*1 (2001) J., (Kilbride, dissenting), 585, Ill. 636-40 2d (Kil (2001) 536, 581-85 v. Simpson, People fails majority I believe that bride, J., dissenting), aof required relief constitutionally grant supreme the new accordance with new trial conducted capital procedures cases. governing court rules of the new adoption court’s prior to this capital cases did not adequately inherently unreliable rules were rights. Consequently, constitutional protect to address were promulgated since the new rules oc regularly constitutional dimension deficiencies of applied the rules must be system, the old curred under Caballero, People See capital to all cases. retroactively 205, Ill. 220-21 (No. 89159. ILLINOIS, Appel
THE PEOPLE OF THE STATE OF lee, COLEMAN, Appellant. v. DEDRICK Rehearing denied
Opinion October filed 2002. December 2002. *3 RARICK,J., part. took no
KILBRIDE, J., dissenting. Defender, Chicago
Office of State of Appellate (John E. Horn H. Kelley, Tinley Elizabeth both Park, counsel), for appellant. Attorney General, Ryan,
James E. Springfield, (William Devine, Attorney, Richard A. Chicago State’s *4 Browers, Attorney General, Chicago, L. Assistant and
265 Stew- E. and Celeste Goldfarb, Fitzgerald James Renee counsel), Attorneys, of Stack, art Assistant State’s the People. opinion delivered GARMAN
JUSTICE court: court of Cook jury trial in the circuit
Following Coleman, defendant, convicted Dedrick was County, Hale of Lance 1989, degree murders 26, first April robbery armed He also convicted of and Welch. Avis right to be Defendant waived and home invasion. subsequently the circuit court jury sentenced for the murders. Defendant sentenced him death This for his other convictions. prison received sentences sen and death court affirmed convictions Coleman, 158 2d 319 appeal (People on v. Ill. tence direct (1994)) Court denied Supreme and the United States (Coleman 881, Ed. 130 L. Illinois, certiorari v. 513 U.S. (1994)). filed a 1995, S. Ct. 215 Hearing Act petition for relief under the Post-Conviction (725 (West (Act) 1994)), ILCS et which seq. 5/122—1 evidentiary hearing. an circuit court dismissed without re On that decision and appeal, this court reversed evidentiary hearing the cause for an on certain manded Ill. Coleman, People issues raised in petition. hearing, Following evidentiary an appeal denied the followed petition circuit court this (134 304(b)(3)). Ill. 651(a); Ill. 2d R. 2d R.
BACKGROUND Proceedings Trial murders of Lance Hale and Avis Welch occurred Chicago home in apartment in the first-floor a two-flat was a known apartment 1989. The first-floor April McCullough. by Alex “drug operated house” owned and McCullough through employment Defendant knew *5 McCullough’s drug operation. McCullough was the also boyfriend of defendant’s sister. About one month before the murders, McCullough defendant and argued about $2,000. theft of cocaine and trial,
At Lockett, Aldene who lived in the second-floor apartment two-flat, testified that at around 5:30 April a.m. on 1989, she heard coming voices from the first-floor apartment. A later, short while she heard gunshot something and falling. Two more shots later out, rang and time, Lockett heard a door open. At this she looked out her window and saw a dark-complected young black man 5 feet 6 between inches and 5 feet 8 apartment. inches tall leave the The man wearing all clothing black and sunglasses. Lockett later related what police she had seen to investigating officers murders.
Eventually, police drug- connected defendant to the murders, due, house in large part, to defendant’s shoot- ing McCullough of days May 1,1989. five later on Several persons present were at the time of the McCullough shooting, and defendant told them he wanted it said that he McCullough Nevertheless, shot in self-defense. some of these later witnesses turned themselves in the police and informed them of defendant’s true role in McCul- lough’s shooting, as as well his involvement in the double result, homicide at the drug house. As a participated in lineup was viewed Aldene Lock- May 2, ett on trial, 1989. At Lockett testified that one of the lineup participants “looked like fit height he and of the man description” drug she had seen leave house. Lockett further told police that the man had been wearing sunglasses. police then asked each lineup participants sunglasses. on All put but one the participants complied. Lockett, According participant put sunglasses who did not on the was the same participant who had the and weight height On cross- drug house. seen leave the man she had examination, positively did not that she Lockett stated merely told the but anyone lineup, from the identify glasses “could did not put that the man who police she had seen leave the murder have the same man been” build, height, and “he had the same scene because color.” testified that police Tony Maslanka
Chicago detective Carroll, conducted he Detective partner, Maslanka, Lock- According to that Lockett viewed. lineup in the identified lineup, him one the men ett told defendant, the individual “looked like by Maslanka as *** in regard apartment leave the first-floor she saw *6 stated height, complexion, physical and build.” Maslanka the the suspect that Lockett had seen leave because building wearing sunglasses, lineup partici- each the put pair to on a All of pants sunglasses. was asked complied, the with the participants lineup exception the again defendant. Lockett stated to Maslanka that put sunglasses on the the man who did “was day question whom that with individual she saw build, regard physical complection [szc].” to and height, cross-examination, that Lockett On Maslanka admitted as man had positively identify did not defendant the she Rather, Maslanka seen leave the scene of the murders. her identification as “tentative” because characterized wearing had him she had not her Lockett told that been suspect building saw leave the and glasses when she the stated, that she As defendant was nearsighted. was to for the convicted and sentenced death murders. Proceedings Post-Conviction his defendant that petition, In process the violated his to due and fair trial right State by material that favorable to the concealing evidence was using testimony and to obtain the perjured defense claim, this attached support convictions. In petition to his the affidavit of Aldene In Lockett. this affidavit, Lockett states that she saw the gunman’s face as he leaving the apartment first-floor and that she “recognizing remembers it from neighborhood.” date, aAt later Lockett saw a man “on block” who looked gunman. affidavit, like the According to the while at the lineup, Lockett “felt the police were trying to get single [her] to out the put male who refused to shades, they because went back to him in lineup and [her] told this guy [they] was the picked up for the murders. told them [She] this guy was not dark enough to be the guy who had come out of the downstairs apartment.” Lockett