*1
sеntencing stat
constitutionality
capital
of the Illinois
violates
argues the statute
ute. Defendant
by placing
amendments
eighth and fourteenth
mitigating
establish
ev
on defendant
to
proof
burden
This
penalty.
to
the death
preclude”
idence "sufficient
many prior
claim in
rejected the same
court has
201,
157 Ill. 2d
(e.g., People
Edgeston,
opinions
the issue.
(1993)), and we will not now reconsider
numerous occasions
rejected
we have
Similarly,
to include sufficient
argument
the statute fails
death
arbitrary
capricious
safeguards
prevent
See,
Judgment cause remanded. no consider- part JUSTICE HARRISON took ation or decision of this case.
(No. 77950. ILLINOIS, THE OF THE OF Appel- PEOPLE STATE lant, BURROWS, Appellee. v. JOSEPH
Opinion April 1996. filed *2 MILLER,J., joined by BILANDIC,C.J., specially concurring. *3 General, Ryan, Attorney James E. Springfield of (Norbert Mansfield, J. Goetten and Charles F. of the Of- Attorneys Prosecutor, fice of the State’s Appellate of counsel), the People. for Hemstreet,
Michael of Kathleen T. Zellner & Associ- ates, appellee. of for Naperville,
JUSTICE the opinion McMORROW delivered of court: trial,
Following
jury
defendant
of
was convicted
robbery
murder and armed
and was sentenced to death.
His convictions and sentence were affirmed on direct
(1992))
Burrows,
(People
review
v.
Background Defendant convicted for his in participation robbery armed and murder of Dulin that oc- William Sheldon, Illinois, curred at the victim’s home in in early November 1988.1 Forensic evidence established victim, eighties, in who was his late had been shot range clothing money the head at close and that person. signs had been taken from his There were no fingerprints forced into the residence and no entry link crimes. any or other individual Gayle Blood found at the scene was identified as that of Potter, who was indicted with the defendant for the individual, crimes committed Dulin. Another upon in the Ralph Frye, was also indicted for his involvement incident. hung jury.
1 Defendant’s resulted in a He was first retried, convicted, proceedings now and sentenced in that have appeal. culminated the instant *4 against Potter and Frye Both testified defendant at greater his trial. Their is set out in detail in appeal the earlier in which defendant’s convictions and Burrows, sentence were affirmed. Briefly Ill. 2d 196. restated, Potter testified that a drug she was dealer and Poll drug supplier. Steve was her Potter stated that in November 1988 she learned that Poll believed that she owed him money from a cocaine deal. Potter went gas to see Poll at station where he worked on 8,1988. Defendant, November who was Poll’s "enforcer” Poll, and would collect money for was also Ac there. Potter, cording suggested Poll that she borrow the "rich, money farmer,” from a referring old to Dulin. She testified that Poll told defendant to "persuade” her to obtain the money and that defendant hit her on the agreed head. Potter to meet defendant and later Frye evening a parking lot in Watseka. Potter knew Dulin because her provided mother had housekeeping Dulin, services and Potter had been to the Dulin res idence and money borrowed from Dulin in past.
