*1 possible delay system resolution is results in an infant when spending the years parent first several of his life with a foster while that, parent given the natural It is improve. time to understandable period years, bonding family after a a foster occur within would difficult, separation goal that would make of the but Juvenile reunify original family. Court Act is still to The Juvenile Court Act attempts long-term the heart- placements avoid foster wrenching separations adoption created return or John elsewhere. Burnett, son v. 897-98 foregoing For the placement reasons we find that the trial court’s S.J. with Faulkner is weight the manifest of the evidence as support ruling goal evidence does not out the of short-term care with a goal continued period return home to Kim within a not to 28(2)(B) (West 2004). exceed one year. 705 ILCS 405/2— III. CONCLUSION stated, For the reasons we reverse the trial judgment court’s remand with directions that the court goal institute the of short-term care with a goal continued of return home to Kim period within a 28(2)(B) year exceed one in compliance with section of the 2— Juvenile Court Act.
Reversed and remanded with directions.
TURNER, EJ., and McCULLOUGH, J., concur. THE ILLINOIS, PEOPLE OF THE STATE OF Plaintiff-Appellee, v. ALAN
BEAMAN, Defendant-Appellant.
Fourth District 4 — 05—0610 No. Argued September 19, Opinion Rehearing filed November 2006. 2006. denied December 2006.
COOK, J., dissenting. Urdangen, Legal (argued) Jeffrey both of Bluhm Karen L. Daniel Law, Chicago, appellant. School of of for Clinic-Northwestern (Norbert Goetten, Yoder, Attorney, Bloomington A. J. William State’s Biderman, Attorneys (argued), Robert J. of State’s and Anastacia R. Brooks all Office, counsel), People. Appellate for the Prosecutor’s opinion JUSTICE McCULLOUGH delivered the of the court: Beaman, defendant, After a convicted of the Alan first-degree ex-girlfriend, murder of his Jennifer Lockmiller. Defendant years’ imprisonment sentenced to 50 in the Illinois Department appeal, Corrections. On affirmed defendant’s conviction. 1996) Beaman, (May (unpublished No. 4 — 95—0396 order 23). Supreme under April Court Rule On filed a petition form, for postconviction relief. In its final defendant’s second petition verified amended postconviction supplement for relief and petition second amended were before the trial court through evidentiary hearing. an On June the trial court is 31-page sued a order denying request appeals relief. Defendant the third-stage petition. dismissal of his We affirm.
It is undisputed by parties, court, the trial and this court that the case entirely circumstantial, such, defendant was and as *3 depended upon large body a of facts. These facts are by well known all parties and extensively by have been recounted this court in its Rule 23 order affirming Therefore, defendant’s only conviction. those facts necessary complete a understanding for of the issues before this court appear below. court,
After his
by
conviction was affirmed
filed
defendant
for
(1)
postconviction relief, arguing
new evidence demonstrates
defendant
Bloomington/Normal
could not have been in
day
on the
(2)
murder;
postconviction
there
evidence establishes
was a viable
suspect
unaware,
murder
other than
defendant of whom the
was
(see
and the State
Brady
Brady Maryland,
committed a
violation
(1963))
