Appeal from the Circuit Court of Winnebago County. No. 07-CF-1702. Honorable John R. Truitt, Judge, Presiding.
The summary dismissal of defendant's pro se postconviction petition alleging that his appellate counsel was ineffective in failing to allege on direct appeal from his conviction for first-degree murder that his trial counsel was ineffective in dealing with evidence that an incarcerated minor confessed to a jail chaplain and detectives was reversed and the cause was remanded for further proceedings, notwithstanding the trial court's finding that the petition was frivolous and patently without merit, since defendant did not forfeit his arguments and the petition stated the gist of a constitutional claim, especially in view of the potentially meritorious claim for a new trial based on the exclusion of a jail chaplain's testimony concerning the minor's confession and the chaplain's indication that despite the clergy-penitent privilege, there was nothing in the rules of his church that prevented him from disclosing the minor's statement.
For APPELLANT: Alan D. Goldberg and Rachel Moran, State Appellate Defender's Office, Chicago, IL.
Joseph P. Bruscato, State's Attorney, Rockford IL, (Lawrence M. Bauer and Richard S. London, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.
[¶1] A jury found defendant, Marquis D. Thomas, guilty of the first-degree murder of Lavontaye Nunn. See 720 ILCS 5/9-1(a)(1) (West 2006). The trial court sentenced defendant to 30 years' imprisonment with a 25-year handgun " add-on" penalty, resulting in a 55-year aggregate term. On direct appeal, defendant argued, inter alia, that the trial court erred by excluding the statement " I did it" uttered to detectives by N.H., an incarcerated minor.
N.H. had recanted the statement in a video-recorded interview. We affirmed the judgment, holding that the trial court did not abuse its discretion by excluding the statement as unreliable, in part because it was not corroborated by other evidence. People v. Thomas, 2011 IL App (2d) 091061-U, ¶ 56.
[¶2] Defendant filed a pro se postconviction petition in which he alleged that appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness. The petition reiterated that N.H. confessed to the detectives, asserted that N.H. also confessed to a jail chaplain, and argued that trial counsel should have taken additional steps to ensure that the confession was admitted.
[¶3] The postconviction court summarily dismissed the petition as frivolous and patently without merit. The court concluded that appellate counsel was not ineffective for failing to allege trial counsel's ineffectiveness in handling the evidence, because trial counsel, in fact, had raised, argued, and preserved for direct appeal the admissibility of N.H.'s statement to the detectives. On appeal, defendant frames the underlying issue differently, arguing that appellate counsel was ineffective for failing to argue that the trial court erred in excluding N.H.'s conversations with the chaplain and for failing to argue that the chaplain's testimony would have corroborated N.H.'s statement to the detectives.
[¶4] The State responds that defendant has forfeited his present arguments because the postconviction petition focuses on N.H.'s statement to the detectives, not to the chaplain, and attributes the error to trial counsel, not the trial court. The State echoes the postconviction court's conclusion that, because trial counsel raised, argued, and preserved the issue, he was not ineffective. The State alternatively contends that, if we choose to address defendant's present arguments regarding N.H.'s statements to the chaplain and the detectives, the petition does not state the gist of a constitutional claim, because the chaplain's disclosure was correctly barred under the clergy-penitent privilege.
[¶5] The forfeiture issue is a close one, but the standard of review for a first-stage dismissal is de novo, and we have a duty to construe pro se postconviction petitions liberally and to allow borderline petitions to proceed. Defendant's petition and appellate brief both argue that counsel on direct appeal mishandled the admissibility of N.H.'s alleged confessions to the detectives and the chaplain, and the record and the law potentially support that assertion. Therefore, we conclude that defendant has not forfeited his present appellate arguments and that the petition states the gist of a constitutional claim. We reverse the summary dismissal of the petition and remand the cause for further postconviction proceedings. We also modify the mittimus to reflect an additional credit for defendant's time spent in presentence custody.
[¶6] I. BACKGROUND
[¶7] A. Evidence at Trial
[¶8] The shooting occurred on the central walkway of a courtyard on the 1500 block of Birch Court in Rockford. The block has two long rectangular apartment buildings that run north and south and are separated by a grassy central courtyard. The central walkway runs north and south through the middle of the courtyard. To the west of the west building is Garden Court and to the east of the east building is Birch Court. The area is bordered on the north by Buckbee Street and on the south by 15th Avenue.
[¶9] On the evening of April 3, 2007, Lavontaye and Eva Pennie were talking on the central walkway near 1504 Birch Court
when a man walked up to them and began shooting. A bullet grazed Eva's face, and Lavontaye was hit several times. Lavontaye crawled south a short distance to where his body was found on the sidewalk between 1511 Birch Court, which is in the west building, and 1510 Birch Court, which is in the east building.