also states her affidavit that she does not “remember seeing guy who refused to wear during police the shades lineup in the neighborhood before” “telling and that she remembers the States At- torney, Kelly, Michael about guy how this in the lineup guy didn’t look like the [she] saw come out apartment, [Kelly] always downstairs but say would something try to he right convince was the [her] guy.” Finally, Lockett states that Assistant State’s At- torney Kelly investigators call every “would me days or go my two three over story make sure it didn’t change.” her exchange testimony, trial investigators promised her to move her home state of Alabama or to find her a Chicago. new residence in After year passed one ready move, and Lockett was she *7 Attorney’s called the Kelly State’s office but told was that longer no worked there. Lockett’s further affidavit states that no one from the team defense ever contacted her. petition alleged Defendant’s amended also ineffective as- affidavit, sistance of on counsel based this in addition to counsel’s failure to interview Lockett. On from appeal the circuit dismissing court’s order defendant’s petition an evidentiary hearing, without this court determined that, since the State had a filed motion to dismiss Lockett’s allegations the factual petition, defendant’s circuit court true, taken and must be as affidavit Accord- petition. do so in had failed to its dismissal evidentiary an the cause for ingly, this court remanded trial regarding claim Lockett’s hearing as to defendant’s of trial to claim of ineffectiveness testimony and as Lock- failure to interview regarding counsel ett. remand, counsel filed post-conviction
On turn the State discovery, requesting motion for (2) (1) case, exculpatory any over its file on the and all (3) and the personnel in the possession, evidence State’s Michael the assistant Hynes Kelly, of John and files The circuit Attorneys prosecuted State’s who defendant. (1) (2), and denied it the motion as to but granted court subpoenas as counsel also issued Defendant’s (OPS) the Office of Conduct for its files Professional City’s quash The counsel filed motion to Maslanka. motion, hearing City’s At a on the counsel subpoenas. eight revealed that records contained subpoenaed Maslanka, against five which were complaints completely sustained and three of were unfounded. which find- granted quash, circuit court counsel’s motion to The ing reviewing no basis for Maslanka’s file. court also request take the denied counsel’s Maslanka, Hynes, Kelly, and Nicholas depositions Panarese, attorney. defendant’s trial counsel evidentiary hearing, post-conviction
At the then entire affidavit and asked Lockett review her it if true. replied asked the affidavit was Lockett cross-examination, Lockett On testified was. saw that she
morning shooting “gloomy” could tell face for less than a second. She gunman’s height male that he was a dark-skinned black of medium nearsighted Lockett that she is and build. testified wearing her when she the man walk glasses was not saw *8 out of her building. When asked if she remembered tell- ing a detective who interviewed her the next day that she had never before seen the man who walked out of apartment, downstairs Lockett stated that she could not prosecutor remember. The noted paragraph 10 of affidavit, Lockett’s which stated that at date, a later Lockett seeing remembered a man on the block who looked like the man she saw after the shootings. Lockett that, admitted in a 1999 videotaped interview gave she counsel, she said that she did not remember that part of her affidavit.
Regarding the lineup that Lockett viewed after the shooting, she testified that she did not tell Maslanka that defendant was of the same height, build, and color as the man she saw walk out of her building. Lockett admitted that she could have trial, so testified at the but she did why know she so, would have done as the man who walked out of her building after the shooting was darker than defendant. Lockett remembered testifying at trial in the lineup she saw “one young man that looked like he fit the height and description.” She also remembered that she testified that the man who refused to put sunglasses on the matched the height weight of the man she saw leave her building. Lockett did not recall testifying that thought she the man she picked out of the lineup gunman; was the she said he “could have been” and he had the same “height, build and color.” Lockett stated that the reason she did not testify at the trial the gunman had a darker skin color than the man she picked out of the lineup was because “[they] didn’t ask said, [her].” Lockett then “I don’t I know. can’t remember ten years ago. It’s been long time.”
Lockett trial, recalled that at defendant’s she was asked if the police said anything prior her to viewing the lineup. She answered they told her not to be until her, and to wait could not see afraid, the men making any before the screen” into men “came hearing evidentiary at testified Lockett identification. a year about office Attorney’s the State’s that she called relocat- help on trial, seeking Kelly’s at testified after she longer no However, Kelly was apartment. ing to another *9 from the State’s and no one Attorney an State’s assistant her state- Regarding relocate. helped her Attorney’s office by never contacted that she was in her affidavit ment defense, for the working investigators or any attorneys in her 1999 hearing that evidentiary admitted at the she counsel, she post-conviction with interview videotaped she uncertain to whom that she was stated “probably” could that she She testified years ago. to 10 spoken Kelly. than Lock- anyone other talking remember to others, she to but spoken could have ett stated that she at the eviden- also testified not remember now. She does in her af- “could have” stated tiary hearing that she recognizing gunman remembered fidavit she counsel post-conviction told neighborhood. from the She remember that she did not videotaped in the interview testimony at the in her In her saying that affidavit. saw this hearing, Lockett stated she evidentiary afraid. and she became months after the trial man a few However, Kelly. or police did not call she Cook investigator former Jasper,
Vernon office, that he assisted testified County public defender’s He does not recall in defendant’s trial. defense counsel being or investigation his during Lockett interviewing Jasper testified do defense counsel. so requested defendant’s working no recollection that he has forgotten interviewed Lockett He could have case. it. about Chicago police
Maslanka, 24-year veteran were as- partner he and his testified that department, defendant. that included for Lockett signed lineup to do After viewing the men the lineup, Lockett told Maslanka that defendant had the physical same appear- ance and complexion gunman. as the Maslanka denied saying anything try get Lockett to pick defendant out of the lineup.