373 U.S.
10 L. Ed. 2d
Doe; actually innocent of Lockmiller’s murder. 28, 1993, August body On Lockmiller’s was in her discovered apartment near University. autopsy Illinois State Based on results and whereabouts, Lockmiller’s last known the State theorized she was murdered Wednesday, August shortly at or after noon. police defendant, investigation quickly centered around and the relying upon op- State built its case him his motive portunity ex-girlfriend. to murder his
According theory, to the State’s defendant motive was obsessed Lockmiller. pursued with roommate, relationship Lockmiller with defendant’s breakup. However,
and then she and defendant had a bitter phone call hopes from Lockmiller to defendant rekindled his the two Normal, Illinois, surprise would reconcile. Defendant drove Lock- However, upon entering miller. her apartment, defendant saw his belongings, snapped, killing roommate’s and he Lockmiller on the spot. opportunity theory
The State’s is defendant left work on Wednes- shower, day morning, drove to his Rockford home to take a and then deposit. security videotape went to the bank to make a A shows leaving the bank at 10:11 a.m. Defendant then drove Normal, hour, averaging per surprise miles to 75 miles Lockmiller when she returned home from class to watch her favorite noon-hour soap opera. yet ex-girlfriend. He had not formed his intent to kill his apartment, something he and her went Once Lockmiller entered strangled the cord wrong, snapped. and defendant He Lockmiller with multiple pair from a clock radio and then stabbed her times with arranged way Defendant Lockmiller’s clothes in such a scissors. then minutes, by suggest raped. as to she had After no more than 15 been and drove back to p.m., apartment 12:15 defendant left Lockmiller’s Rockford, hour, averaging per 75 miles to ensure he his home got 2:10 five minutes before his mother home. p.m., home bed made phone Evidence was at trial that two calls were August morning Wednesday, on the from the Beaman residence call made 1993; a.m. and one at 10:39 a.m. The first one 10:37 in duration. The second the Beamans’ church and was two minutes home and lasted one youth pastor’s call was made to minute. evidentiary and the
Evidence at trial *4 Beaman, elderly mother, picked up her hearing that defendant’s Carol early on assisted-living facility, an Independence Village, mother from appointment, After the appointment. August for a doctor’s Vil- returning Independence for before stopped the two breakfast into the her mother back Carol checked records show lage. Check-in remained have trial, testified she would facility at 10 a.m. At Carol minutes after her check-in than 15 to 20 her no more mother appointment trial, her mother’s Carol realized time. Sometime after prepare her mother’s Carol’s routine Wednesday, and was fell on such, at the Wednesdays. As upcoming week on medication for the to 30 spent she hearing, Carol testified postconviction evidentiary in, possibly checking after her morning minutes with her mother present. had been longer if her mother’s roommate at purchase for a paid that Carol At evidence was Village Independence the street from store located across Wal-Mart copy paper, purchased she had receipt at 11:10 a.m. The indicated holders, testified she frames, jeans. and blue She poster magazine go her and did not immediately leaving after mother went to Wal-Mart Wal-Mart, testi- leaving After Carol telephone home to make two calls. Union gone proceeding K mart before may fied she then Hall, receipt time-stamped purchase where she made a and received store, Gray’s she p.m. proceeded at 12:39 Carol then IGA where time-stamped receipt purchased perishable food items received straight and arrived p.m. at 2:03 She then testified she went home home, car p.m. around 2:15 She testified she arrived when she entered the paved apron driveway. on the next to the When home, keep their piece Plexiglas family she noticed the used to moved, dogs dog and defendant’s confined to the kitchen had been door, dog’s custom when defendant asleep his bedroom as was evening Carol her son that when awoke his bedroom. saw dinner. Independence her theory dropped The State’s is Carol mother off dogs the restroom or let the Village and then drove home to either use At shopping trip at Wal-Mart. returning complete out before her Freesmeyer evidentiary hearing, Timothy Detective approximately 15 minutes. testified this drive would have taken Carol home, made from the church to her phone While at she returned a call attempted then at 10:22 a.m. She first tried the church officeand home youth home. Carol then left her home pastor to call the at his the street from back to the Wal-Mart located across traveled Independence Village. not have made argued
The defense Carol did not could First, did not she testified she telephone August two calls on 1993. off, did not make the two go dropping home after her mother and she defense, Second, post- hired for investigator calls. an for the telephone Carol trials of the route proceedings, testified his timed conviction illustrated Independence Village to her home would have taken from *5 it would have taken her between 19 and 20 minutes to arrive home. This would not have allowed her enough time to leave her mother between 10:20 a.m. and 10:30 a.m. and travel home to make the two telephone calls at 10:37 a.m. Further, and 10:39 a.m. the defense argues postconviction evidence shows Carol would not have had enough time to Wal-Mart, return to shop for her purchases, and then check addition, out 11:10 a.m. In the defense postconvic- tion testimony from Olson, Pastor Mitchell then-youth pastor. He testified defendant was scheduled to perform August at the 29, 1993, Sunday morning service, church and as was his usual practice, he telephoned would have defendant Wednesday, August 25, 1993, to confirm rehearsal with him that evening. Although Olson did not specifically making call, remember telephone records show telephone placed call was from the church to the Beaman residence at 10:22 a.m. Olson testified he would have left message, defendant would have returned the call to the church or would have tried to reach Olson at his home. Olson further testified he did not remember calling Carol ever him at church prior or his home to the in question. date did Olson remember calling the Beaman residence again p.m. at 3 that day, spoke and he with Carol and confirmed defendant’s rehearsal evening, which place planned. took as