[¶10] On the night of the shooting, Minishia Harris lived at 1510 Birch Court. At 9:15 p.m., she heard shooting and looked out her front window. Minishia was 10 to 15 feet from the scene and saw " a boy crawling, and [she saw] someone standing over him shooting." The shooter was wearing a black hoodie sweatshirt, and the hood fell down so Minishia could see his face. Minishia identified defendant in court as the offender. Minishia saw defendant run west toward Garden Court and enter a car that drove north on Garden Court toward Buckbee Street. Minishia heard the noise from a car that she identified as belonging to " Fo' Pumpkin." Minishia called 911. Minishia previously had seen defendant hanging around with Fo' Pumpkin.
[¶11] Minishia testified that she saw the police chasing defendant and Tommie Moore through the projects on April 29, 2007, and that she saw the police arrest them. Later that day, Minishia called the police and told them that they had arrested the person who had shot Lavontaye.
[¶12] Rockford police officer Michelle Bootz testified that she was on patrol at the Blackhawk Projects on the evening of April 29, 2007, when she arrested N.H. and Tommie Moore. Officer Bootz testified that another officer arrested defendant and brought him to where N.H. and Moore were in custody and awaiting transport to the police station.
[¶13] Nikita Bernel-Hill testified that, on the night of the shooting, she lived at 1407 Birch Court, which was north of the crime scene. Nikita heard gunshots, went to her children's room, looked out the window, and saw defendant run past. Defendant was about 10 to 15 feet away when Nikita saw him. Defendant was wearing a black hoodie and had a gun in his waistband. Defendant bent down to pick a telephone off the ground. Nikita saw defendant run east toward Birch Court and get into Fo' Pumpkin's car, which drove south on Birch Court toward 15th Avenue. Nikita testified that, though she was not sure, it looked like Tommie Moore, who was also known as " Trapper," was driving the car. Nikita called the police and told them that she heard shots, but she also told them not to come to her house, because she feared the people in the Blackhawk Projects.
[¶14] Eva testified that she lived at the Blackhawk Projects on the date of the shooting. Eva was standing on the sidewalk with Lavontaye, whom she knew as " Face." Someone ran up and shot Lavontaye repeatedly, and Eva ran west toward Sun Court Street and looked back. Eva did not identify defendant in court as the shooter. Eva did not speak with the police on the night of the shooting, because she was scared, but she spoke with them the next day. Eva admitted that she had omitted certain information from her statement that day, because she was scared.
[¶15] Detective Eric Harris testified that he spoke with Eva on May 16, 2007, regarding the shooting. Detective Harris created a photographic lineup and showed it to Eva, who identified defendant as the person who shot and killed Lavontaye. Eva also gave Detective Harris a written statement in which she identified defendant as the person who shot the victim and whom she identified in the photographic lineup.
[¶16] Eva testified that she remembered giving the police another statement on
May 16, 2007, and she said that the statement was truthful. Eva admitted that she told the police that she saw who shot Lavontaye, but she testified that she was not sure who shot Lavontaye and that she could not remember who she said had shot him. Eva also testified that she remembered being shown photographs and identifying someone, but she did not remember that the person she identified was defendant.
[¶17] Eva acknowledged that, in August 2008, she had talked with an assistant State's Attorney and a detective, telling them that she was afraid for her life and had been beaten and told to keep her mouth shut about the murder. Eva identified the written statement that she had given the police and testified that the statement was truthful. Despite that, she again testified that she did not see in court the person who shot Lavontaye.
[¶18] Defendant presented an alibi defense through the testimony of Kimberly Keys as well as the security videotape from the emergency room of SwedishAmerican Hospital. Defendant's theory at trial was that he could not have committed the murder, because he was at the hospital attempting to visit a friend around the time of the shooting. He also argued that the videotape showed that he was wearing different clothing than the offender. The parties stipulated to the authenticity of the videotape, and the trial court admitted it into evidence and played it for the jury. Kimberly testified that the videotape showed her, defendant, and another couple in the emergency room lobby.
[¶19] B. N.H.'s Statement to Detectives
[¶20] Before trial, defendant moved to admit the statement of N.H., who blurted " I did it" while talking with Detective Harris at the police station about one month after the shooting. The trial court excluded the statement, and counsel on direct appeal argued that the exclusion was an abuse of discretion entitling defendant to a new trial.
