A postconviction petitioner convicted of murder by accountability did not show the prejudice requisite to the granting of leave to file a successive postconviction petition where his new claim was that his attorneys on direct appeal and on the first petition were ineffective in failing to assert that there was no trial evidence that he had been armed despite a prosecutorial opening statement that there would be, but where this inconsistency was pointed out by defense counsel at closing, the jury was instructed that arguments are not evidence, and the State acknowledged defendant's lack of armament in explaining accountability principles.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Brian W. Carroll, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
[¶1] Defendant, William Smith, appeals from a judgment of the circuit court of Cook County denying him leave to file a successive pro se petition for relief under section 122-1(f) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2008)). The issue in this case focuses
on the interpretation of section 122-1(f) of the Act. The trial court denied defendant leave to file a successive postconviction petition, finding that he failed to meet the cause-and-prejudice test. The appellate court affirmed. 2013 IL App. (1st) 111069-U. We allowed defendant's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)). We affirm the judgments of the appellate court and the circuit court of Cook County.
[¶3] Defendant and codefendant, Marlan Barber, along with three other men (the group), were indicted on charges of first degree murder and aggravated discharge of a firearm in the 1998 shooting death of 14-year-old Deon Alexander. Defendant and Barber were tried simultaneously by two different juries before the same judge in severed trials. During opening statements, the prosecutor told the jury that it would " present the testimony of several young men" who saw defendant immediately prior to the shooting emerge from a gangway while holding a gun, and that one of the young men identified defendant in a lineup as one of the people who had a gun prior to the shooting.
[¶4] At trial, Steven Small testified that on November 12, 1998, at 7 p.m., he and his friends, Deon Alexander (the victim), Darryl Jones, and Daniel Hudson, were standing near the corner of 57th and Peoria Streets. Small indicated that he and Deon Alexander were 14 years old on the night of the shooting. Small stated that a group of older boys stood on the sidewalk about three to four houses down, or about 20 feet away from where Small and Hudson were standing. Small saw a cream colored station wagon with black tinted rear windows drive onto the street. The station wagon stopped on Peoria Street, and five or six men exited the car and started arguing with the older boys who were standing down the street. Eventually, a woman came out of her house and told the group to stop fighting. The men who had been in the car said they would be back, threw a bottle at the boys on the sidewalk, returned to the station wagon, and drove north on Peoria Street.
[¶5] A short time later, Small saw some men walking toward where he was standing, across the street on the sidewalk. Small heard gunshots and then saw the station wagon drive past on Peoria Street. Small stated that he saw the station wagon twice on the street that night: once prior to the argument and again as the shots went off. Small later identified defendant in a lineup as one of the individuals who got into the station wagon after the argument on the street.
[¶6] Small admitted he was reluctant to come to court and that a petition for contempt had been filed against him for his failure to respond to subpoenas. Small identified defendant in court as the person he previously identified in the lineup on the night of the shooting. Small further identified the station wagon from photograph exhibits presented by the State.
[¶7] Daniel Hudson testified that he knew one of the older boys who was standing several houses away as " Joval." Hudson stated that a " gang of guys" drove up in a brown station wagon, got out, and began arguing with the older boys and Joval. Hudson stated that Barber approached Joval and Joval said to him, " if you swing, you better knock me out." The guys got back into their car and drove away after Barber said, " We'll be back." A few minutes later, Hudson saw the station wagon drive slowly back down Peoria Street. This time, only one or two persons occupied the car. As the station wagon passed Hudson and his friends, he heard gunshots but did not see the source of the gunshots.
Hudson ran to get away and heard the victim, Deon Alexander, fall behind him. Hudson also identified the State's photograph exhibits of the station wagon as the car he saw on the night of the shooting.
[¶8] Chicago police officer John Paulson testified that he found eleven 9-millimeter cartridge cases and five .45-caliber cartridge cases on the 5700 block of Peoria Street. Beth Patty, an expert in firearms identification, testified that the .45-caliber cartridge cases were all fired from the same gun and that the 9-millimeter cartridge cases were also fired by the same weapon. Medical examiner Dr. John Denton testified that the victim died as a result of a gunshot that severed his aorta.
[¶9] Assistant State's Attorney Ron DeWald testified that defendant was in custody when he arrived at police headquarters around 9 p.m. on November 13, 1998. DeWald read defendant his Miranda rights and ensured that defendant understood his rights. According to DeWald, defendant said he was willing to speak with DeWald and opted to provide a handwritten statement. Defendant told DeWald that he was treated fine by the police and that he was fed and allowed to use the restroom. After ...