In light evidence, of the above argues only defendant he could have made the telephone calls, two a contention with which the State trial, takes sharp issue. At the State drive-time evidence demonstrating defendant could not have driven from the bank at 10:11 a.m. to his in home time to make phone the two calls at 10:37 a.m. and 10:39 a.m. Freesmeyer testified he drove from the bank to using defendant’s home the most direct through route downtown Obeying speed limits, Rockford. all Freesmeyer testified the drive took minutes, him 31 which would not have allowed enough defendant time to leave the bank at 10:11 a.m. and arrive in home time to make the telephone first call at 10:37 a.m. opposition,
In defendant he could have and did make it home in time telephone to make the two calls. Defendant testified at trial that he drove from the bank using to his home what is commonly route, known as the “bypass” a route which travels on the outskirts of city Rockford, traveling through instead of downtown Rockford. Although longer distance, this route commonly known to be During faster as far as travel times. postconviction evidentiary hearing, Freesmeyer prior admitted that he had conducted timed using “bypass” drive from the bank to defendant’s home grand jury, Freesmeyer route. Before the obeyed speed testified he all Although limits arrived at defendant’s house in this 25 minutes. discovery, mention was through no testimony given to the defense addition, trial. In “bypass” route at timed trial of the made hearing, Freesmeyer admitted evidentiary did not report, final case and he mentioned his timed trial was not conducting the taken while happened *6 traffic, limit, of and Again, speed he the but with the flow drove above minutes, Although defendant trips respectively. him 26 and 27 the took route, argues the he the bypass at trial he drove home via testified traveling he made it home either evidence illustrates could have above telephone route and in time to make the calls. arrived hearing, postconviction evidentiary At the evidence Prior potential suspect in the Lockmiller murder. to regarding viable limine, trial, asking the State filed a motion in the court use, any drug sexual preclude to from trial evidence of Lockmiller’s relationships, history they and other than as related to her relation- roommate, ship with defendant’s Michael Swaine. Defense counsel relationship with specifically asked the court to consider Lockmiller’s Doe, and their including history John the sexual of two involve- nothing drugs. The that Doe had to ment with State assured motion, State’s and do the murder case. The court sustained the with any evidence at trial precluded presenting the defense was from suspects. third-party postconviction At the specific police evidentiary hearing, Tony Lieutenant Daniels of Normal to be a viable he believed Doe was and continues department testified was Lockmiller’s former suspect in the Lockmiller murder. Doe Doe, to rekindle according to the two had been about boyfriend, and drugs, and she owed supplied their romance. Doe also Lockmiller with apartment money. him He lived a short distance from Lockmiller’s to find days only and her few her murder her visited before Doe on company boyfriend, her latest Swaine. Daniels interviewed found him to be evasive on each two occasions in the fall of 1993 and interview, he went out of town During occasion. the first Doe claimed During August the murder. his second day on before interview, Doe told Daniels did 4 p.m. he not leave town until on August girlfriend police 1993. told him Doe’s she was with from p.m. p.m. August 25, to 1993. Daniels also testified Doe was asked take a polygraph examination. Doe was examined as a suspect, but completed the examination not could be because Doe was not cooperative. polygraph examiner cooperative- testified lack of ness could have been intentional completing order avoid complete examination. Doe was asked to polygraph a second examina- tion, originally agreed; to which he but cooperation, due to his lack of trial, did occur. prior not Daniels also testified that he learned charged Doe had been with battery girlfriend, domestic as marijuana well as possession girlfriend intent deliver. Doe’s alleged pinned he had her to the floor and her repeatedly beat chest, leaving injuries. police visible using She also told Doe was steroids, which him to erratically. drug caused act Doe’s arrests for a use, battery, offense and domestic his steroid and his of coopera- lack during tion a polygraph examination were disclosed not defense prior to trial. considering
On June after evidence at the postconviction evidentiary hearings, arguments written counsel thereto, in response by court, the Rule issued 23 order certain from testimony closing arguments trial and counsel’s the trial request court denied defendant’s relief. (1) appeal,
On defendant denied process due when misleading testimony Freesmeyer failed State to correct that it telephone impossible for defendant to have made the two calls (2) day murder, from his home on the of the he was denied the effec- investigate tive assistance of in that his did attorney counsel proved available that would calls, did in telephone fact make the two he was *7 process denied due when the State failed to disclose material and exculpatory regarding suspect, information to the defense a viable defendant, in other than Lockmiller’s murder. (Act) (725 Hearing
The Post-Conviction Act ILCS 5/122 —1 (West 2004)) through through provides 122—8 a means which a challenge defendant can for federal and conviction violations of 1170, rights. 1175, v. Ill. People Petty, App. state constitutional 367 3d (2006). 429, relief, 853 To obtain postconviction N.E.2d 433 a a deprivation rights defendant must show substantial of constitutional Petty, proceedings the that resulted in his conviction or sentence. 1175, App. at relief 367 Ill. 3d at 853 N.E.2d 433. Postconviction is and “to by judicata limited considerations waiver res constitutional been, been, previously not could have matters not which
767
1186,
346,
Winsett,
335,
2d
606 N.E.2d
153 Ill.
adjudicated.” People v.
