Court of Appeals of Illinois, First District, Fifth Division
Rehearing denied January 30, 2014
Defendant’s convictions and sentences for armed robbery and murder were upheld notwithstanding his contention that the trial court erred in denying him leave to file a successive postconviction petition alleging that his trial counsel was ineffective in failing to request a second-degree murder instruction, since the evidence at trial did not support a finding of second-degree murder.
Appeal from the Circuit Court of Cook County, No. 94-CR-26967 (03); the Hon. Evelyn B. Clay, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Caroline E. Bourland, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and Nancy Colletti, Assistant State’s Attorneys, of counsel), for the People.
Justices McBride and Taylor concurred in the judgment and opinion.
GORDON, PRESIDING JUSTICE
¶1 Following a jury trial, defendant Mitchell Morrow was convicted of the August 28, 1994, armed robbery and murder of Kazmierz Kosinski. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 60 years in the Illinois Department of Corrections, to be served concurrently with a 20-year sentence for armed robbery. On direct appeal, we reversed defendant's armed robbery conviction, but we affirmed his conviction and sentence for murder. People v. Morrow, 303 Ill.App.3d 671 (1999). Defendant next filed his first postconviction petition in which he raised numerous claims of ineffective assistance of trial counsel and trial court errors. The trial court granted the State's motion to dismiss, and we affirmed the dismissal on appeal. People v. Morrow, No. 1-00-3878 (2002) (unpublished order under Supreme Court Rule 23).
¶2 Afterwards, defendant requested leave to file his second postconviction petition in which he claimed for the first time that his appellate counsel provided ineffective assistance of counsel when he failed to argue on direct appeal that defendant's trial counsel ineffectively failed to request a second-degree murder jury instruction. The trial court found that, although defendant established cause to file a successive petition, he did not show prejudice to support his claim because the evidence at trial did not support a finding of second-degree murder. As a result, the trial court denied defendant leave to file a successive postconviction petition, and defendant now appeals. On this appeal, defendant argues that the trial court erred since he established both cause and prejudice required to file a second postconviction petition. For the following reasons, we affirm.
¶4 I. Trial
¶5 The State's evidence at trial relied primarily on the prior statement and grand jury testimony of Ramona Siler, an alleged eyewitness to the murder. Siler told detectives that she was a prostitute and that defendant was her boyfriend and pimp. In August 1994, Siler was five months pregnant with defendant's child, and she had previously told him that he was the father. On August 28, 1994, Siler was performing sex acts for Kazmierz Kosinski, the victim, in his vehicle with another prostitute, Birandi Paschal, when Paschal reached for Kosinski's wallet. A fight ensued, and Siler called for the help of defendant and Alanda McComb, Paschal's pimp, both of whom were sitting in their vehicle nearby. McComb ran toward Kosinski's vehicle and punched him. McComb then instructed Siler and Paschal to exit Kosinski's vehicle, and as the two women ran away, defendant approached Kosinski, pulled out a gun, and shot him twice as he sat in the driver's seat. Defendant, Siler, Paschal, and McComb then returned to their own vehicle and McComb drove away with Kosinski's wallet. At some point, McComb hid the gun under the hood of his vehicle, and the four equally split $160 in cash recovered from Kosinski's wallet.
¶6 Siler repeated essentially the same account of events in both her written statement to the police and in her grand jury testimony. However, she recanted her story at trial, explaining that she lied because she was addicted to heroin and that she wanted to go home as soon as possible so that she would not suffer from withdrawal. Defendant testified in his own defense and claimed that he did not shoot Kosinski and that he was not with Siler, Paschal, or McComb on the night of the shooting. Defendant also claimed that Siler was no longer his prostitute in August 1994; that they were no longer in a relationship; and that he was not the father of Siler's child.
¶7 At opening argument, defendant's counsel told the jury, "[Defendant] was not at the scene of this crime, did not ask [Siler] to do anything to Kazmierz Kosinski, did not derive any benefit from this crime, and is absolutely innocent of these charges."
¶8 A. Autopsy, Ballistics, and Other Evidence
¶9 Forensic investigator Carl Brasic testified that, on August 28, 1994, he processed the crime scene. There, Brasic observed Kazmierz Kosinski's body in the driver's seat of his vehicle, which was parked on Leclaire Avenue near Blackhawk Park in Chicago. Both of the vehicle's front seats were reclined, and Brasic recovered a condom wrapper on the floor of the vehicle. Brasic recovered three .25-caliber cartridge cases inside the vehicle. One cartridge case was recovered on the floor of the front passenger seat, another was on the floor of the rear passenger seat, and a third was found on the driver's seat after Kosinski's body was removed. No weapons were recovered in the vehicle or on Kosinski's person. Kosinski appeared to have a gunshot wound on his left chest and right wrist, but his face did not appear to be injured. Brasic recovered several palm prints on the outside of Kosinski's vehicle.
¶10 Dr. Mitra Kalelkar testified that she performed the autopsy on Kosinski's body. Prior to the autopsy, Kalelkar observed a used condom inside Kosinski's clothing and a bullet on the cart on which Kosinski's body was lying. Kosinski did not have any bruises or injuries to his face, but he had three apparent gunshot wounds to his body. Kosinski was shot once in the left chest wall, and the bullet traveled to the right and down to his spinal cord, where the bullet was recovered. Due to the path of the bullet, Kalelkar opined that the gun was positioned to the left and slightly above the victim. Kosinski also sustained a gunshot wound to his right wrist, and the bullet entered his inside palm and exited through the wrist. Kalelkar observed evidence that both gunshots were contact wounds, meaning that the barrel of the gun was touching Kosinski's skin when it was fired. Kosinski had a third gunshot graze wound on his right hip, but there was no evidence that the shot was fired from close range. A toxicology test revealed that Kosinski's blood alcohol level was twice the legal limit at the time of his death. Kalelkar opined that Kosinski died as a result of multiple gunshot wounds and that the manner of his death was a homicide.
¶11 Police officer Richard Chenow, a ballistics expert, testified that he examined the three cartridge cases recovered from the vehicle, but he could not determine whether they were fired from the same gun. Also, he examined two bullets recovered from the crime scene, but they were mutilated and unsuitable for comparison.
¶12 The parties stipulated that Victoria Psichalinos would testify that she is an expert fingerprint examiner, and that she examined the palm prints recovered from the outside of Kosinski's vehicle. Psichalinos compared those prints to individual palm prints taken from defendant, Siler, McComb, Paschal, and Kosinski, and she opined that they did not match the prints recovered from the vehicle.
¶13 The parties also stipulated that a pedestrian recovered Kosinski's wallet and placed it in a mailbox on August 28, 1994. Psichalinos examined three fingerprints recovered from inside the wallet and opined that they did not match the individual ...