On the hearing date, next counsel moved to reopen his cross-examination of Maslanka on the grounds of newly discovered material relating to judgments certain against the City of Chicago resulting from incidents which Maslanka allegedly “tortured victims.” Counsel alleged that at least two settlements had been obtained against Maslanka the City of and/or Chicago. Counsel alleged that Maslanka had been investigated by the Office of Professional Standards (OPS) at least once and that he had been suspended by the Chicago police department for misconduct in one case. When the circuit court asked counsel what relevance this had to case, counsel replied that the is- sue is whether Maslanka falsified his police report leave out what Lockett had and, told him in these other cases, Maslanka omitted from police reports the fact *10 that he had participated in the torture of several suspects. The circuit court characterized allega- counsel’s against tions Maslanka conclusory as and irrelevant and denied the motion.
In his motion for additional discovery regarding Maslanka, defendant identified six incidents of alleged physical subjects abuse of in custody. The alleged motion that lawsuits had been filed and that at least two judg- ments were obtained against Maslanka City and/or Chicago. alleged Defendant that Wiggins’ Marcus lawsuit alleged torture and police report falsification and that Wiggins obtained a settlement of the suit. Defendant also alleged that Donald Torrence physical filed suit for abuse and failure to follow established procedures and obtained addition, a settlement. defendant alleged others, Burnett, Tyrone City sued and the including Maslanka Chicago prosecution for false arrest and malicious alleged a settlement. Defendant further obtained in Wig- for “misconduct” suspended Maslanka the State had commit- gins case. 83, 87, Brady ted a violation of 373 U.S. Maryland, 1194, (1963), L. Ed. 2d 83 S. Ct. 1196-97 failing to turn over this evidence to Maslanka’s prior testimony evidentiary at the hearing. counsel,
In an affidavit filed by post-conviction Tor- rence stated 1988 Maslanka and another officer him at and that him accosted his home Maslanka struck on the head with gun his while Torrence was hand- $2,100. cuffs. Torrence filed suit and settled the case for affidavit, In another Raymond Mack stated that Maslanka and another officer him forced to don sun- glasses and a cap during multiple Mack lineups. stated that, doing so, after he did anyone not look like else in the lineup. Tyrone Burnett stated an affidavit that he in July was arrested 1996 and that Maslanka deliberately drove police Burnett, car into causing serious injuries. Burnett filed a lawsuit that was later settled. The circuit court denied defendant’s motion.
At the continued evidentiary hearing, Nicholas Pana- rese, counsel, trial testified that he tried numerous times to interview Lockett. On the first at- tempt, Panarese investigators, went with his two Vernon Jasper Smith, and Mort apartment. Lockett’s Lockett declined to talk to them. called Panarese Lockett on the telephone times, two or three attempting to interview However, her. himself, as soon as he identified Lockett would refuse to talk to him. Panarese did make any written memoranda of attempts his failed to interview Lockett. He did not question Lockett at the trial about her refusal to talk to him about the case. Neither did he question Lockett about the State’s offer to relocate her. *11 may did want to into the fact that “get
Panarese she may or not have threatened.” denied be- been Panarese at defendant for him ing angry filing complaint against with the Attorney Registration Disciplinary Commis- questioned sion. Post-conviction counsel also Panarese behalf, about his bill for rendered on defendant’s services that Panarese had noting requested approximately $23,000 and that this amount had reduced been $7,600 trial Panarese testified that judge. approximately requested investiga- of this amount was to reimburse his tors. Panarese did not make note on his bill of the time to Lockett he was not spent trying he interview because objections circuit court able to talk to her. The sustained to about bill and about questioning further Panarese’s any previously whether court had found that Panarese had ineffective assistance of counsel. provided Kelly Michael Attorney
Former Assistant State’s him gave exculpatory testified that Lockett no informa- during prior tion his interviews with her to the trial. She complexion did not tell him that defendant’s was not as gunman. Kelly dark as that of the She did not tell Kelly her recognized gunman neighborhood. she from suggest any way did not to Lockett how she should told him that she had been threatened testify. Lockett On cross- relayed and he information to Panarese. examination, asking testified that he did not recall Kelly if that would tend to show any Lockett she had evidence defendant’s innocence. The circuit court sustained had questions asking Kelly whether objections State’s it interviewing a “drill” for witnesses and whether would if to ask Lockett she had evidence customary have been Objec- defendant’s innocence. that would tend show counsel’s tions were also sustained (1) he asked asking questions Kelly as whether they any if in defendant’s case police witnesses (2) innocence, it tending evidence to show *12 (3) Kelly’s so, was to do and it was practice part office policy, Attorney police State’s to ask officers if they any exculpatory Objections had evidence. were post-conviction also sustained to questions counsel’s as Kelly to whether would if have told Panarese Lockett Kelly had told complexion defendant’s was not as dark as that of the gunman. filed a petition post-judgment for relief
under section 2—1401 of the Code of Civil Procedure
(735
(West 2000))
ILCS
in
he alleged
which
5/2 —1401
that on
5, 1999,
November
counsel
discovered new evidence that
Hynes,
John
a prosecutor
at defendant’s trial and now an associate judge, had a
jury
record of bias in
selection
from
stemming,
two cases
Hynes
prior
tried
to defendant’s case. Defendant’s source
for
newly
this
discovered evidence was an
appear-
article
in
ing
Chicago
Tribune. That
Hynes
article noted
had failed to reveal on
application
County
Cook
associate judge two appellate court
reversing
decisions
defendants’ convictions due to violations of Batson v.