(1992).
but
appeal,
on direct
that could have been raised
1193
Issues
reviewing
court will
not,
any
previously
decided
were
issues
People v.
postconviction proceeding.
Simpson,
in a
not be considered
(2001).
Ill.
792 N.E.2d
274
2d
the
process
he
denied due
of law when
State
Defendant
testimony
Freesmeyer’s allegedly misleading
regard-
failed to correct
Before the
drive
the
to the Beamans’ residence.
ing
times from
bank
the
probably
route was
grand jury, Freesmeyer
bypass
testified the
drive, Freesmeyer
residence. In timed
quickest route
the Beaman
minutes,
in 25
a time
made
to the Beaman residence
testified he
it
first
call at
placed
phone
could have
that illustrates defendant
from bank
testified he
Freesmeyer
10:37 a.m. At
drove
residence, using
through
“most direct” route
downtown
Beaman
“see
Rockford,
According Freesmeyer,
in 31 minutes.
wanted to
10:11
if it was
for defendant to have left the bank at
a.m.
possible”
telephone
made
home in time to
the first
call at
place
and have
it
testimony
Freesmeyer’s
The
did
10:37 a.m.
State
not elicit
brought
not
bypass
timed drive of the
route and such was
out on
argues Freesmeyer’s testimony clearly
cross-examination. Defendant
to make
implied that defendant could not have made it home
time
upon
it
phone
the two
calls. Defendant maintains was incumbent
Freesmeyer’s
testimony
State
correct
because
State was well
for
in time to
possible
aware was
defendant to have arrived home
phone calls.
likelihood
make the two
Defendant submits a reasonable
testimony
judgment
exists
have affected the
Freesmeyer’s
that
could
therefore,
should be reversed.
State
jury,
his conviction
for
it could have
argues defendant has forfeited this issue
review as
appeal
agree.
We
raised on direct
and was not.
been
petition is a collateral attack on conviction
A
ad
resulting
not a substitute or
sentence and
therefore
and/or
Ill. 2d
N.E.2d at
appeal. Simpson,
dendum a direct
at
ap
raised on direct
that could have been
Consequently,
277.
issue
2d
peal
Simpson,
and was not is forfeited for review.
However,
of forfeiture will be
application
at 277.
strict
(1)
(2)
alleged
requires,
so
relaxed
fundamental
fairness
when
counsel, and
incompetence
appellate
forfeiture stems from
original
claim
relating
on the face of
appear
the facts
to the
do
285, 288, 848
Newman,
Ill.
appellate
record.
argue
To
the fundamental-fairness
successfully
N.E.2d
satisfy
defendant must
exception
apply,
forfeiture should
defense
by “objectively showing prejudice”
“cause and
test
impeded and
raise the claim on direct review were
counsel’s efforts to
*8
that the error so infected the entire trial that the defendant’s convic
tion
process.”
violates due
(Emphasis
original.)
Simpson, 204 Ill. 2d
552,
at
In the case at defendant any has not met of the three exceptions. First, defendant has not satisfied the “cause” element of prejudice” “cause and test. Defendant merely states in his reply brief that “the failure [of his counsel] to raise a due-process claim on appeal direct is a further example of counsel’s ineffectiveness around this issue.” A one-sentence claim of ineffectiveness is not sufficient to objectively show counsel’s efforts to raise the issue on direct review impeded. Further, were a one-sentence claim of ineffective assistance will not successfully invoke the exception second to the forfeiture rule. Although defendant portion devotes an entire argument of his to the ineffectiveness of his trial counsel the cross-examination of Freesmeyer, he did present argument that his appellate counsel was ineffective for failing the false-and-misleading- testimony issue on direct Finally, review. upon which defendant’s claim is based was original available on the face of ap pellate such, record. As defendant’s claim he process was denied due Freesmeyer’s because of false and misleading testimony, and the such, State’s failure to correct is forfeited.
