Court of Appeals of Illinois, First District, Fifth Division
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Appeal from the Circuit Court of Cook County. No. 05 CR 10935. Honorable Kenneth J. Wadas, Judge Presiding.
Defendant's second pro se postconviction petition alleging that his counsel was ineffective in failing to raise the issue of an improper closing argument by a prosecutor was properly dismissed as frivolous and patently without merit, regardless of the fact that the trial court's written order was unclear as to whether the petition was dismissed based on the cause-and-prejudice test or the frivolous-and- patently-without-merit test, since the appellate court may affirm on any basis in the record, and in defendant's case, the prosecutor's comments that the eyewitnesses hesitated in cooperating with the police due to their fear of defendant were based on reasonable inferences from the evidence and could not be deemed improper, and even if the comments were improper, they were not a material factor in his conviction; therefore, there was no basis for claiming defendant's counsel was ineffective in failing to raise the issue on appeal.
For Appellant: Alan J. Spellberg, Michelle Katz, Mari R. Hatzenbuehler, Illinois State's Attorney's Office, of Chicago, IL.
For Appellee: Michael J. Pelletier, Alan D. Goldberg, Tomas G. Gonzalez, Office of the State Appellate Defender, of Chicago, IL.
JUSTICE REYES delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.
[¶1] Defendant Rayvonne Wilson appeals from an order of the circuit court of Cook County summarily dismissing his second pro se postconviction petition (second pro se petition) for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Defendant contends the circuit court erred in summarily dismissing his second pro se petition. Wilson argues: (1) his second pro se petition was not a successive petition because he only sought to reinstate his right to a direct appeal in his initial petition; and (2) the second pro se petition set forth the gist of an arguable claim that his appellate counsel was ineffective for failing to raise an issue on direct appeal concerning the improper closing argument by the Cook County assistant State Attorney's (ASA). For the reasons that follow, we affirm.
[¶3] On September 17, 2004, defendant allegedly shot and killed Kevin Blaylock (Blaylock) at 69th Street and Ashland Avenue in Chicago. On April 10, 2005, defendant was arrested in the state of California and subsequently extradited to Illinois. A trial was held on February 26, 2008. The State's case relied on the testimony of three identification witnesses: Zallassio Sain (Sain), Eric Carter (Carter), and Rodney Ware (Ware). Throughout the proceedings, defendant maintained he was not the shooter and challenged the credibility of Sain, Carter, and Ware.
[¶4] At trial, Sain testified that in September 2004, he was living in Indiana and Wisconsin but came to Chicago every day. On the evening of September 16, 2004, he was standing outside 70th Street and Honore Street in Chicago with a group of people, drinking cognac and smoking marijuana. Carter and Ware were among the individuals present. Blaylock joined the group, and shortly thereafter, Sain and Blaylock got into Sain's sister's vehicle and drove to a liquor store and then to Sain's girlfriend's house. Subsequently, Sain called Ware because he had left his phone charger in Ware's automobile, and then met with Ware at a restaurant located at 69th Street and Ashland Avenue. Sain walked up to Ware's vehicle, and as he spoke to Ware, he observed Blaylock approach them. At the same moment, Sain observed defendant for the first time. Defendant was two feet away from Sain and was approaching Blaylock on foot. Sain recognized defendant because he had known him for a couple of months. Sain communicated to Blaylock to " watch out" because defendant and Blaylock had " gotten into it" a couple of weeks before. Defendant then " upped the gun" and began shooting at Blaylock, who had started running away from defendant. Sain heard seven or eight gunshots. Sain went to look for Blaylock, and found him lying facedown on the ground near the restaurant with two bullet wounds in his back. Sain tried to place Blaylock in the vehicle
so he could drive Blaylock to the hospital, but in the meantime the police arrived and called an ambulance. When the police questioned Sain he stated his name was " Tyrone Smith" because there were outstanding warrants for his arrest in Wisconsin. For the same reason, Sain did not inform the police he had observed what had happened. After the ambulance arrived, Sain left. Later that morning, Sain informed Blaylock's grandmother he had observed the shooting. Sain testified that before he spoke with the police he met with Carter and Ware a week or two after the shooting.
[¶5] Sain further testified he was eventually arrested for the outstanding warrants and placed in the Dane County jail in Madison, Wisconsin, where he was convicted of armed robbery and burglary. On April 10, 2005, while Sain was in custody in Wisconsin, detectives and an ASA from Cook County visited him and inquired as to what he had observed on September 17, 2004. The detectives and ASA made no promises to Sain regarding his convictions in Wisconsin. During this visit, Sain gave a handwritten statement about what he had observed and identified defendant in a photo array as the shooter. Sain also admitted that at the time of the shooting he was a member of the Gangster Disciples street gang.
