The trial court’s erroneous order in 2009 giving effect to the dismissal of defendant’s postconviction petition including a claim of his actual innocence was reversed, partially in view of the lack of diligence on the part of both parties, and the cause was remanded and the State was allowed to file an answer to defendant’s third amended petition and for further appropriate and timely proceedings.
Appeal from the Circuit Court of Kane County, No. 92-CF-239; the Hon. Timothy Q. Sheldon and the Hon. James T. Doyle, Judges, presiding.
Thomas A. Lilien and Mark G. Levine, both of State Appellate Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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" ...