However,
if
even we were to
claim,
review defendant’s
it would fail
on its merits.
knowing
The State’s
perjured
use of
testimony to obtain
a criminal conviction is a violation
due-process
of a defendant’s
rights,
and a conviction
through
obtained
testimony
such
must be overturned.
Simpson,
552,
Defendant
trial court’s
on
issue
urges
issue de novo.
no deference and
this court
review this
wrong legal
trial
standard
applied
Defendant
court
reviewing
Specifically,
his ineffective-assistance-of-counsel claim.
than
ac
states
court used the “farce or sham” standard rather
668,
cepted
Washington,
standard
v.
466
set forth
Strickland
U.S.
674,
(1984),
L. Ed.
adopted by
80
2d
In its trial its of defendant’s court discussion by stating, ineffective-assistance-of-counsel claim “This not makings pursuant of an claim ineffective[-]assistance[-]of[-]counsel 668, 674, 80 L. Ed. 2d 104 S. Ct. Washington, Strickland v. 466 U.S. (1984).” Although the here what is known as quoted 2052 trial court standard, as “farce sham” it on to cite from Strickland or went follows:
“[Strategic thorough investigation of the law choices made after unchallenge- virtually and to plausible options facts relevant are able; investiga- strategic complete choicesmade after less than precisely profes- tion are reasonable the extent that reasonable judgments support investigation. the limitations on In other sional words, duty investigations or to counsel has to make reasonable investigations particular make a decision reasonable that makes unnecessary. case, particular not ineffectiveness decision directly in all investigate must for reasonableness be assessed circumstances, heavy deference to applying measure of judgments.” counsel’s
The trial
did
apply
legal
therefore,
not
the wrong
standard, its
on
holding
defendant’s ineffective-assistance-of-counsel claim will
be reviewed for
People Hightower,
manifest error. See
v.
App.
258 Ill.
(1994)
3d
1197,
(holding
N.E.2d
post-
trial court’s
decision that
conviction
the defendant had been denied the effective
error).
assistance of counsel was to be
reviewed
manifest
“(Manifest error”
clearly evident,
means “error which is
plain, and
indisputable.” Hightower,
519,
258 App.
Ill.
at
3d
Defendant’s claims of ineffective
assistance
counsel each focus
perceived
defense counsel’s
lack of effort to
establish
defehdant who had made the
telephone
two
calls at 10:37 a.m. and
p.m., and
Strickland,
10:39
not his mother. Under
a defendant must
(1)
prove
performance
defense counsel’s
objective
fell below an
reasonableness,
standard of
probability
reasonable
exists
that, but
performance,
for his counsel’s
the result of the proceeding
would have been
People Rodriguez,
different.
364 Ill.
3d
App.
competent,
Effective assistance means
perfect, representation. Rodriguez,
N.E.2d at 226.
the purposes
For
of an ineffective-assistance-of-counsel
claim,
argue
it is
attorney,
insufficient to
another
with the benefit of
hindsight,
differently
would have acted
Rodriguez,
than trial counsel.
*10
at 226. Only
N.E.2d
the most egregious
strategic
tactical or
blunders will be seen as objectively unreasonable
representation. Rodriquez,
Defense counsel’s to substantial choice, is entitled strategic and that decision times was a evidence of mile- noted he had verifiable Defense counsel deference. taken, speed, factors, including route of a multitude of age. Because cetera, of drive-time evidence. the same cannot be said day, time of et to be more on evidence believed decision to focus Defense counsel’s objectively Merely because defendant’s concrete is not unreasonable. evidence, it focused on drive-time postconviction counsel would have failing for defendant’s trial counsel was ineffective does not follow relief, the trial set denying postconviction do so. its order great on the forth in record, detail defense counsel’s efforts in this case. Based manifestly trial court’s decision not erroneous.
Finally, defendant material and State withheld exculpatory regarding suspect in the Lockmiller viable due-process rights. murder in of defendant’s Defendant al violation leges arrest, him drug allegations against evidence of Doe’s made for violence, use, cooperate and his in a domestic his steroid failure withheld from the polygraph improperly examination was defense. readily had made available Defendant maintains this information been him, persuade during he would the trial court have used proceedings during trial Doe’s pretrial to admit evidence alibi, relationship false full nature of his temper, violent Lockmiller, money including allegedly that she him owed evidence, argues, drugs. Had the trial court such allowed guilty not have returned a verdict because the would Doe not exclude him as the circumstantial evidence could perpetrator of the murder. relief, denying
In its order the trial court held presented enough defendant had not evidence to court to show or either that the result of his trial have been different *11 would in had the results of the motion limine would have been different The trial previously unknown evidence Doe been available. ruling People court’s be absent manifest error. See will not disturbed (2003) (find Risk, 1105, 1110, 826, App. v. 344 Ill. 802 N.E.2d 831 3d ing postconviction allegations Brady third-stage denial of violation error). to be reviewed for manifest
772 cases,
In criminal
the prosecution is
required
disclose evidence
that is favorable to the accused and material either to the
issue
guilt
punishment.