Kentucky,
79,
476 U.S.
69,
90 L. Ed. 2d
consisted of 10 Caucasians (1) convictions and vacatur of defendant’s requested tion (3) (2) claims, sentence, on his leave to hearing death to add post-conviction petition amend or supplement (4) jury selection claims, transcripts additional and Batson mentioned in the hearings in the two cases articles. newspaper motion to dismiss the section
The State filed a motion, on the State’s hearing 2—1401 At the petition. untimely where argued petition was the State petition trial was concluded grounds no and defendant filed 2—1401. of limitations of section two-year toll the statute 2—1401 purpose that the section argued also State *13 that were a to raise factual matters party is to allow that, judgment time of the to the court at the unknown of known, have rendition prevented would they had been Batson violation is not an and that judgment the petition. 2—1401 for a section a valid basis the Batson consider the circuit court could argued that Brady the granted matter. The circuit court as a issue conclusion of Following the State’s motion dismiss. filed a counsel evidentiary hearing, post-conviction the rulings its the circuit court to reconsider asking motion hearing to include evidentiary of the scope as to the alleged Batson and the against Maslanka allegations of Hynes. prayer prosecutor former violations amend defendant’s motion, leave to requested counsel his allegation an to include petition post-conviction Brady violations, depriving thus had committed State fundamentally and a process of to due right defendant Brady that no viola- circuit court found fair trial. The hearing After the motion. and denied tions had occurred defen- counsel, circuit court denied arguments it stating petition, dant’s and that Lock- testimony witnesses considered the
277 credible, noting was not that her testimony ett’s “memory testifying poor.” and manner while here was
ANALYSIS I. Post-Conviction Petition (725 Hearing The Act ILCS Post-Conviction 5/122—1 (West 2000)) a seq. provides remedy whereby et defen may challenge dants their convictions or sentences People violations of federal or state constitutional law. v. Towns, 491, (1998); Tenner, 2d 182 Ill. 502 v. 175 People (1997). 372, Ill. 2d A post-conviction 377 action is a col lateral and proceeding appeal underlying not an from the (1999). judgment. 55, v. Williams, 186 Ill. 2d People The purpose proceeding inquiry is to allow into relating constitutional issues to the conviction or not, sentence that were could been, and not have determined appeal. on direct v. 178 Ill. 2d People Griffin, 65, (1997); 72-73 People v. 165 Ill. 2d Mahaffey, (1995). Thus, judicata res bars consideration issues that were and raised decided on direct and appeal, issues presented that could have been on direct but appeal, were not, Towns, are considered waived. 182 Ill. at 2d 502-03.
At an evidentiary hearing, is on burden to make substantial showing depriva tion of rights constitutional circuit court’s deci will not it manifestly sion be disturbed unless is errone Childress, People 168, 174 (2000); ous. v. People Ill. Griffin, term “manifest error” “clearly evident, plain, means error that is *14 Ruiz, indisputable.” People 368, v. 177 Ill. 2d 384-85 (1997). Scope Evidentiary
A. Hearing argues Defendant right that he was denied his to due by the him process circuit court’s failure to afford a full evidentiary and fair hearing postconviction peti- on his argues tion. He that his cross-examination of State’s 278 the court. He also by limited improperly was
witnesses refusing post- erred that the circuit court argues discovery. requests for counsel’s conviction Maslanka Detective its the circuit court abused that argues Defendant cross-examination by reopening discretion question counsel to to allow Maslanka cases. misconduct other allegations him about the evidence claims mo- to show that Maslanka’s was admissible misconduct necessary means were dus to use whatever operandi “torture, suggestive victims, including to convict his perjury.” police reports, false lineups, discretion to court has wide the circuit We note a post- it admit at of evidence will type limit Montgomery, v. hearing. People evidentiary conviction (1994). defendant has A criminal Ill. 2d 113 the wit right to confront constitutional fundamental to conduct right him and this includes against nesses has the The defendant cross-examination. a reasonable bias, interest, or motive into a witness’ right inquire Davis, Ill. v. testify falsely. People however, (1998). must to impeach, used The evidence something has the witness to an inference give rise the evidence testimony. Accordingly, or lose gain Bull, v. Ill. People uncertain. remote or must not be 179, 206 (1990), a Davis, 3d 1001 App. People groin in the what defendant officer kicked police from himself attempt protect an said was officer to ar attempt officer’s resisting the defendant, who was to cross- trial, attempted At rest him. pend and one one concerning prior the officer examine excessive the officer used alleging rights civil suit ing no had received The officer an arrest. making force in department. police from the or reprimand suspension
279 The circuit court objection sustained State’s to this questioning because there had disciplinary been no ac against tion taken the officer in the suit that had been settled and the pending suit was not related to the Davis, defendant’s case. Ill. App. 3d at 1003. On ap peal, defendant argued that the circuit court erred in restricting officer, his cross-examination noting that he had a right constitutional to impeach the officer on the issues of bias or testify falsely. motive to The ap pellate court noted that evidence showing bias must be direct and positive, not remote or uncertain. The court observed that the officer had not suspended been or reprimanded regarding the allegations the two civil suits. Mere evidence of a civil against suit an officer charging some breach of duty unrelated to the defen dant’s case is not admissible to impeach Davis, the officer. 193 Ill. App. at 1005.
