Appeal from the Circuit Court of Cook County. No. 91CR4819. The Honorable Mary Margaret Brosnahan, Judge Presiding.
The dismissal of defendant's supplemental postconviction petition arising from his convictions for first degree murder and aggravated battery with a firearm was affirmed, since defendant's claim that the evidence was " extremely close" because the first trial ended in a mistrial was unavailing in view of the evidence presented, which was sufficient to prove his guilt beyond a reasonable doubt; furthermore, defendant's petition should have been dismissed on untimeliness grounds, especially in view of the fact that he was required to file his petition within six months after the petition for leave to appeal date, June 1995, but the record showed the petition was filed 10 years later, in July 2005.
For APPELLANT: Michael J. Pelletier, STATE APPELLATE DEFENDER, Alan D. Goldberg, Deputy Defender, Sarah Curry, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
For APPELLEE: Alan J. Spellberg, Douglas P. Harvath, Matthew Connors, STATE'S ATTORNEY COUNTY OF COOK, Chicago, IL.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Epstein and Ellis concurred in the judgment and opinion.
[¶1] Defendant Jimmy Flowers filed a pro se postconviction petition for relief from judgment under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) relating to his convictions of first degree murder and aggravated battery with a firearm. The trial court appointed postconviction counsel to represent defendant. Thereafter, defense counsel filed a supplemental postconviction petition on defendant's behalf. The State filed a motion to dismiss the petition. After a hearing, the trial court granted the State's motion to dismiss, and dismissed defendant's postconviction petition. Defendant appeals, contending that the trial court erred in dismissing the petition where: (1) new evidence shows he was actually innocent of the crime; and (2) he was denied the effective assistance of trial counsel where counsel failed to investigate and call potential occurrence witness Karen Peterson. For the following reasons, we affirm.
[¶2] I. BACKGROUND
[¶3] After a jury trial in 1993, defendant was found guilty of first degree murder and aggravated battery with a firearm for the 1991 shooting death of Dorian Thurmond and the shooting of Orlando Nash Porter. The trial court sentenced defendant to concurrent terms of 45 years' imprisonment for murder and 20 years' imprisonment for aggravated battery with a weapon.
[¶4] The following facts were adduced at trial.
[¶5] At trial, surviving victim Orlando Nash Porter testified that, at approximately 9 p.m. on January 18, 1991, he left his house at 7203 South Wood Street in Chicago to walk to his friend Kendall's house nearby. When he arrived at his destination at 7137 South Hermitage Avenue, he knocked on the door. Nobody answered. He then went down the stairs of the front porch. He saw Eddie Beaver across the street. Porter called out to Beaver, asking him to come across the street because Beaver might know which window to knock on to alert somebody inside. Beaver
complied. After Beaver knocked on the window, a person came to the door. Beaver left and Porter went inside briefly. He did not stay long because the friend for whom he was looking, Joe, was not there. As Porter left the house, he saw two men on the same side of the street as he was, about three or four houses away. At that time, Porter was standing beneath an illuminated streetlight. However, he could not see the facial features of the two men because it was nighttime and they were not under the streetlight, but were instead between the streetlight on the corner and the streetlight where Porter was standing. Porter testified he did not recognize either of the two men. He continued walking, and as he came within two houses of them, he saw both men draw weapons and begin shooting. One man was shooting at Porter and the other man was shooting " at an angle." Porter fled, jumping over a nearby fence. As he ran, he fell repeatedly and realized he had been shot in the knee. He could hear more gunshots. Porter ran to a friend's house, where his friend's aunt put gauze on the wound and called an ambulance.
[¶6] Porter was treated at the hospital for a gunshot wound to the knee. Porter testified that he had lived in the neighborhood his whole life. He did not know defendant before that night and had never seen him in the neighborhood.
[¶7] Gregory Bridges testified he lived in a house across the street from the scene of the shooting. On the night of the shooting, he was outside on his front porch with his friends, Eddie Beaver and Dorian Thurmond. From his porch, he watched defendant, whom he had known for two years, and an unidentified man walk down the street. When the two men were about two houses away on the other side of the street, Bridges saw them each draw a handgun. When they were about one house away, Bridges testified they " started shooting at some of my friends." He could see that each of the two men had a handgun, could see " fire coming from the guns" when they were fired, and could hear the gunshots. Bridges also saw Porter exit a house and start walking down the street. He then watched as the men shot at Porter. He saw Porter jump a nearby fence to get away, and then the shooters turned their guns on Bridges, Beaver, and Thurmond. At the time of the shooting, Thurmond was in the gangway on the north side of Bridges' house, while Bridges and Beaver were on the porch. Bridges tried to get back into his house, but the door was locked. He and Beaver took shelter behind a pillar on the porch from which they were able to look out and watch defendant and the unidentified man shooting. After the shooting, Bridges saw defendant and the other man run through a vacant lot heading east. Bridges testified that the men were running in the direction of defendant's house, which was on the next street over. Although it was nighttime, there were illuminated streetlights in the area, including directly across the street from Bridges' house.
[¶8] After the shooting, Bridges found Thurmond on the ground in the gangway with blood coming from his jaw. Bridges called for an ambulance. Bridges spoke to responding police officers in front of his house for a few minutes, but he did not tell the officers who shot Thurmond, and did not tell them defendant was one of the shooters. Bridges testified he gave the police a description of the individuals. Some detectives arrived at Bridges' house later that evening, after the ambulance and police left. Bridges testified that the detectives picked him up at his home and
drove him to the police station. Bridges testified he named defendant as the shooter while he was sitting in the detectives' car. On their way to pick up Beaver at Beaver's house, Bridges showed the detectives where defendant lived. While at the police station, Bridges again told police that defendant was one of the individuals who shot Thurmond. Bridges gave a statement at the police station. Bridges identified defendant as the shooter in open court.