Potter further testified at defendant’s trial that she drove the automobile of friend, the father of a Chuck Gullion, to meet the defendant and Frye. Once she had parking lot, arrived at the she found defendant Frye, waiting who were They a truck. followed her to Dulin’s home. She stated that when she arrived at Du- house, lin’s knocked; went to the front door and Du- opened lin the door and let Frye her in. Defendant and although also entered they had not in by been invited residence, Dulin. Once Potter asked Dulin to loan $3,000. refused, When he brandished gun and told Dulin refused, to write a check. Dulin two men struggled, and defendant shot Dulin in the head. Potter testified hysterical that she became head, that defendant hit her causing on the side of the her to bleed. She was forced outside and into the truck *5 defendant returned to the residence to Frye while emerged, fingerprints. When defendant he was remove clothing, gun, paper a and a sack. De- carrying papers, truck, Frye fendant and then left in their while Potter in had used to there. departed the vehicle she arrive following day, defendant and Potter stated that the home, gave signed by her a Du- Poll came to her check $4,050 lin in and told her to have the the amount of friend, Gullion, day a check cashed. She went with in an the nearby later to a bank effort to cash check. check, bank When Gullion to cash the the attempted clerk refused to honor it. Gullion returned to the car Potter, gave сheck to who burned the check. thereafter, by po- arrested Shortly she Gullion were lice authorities. hers. weapon admitted that the murder was from her trailer explained
She that it had been stolen murder and that she believed shortly before the Dulin it from her. She stated that the defendant had taken after the incident that the de- she did not realize until in the car she was put weapon fendant had back Rick driving, boyfriend, and that she later told her in The was Gillespie, weapon to hide the the woods. in a area near Potter’s by recovered authorities wooded days trailer a few after the murder. codefendants, Ralph Frye,
Another of defendant’s against defendant at trial. His also testified Potter, that substantially provided similar to Potter’s encounter with defendant that he recounted worked; drive later gas station where Poll the trio’s the home lot in Watseka to evening parking from $3,000 Sheldon; to obtain of Dulin in Potter’s efforts shooting when Dulin; of the victim from and defendant’s desired. give the funds she the latter refused to account Frye also corroborated Potter’s she became in the Dulin residence when hit her while hysterical shooting that defendant over removed money clothing and articles of from the Dulin home. Frye acknowledged during
Both and Potter their given had they prior, inconsistent statements to regarding authorities and others what during had transpired the incident. Potter admitted that initially she had lied police and told that she did not anything know about the Dulin murder. Later changed certain portions story regarding of her how and when she had аrrived at the Dulin residence.
Frye similarly admitted that his statements authorities were wholly not consistent with his trial He testimony. acknowledged also that he given had tape-recorded statement attorneys Frye being which denied present Dulin murder. *6 He explained in the tape-recorded statement that he had to the police lied about his involvement incident because he was confused and the officers had threatened However, him. at defendant’s Frye recanted exculpatory his gave statements and to the effect that he had been present when defendant shot Dulin. Both Potter and Frye acknowledged that they adjacent had cells while in prison they and that spoke to each other on a daily through basis a food slot.
Rick Troyer, step-cousin, Potter’s also testified at defendant’s trial. He stated that night on the of the incident, Potter came to apartment his in Watseka ac- companied by Gillespie and gave Gullion. Gullion Potter some keys and she apartment, left the returning at ap- proximately midnight. returned, When Potter she had blood in her hair. carrying She was a pair pants, of a shirt, a and coat. According Troyer, to placed Potter some a money on table "thought and said that she there would be more than two fifty there,” hundred dollars explaining that she "had stripped body to protect Shaun.” Troyer recounted that Potter also said that she deal, during drug a thus ac- had been "bushwhacked” Troyer testified that he counting for her head wound. in the gun tell Gullion that there was heard Potter briefly and аpartment car and that Gullion left shells, gunshot some of which returned with several Troyer stated and some of which were not. spent, were thereafter, apartment left the with shortly Potter and Gullion. Gillespie at his trial. presented the defense of alibi
Defendant in an effort to demon- testified in his behalf Witnesses Frye was at the Dulin resi- strate that neither he nor The found the night jury dence on the of the murder. robbery Dulin’s murder and armed guilty and he was sentenced to death. subsequent post-judgment
Defendant’s motions alia relief relied inter upon recanta- post-conviction and In Frye. Potter and provided by tions both hearing given at the trial court’s claims, post-conviction and killed Dulin acknowledged that she had shot She testified that she was of the incident. Frye nor time and that neither defendant alone at the residence. her to Dulin’s accompanied had her ask Dulin to loan gone that she had explained that she refused when she admitted money and that he drug debt. Potter stated repay the funds to needed doorway push started to her toward that Dulin bag, afraid, from her removed that she became ceiling. According to Pot- into the fired three shots *7 the wall that ter, gun hanging for a Dulin reached fright- became Lueger” and she like a German "looked head with the butt of hit her in the ened. Dulin dropped and then in the shoulder and she shot him once to retrieve and Dulin reached down gun. Both she As she was rais- up it first. picked but she weapon, head hitting Dulin in the revolver, discharged, it ing killing and him. Potter recounted that she went over to Dulin’s desk and removed checks from the desk drawer. remove'any money Potter testified that she did not or clothing person from Dulin’s while she was at the resi- retrieving checks, dence. After she fled the home. Frye Potter reiterated that neither defendant nor her, was ever with and that she alone had shot Dulin. explained everything previously She that she had told authorities, and all of her earlier in-court Frye, defendant, trials of the herself, were all explained telling fabrication. Potter that she was now part the truth about the incident because it was of her drug program rehabilitation to be accountable to those past. whom she had harmed from her conduct in the Potter stated that she did not defendant, want to see punished innocent, who was for crimes he did not com- mit.