In case, another People Cameron, 189 Ill. App. (1989), sought to use a pending civil suit against a police officer to impeach the officer’s testimony. suit, the civil plaintiff accused the officer of misidentifying him person as the who had delivered a controlled substance to a confidential infor mant. The defendant contended that the pendency of the suit showed bias on the officer’s part gain favor from the State by testifying favorably Cameron, to it.
App. 3d at 1002. The appellate that, court noted while it has been held to be error to refuse defendant’s request to impeach a State’s witness with evidence of pending but unproved criminal charges bias, to show no case had held the same regarding pendency mere aof civil suit against a law enforcement officer charging misconduct unrelated to the defendant’s case. The court found that any alleged incentive on the part officer’s to give favor able testimony because of the pending civil suit was remote and Likewise, uncertain. evidence of the suit propensity inadmissible to show the officer’s
would be may impeach be used to Only himself. convictions perjure of the of witness; of the actual commission evidence Cameron, App. Ill. 3d at 1002- inadmissible. fense is 03. to be Davis sought material used impeachment proposed to that which defendant is similar
and Cameron contrast, *16 In cross-examining in Maslanka. to use here distinguish that conclude are defendant cites cases we 95 Ill. 3d Phillips, App. v. People able from his case. (1981), charged attempted was with the defendant off-duty police an of against offenses murder and other the officer contended that he shot ficer. The defendant at the brandishing weapon his the officer was because that the of the defendant feared brother and defendant’s that at the trial showed would shoot. Evidence ficer court denied the The circuit was intoxicated. officer the officer about request to cross-examine defendant’s The police department. from the suspensions 15 prior his to whether this relevant argued had was weapon justified displaying was the officer shooting true. was the officer’s account whether court appellate at 1019. The App. 95 Ill. Phillips, trial, finding error for a new and remanded reversed the officer question to allow the defendant the refusal rejected The court suspensions. prior about his was suspensions argument that evidence State’s noted The court to the defendant. remote and unrelated by a desire to been motivated could have that the officer Also, termination. possibly or suspension another avoid have been he could injuries, the officer’s severe given medical insur retain his testify falsely to motivated to Ill. App. Phillips, coverage compensation. ance at 1021. Robinson, Ill. People also relies was convicted (1977), in the defendant which 3d 832
App. court denied the a officer. The circuit striking police concern to cross-examine the officer request investigating charges the FBI ing evidence that force, especially used excessive frequently the officer ques also persons. black The defendant wished against instances specific tion the officer about evidence excessive force allegedly employed which the officer year, the officer during previous and evidence that suspended by police department had been conduct unbecoming Robinson, App. an officer. 56 Ill. 3d at 834. rejected argument court the defendant’s appellate concerning investigation evidence of the FBI’s and of the However, it held that specific past officer’s violent acts. to introduce permitted the defendant should have been the officer had been concerning evidence fact from at time of trial for com suspended his duties an act of violence and resume mitting was scheduled to duty days may given active few later. This fact have further testify falsely suspen officer motive to avoid held, The court disciplinary sion or other measures. however, Robinson, the error was harmless. *17 3d at 840.