[¶6] Carter testified that when Sain and Blaylock left 70th Street and Honore Street, he, Ware, and two other individuals drove around in Ware's vehicle looking for some girls. After they met with Sain at the restaurant, Carter observed Blaylock approach Ware's vehicle and heard Sain communicate to Blaylock to " watch out." Carter then heard gunshots and observed defendant 10 feet away shooting a handgun at Blaylock. Carter heard eight or nine gunshots. Carter then observed defendant, who he knew through a friend, running back the way he arrived. Carter, Ware, and the two other people in Ware's automobile left the restaurant after the shooting. Carter later spoke to Blaylock's uncle about what had happened. Carter did not speak to the police that day because he " wasn't trying to get involved." Carter testified he met with Sain and Ware later that morning and discussed the shooting.
[¶7] Carter further testified that on September 29, 2004, a police officer approached Carter on the street and requested that he go to the police station, where Carter informed detectives about what had happened and identified defendant as the shooter in a photo array. In December 2004, after speaking to the police and an ASA, Carter gave a handwritten statement and again identified defendant in a photo array as the shooter. On April 18, 2005, Carter testified in front of a grand jury that defendant was the shooter.
[¶8] On cross-examination, Carter further stated he had previously failed to appear in court pursuant to a subpoena because he " didn't want to get involved." Carter admitted he had been previously convicted of a narcotics offense in Illinois and successfully completed his sentence. Carter acknowledged he was a member of the Gangster Disciples street gang when the shooting occurred and at the time of this testimony.
[¶9] Ware also testified about the events surrounding the shooting. Ware testified when he and Sain were at the restaurant, Blaylock approached Ware's vehicle and he heard Sain yell " watch out." Ware observed defendant " standing right there," five feet away from his vehicle, shooting at Blaylock. At the time of the incident, Ware had known defendant for approximately a year and a half. Ware heard six or seven shots as defendant continued shooting at Blaylock while Blaylock was
running across the street. Ware did not observe anything in Blaylock's hands. Ware then observed Sain drive his vehicle toward Blaylock. Ware later learned from Blaylock's uncle that Blaylock had been killed, and he informed the uncle about what he had observed. Ware testified he met with Sain and Carter later that day and discussed the shooting " just a little bit." Ware stated he did not go to the police immediately, but on December 1, 2004, he learned the police wanted to speak with him and he went to the police station. There, Ware identified defendant in a photo array as the shooter and signed a statement. On April 18, 2005, Ware testified at a grand jury proceeding that defendant shot Blaylock. Ware explained he had previously failed to appear in court pursuant to a subpoena because he " was scared a little bit," but that he had turned himself in when he heard there was a warrant out for his arrest. Ware admitted he had a felony narcotics conviction from 2002, for which he received probation. Ware also admitted he was currently a Gangster Disciple.
[¶10] Chicago police officer Maurice Conely (Officer Conely) testified that while he was on patrol duty on September 17, 2004, at 2:30 a.m., he observed four or five individuals gathered near 69th Street and Ashland Avenue. Officer Conely observed Blaylock lying on the sidewalk bleeding from a gunshot wound and observed a witness who identified himself as " Tyrone Smith" trying to place Blaylock into a vehicle. Tyrone Smith identified himself as Blaylock's friend and stated he heard five or six gunshots and then found Blaylock lying on the ground. Officer Conely informed Tyrone Smith an ambulance was coming and went to the location where the shooting had occurred. When Officer Conely returned to 69th Street and Ashland, Tyrone Smith was gone.
[¶11] Detective Dominick Doris (Detective Doris) of the Chicago police department testified that while working on the investigation of Blaylock's homicide, he learned defendant had been identified as the shooter. Efforts to locate defendant in Chicago were unsuccessful and an investigative alert was issued. On April 10, 2005, defendant was extradited from the state of California to Chicago, where he was arrested for Blaylock's murder on April 18, 2005. Detective Doris also testified the cartridge casings found at the scene indicated the firearm used to kill Blaylock was a semiautomatic handgun, but no weapon was recovered to his knowledge.
[¶12] Detective Glen Turner (Detective Turner) testified he became involved in the homicide investigation on September 18, 2004. Detective Turner stated he spoke with Blaylock's grandmother and cousin, and they gave the street names of " Maurice," " Rod," " Poon," " Scrill," " B," and " Chew" as individuals that may have observed the incident. Detective Turner testified he was also given an address for Chew where he spoke with Beatrice Wilson, a relative of Chew, and learned Chew's real name was Rayvonne Wilson, the defendant. Detective Turner confirmed that many unsuccessful attempts were made to locate defendant in Chicago.
[¶13] Detective Luis A. Otero (Detective Otero) testified that on September 29, 2004, a possible witness to the shooting known as Poon was brought to the police station. Detective Otero testified Poon identified himself as Carter and picked defendant out of a photo array as Chew, the ...