Frye evidentiary also testifiеd at the trial court’s hearing to defendant’s post-conviction part claims. He stated in relevant accompanied he had not defendant or Potter to the Du- lin residence on the of the murder and he Frye explained had no involvement in the incident. given inculpatory he had the authorities statements frightened sick, because he was medication, under questioned by police. when he was He testified that his explanation of the incident derived from information given interrogated that to him the officers who him after he was arrested and that he had no actual knowledge transpired of what had when Dulin was shot Frye exculpatory and robbed. further stated that his attorney statement to defendant’s truthful, had been pressure but that he had withdrawn it under from Pot- prosеcutor, ter and the who threatened that he would greater cooper- receive a criminal sanction if he did not inculpate ate and the defendant in the crimes. *8 support a new trial based further his claim for To newly evidence, offered the discovered Sunday, She testified that on of Jana West. killed, 1988, 6, the date on which Dulin was November Lynn friend, Pine, in Potomac. She to she went spent visit Lynn’s day Lynn home. Defendant the at p.m. approximately with a 8:30 came to the house at stayed 12:30 He until friend and watched television. go saying home, his wife would that a.m. and then left to long. angry testified he had been out so West be through Lynn Pine but that that she knew defendant stated that a friend. She she did not consider defendant "slammed the and had Pine did not like the defendant got acknowl- hе there.” West also in his face when door living edged, however, with defendant’s that Pine was brother, Dennis Burrows. stayed Lynn Pine’s home stated that she
West following day, night Pine that, she and the and Gayle She could not trailer in Urbana. went to Potter’s gone why they in the trailer Potter was had there. recall Gillespie, Potter’s and Rick another woman with boyfriend. previously and, met Potter had never West Potter, had blood noticed that she introduced to when happened, Potter what had her hair. West asked pistol-whipped, responded al- had been that she though say her. Potter who had assaulted she did not man "killed a that Potter had to West further stated pistol-whipped her and he had before because somebody from head, and that shot him in going Chicago Chicago to come down or around up mess.” West testified clean light-colored her a revolver with handle showed somebody but it wasn’t to kill that "it had been used said anybody.” go registered Potter of- to back so it wouldn’t weapon West, refused. but West fered to sell changed in 1988 and residences that she West stated Phoenix, 1989 and that she moved from Illinois Arizona, in October July where she lived until 1990. "Westtestified that no one ever contacted her about testifying at defendant’s trial. Defendant’s trial counsel testified that he attempted to locate West because he had been informed provide that she could an alibi for defendant, but that he was unable to locate her.
Considering the evidence presented by the defen- *9 motions, dant in support of his the trial court concluded that the defendant should receive a new trial. The State apрeals ruling. from that
Analysis request Defendant’s for a new trial was based on matters he raised in a petition for post-conviction relief (725 (West 1994)) ILCS and a petition 5/122 —1 for post- (735 (West judgment 1994)). relief ILCS 5/2 —1401 Specifically, defendant’s post-judgment petition alleged that his convictions were based on the perjured testi- mony of Potter Frye. petition Defendant’s post- for conviction relief alleged inter alia that Jana West’s provided statements newly discovered evidence of actual innocence that also warranted new trial.
The State does not raise
question
of whether
newly discovered evidence of actual
presents
innocence
a constitutional question appropriate for post-conviction
relief, an issue now
by
rеsolved
this court in People v.