App. Adams, Finally, App. defendant cites 259 Ill. People (1993), in the defendant convicted of 3d 995 which possession of a controlled substance. The circuit court request police denied defendant’s to cross-examine a of given ficer who had an affidavit for a search warrant upon based information received from a confidential informant. The defendant contended that the officer had himself in his affidavit. The defendant was perjured action questioning any barred from the officer about him, currently against any the lawsuit police department court, completed he any drug testing in federal or pending month after the defendant’s arrest. approximately one of cocaine positive presence officer had tested for the The from the suspended police and He was amphetamines. Adams, force at the time of the trial. Ill. App. 3d at 1000-01. The appellate court reversed and remanded for a new trial. The court held that the defendant should have been allowed to question concerning officer his illegal use, drug suspension police depart from the ment, against and the civil him. pending suit The court noted that it is well drug established Illinois that ad diction has an important bearing upon credibility of a pres witness and that evidence that the officer was ently suspended police may from the department provide him testify falsely with a motive to to avoid further Adams, action. at disciplinary App. 3d 1004. proposed relevance of the cross-examination Robinson, Phillips, and Ad- officers involved in police ams sharply contrasts with defendant’s desired cross- case, complaints examination of Maslanka. this against Maslanka and the him as a naming lawsuits any defendant did not inference that Maslanka provide testify favorably had a motive to to the State or to perjure at al- evidentiary hearing. himself Defendant has not him in man- leged physically any that Maslanka abused only duty lineup ner. Maslanka’s was to conduct Lockett. The to explore civil suits defendant wishes do concern in conducting lineups. not Maslanka’s actions Likewise, Mack, by Raymond affidavits submitted Torrence, Burnett, Tyrone alleged Donald and which on Maslanka’s are not relevant part, misconduct credibility. Only Maslanka’s Mack that Maslanka him in him placed suggestive lineup by forcing after do- put sunglasses cap. Mack stated that so, he did like in the ing anyone lineup. look else us, is different from the one before Mack’s situation sunglasses on all the men in the placed where Maslanka on. lineup only put refused them We hold, therefore, court did not abuse its circuit cross- refusing reopen discretion Maslanka’s *18 him about question so that defendant could examination these irrelevant matters. Panarese
Trial Counsel in that the circuit court erred argues (1) as to him cross-examine Panarese to allow to refusing trial, rendered at the in bill for services the reduction his (2) alleged any for or make note of his his failure to bill (3) trial, any to or whether prior to call Lockett attempts ineffective as- provided court had found that Panarese making argument, of counsel. In his sistance Robinson, and (Phillips, on the same three cases relies Adams) regarding he cited the circuit court’s refusal cases are reopen Maslanka’s cross-examination. These that defendants in those inapplicable. matters directly to raise were relevant to the issues sought cases Here, in those cases. defendant has failed to show how the reduction Panarese’s bill for his trial work had anything to do with the issue of whether Panarese failed Lockett. It a trial court to interview is unusual for reduce a fee made The fact request by appointed counsel. the trial case reduced Pana- judge at the rese’s bill has no relevance to the issues raised evidentiary hearing. Similarly, the fact that Panarese failed to bill for or make a note of his attempts give contact Lockett does not rise to an inference that falsely Panarese testified that he tried but was unable to contact Lockett. It must be noted Lockett testified evidentiary at the hearing she could not remember talking anyone except Kelly, the then assistant State’s Lockett did not Attorney handling who was case. testify Panarese, did not talk to that she only she Further, post- could not remember to him. talking did, fact, conviction counsel Panarese about question charge the reduction of fee and his failure to calls and Panarese answered telephone unsuccessful these Trial have discretion to restrict questions. courts *19 repetitive
cross-examination that is unduly or harassing. Prevo, v. (1999). People 1038, App. 1048 As to defendant’s complaint that the circuit court should have him question allowed to regarding Panarese any ineffectiveness, prior findings of this was collateral matter no having relevance to the issues at the eviden- tiary hearing. We fail to see how such evidence would give rise to an inference that Panarese was ineffective this case. To counsel, establish ineffectiveness defen- i.e., the Strickland standard, dant must meet he must representation show counsel’s fell objec- below an tive standard of reasonableness and that defendant was prejudiced thereby. See Strickland v. Washington, 466 668, 687-88, 694, 674, 693, 698, U.S. 80 L. Ed. 2d 104 S. 2052, 2064, Ct. 2068 Defendant failed to meet this standard. reject argument We also had he been allowed to question Panarese on these mat- ters, Panarese would have been discredited and Lockett’s credibility increased. Lockett did testify unequivo- cally that she did not talk to Panarese or his investiga- tors. She testified that may others, she have talked to addition Kelly. credibility to Lockett’s would not have been enhanced had post-conviction counsel been allowed to delve into these collateral matters. Attorney Kelly
Assistant State’s Defendant argues that the circuit court improperly (1) Kelly restricted his cross-examination of as to whether Kelly considered it exculpatory Lockett could not (2) positively identify defendant as the perpetrator, whether there policy Attorney’s the State’s of they fice to ask witnesses if had evidence that would be exculpatory, Kelly and whether himself had such a policy, (3) Kelly’s understanding of his obligation under United Supreme States Court cases and our Rule 412 (188 412). that, Ill. 2d R. had he contends matters, question Kelly Kelly’s been allowed these
285
and Lockett’s
been discredited
credibility would have
disagree.
credibility enhanced. We
prosecu-
Court held
Supreme
Brady,
request
defense upon
over
tion is
turn
required
and a failure
to the accused
that is favorable
any evidence
where
process
in a denial of due
to do so results
In United
or to
guilt
punishment.
material
evidence is
342, 351,
97, 107, 49 L. Ed. 2d
427 U.S.
States Agurs,
duty
held that the
2392,
(1976),
Court
96 S. Ct.
request
no
where there has been
applies
to disclose
even
Bagley,
In United States v.
exculpatory
evidence.
490,
3375,
481,
Ct.
87 L. Ed.
S.
U.S.
(1985),
duty
held that
to disclose
Court
exculpatory
includes
evidence as well as
impeachment
*20
exculpatory
to
information
Brady
applies
evidence.
also
prosecutor. Kyles
the
and
to the
only
police
known
to
not
490, 505,
419, 433-34,
U.S.
L.
514
131
Ed.
Whitley,
1555,
Brady
requires
115
rule also
S. Ct.
1566
any
the
to learn of
favorable
prosecutor
individual
govern-
evidence
to
on behalf of the
acting
known
others
437,
ment in
case.
514
at
131 L. Ed. 2d at
Kyles,
the
U.S.
508, 115 Ct. at
if a reason-
S.
1567. Evidence is material
that,
probability
able
had the
been
exists
evidence
disclosed,
the proceeding
the result of
would have been
L.
at
U.S. at
Ed. 2d
Bagley,
different.
