from the Circuit Court of the 14th Judicial Circuit No.
05-CF-959, Rock Island County, Illinois. Honorable Walter D.
Braud, Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court, with
opinion. Justices O'Brien and Wright concurred in the
judgment and opinion.
1 On September 29, 2006, a jury convicted defendant of first
degree murder for which he originally received a mandatory
natural life sentence. He later pursued relief on numerous
claims of constitutional violations under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)).
Some of defendant's claims were dismissed at the
second-stage dismissal hearing while others proceeded to a
third-stage evidentiary hearing. The trial court granted a
new sentencing hearing but no other relief. At the
resentencing hearing, defendant received 60 years'
imprisonment, the maximum sentence for his crime. 730 ILCS
5/5-4.5-20(a) (West 2014).
2 Defendant raises three issues on appeal in relation to his
postconviction petition. First, he appeals the claims
dismissed at the second stage because the State captioned its
responsive pleading as an answer, not a motion to dismiss.
Next, defendant argues that we should remand for additional
postconviction proceedings due to postconviction
counsel's unreasonable level of assistance at the
evidentiary hearing. Finally, he claims he is entitled to a
new trial based upon ineffective assistance of trial and
appellate counsel in failing to submit jury instructions on
lesser-included offenses. In addition to his postconviction
claims, defendant directly appeals the 60-year sentence
imposed at his resentencing hearing, arguing that the trial
court abused its discretion by levying an excessive sentence.
4 On November 7, 2005, defendant, then 22 years old, was
babysitting the 17-month-old daughter of his girlfriend,
Ashley, after Ashley went to work at 3:30 p.m. At
approximately 5 p.m., defendant sought his neighbor's
help because the infant was vomiting and stopped breathing.
The neighbor, Greg, followed defendant to the apartment where
the infant was unresponsive. Greg immediately called 911 on
his cell phone. At some point between 5 and 5:30 p.m.,
defendant used another neighbor's phone to call Ashley at
5 When the paramedics arrived, the infant was not breathing.
The paramedics' heart monitor detected no electrical
activity; revival efforts on the way to the hospital were
unsuccessful. The victim's body temperature in the
emergency room was 91.9 degrees, indicating she had been dead
for at least one hour prior to arriving at the hospital
between 5:30 and 6 p.m.
6 Defendant initially told the police investigator that the
victim was coughing, vomiting, and breathing
"funny." He stated that only two minutes elapsed
between him noticing something was wrong and his neighbor
calling 911. After the investigator confronted defendant with
the victim's 91.9-degree body temperature and estimated
time of death, he changed his story.
7 In his amended version, defendant claimed the victim broke
a television antenna after her mother left for work. He then
grabbed her and spanked her "harder than he should
have." After spanking her, he grabbed her by both arms,
shook her, and threw her onto the living room couch. When the
victim attempted to crawl off of the couch, defendant threw
her back onto it, pushed her head into the cushion, and told
her to go to sleep. As she kept trying to get up, defendant
admitted he pushed her head down "countless times"
until she began to quiver and vomit. When the victim stopped
crawling off the couch, defendant covered her with a blanket,
placed a cup beside her, and went elsewhere in the apartment
to write music lyrics. He did not realize the victim was
unresponsive until about one hour later.
8 The victim had bruising about her head and face, behind her
ear, on the left side of her abdomen, and on her lower back.
The victim's emergency room physician stated that some of
the bruises were linear, indicating they could have been
caused by a straight instrument or falling against a straight
edge of some sort. The forensic pathologist determined the
victim died from hemorrhagic shock resulting from a
transected liver-a liver split into two pieces. This type of
injury could result only from significant blunt trauma of the
abdomen, similar to that experienced in severe automobile
accidents. The pathologist also opined that two linear
bruises on the left side of the victim's torso were
caused by force from a long, cylindrical object, such as an
antenna. The two contusions on the victim's back were
caused by blunt trauma with a hard object. The autopsy also
revealed hemorrhaging beneath the victim's scalp.
9 Soon after defendant was charged with first degree murder,
the trial court found a bona fide doubt as
to his fitness to stand trial. The court appointed Dr. Kirk
Witherspoon to evaluate his mental capacity. On November 18,
2005, Witherspoon's evaluation concluded that defendant
was unfit for trial due to extreme distress and suicidal
thoughts. He believed, however, that defendant could be
restored to fitness within a year. On January 6, 2006,
Witherspoon reevaluated defendant at his own request.
Witherspoon found that defendant displayed the cognitive
ability to understand the charges against him and
implications of proceeding with trial. Accordingly,
Witherspoon recommended that defendant was fit for trial; the
trial court found defendant fit on January 25, 2006.
10 On September 25, 2006, defense counsel advised the court
that defendant was taking psychotropic medications but
indicated that these medications would not affect his fitness
for trial. Although defendant was charged with other crimes,
the State proceeded on only the first degree murder charge.
After jury selection on September 25 and 26, the three day
trial began on September 27, 2006.