Thomas,
People
App.
91,
or
v.
101,
364 Ill.
3d
845
(2006).
842,
N.E.2d
852
Evidence is material if there
ais
reasonable
probability that the result of the defendant’s trial would have been
prosecution
different had
Thomas,
disclosed the evidence.
364 Ill.
App.
101,
3d at
The crux of defendant’s claim is he was
from
prevented
disclosing
evidence of another
suspect
viable
Lockmiller’s murder. It is well
may
established that a
tending
offer evidence
to show
Whalen,
someone other than he committed the
2d
People
crime.
v.
(1994).
415, 430,
However,
such
is
evidence
if
properly
speculative. Whalen,
excluded
it is remote
Ill.
or
2d at
431,
KNECHT, J., concurs.
773 COOK, dissenting: JUSTICE remand the conviction and I would reverse
I dissent. respectfully for a new trial. post- petition consideration to gave
The careful trial court court, the trial my disagreements with relief. One of conviction by crime committed however, evidence that the holding is its that admitted. The could not be referred as “John Doe” the individual to v, 13, Thomas, 1, 495 N.E.2d App. 145 Ill. 3d People trial cites too “if the circumstances are 639, (1986), proposition for the that 647 This rule properly is excluded.” speculative, such evidence remote or trial “rubric,” articulation of the which avoids has been criticized as Graham, Cleary & Graham’s it based. M. concerns on which is (7th 1999). §403.1, Our 193 ed. Evidence at Handbook Illinois recognized precise is difficult “to define the court has that it supreme the could have admission of evidence that crime limits” control which 73, 90, Nitti, 312 Ill. 143 N.E. another. v. been committed (1924). 448, 454 relies jurisdictions in have held that when State
Courts other case, criminal in that upon direct evidence circumstantial evidence had a to commit the crime someone other than defendant motive charged to connect the is irrelevant the absence other evidence 102-03, Evans, party third to the crime. State v. 275 Kan. 62 P.3d (2003). contrast, against if By prosecution’s case largely circumstantial, may is neutralize defendant then the defendant by presenting or overcome such evidence sufficient evidence of the tending identify person perpetra same character some other as the Wash.,, 479-80, Clark, App. 471, tor crime. P.2d of the State v. (1995) (arson 854, 859 conviction reversed where evidence was motive, ability person opportunity, had excluded that another offense). commit approach is followed in Illinois. Direct evidence was same court, case. upon by case relied the trial the Thomas Thomas, the defendant as rape positively
In
the victim of a
identified
It
Thomas, 145
at 644.
is
perpetrator.
App.
Ill.
3d at
495 N.E.2d
case,
it
rule to the
where
is
apply
mistake
Thomas
entirely
circumstan
undisputed that the case
case, only
that
tial. No
in this
direct evidence was
alone,
opportunity.”
“Opportunity
defendant had “motive and
however,
unless the State can
is
sufficient to sustain a conviction
not
opportunity
no
had the
prove beyond a
doubt that
one else
reasonable
App.
221 Ill.
3d
People Dowaliby,
commit the crime.”
is
Dowaliby,
only
not
other-
Under
admissible, the State has an affirmative burden
perpetrator evidence
prove
Dowaliby
does
exist.
ours,
is
case most
similar
but the State unfortunately does not address it in
its brief.
