 23 Rockford police detective James Barton testified that he tested the brown paper bag for prints. The print on the bag matched the print of defendant's right palm. Detective Barton also investigated the crime scene. In the yard of the house on Lincoln, Detective Barton found three small packets of rock cocaine near a grassy area where there appeared to have been a scuffle.
¶ 24 Rockford police detective Paul Triolo found Cornell's body lying in the street. Cornell had abrasions below his eye and on his lip, cheek, and stomach. He also had a gunshot wound to his upper left chest. His pants had grass strains and his zipper was unzipped. There was nearly $300 cash in his pocket and a can of tobacco.
¶ 25 Dr. Blum, a forensic pathologist, conducted an autopsy of Cornell's body. From a gunshot wound in the left chest area, he removed one bullet, which was the cause of Cornell's death. In Dr. Blum's opinion, the gun was fired within two feet of Cornell's chest. In addition, Cornell's head, hands, and knee showed multiple areas of blunt ...