[¶9] Eddie Beaver testified as an eyewitness to the shooting. Beaver testified he was at Bridges' house most of the day of the shooting. At approximately 9 p.m., he was on Bridges' porch and saw Porter go to Kendall's house. Porter motioned for Beaver to come over, asking Beaver to knock on a window so Porter could get into the house. After Beaver did so, Porter entered the house and Beaver returned to Bridges' house across the street. Thurmond arrived soon after, but did not come up on the porch. As Beaver and Thurmond talked, Beaver saw two men turn the corner onto Hermitage Avenue and walk down the east side of the street. Beaver recognized one of the men as defendant, whom he had known for about a year from seeing him in the neighborhood. Beaver saw Porter exit Kendall's house and begin to walk down the block when the two men started shooting at him. Porter ran and jumped a fence. Then the men turned and started shooting at Beaver, Bridges and Thurmond. Beaver testified he did not hear the men say anything to Porter before they started shooting. Beaver ducked behind a pillar on the porch during the shooting, but could look out to see where the shooters were. There was an illuminated streetlight by Kendall's house. Beaver watched as the two shooters fled through a vacant lot.
[¶10] After the shooting, Beaver found Thurmond on the ground in the gangway and could see blood coming from his nose and mouth. The police and ambulance arrived. Beaver testified that, when the police arrived, they put everybody against a fence to " check them" and then told everybody to go home. Beaver did not talk to the police at that time because he was told to go home. Around midnight that night, police came to his house with Bridges in their car. They took Bridges and Beaver to the police station and questioned them about what happened when Thurmond was shot. Beaver testified he was questioned by detectives, interviewed by an assistant State's Attorney, and that he gave a written statement. Beavers identified defendant as the shooter in open court.
[¶11] Chicago police detective John Ball testified he and his partners investigated the shooting in question. That night, while at Bridges' house, they learned Bridges and Beaver were witnesses to the homicide. Bridges also told them defendant was the shooter. As they drove from Bridges' house to Beaver's house, Bridges showed them defendant's house. After they picked up Beaver, both Beaver and Bridges showed them where defendant lived and told them defendant was the shooter. They again named defendant as the shooter when they were at the police station.
[¶12] The State rested. Defendant filed a motion for a directed verdict, which the trial court denied.
[¶13] Defendant testified on his own behalf. He testified that he knew Bridges, Beaver, and Porter from the neighborhood. Prior to January 18, 1991, defendant had never had an argument with the three men. Defendant denied he shot
Porter and Thurmond. He admitted he had a conviction for possession of a controlled substance with intent to deliver from 1990.
[¶14] Defendant's uncle, Michael Brooks, testified that he and several family members lived with defendant at the time of the shooting. On the night of the shooting, Brooks went to his girlfriend's house and saw Porter on the floor, bleeding from the leg. Brooks admitted he did not tell the police or detectives about this.
[¶15] Robert Wren, defendant's neighbor, testified he heard several gunshots on the night of the shooting while he was standing inside defendant's kitchen. Wren was unable to remember at what time he heard the gunshots.
[¶16] Carolyn Brown testified that, on the night of the shooting, she heard several gunshots that sounded like they were coming from just beneath her bedroom window at 7141 South Hermitage. She had been watching television in bed at approximately 9 p.m. when she heard a car screech and then immediately heard gun shots. She rolled out of bed and onto the floor, staying there for a few minutes. Brown estimated she heard around 50 gunshots, describing them as rapid shots from more than one gun, from a mixture of handguns and shotguns, with some extremely close and some a little distance away.
[¶17] After the shots stopped, Brown called the police. She then looked out the window which looked out onto an enclosed front porch which led outside. Brown testified she saw Kendall, her neighbor, coming towards the front of her house. It appeared to her that Kendall was coming from her gangway. Brown testified that Kendall was carrying a sawed-off shotgun in his hand. She did not see Kendall shoot at anybody. She also testified that there were approximately six other young men coming from in front of Kendall's house. Brown testified that she later watched police picking up shotgun shells from her yard. Brown did not see the shooting itself.
[¶18] The defense rested. After closing arguments, the jury found defendant guilty of first degree murder and guilty of aggravated battery with a firearm. At sentencing, the court sentenced defendant to 45 years' incarceration for murder and 20 years' incarceration for aggravated battery with a weapon, to be served concurrently.
[¶19] On direct appeal to this court, defendant contended he was not proven guilty beyond a reasonable doubt and that his sentence for murder was excessive. This court rejected both arguments and affirmed defendant's convictions and sentences, findings: " The record shows that the evidence, including the identification evidence, was sufficient to prove defendant's guilt beyond a reasonable doubt ( People v. Slim (1989), 127 Ill.2d 302, 307-08, 537 N.E.2d 317, 130 Ill.Dec. 250), and the trial court did not abuse its discretion in sentencing defendant to 45 years for murder ( People v. Perruquet (1977), 68 Ill.2d 149, 154, 368 N.E.2d 882, 11 Ill.Dec. 274)." People v. Jimmy Flowers, 266 Ill.App.3d 1120, 684 N.E.2d 457, 225 Ill.Dec. 772 (1994) (summary order).
[¶20] Thereafter, defendant filed a pro se petition for postconviction relief on July 28, 2005, alleging that there was newly discovered evidence to establish his actual innocence. Defendant attached an affidavit to the petition from Dujuan McCray, in which McCray averred that on the evening of January 18, 1991, he lived at 7126 South
Hermitage. That night, he was at a party at Kendall Pruitt's house at 7139 S. Hermitage, and:
" 5. While at this party Dorian Thurman came into the house and asked for a gun.
6. I asked him, why he needed a gun? and he stated he was outside alone, so I gave him a ...