(1996).
Washington,
has reaffirmed that for if form the basis a new trial raised in a motion for post-judgment relief under section 2—1401 of the Code Brown, v. (1995)), (People of Civil Procedure 94 169 Ill. 2d as did the in the present defendant case.
A
based
request
newly
a new triаl
discovered
satisfy
evidence must
two criteria.
It
evi
present
must
dence which was not available at the defendant’s
and which
defendant
could not
discovered
have
through
of due
In addi
diligence.
sooner
the exercise
tion,
of
by
the evidence offered
the defendant must be
convincing
change
likely
such
character
it would
Albanese,
v.
People
Ill. 2d
the outcome
the trial.
125
(1988)
Molstad,
v.
100,
(quoting People
111
101 Ill. 2d
v.
128,
(1984),
Baker,
364,
People
Ill. 2d
374
(1959)). Similarly,
a new
motion for
show,
alleged
trial based on
must
perjury,
al
convincing proof,
clear
the substance of his
Sanchez,
(1986);
People v.
legations.
115 Ill.
2d
(1995).
Brown,
People
prov
The trial
in the instant
cause
the
fact who
both of defendant’s
trials and was
finder of
the
also
judge
sentenced
death. The
the
evidentiary
hearing
over
with
presided
post-
petitions
defendant’s
cred-
relief.
his
of the
upon
conviction
Based
assessment
hearing,
testified at that
ibility of
witnesses who
trial. To reach
judge
trial
awarded the defendant
new
inter alia
conclusion,
court determined
this
the trial
testimony
newly
that West’s
was
discovered evidence of
actual innocence and that Potter’s earlier trial testi-
mony
perjured
admitted,
had been
and that she had
oath,
court and under
that she alone killed the victim.
Reviewing
testimony presented
at the eviden-
tiary hearing,
bearing
in mind the evidence that
presented against
the defendant at his
we
say
against
cannot
that the trial court’s conclusion was
weight
the manifest
of the evidence. Considered cumula-
tively,
Gayle
the testimonies of Jana West and
bring
jury’s
into serious doubt the
soundness
de-
guilty
termination that defendant was
of the crimes for
charged.
which he was tried and
Because consideration
of these matters is sufficient to sustain the trial court’s
ruling,
parties’ arguments
we do not address the
regard
allegations
post-
to other
made in defendant’s
post-judgment petitions.
conviction or
signifi
Defendant’s convictions were founded most
cantly upon
Frye.
the statements made
Potter and
On
review,
direct
this court determined that the State’s
prove
guilty
evidence was sufficient to
the defendant
be
yond a
Burrows,
reasonable doubt.
court
argument
respect
with
present
2d at 228. Defendant’s
judicata,
res
is therefore
barred
Frye’s recantation
by this court
adjudicated
it
previously
inasmuch
as was
significant
is no
difference
appeal
on direct
and there
See,
has
Frye
provided.
recantations
that
between the
(1978).
Berland,
The trial court determined that defense counsel made reasonable efforts to locate West before defen- dant’s first trial but was investiga- unable to find her. An tor was dispatched to the last known location of her res- idence, but he was unable to find West. West testifiеd that she moved from one during state to another pe- riod that defendant awaiting was trial and while he was on trial. She stated that she did not come forward because she did not want get involved and because she did not believe that defendant would be convicted. Pine, Lynn West, who was a friend of testified at defendant’s first trial that West had moved and that Pine did not know where West could be On located. this record, we cannot find manifest error in the trial court’s factual determination that the genuine, defendant made unsuccessful, but efforts to locate West before he was tried and convicted. (cid:127) The State argues further that West’s testimony was ground not sufficient to warrant a new trial because her testimony was given cumulative to that by other persons at defendant’s first trial. The State also contends that West’s testimony was not of such a conclusive character it would change the outcome on retrial.