Rule 412 the of information the governs disclosure 412(f), to defense. Rule the prosecution the Under must flow of information prosecution ensure free investigative and its office sufficient personnel between all information relevant to place possession to its within 412(f). the 2d R. charged. and offense Ill. accused Kelly had an to look obligation Defendant contends that Kelly’s understanding and that evidence exculpatory Brady his and Rule 412 went obligations under However, heart of defendant’s case. post-conviction explain proposed questioning defendant fails to how Kelly would been have relevant to the issue Lock- credibility evidentiary hearing. ett’s at Lockett did testify gave any exculpatory that she evidence to Kelly. Kelly testified that Lockett’s interviews were police reports. consistent with the in information police Kelly told Lockett both the and man she lineup height, build, identified had the same perpetrator. color questioning as Defendant asserts further Kelly would have discredited him and Brady tended show that violation occurred. This Nothing remotely statement suggests is baseless. in the record prosecution Brady that the committed a viola- attempts question Kelly tion. Defendant’s on these properly by collateral matters were rebuffed the circuit court. Rulings
Discovery argues deny- that the circuit court erred ing discovery regarding his motions for Maslanka’s al- leged cases, misconduct in other ineffective-assistance against Brady Panarese, claims violations prosecutors. trial
“The discovery rules for neither civil criminal nor cases proceedings apply Hearing under the Post-Conviction Nonetheless, [Citation.] Act. the circuit has court inherent discretionary authority discovery to order proceedings. courts, however, [Citation.] Circuit must authority exercise this with caution because post-conviction proceedings only afford limited review of constitutional *21 trial, not presented potential claims at and there is a for discovery process post-conviction proceed abuse the in result, ings. [Citation.] As a the circuit should court allow discovery only moving party ‘good after the demonstrates discovery for request. [Citation.] cause’ a We will not request discovery a disturb circuit court’s denial of an post-conviction proceedings absent abuse of discretion.” Fair, People v. 193 Ill. 2d 264-65 cause good he argues that demonstrated Defendant misconduct, Pana- showing Maslanka’s with the evidence Kelly did not bill, and evidence that padding rese’s of his However, obligations. his and Rule Brady understand allegedly impeaching that already have held this we the issue of and collateral material was irrelevant did this evidence Accordingly, credibility. Lockett’s discovery. cause for further provide good B. Alleged Brady Violation not turn over complains that the State did Defendant against Maslanka allegations counsel the to his trial torture, falsifica- concerning police report unrelated cases tion, procedures, lineup failure follow established trial, or al- at the time the suggestiveness existed In light that came to after the trial concluded. legations scope of his to reconsider the the prayer motion amend hearing, sought leave to his evidentiary petition to include a claim that State failing to the al- Brady violation in reveal committed motion, legations regarding denying Maslanka. violation had oc- Brady circuit court ruled no curred. argument the same on this issue repeats
Defendant impeachment he earlier value of regarding made held, As the evidence already this material. we have and collateral these was irrelevant concerning allegations in its for an by to the identified this court remand issues at trial or at hearing. Questioning Maslanka evidentiary allegations evidentiary hearing concerning these impeach testimony about would not have tended the allega- he conducted for Lockett. Most of lineup suspects abuse alleged physical tions involved he custody. alleged has never Raymond Mack al- Although mistreated Maslanka. in a put sugges- affidavit that Maslanka him leges in his to wear only person forced tive where he was lineup *22 288 a
sunglasses cap, and in the instant case all the men in lineup sunglasses on, the were asked to put because Lock- ett told the man police the she saw the leaving scene sunglasses. of the shooting wore All the men complied request Thus, with the except any suggestive- defendant. that may ness have infected the lineup was not due to Maslanka, but to defendant’s refusal to put the A sunglasses. Brady only violation occurs where the evidence is material or guilt punishment. Material- ity is shown where a probability that, reasonable exists disclosed, the evidence been result proceed- the been ing 682, would have different. 473 at Bagley, U.S. 494, 87 L. Ed. 2d at Ct. allegations 105 S. at As the 3383. against any Maslanka were irrelevant issue involved case, in the duty any State had no to reveal of this information. We therefore conclude that the circuit did in denying court not err defendant’s motion.