Dow
aliby, the First District
reversed a murder conviction because the
prove
State did not
only
the defendant
person
who had
opportunity
to murder the victim. Dowaliby,
800-01,
Our case is not the other-perpetrator standard ap- case. But even plying the Thomas, standard rule out in argument set that John Doe’s connection to this case “remote speculative” or is clearly mistaken. Doe had been involved a sexual relationship with the victim murder, within six of the months before began she her relation- *13 ship with defendant. Doe lived a short distance from the victim’s apartment Doe, Normal. According to had two been about to rekindle their romance. days Doe visited the victim a few before her murder to only company find her of boyfriend, her latest Swaine. Doe left town a few originally police hours after the murder. Doe told murder, was out at the town time of the but later admitted that was not correct. interesting
It is argument to consider the State’s in its brief: overwhelming “Defendant had an motive to commit the offense. [The mid-July. Thereafter, victim] broke up with defendant jealous rage defendant was consumed with suspected because he Swaine, her relationship with friend and roommate. Defendant’s says brief her, that he ‘had never been violent’ he had towards but broken her door trying ex-girlfriend down twice to find his with a inside, [once new love interest inside]. with Swaine once with Doe trying go, Defendant was to still let even after he left Normal. However, defendant still her when loved he went back home to Rockford.”
Everything regarding the State said applies equally to The up trying Doe. victim broke with Doe. Doe get was to back together with victim at the time of the murder. Doe visited the murder, days only company victim few before to find her in Doe capable of Swaine. was violence and in fact had been charged against girlfriend. with domestic opportunity violence another Doe’s significantly greater to commit the offense was than defendant’s impossible almost “opportunity.” Defendant should have been allowed type evidence Doe same that the State presented against defendant. trial, prosecutor counsel, prior
The assured the and that Doe suspect. was not viable That was not true. At the hearing, suspect Lieutenant Daniels testified that Doe a viable today. Prior prior to trial and remains so even the State did polygraph submit asked to Doe had been disclose that direction, perhaps polygrapher’s not follow the but would examination The examination. of the completion to avoid intentionally in order but examination agreed to another that Doe did not disclose State had Doe been disclose that The did not backed out. State later investigated charged girlfriend domestic violence prosecution to process for the It is a of due with that offense. violation Const., amends. U.S. exculpatory evidence. potentially fail to turn over 1194. Both XIV; L. Ed. 2d 83 S. Ct. Brady, 373 U.S. V rely entitled to and the trial court were defense counsel there no additional representations that prosecutor’s a viable alternative argued be that Doe was from which it could 1166, 1192, Dretke, L. Ed. U.S. suspect. Banks v. (2004) (after prosecutor’s representation, 1256, 1275 124 S. Ct. Brady of undisclosed duty “scavenge no for hints defendant under material”). may the crime that prosecutor
The himself introduced evidence prosecu- been committed other than defendant. someone suspects in case: that three tor introduced evidence there were defendant, Swaine, prosecutor introduced Stacy Gates. The argued had alibis and that defendant evidence that Swaine Gates alibi, leaving jury only suspect who did not have an closing argu- opportunity. had the motive and believe no one else ment, dead-bang iron- prosecutor told the had “a Swaine had at Gates and “a prosecution clad alibi” and that the also looked *** gap courtroom guess lot of “And who sits in the people.” all this evidence of in his still unclosed after all this?” alibi even With *14 being prosecutor object did the to such evidence suspects, why other helpful prosecu- to the presented as to Doe? Swaine and were Gates If trial case, he did not have an alibi. the tion but Doe was not because Doe, it would not prosecution court had the knew about known what argument nothing to do accepted prosecution’s the that Doe “has have the prosecution If had known what with this case.” the trial court knew, it in limine. granted prosecution’s not have the motion would alibi, argues
The that Doe did have an that was with State argument That girlfriend day at 1 on the of the murder. p.m. now, until that the contrary State has taken position to the that the so that defendant could p.m. murder 12:15 was committed before mother home back to Rockford be when drive the miles murder could got argues The now that the p.m. home at 2:15 State lying. prosecu- could be p.m. have occurred at and the mother jury if tor, however, lying; not the jury that the mother was told convict, jury lying in order to required had been to believe she was very may well not have problem underlying done so. The this entire case is that attempting the State is grains build a mountain out of of sand. are There no facts important. that are When defendant shows that his reading permit odometer trip would not to Bloomington, argues tampered State that the odometer was with. When defendant presents evidence prior tampered that a odometer, owner with the argues State convenient, that defendant could have used his uncle’s car. When it is 2 p.m.
the murder occurred at lying. and the mother was shifting case, Given the weak and any evidence in this withholding of by evidence the State warrants reversal.