At Lynn first Pine and Rick Bur- rows testified that on the night killed, that Dulin was which was a Sunday, the defendant spent evening watching television with them from approximately 8:30 p.m. until midnight. They could not remember what airing on the thought television it awas "cowboy” program. acknowledged Pine and Burrows that, they under cross-examination when had spoken authorities, might previously they they said that have watching brought been "Gunsmoke.” It was out on cross- only examination "Gunsmoke” aired week- nights, Sundays. not on
Lynn following day, Pine further testified that they she and West drove to Potter’s trailer. When ar- rived, there, Lydia Chuck and Gullion were as were Pot- ter and Gillespie. Rick Pine testified that Pоtter said (Potter) previous evening, gone had to Wat- Shaun, drug seka to see one of her dealers. Potter stated in, that when she walked she saw that Shaun was dead. they recounted that two men were there and that pistol-whipped and hit her on the head. Pine had confirmed that Potter blood her hair. Potter then *13 the men. Pine said that she shot both of Potter also told that Shaun’s father was in the Mafia and that he would "take care of the bodies.” the rule that of a
Pointing support to evidence motion trial cannot be post-judgment "merely new (Miller, produced at trial cumulative” evidence 464-65), 79 Ill. 2d at the State claims that West’s ac given is cumulative to the trial merely testimony count Pine The by Lynn at defendant’s first trial. State notes that both and Pine said that defendant was with West killed, night and that both them on Dulin gave testimony respect women similar with to Potter’s night pistol-whipped she had been admissions during before and that she had shot someone incident. testimony was not cumulative to the alibi ev-
West’s trial, Pine did idence offered at defendant’s second since Moreover, testify not at the defendant’s retrial. West’s testimony. account served to corroborate Pine’s West or with someone had no association with the defendant family. Pine, contrast, in defendant’s lived with and testimony had a child defendant’s brother. West’s thus lent considerable credence to Pine’s account that incriminating Potter had made statements to the effect that she had been assaulted and had shot someone the night that Dulin was murdered. testimony
The State also contends that the alibi provided by highly implau- West, Pine and Burrow was sible. The State notes that at defendant’s first Pine group "cowboy” and Burrows stated that the watched a program, perhaps "Gunsmoke,” and that this acknowledged was discredited when the witnesses only weeknights "Gunsmoke” aired and not on Sundays. West testified at the court’s hearing group "cowboy” that she believed the watched a although movie, she could not remember its name. argument unpersuasive. type We find the State’s The program being wholly of television that was aired is col- lateral to the witnesses’ to the effect that de- Pine, fendant Burrows, was with and West on the that the victim was killed. On this central issue the wit- nesses’ discrepancy are accounts consistent. We do not believe that a group to whether thе watched cowboy program cowboy or a movie is sufficient to inherently render West’s account unreliable. points testimony given
The State also at defen- by Lydia Lydia dant’s first trial Gullion. testified that day killing she was at Potter’s trailer on the after Lynn and that neither Pine nor Jana West came over to Potter’s residence. The State contends that West’s *14 testimony incriminating of Potter’s statements is disagree. therefore a fabrication. We The circumstance give that another witness at defendant’s trial did not testimony consistent with West’s account does not testimony implausible. previously, render her As noted coming West had no demonstrable reason for forward give testimony inculpate after to that would Potter and exonerate the defendant. complains
The State that defense counsel knew testimony defense, weakness of the alibi as set out in the of Burrows and Pine at defendant’s first because testify counsel did not call these witnesses to at defen- explained dant’s second trial. Defendant’s trial counsel that he did not recall these witnesses because onlookers testimony him their advised that was not credible and in fact premise, From weakened defendant’s case. this that
the State contends West’s alibi likely would not affect the outcome if the defendant is disagree. retried. We If had West come forward and testified, her would have corroborated the ac- given by counts Pine and Burrows and would have strengthened the alibi defense.