II. Section 2—1401 Petition Although a section 2— 1401 petition usually is may characterized as a civil remedy, it also be used in 437, criminal cases. v. Ill. People Haynes, 192 460-61 (2000). Section 2—1401 provides statutory a procedure permitting judgments vacatur of final and orders after 30 1401(a) (West days entry. from their 735 ILCS 5/2 — 1998). A proceeding under section 2—1401 a forum in is “ occurring which ‘to correct all in errors fact cause, prosecution of a the petitioner unknown to known, at the then trial, which, court time if would ” Berland, v. prevented judgment.’ have People 286, (1978), v. quoting Ephraim People, 13 Ill. 2d (1958) 456, 458 (construing section 72 the former Civil (Ill. 72)). 110, Act 1981, par. Practice Rev. Stat. ch. petition entry must be filed within two years following challenged petitioner unless judgment, makes a clear showing legal disability that he was under a or or grounds People duress of relief were concealed. (1997); ILCS Caballero, Ill. 2d 210-11 5/2— 1998). 1401(c) (West under entitled to relief sec To be allegations sup forth must set petitioner tion 2— (1) claim or of meritorious the existence porting: (2) claim or defense; diligence presenting due (3) action; original circuit court defense petition 2—1401 diligence filing the section due *23 Airoom, Inc., 114 Ill. 2d 220-21 relief. Smith v. Weaver, 226 Ill. & v. (1986); Zion State Bank Trust Mt. court’s reviewing a circuit 3d 785 When App. case, in a criminal petition on section 2—1401 ruling the circuit standard of review is whether the appropriate at 461. Haynes, 192 Ill. 2d court abused its discretion. evidentiary hearing began, After defendant filed the discovered alleging newly a section 2—1401 petition, a claim under Defendant supporting evidence Batson. discovered, in the through claimed that he an article court, Tribune, the two Chicago appellate that cases, involving Batson former separate found violations Attorney Hynes, one of the Assistant State’s John cases, one at defendant’s trial. In of these prosecutors Walls, (1991), v. 220 Ill. the defendant People App. 564 four involving venireper Batson violations black challenges on a peremptory sons. Prosecutors had used persons, appel total six four of whom were black. prosecutors’ explanations late court found that the Walls, 220 Ill. challenges pretextual. App. these were quote in a once in the Hynes’ at 574. name is mentioned Walls, Ill. 3d at App. court decision. 572. appellate Morales, case, App. 3d 162 People the second (1999), peremptory its 16 chal the State exercised appeal On after lenges against minority venirepersons. remand, seven of the State’s challenged the defendant challenges appellate Batson. The violating as peremptory trial, finding and a new that court reversed remanded for Mo- Batson violations. challenges two of the seven were rales, App. Ill. 3d at 178-79. There is no mention of Hynes appellate the court’s reported decision. Defen dant that failed Hynes reported contends to disclose these decisions in application for an judgeship. associate
On appeal, he argues that is entitled to a Batson hearing. He argues the personal characteris- tics of the five black women the Asian woman stricken the jury from State’s use of its peremp- tory were challenges “indistinguishable” from those of the five white women who served on the jury two white women who served as alternates. Defendant argues further this fact raised an inference that State used its peremptory challenges exclude the black and Asian venirepersons on the basis their race and gender. We note that did trial counsel raise a Batson objection State’s use of peremp- its tory challenges. Appellate counsel did not raise the issue of ineffectiveness appeal. trial counsel direct Although post-conviction issue, counsel raised pursued claim was not appeal from the dismissal of petition. argues Hynes’ failure to disclose *24 Walls and Morales judicial decisions his application concealment, constituted fraudulent thus the tolling two- year of statute of limitations section 2—1401. To make a concealment, showing successful of the fraudulent “allege demonstrating defendant must facts that his op affirmatively attempted ponent prevent discovery to grounds of purported for relief and must offer factual allegations demonstrating good faith and reasonable diligence in to trying uncover such matters before trial period.” People McLaughlin, or within the limitations Ill. App. 324 918 It is well established fraudulent concealment two- sufficient toll the year period limitation “affirma requires statute designed prevent discovery tive acts or representations Bi ground for relief.” Crowell v. of action or of the cause (1980) (construing section landic, 81 Ill. Act). Civil Practice of the former alleged defendant 2—1401 petition, In his section the Walls and Morales he could not have discovered not men- earlier, Hynes’ name was decisions because However, opinion. Hynes’ published tioned either in a which quote is in fact mentioned Walls name in that case. prosecutors him as one identifies The decision sentenced in 1990. Walls was no reason year a later. Defendant offers published was this decision could not have been discovered within why 2—1401. two-year period limitations section place after defendant years concealment took nine tried, It cannot be said convicted, sentenced. was from attempting anything to conceal Hynes at that point. defendant argues Hynes if brief,
In his even reply affirmative his role in engaged in no acts conceal opinions, exception requirement two an to this appellate clearly established. fiduciary relationship exists where a is Crowell, Ill. 2d at 428. Defendant asserts that See Hynes, fiduciary duty as a prosecutor, disclose need in the and Morales cases. We his involvement Walls section this because defendant’s argument, not address fiduciary of a petition allege 2—1401 did not the existence petition A Hynes. himself and relationship between if it filed 2—1401 will not be considered is under section years following entry judgment, more than two legal dis showing a clear petitioner unless makes duress, for relief were grounds or that ability, Caballero, 2d at 210-11. Defendant has concealed. Thus, here. we conclude showing failed to make such in dismissing did err that the circuit court petition. 2—1401 section
CONCLUSION court’s Accordingly, judgment we affirm the circuit *25 denying defendant’s petition and its judg- dismissing ment section petition. defendant’s 2—1401 The clerk of this court is directed to an enter order set- ting Wednesday, January 15, 2003, as the date on which sentence death entered in the circuit court of Cook County, shall be carried out. Defendant shall be executed (725 (West in the provided by manner law ILCS 5/119 —5 2000)). clerk of this court shall send certified copy of the mandate to the of Corrections, Director to the warden of Tamms Center, Correctional and to the warden of the institution where defendant is now confined.
Affirmed. part JUSTICE RARICK took no in the consideration or decision of this case. KILBRIDE,
JUSTICE dissenting: For in People v. my the reasons set forth in dissents (2001) Hickey, 585, Ill. (Kilbride, J., 2d 636-40 dis People Simpson, v. senting), Ill. 581-85 (2001) (Kilbride, J., I dissenting), believe that defendant’s convictions sentence be should set aside because the proceedings trial not were conducted accordance with the new supreme governing capital court rules cases. As dissents, my I stated in procedures capital cases prior adoption to this court’s new rules were inher ently unreliable and did sufficiently protect reason, rights. constitutional For this new People applied retroactively. rules should be See Caballero, Therefore, 220-21 I respectfully dissent.