11 On the first day of trial, the jury sent the judge a note
asking if defendant was "on medication to calm
him." The attorneys and trial court knew that defendant
was taking Seroquel, a psychotropic medication. Prior to
submitting the note, the jury heard testimony from the
victim's mother, an investigating police officer, and the
emergency room physician. The State published postmortem
photographs of the victim during some of the testimony. The
record does not indicate what, if any, event or behavior
prompted the jury's note. Outside of the jury's
presence, the attorneys and trial judge agreed that the court
would not answer the jury's question. The trial judge
stated that he noticed nothing unusual about defendant's
demeanor. He also observed that defendant could appear calm
for a variety of reasons.
12 After deliberating for approximately four hours on the
second day of trial, the trial judge granted the jury's
request to adjourn for the evening. At 10:54 a.m. the next
day, the judge allowed the jury's request to see the
videotape of defendant's police interrogation. The jury
returned its verdict at 3:26 p.m.
13 The presentence investigation revealed that defendant had
little criminal history-juvenile offenses for property damage
and burglary in 1997 and cannabis charges in 2003 and 2005.
Defendant abused several types of drugs; he admitted that he
drank an eight-ounce bottle of Robitussin on the day of the
offense. Treatment Alternatives for Safe Communities (TASC)
submitted an evaluation letter, which concluded that
defendant's cannabis and cocaine dependence was
correlated to the offense. However, defendant was not
eligible for TASC treatment alternatives because of the
crime's violent nature. Defendant also wrote a letter
expressing his remorse, stating he would have never
intentionally hurt or killed the victim.
14 On December 15, 2006, the court heard and denied
defendant's motion for a new trial. The court sentenced
defendant to the mandatory natural life imprisonment under
section 5-8-1(c)(ii) of the Unified Code of Corrections
(Unified Code) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2006)).
We rejected defendant's reasonable doubt argument on
direct appeal and affirmed his conviction by Rule 23 order.
People v. Miller, 385 Ill.App.3d 1144 (2008) (table)
(unpublished order under Supreme Court Rule 23). Defendant
raised no other issues on direct appeal.
15 On October 22, 2009, defendant filed a pro se
petition for postconviction relief, which raised 28 separate
issues. The trial court appointed counsel to represent
defendant on February 3, 2010. On April 26, 2011, defendant
filed a pro se amended petition, arguing his
mandatory life sentence was unconstitutional under People
v. Wooters, 188 Ill.2d 500 (1999). The section of the
Code under which defendant received his mandatory life
sentence was amended as of January 1, 2016. See Pub. Act
99-69, § 10 (eff. Jan. 1, 2016) (amending 730 ILCS
5/5-8-1(a)(1)(c)(ii) to remove the mandatory sentence of
natural life imprisonment for murder of an individual under
12 years of age).
16 On September 13, 2013, defense counsel filed a Rule 651(c)
certificate (Ill. S.Ct. R 651(c) (eff. Feb. 6, 2013)) and
amended petition arguing, inter alia, (1) his
sentence was improper under Wooters, (2) his due
process rights were violated when the trial court failed to
order a new fitness hearing after his psychotropic
medications were changed and his actions at trial created a
doubt as to his fitness, (3) his appellate counsel provided
ineffective assistance by (a) failing to argue on direct
appeal that trial counsel provided ineffective assistance by
not requesting the jury to be instructed on involuntary
manslaughter or reckless homicide, and (b) failing to argue
on direct appeal that the cumulative effect of the
prosecutor's "misconduct" denied defendant a
fair trial, (4) his trial counsel provided ineffective
assistance by (a) failing to request the jury be instructed
on second degree murder, involuntary manslaughter, and
reckless homicide, (b) waiving the court reporting of
voir dire, thereby precluding appellate counsel from
raising any issues that may have arisen therein, and (c)
failing to object to the prosecutor's "numerous
improper remarks" that were not based in evidence and
served only to inflame the passion of the jury, and (5) his
sixth amendment right to a fair and impartial trial by jury
was violated when (a) the trial court denied defense
counsel's request for individual voir dire, (b)
the trial court denied defense counsel's Batson
challenge to the jury array, (c) the prosecution made
numerous improper remarks not based on evidence and meant
only to inflame the passion of the jury, and (d) the State
failed to disclose to defense counsel an audio recorded
conversation between the victim's mother and defendant.
17 On April 3, 2014, the postconviction trial court
discharged defendant's counsel, at defendant's
request, and ordered the State to respond to the amended
petition. The State filed an "answer, " which
conceded that defendant was entitled to a new sentencing
hearing. The State's responsive pleading asserted that
defendant's other claims did not merit an evidentiary
hearing. With regard to the claims that were ultimately
dismissed at the second stage, the State's responsive
pleading asserted: "Petitioner next alleges a laundry
list of alleged errors by trial counsel, but does not allege
why they were errors or how these alleged errors would have
affected the outcome of the case, nor are there affidavits
supporting the assertion."
18 At the dismissal hearing, the court found that defendant
was entitled to a new sentencing hearing and an evidentiary
hearing on the claims concerning his fitness and his
attorneys' failure to request jury instructions ...