Appeal from the Circuit Court of Kane County. No. 92-CF-239 Honorable Timothy Q. Sheldon and James T. Doyle, Judges, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Spence concurred in the judgment and opinion.
¶ 1 Defendant, Stephen E. Griffin, appeals from the trial court's order dismissing his pro se petition for postconviction relief. We reverse and remand for further proceedings.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with one count of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 2012)) in the shooting death of Michael Brown, who was found unresponsive and bleeding from the head on the side of Kautz Road at 9:55 p.m. on February 5, 1992. At a jury trial, Judge James T. Doyle presiding, only one witness testified that he saw Brown get shot. Anthony Gibson testified that he, along with Brown and codefendant Perez Funches, were in a car driven by defendant. Defendant ordered Brown out of the car, and defendant and Funches walked to the back of the car, while Gibson remained inside. Gibson heard four or five gunshots and saw defendant standing behind Funches as Funches fired a gun straight down from a kneeling position. Defendant testified that he had been out with Funches, Brown, Neal, and Gibson on the night of February 5 but went to his mother's house at around 9:30 p.m. He then borrowed his cousin's car and drove to the house of Paula Thomas; he arrived there at about 10 p.m. and spent the night there. He met with Funches and Gibson the following night and helped them dispose of the gun that Funches told him had been used to kill Brown. Defendant denied being present when Brown was killed.
¶ 4 The jury found defendant guilty, and the trial court sentenced him to a term of 60 years in prison. This court affirmed both the conviction and the sentence in People v. Griffin, No. 2-95-1249 (1997) (unpublished order under Supreme Court Rule 23), and our supreme court denied leave to appeal (People v. Griffin, 176 Ill.2d 582 (1998) (table)).
¶ 5 Defendant then filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)). Defendant's proof of service was dated August 25, 1998. Although the petition was file-stamped October 1, 1998, the record contains a trial court order, dated and file-stamped September 16, 1998, continuing the case until October 1 for status on the petition. In his petition, defendant alleged: (1) that the State suborned perjury by Gibson and Neal in their trial testimony, especially regarding what they received in return for their testimony; (2) ineffective assistance of counsel for (a) failure to offer in evidence telephone records to impeach Gibson and (b) failure to poll the jury and to tell the court that two jurors later told counsel that they did not believe that defendant was guilty but the jury room was too cold and they did not want to stay overnight because of an upcoming holiday weekend; and (3) that the State withheld exculpatory evidence. Defendant attached a February 17, 1992, unsworn handwritten "voluntary statement" from Funches, who had not testified at defendant's trial, in which Funches stated that he would testify that defendant was not present at Brown's killing, had no knowledge of it, and was not involved in the planning or ordering of it. Defendant also filed a motion for an evidentiary hearing and appointment of counsel; while defendant dated the motion August 25, 1998, it was file-stamped October 1, 1998. In a written order dated by hand September 17, 1998, and file-stamped October 1, 1998, Judge Doyle found the petition to be "without merit and patently frivolous" and dismissed the petition.
¶ 6 On March 12, 1999, defendant filed a "first amended" petition for postconviction relief. Defendant made the same allegations he made in his original petition but attached affidavits of his sister and mother regarding: (1) conversations that they had with defendant's trial attorney about the two jurors who did not believe that defendant was guilty; and (2) a conversation with Gibson in which Gibson stated that defendant had nothing to do with the murder and that the State had paid both himself and Neal for their trial testimony. None of the attachments to his 1998 petition were attached to the first amended petition. Another copy of the first amended petition was file- stamped April 14, 1999, but did not include the affidavit of defendant's sister.
¶ 7 On July 9, 1999, defendant filed a second amended petition for postconviction relief, noting his prior allegations and raising "newly discovered evidence" in the form of an attached affidavit of Gibson in which Gibson stated that he committed perjury during defendant's trial, giving false testimony because he had been arrested and was attempting to exonerate himself by saying whatever the State wanted him to say. According to Gibson, defendant "was not present" when Brown was shot. The trial court appointed the public defender and set the matter for July 23, 1999.
¶ 8 A series of continuances ensued for almost two years until, on April 19, 2001, defendant filed a motion for DNA testing of shoes that defendant had allegedly worn on the night of the murder and thrown out of a car along Interstate 88. The shoes had been recovered and used as evidence at defendant's trial. The trial court granted the motion on June 21, 2001. On November 1, 2001, the trial court ordered the circuit clerk to return the shoes to the State's Attorney's office for testing "as previously ordered by this court." In a handwritten note file-stamped December 27, 2001, an assistant State's Attorney stated that she had received defendant's shoes per the November 1 order. On February 28, 2002, the trial court ordered the "Kane County Clerk's office" to "retrieve the shoes" and turn them over to the Aurora police department; in May 2002, the court ordered additional trial exhibits, the victim's jacket and shirt, to be turned over to the Aurora police department for further lab testing. On October 16, 2002, the trial court continued the case and filed an additional order, which stated:
"State Crime Lab is to test the articles provided in this case to determine whether any DNA material is present. Until the Court receives confirmation of the presence of DNA material, it cannot issue a search warrant(s) for the production of standards from other parties."
¶ 9 Another series of continuances ensued. On April 20, 2005, 2½ years later, the trial court ordered the Illinois State Police crime lab to turn over the shoes, which had been given to the lab by the Aurora police department, to the Kane County public defender's office, which was granted leave to use an independent laboratory for forensic analysis of the shoes. In June 2005, the trial court, Judge Timothy Q. Sheldon now presiding, ordered both the Aurora police department and the circuit clerk's office to allow defense counsel to view any physical evidence from the case that they had in their possession. More continuances ensued; on September 29, 2005, the trial court ordered the evidence to be taken to the State Police crime lab for an examination of the "shoe" for the presence of DNA material and a Combined DNA Index System search.
¶ 10 On November 8, 2005, Judge Sheldon found that: (1) "the last and pending petition" was defendant's second amended petition filed pro se on July 2, 1999; (2) defense counsel had not filed an amended petition; (3) the State Police crime lab was ordered on October 16, 2002, to conduct the DNA testing; and (4) no court orders had been entered since ...