Defense counsel’s decisions with to matters strategy necessarily of trial were limited to the evidence produce court, contrast, he could for trial. The trial upon brought light. relied all of the now to evidence We find no in the trial manifest error court’s determination newly was a discovered who could West witness provide significant the defendant was evidence actually innocent of the Dulin murder and armed rob- bery. evidentiary hearing, At the West testified that admitted that had "killed a man the pistol-whipped before because he had her and she shot him in the head.” Potter showed West a that "had somebody” represented been used to kill but it registered go anybody.” it It "wasn’t so wouldn’t back referring undisputed weapon is that Potter was that was used to shoot the victim and which contact, association, admitted her own. West had no testify relationship and had no motive to or with Potter in a manner that incriminate Potter and exoner- would of Potter’s admissions ate the defendant. West’s account *15 having day killed a man with Potter’s a earlier provides important supporting evidence the trial court’s ruling grant to set aside defendant’s convictions and him new trial.
The trial court’s decision to award defendant a new trial is further supported by self-incriminating ac- gave evidentiary hearing. count Potter at the court’s In testimony, admitted under oath that she alone committed killing, that defendant was not present shooting, at the and that defendant did not ac- company her to the residence. The Dulin State contends incriminating that Potter’s should be disre- testimony garded by because it was barred principles of res judicata or waiver. The State maintains res judicata applies because the defendant raised the same claim in his direct appeal. Alternatively, the State contends that argument defendant’s is waived because the defendant could have made it appeal, his direct but failed to do so.
The purpose post-judgment review is not to reliti gate matters that were or could have been raised on direct appeal, arguments but rather to resolve that new matters, or additional if they had been known at the time of could have prevented finding that the de guilty fendant was charged. Berland, of the crimes Ill. 2d at 314. Claims that were raised on direct appeal, or that could have been appeal, made on direct arе barred under principles judicata of res and collateral estoppel. Post-judgment relief is limited to matters re lating to evidence that did appear not in the record of original the trial court’s proceedings and that was Berland, discovered after trial was completed. 74 Ill. 2d at 314-15.
The
Gayle
evidence that
Potter had committed
at
perjury
defendant’s trial
that she
alone had com-
mitted the murders was not evidence of record at the
appeal,
defendant’s
trial. In the direct
defendant had no
admission
specific
upon
which defendant could
argument
base an
Potter’s
was a
Burrows,
fabrication.
See
The State contends that Potter’s recantation testi mony does not sustain the trial court’s determination award the a remedy of new rule, true, general is a trial. It as that recantations are Steidl, v. People highly often deemed unreliable. 142 Ill. (1991). However, merely 2d Potter did not recant her testimony. wholly Potter made self- admissions, oath, incriminating under that placed blame killing for the on Potter herself and also exonerated any defendant of involvement in the murder.
The State maintains that Potter’s was not People Bracey, convincing. clear and See 51 Ill. 2d (1972) (evidence perjury must be clear and convinc ing). her example, points For the State out that state acquaintances shortly ments were not made to close af fatal ter the victim was killed. This circumstance is not claim, noteworthy to the defendant’s however. It is West, day killing, Potter admitted to a after "killed a man the before because he Potter had pistol-whipped him in the head had her and she shot
Evidence discovered at the scene corrobоrated Pot- in-court admissions. Potter testified that the victim ter’s gun taken struck that he had from the wall. Dulin’s relatives testified that Dulin had a hung that he longer on the wall and that it was no there when body his was discovered. Potter’s blood was found at the scene, on the desk which took from she admitted she the victim’s checks. Potter stated the victim struggled. Forensic evidence indicated that the victim struggle. had sustained defense wounds consistent with ceiling Potter said that she fired three shots into the twice, and then shot Dulin in the shoulder and then in the head. Evidence from the scene confirmed that there ceiling. were three shots fired into the Forensic evidence twice, substantiated that the victim had been shot once in the shoulder once the head. step-cousin,
The trial of Potter’s Rick Troyer, self-incriminating also corroborated Potter’s Troyer admissions. Gillespie stated that Potter left Gullion and apartment departed by at his herself. *17 later, When she returned a few hours a she had head explained wound and that she had been "bushwhacked.” placed large money She a amount of on the table and "thought money said that she there would be inore carrying clothing, including there.” She was also men’s pair pants. gun She told Gullion that there a was apartment shortly car; the he left the and returned with gunshot spent Troyer’s shells. account confirms Potter’s admission that she was alone when he went to Dulin’s physical struggle residence, became involved in a during head, him which he hit her on the and that she shot him and took items from his home. testimony by
Potter’s was further substantiated othеr evidence presented trial. For example, Potter weapon admitted that the used to shoot gun the victim was her own and that she carried it with her to and from the crime scene. This testimony stands in sharp contrast to Potter’s at defendant’s trial, when Potter weapon stated the had been shortly incident; stolen from her trailer before the believed the defendant was the person who broke into her trailer gun; brought and stole the the defendant gun with him to the night Dulin residence on the of the shooting; the defendant in a placed paper sack in Potter’s vehicle after the shooting; and that Potter did not realize until much later that the murder weapon in her possession.
