Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 03 CR 7109. Honorable Diane Gordon Cannon, Judge Presiding.
For Appellant: Geneva L. Penson, Law Office of Geneva L. Penson, LLC, Aurora.
For Appellee: Anita Alvarez, State's Attorney, Cook County, Chicago (Alan J. Spellberg, Michele Grimaldi Stein, Michelle Katz, Of Counsel).
JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices Epstein and Ellis concurred in the judgment and opinion.
[¶1] Kenyatta White was convicted of first degree murder in the shooting death of Aramein Brown after a bench trial conducted in the circuit court of Cook County in 2006. In 2012, defendant initiated proceedings for relief pursuant to the Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). The postconviction petition alleged that defendant is actually innocent of the crime for which he was convicted and that defendant was denied his rights to due process and effective assistance of counsel at trial and on direct appeal. The circuit court of Cook County dismissed the petition as frivolous and patently without merit. We hold that this petition for postconviction relief, when liberally construed and taken as true, as required by law when determining the sufficiency of an initial postconviction petition, has an arguable basis in law and fact and should proceed to the second stage of postconviction proceedings.
[¶2] The circuit court of Cook County's judgment is reversed and the cause remanded for further proceedings.
[¶4] A summary of the relevant evidence adduced at trial will suffice to give context to the allegations in the petition and the evidence defendant attached in support of that petition.
[¶5] The charges against defendant arose from the January 6, 2003, shooting death of Aramein Brown at a gas station at 79th and Yates in Chicago. Police arrested defendant pursuant to a warrant and placed him in a lineup. Defendant's attorney was present for the lineup but was not able to view the witnesses when the witnesses viewed the lineup participants. Witnesses identified defendant as the shooter from the lineup. Martina Brewer was the victim's girlfriend and was present when the crime occurred. Brewer testified before the grand jury and identified the shooter as a person she knew by the nickname
" Yatta." Brewer also identified a photograph of Yatta before the grand jury. Brewer identified defendant as the person she knew as Yatta at defendant's trial.
[¶6] Following grand jury proceedings, the State conducted a bond hearing for material witness Martina Brewer. At the bond hearing for Brewer, the State alleged Brewer had indicated she would not come to court to testify because she was afraid. Brewer testified at the bond hearing that she was afraid to testify in the case.
[¶7] Brewer eventually testified at defendant's trial; however, Brewer's trial testimony was inconsistent with the prior testimony she gave before the grand jury. At the trial, Brewer testified that on the night of the murder while at the gas station with the victim, she heard a loud sound and saw " the guy" running away. Defendant would later testify that he is incapable of running due to a medical condition. The victim fell to the ground and did not move. The victim's brother, Ajani Brown, arrived at the scene. Brewer testified that Ajani asked Brewer if she knew who killed the victim. Brewer told Ajani she did not know who killed Aramein. Brewer testified that Ajani told her to say that Yatta was the murderer. She testified, however, that she did not know who killed Aramein. The State elicited testimony from Brewer acknowledging her identification of defendant before the grand jury. The defense stipulated to Brewer's grand jury testimony through the assistant State's Attorney who spoke to Brewer when she appeared as a witness before the grand jury.
[¶8] At defendant's trial, Brewer denied telling police at the hospital that Yatta shot Aramein, but she acknowledged that at the police station she told police she knew the offender and that his name was Yatta. Detective Alejandro Almazan testified that he spoke to Brewer at the hospital after the shooting and that Brewer told him she knew the shooter by the name of Yatta or Kenyatta. Brewer's testimony also confirmed that she identified defendant from a photo array while at the police station. A police detective, Brandon Deenihan, also testified that Brewer identified defendant from a photo array a few hours after the shooting. The detective testified that Brewer never told him that Ajani Brown threatened her. On cross-examination Brewer reiterated her testimony that defendant was not the shooter. She also testified regarding a statement she provided to defendant's trial attorney recanting her prior sworn testimony.
[¶9] Sherry Collier was at the gas station which was the scene of the shooting using a pay telephone when the shooting took place. Collier testified that she was new to the neighborhood at the time of the murder. She observed a van at the gas pumps and a man walking toward her. The man came close to her and, Collier testified, she got a good look at him. Collier identified defendant as that man. The man pulled out a black gun and started toward the gas pumps. The man shot another man standing by the van at the pumps. The victim started to run and the shooter followed, the victim fell, the man shot him again, then the shooter ran away at full speed. Collier testified that police arrived in less than 10 minutes. Police officer Ken Francisco later testified he was only a block and a half away when he was dispatched to the shooting and he arrived within minutes. Collier spoke to police and gave them a description of the shooter. On cross-examination, Collier agreed with defense counsel that defendant has a ...