The State that evidence of Doe’s difficulties with polygraph charge examination and his domestic-violence could not have been jury. to the certainly The evidence could have been by court, however, considered determining in whether Doe suspect. was a viable charge Evidence the domestic-violence could certainly been jury. evidence, considered Character such (of as crimes, wrongs, accused), the commission other or acts may be purpose admitted for other propensity than to show commit crime. The concern with such evidence is not that it is not relevant, unduly defendant, but that it is prejudicial to the that it has probative much” prohibit “too value. generally “Courts the admission of this evidence to protect against jury convicting a defendant he or person deserving because she is bad punishment.” People v. Donoho, Ill. 2d That concern present is not when the witness is the defendant. It is not important witness, whether the only dislikes whether it believes telling he is the truth.
It is inconsistent argue for the State to that it could against defendant, character evidence similar but character evidence could not presented against closing argument, have been Doe. In prosecutor commented on the instruction that evidence that defendant charged had in been involved conduct other than that in the indict- only ment could be considered on the issue of defendant’s motive. “We have considerable amount of as to Mr. Beaman’s conduct occasions; on knocking thing.” other doors and that sort “You’re not here to convict Mr. because he’s knocked a door on Beaman loud, occasion, obnoxious, some other or been or or rude because he’s goes But to the mo- some other occasion. as that evidence overall Jennifer, you may tive involved in his consider it relationship light.” that is not polygraph
It clear that the evidence could not have been jury. argument, to the If the State wanted make *15 given op- an should disclosed the evidence and the trial court have
777
not absolute.
polygraph evidence is
it. The ban on
to rule on
portunity
(2005).
237,
627, 634,
243
832 N.E.2d
Sims,
Ill.
3d
App.
v.
358
People
in
aas
factor
may be considered
polygraph evidence
example,
For
separate
a
statement
gave
determining whether
56,
495,
486,
184 Ill. 2d
voluntarily. People
Jefferson,
v.
hearing
pretrial
at a
admitted
polygraph evidence is
“Where
itself, the
at the trial
but not
suppress,
motion to
on a defendant’s
Sims, 358
is not at issue.”
guilt or innocence
question of a defendant’s
a polygraph
Doe’s refusal to take
635,
Ill.
at
I also with the trial court that L. Ed. 2d Illinois, Napue tion. See 360 U.S. (even prosecution did not solicit
79 S. Ct.
where the
due
go
appears,
it
when it
testimony,
false
but allows
uncorrected
violated).
case
whether
question
A
process is
critical
a.m.,
and 10:39
at 10:37
phone
defendant made
calls from
home
Rockford
If
still in
leaving
after
at 10:11 a.m.
defendant was
bank
Detective
a.m.,
in Normal at noon.
could not have been
10:37
minutes, meaning
timed
trip at 31
Freesmeyer testified that he
prosecu-
The
until 10:42 a.m.
that defendant could not have been home
possible that
tor, arguing
theoretically
jury,
to the
conceded that was
calls;
speeding.
made the
he could have been
defendant could have
unlikely”
very highly
“it
prosecutor continued, however,
The
that
route,
remember we timed
that defendant made the calls. “You
in the middle of a
Freesmeyer drove that
31 minutes
too. Detective
busy day.”
prosecutor
told the
that defendant could not have
made the
if
driving
calls he had been
reasonably.
misleading.
That was
*16
Freesmeyer
Detective
had driven from the bank to the home in 25
minutes and he had discussed that fact
the prosecutor, although
police
was not mentioned in
report.
At the
hear-
ing, Freesmeyer testified that defendant could have
phone
made the
A
right
calls.
ato fair trial is
a prosecutor
violated when
misleading
allows
testimony
to be
to jury.
problematic
It is
when the
State relies
evidence of motive and
opportunity
prove guilt.
A defendant may
op
have both motive and
portunity and still be
reason,
innocent of the crime. For that
the State
required
prove
just
that defendant had
op
motive and
portunity, but that no one
opportunity
else had the
to commit the
Dowaliby,
crime.
App.
797-98,
Ill.
3d at
THE OF Plaintiff-Appellee, PEOPLE THE STATE OF v. DAWN WORKMAN, Defendant-Appellant.
Fifth District No. 5 — 02—0342 Opinion July Rehearing August 23, filed denied 2006. 2006. had notes know what timed trial. did from the that he travel support In further of his contention calls, telephone in time to make the two bank to his home postconvic- he hired for the testimony inspector of an presented the he conducted investigator testified proceedings. tion Beaman’s the bank and the of the route between three timed trials speed each drove above “bypass” trip, home via route. On trip. traffic, per limit, averaged minutes but with the flow addition, trials of the route investigator conducted two timed and the Beaman’s home via downtown Rockford. between the bank