The State contends that Potter’s admission should given not be already credence beсause she had lied on prior several occasions and given because she has never wholly consistent happened account of what position victim was killed. The State’s does not explain why Potter would inculpate herself and exoner- ate the defendant with to the victim’s murder. The may inconsistencies Potter’s earlier accounts well be attributable to her futile efforts to shift blame defendant, for the incident to the and do not destroy ultimate of her trustworthiness admission that she alone killed the victim.
The State further claims that Potter’s rejected nothing should be because she had to lose claiming that she was alone when she killed the victim. disagree. highly significant We It is that Potter made wholly self-incriminating and represented statements that she alone killed the victim. The circumstance incriminated herself lends credence to the verac- State, ity According of her statements. to the cannot having prosecuted be murdered the victim because she has been already tried and convicted for *18 contends in crimes. The State the participation
her having killed the victim would Potter for of prosecution address We do not jeopardy. of double principles violate on its merits. Potter’s argument jeopardy this double certainly would having killed the victim admissions of affecting possibility the consequences, have collateral Moreover, if Potter her convictions. parole present from activity, criminal convicted for other is tried and the impact Dulin case will admissions in the present reasons, same receive. For these sеntence she would perjury and convicted for may whether Potter be tried ap- in present need not address is an issue which we Dulin, killed admitting that she alone peal. By criminal conse- placed herself risk for substantial quences. record, we find no upon
Based our review of Accord- judgment. manifest error the trial court’s is affirmed and the ingly, judgment court’s trial. cause is remanded to the circuit court for new Judgment affirmed; cause remanded. MILLER, concurring: specially JUSTICE I below agree majority with the court awarded the defendant a new relief the properly sought defendant in a under section 2—1401 of petition (West (735 ILCS the Code of Civil Procedure 5/2 —1401 1992)). hearing wit petition, prosecution At the on the testimony, her trial which Gayle ness recanted here, in the murder involved imрlicated A that she committed the offense. testified alone in these cir remedy under section 2—1401 is available Brown, explained People cumstances. As this court (1995), 169 Ill. 2d 107-08 unlike the Post-Conviction (West (725 through Hearing Act ILCS 122—8 5/122 —1 1992)), a constitutional require section 2—1401 does not relief,,and therefore a defen predicate violation as dant may on a prevail section 2—1401 petition even *19 when the prosecution was not aware of the witness’ perjury.
The post-conviction petition raises dif however, ferent questions, and the majority’s discussion clearly does not distinguish proceed between the two As Brown ings. noted, Hearing the Post-Conviction Act Code section 2—1401 of the of Civil Procedure impose prerequisites relief; distinct nowhere does the majority exрlain its treatment how of defen post-conviction allegations dant’s petition, and its of newly evidence, discovered can be reconciled with our Brown, in post-conviction decision which denied relief to a alleging his perjury at trial. For reasons People set Washington, my forth in dissent Ill. I (1996), 2d 475 do not free-standing believe a claim of newly presents discovered evidence innocence may constitutional claim that form for post- the basis conviction relief case. noncapital event, any having In determined the defendant is strength entitled to a new trial on the of the evidence presented hearing his section peti- 2—1401 tion, we no separate ques- have cause here to address the tion may capital whether relief also be obtained in this Hearing case under I do Post-Conviction Act. not join that of the portion majority opinion.
CHIEF joins special JUSTICE BILANDIC in this concurrence.