[¶21] On April 29, 2007, defendant, Tommie Moore, and N.H. were arrested at the Blackhawk Projects. N.H. was arrested for criminal trespass and resisting arrest. On May 7, 2007, Detectives Harris and Posley transported N.H. from the juvenile detention center to an interview room at the Rockford police station. Detective Harris informed N.H. of his Miranda rights, and N.H. said that he understood his rights. Detective Harris told N.H. that the police " had some information about a murder that [N.H.] was possibly involved in and they wanted to ask him about it." N.H. said " I did it." N.H. did not explain what he meant or provide any other information at that time. Because the police ordinarily video-record the questioning of murder suspects, Detectives Harris and Posley stopped the interview, stepped out of the room, and left N.H. inside.
[¶22] When the interview resumed more than two hours later, Detective Simon Solis monitored and video-recorded it. N.H. recanted and tried to explain why he falsely said that he " did it." Six times N.H. said that he did not know why he said he " did it." N.H. also explained that defendant had a motive to kill Lavontaye: as retaliation for the shooting of Marcellus Motton a few weeks before Lavontaye's murder. The trial court excluded the videotape, N.H.'s statement " I did it," and the detectives' testimony about the interview.
[¶23] C. N.H.'s Statements to Chaplain Fricks
[¶24] On November 13, 2008, defense counsel filed a motion in limine to compel the testimony of Chaplain Wayne Fricks regarding the murder of Lavontaye. The motion alleged that the public defender's
investigator, Robert Faulkner, interviewed Chaplain Fricks and that the State was provided details of the interview. Chaplain Fricks freely and voluntarily disclosed to Faulkner N.H.'s statements in which he confessed to the murder of Lavontaye. Chaplain Fricks freely and voluntarily disclosed that he then told defendant about N.H.'s confession. Counsel argued that N.H.'s statements were admissible because (1) the statements were against N.H.'s penal interest and (2) Chaplain Fricks waived his side of the clergy-penitent privilege by disclosing N.H.'s statements.
[¶25] On November 25, 2008, the court began hearing the motion to admit Chaplain Fricks' testimony. Chaplain Fricks testified that he was an ordained Pentecostal minister and employed by the Rockford Reachout Jail Ministry. Chaplain Fricks' job was to conduct Bible studies at both the juvenile detention center and the main jail. In 2007, Chaplain Fricks met several times with N.H., who was an inmate at the detention center and had signed up for one-on-one meetings with a chaplain.
[¶26] When asked whether " the rules of the Pentecostal church" enjoined him from disclosing a confession made during the course of his work, Chaplain Fricks said that it was " really up to [his] own *** choosing." Chaplain Fricks explained that he was allowed to disclose the information if he believed it necessary to do so. He testified that nothing in his religious affiliation prevented him from telling other people something that was said to him in confidence, and he had no objection whatsoever to testifying about the things N.H. had told him.
[¶27] Chaplain Fricks testified that, at their first meeting, N.H. told him that he had done a lot of bad things and felt tormented by his past. Chaplain Fricks told N.H. that he could " express himself" if he wanted. N.H. responded that, as part of an altercation between his group and another group, N.H. had shot and killed someone in the Blackhawk Projects. N.H. told Chaplain Fricks " that he had shot somebody and that *** the guy that he shot [had] died." N.H. said that it was tormenting him and that he did not know " what to do with it." N.H. mentioned that a man named Blackie was charged with the crime. Chaplain Fricks described N.H. as " very sincere." The chaplain advised N.H. to " notify the authorities that [he had] done this."
[¶28] Soon after the meeting with N.H., Chaplain Fricks met with defendant, who was charged with Lavontaye's murder and in jail. Defendant claimed innocence and told Chaplain Fricks that the real shooter was a boy named Marcus. Chaplain Fricks knew that N.H.'s middle name was Marcus. When the meeting began, Chaplain Fricks did not know that defendant and N.H. were connected in any way, but as defendant described the incident, Chaplain Fricks realized that defendant was talking about N.H. Identifying N.H. by first name, Chaplain Fricks asked whether he was the shooter, and defendant responded, " Yeah, that's him."
[¶29] About one week after their first meeting, Chaplain Fricks told N.H. that he had spoken with defendant. N.H. responded that he had tried to redeem himself by telling the detectives about the incident, but that the detectives did not believe him.
[¶30] Chaplain Fricks explained that, because the lives of defendant and N.H. were " intertwined" and he was in the middle, he believed that he could tell each about conversations he had with the other. Chaplain Fricks told defendant, Faulkner, and the attorneys about N.H.'s confession. Chaplain Fricks also was aware that N.H. ...